Military pension was marital asset

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The parties’ marital separation agreement is best understood as providing that husband’s military pension was a marital asset. Therefore, wife is entitled to 50 percent of the pension “when a military retirement is earned by Husband.”

The trial court correctly denied husband’s request for attorney fees. Further, neither party is entitled to appellate attorney fees.

Overview

The parties separated after a 10-year marriage and, using a template, drafted their own MSA. Key to this appeal is “Section 8, which is titled ‘SPOUSAL SUPPORT’ and states that husband ‘shall pay to Wife spousal support in the sum of zero dollars’ for a period of ‘N/A.’

“This section further provides that ‘[a]lso, Husband agrees that Wife shall have 50% of his military retirement, when a military retirement is earned by Husband.’”

Other provisions stated that personal property has “already been divided.” The agreement also contained an integration clause.

There were no spousal support provisions in the divorce decree. Husband was not retired from the military when the MSA was drafted and when the divorce decree was issued in 2010. He is still on active duty. Wife remarried in 2012.

In the trial court

In 2020, wife applied for half of husband’s military pension. Husband responded, “arguing that under Section 8 of the MSA, husband’s military retirement was a spousal support award that terminated upon wife’s remarriage in 2012. Husband also requested attorney fees.”

Wife asserted that “husband’s military retirement pay should be considered marital property subject to equitable distribution, not spousal support. Husband filed a motion in limine to exclude parol evidence, arguing that the MSA was unambiguous.”

The trial court ruled that the MSA was unambiguous and that parol evidence was not needed. The court classified the pension as spousal support and that her right to 50 percent of it ended when she remarried.

The court also ruled that each party was “responsible for their own attorney fees.”

Wife appealed.

MSA interpretation

“Wife contends that the trial court erred in: (1) determining that the contract (MSA) was clear and unambiguous on its face; and (2) interpreting the MSA as providing for spousal support despite the contradictory language employed by the parties.

“We agree with the trial court that the MSA is clear and unambiguous on its face, but we reverse the court’s classification of husband’s military retirement pay as spousal support.

“We hold that the MSA classifies husband’s military retirement as a marital asset subject to equitable distribution. …

“[N]o language in the MSA suggests that disbursements from the military retirement were intended to function as spousal support. Nothing in the MSA suggests that the payments were intended to go to wife immediately after the divorce for a specific period of time, and there is no language that suggests the payments were intended to maintain wife in the manner to which she was accustomed during marriage.

“Rather, under the language of the MSA, all military retirement payments are to be paid to wife at some unspecified time in the future.

“It is difficult to imagine how payments in the future could effectively function as spousal support to maintain a present lifestyle to which wife is accustomed or provide for her current necessities or personal circumstances.

“Clearly, the payments were intended to function as marital property to be distributed at some time in the future after they were earned. …

“The MSA also specifically states, “spousal support in the sum of zero dollars,” which we read as awarding wife spousal support in the sum of zero dollars today, tomorrow, and any future date. The subsequent paragraph reads, “[a]lso, Husband agrees that Wife shall have 50% of his military retirement, when a military retirement is earned by Husband.” “Also” means “in addition to.” We look again to the plain meaning of each word. Reading the agreement using the plain meaning of “also,” the agreement states that in addition to “spousal support in the sum of zero dollars,” wife shall have 50% of the husband’s military retirement when earned by husband. This language shows that the parties’ intention was not for husband to give the retirement pay to wife in place of spousal support, but rather is a separate provision giving ownership of the retirement pay to wife. This language thus shows that the parties intended to classify the retirement pay as marital property.”

No conflict

There is a potential conflict because the pension provision was under the spousal support section.

“We note, however, that ‘[w]hile labels may be helpful in determining contractual intent, they are not controlling.’ …

Placing the pension provision under the MSA’s spousal support section “is the only fact that suggests the parties intended the military retirement to function as spousal support.

“In contrast, federal law permitting veterans and their spouses to treat military retirement pay as marital property and all of the language in the agreement suggests that the parties intended the military retirement to be classified as marital property subject to equitable distribution.

“We therefore hold that because the parties clearly intended to qualify the military retirement as an asset subject to equitable distribution, wife is thus entitled to 50% of the military retirement and maintains the right to collect her share of that marital property, despite her remarriage.”

Other issues

“Wife also argues that the trial court erred in prohibiting the introduction of parol evidence. Because we hold, above, that the agreement is clear and unambiguous on its face, we disagree.”

When, as in this case, the written document is unambiguous and is fully integrated, “parol evidence is barred. Therefore, we hold that the trial court did not error in prohibiting the introduction of parol evidence.”

As to attorney fees, “Rule 3:25(b) requires a party to state in his responsive pleading the basis for recovery of attorney fees. The claim is waived unless leave to file an amended pleading is granted.”

In this case, husband did not seek attorney fees until after the trial court made its ruling. Under rule 3:25, he has waived him claim for attorney fees.

Concerning appellate attorney fees, “‘[s]ince this litigation “addressed appropriate and substantial issues,” and “neither party generated unnecessary delay or expense in pursuit of its interests,”’ we deny both parties’ requests for an award of attorney fees and costs incurred on appeal.”

Affirmed in part, reversed in part and remanded.

Schillmoeller v. Younkle, Record No. 1165-21-4, Feb. 14, 2023. CAV unpublished opinion (Causey). From the Circuit Court of Fairfax County. (Gardiner). Michael D. Defricke, Virginia C. Haizlip for appellant. Michael C. May for appellee. VLW 023-7-081, 13 pp.