Agreements - § 6-2

§ 6-2    Ambiguity/Construction

2016 --- Allen v. Allen, 66 Va. App. 586
When interpreting a contract, the court assigns reasonable meaning to the words and clauses in the contract and assumes that no word or clause is without purpose. The trial court did not err in finding that the parties’ postnuptial agreement, which provided that Husband would not “pursue a dissolution of the marriage for a period of twenty years,” did not bar Husband from immediately seeking a divorce. The contract, when read as a whole, indicated that the intent of the parties in entering the contract was to ensure that Wife maintained health insurance coverage under Husband’s employer-provided insurance plan, not to bar Husband from obtaining a divorce for twenty years.

2016---McDaniel v. Griffith, Va. Ct. of Appeals, Unpublished, No. 0597-15-3
The trial court erred in finding ambiguity in the parties’ premarital agreement, which provided that the parties would “build a home” and that each would pay one-half of the construction costs. By construing the agreement to require each party to obtain the other’s input or approval before making any decisions concerning the building of the home, the trial court effectively added a term to the contract that was not contemplated by the parties.

2015---Sabio v. Sabio, Va. Ct. of Appeals, Unpublished, No. 1099-14-4
The trial court erred in admitting parol evidence of the parties’ intended meaning of the phrase “marital share” as used in the parties’ property settlement agreement regarding the division of certain retirement accounts. The agreement, construed in its entirety, unambiguously expressed an intent to apply Code of Virginia § 20-107.3(G)(1)’s definition of “marital share.”

2015---Brandenstein v. Brandenstein, Va. Ct. of Appeals, Unpublished, No. 0249-15-4
The trial court erred in finding that a provision in a marital settlement agreement setting forth a formula for calculating spousal support was ambiguous. Where the formula required the use of only two numbers in any given year, and those numbers were obtainable by reference to particular boxes on Husband’s K-1 schedules, the provision was not ambiguous.

2015---Everett v. Carome, 65 Va. App. 177
The trial court erred in refusing to admit parol evidence regarding a settlement agreement’s terms where its reading of the agreement resulted in ambiguity such that, one way or another, the agreement was in violation of established case law.

2014---Quinn v. Irons, Va. Ct. of Appeals, Unpublished, No. 0851-14-4
The trial court did not err in concluding that the parties’ property settlement agreement was unambiguous. Property settlement agreements are contracts and are subject to the same rules of construction that apply to contract interpretation. Whether contract language is ambiguous is a question of law. When construing a contract, courts give ordinary words their ordinary meaning. A contract term is not ambiguous merely because the parties disagree as to the term’s meaning. Here, the agreement’s provision in question required Wife to “retain” the children’s college savings accounts. The word “retain” means to keep something in place, hold possession of, and not to not abolish, discard, alter, lose, or dismiss. Thus, the trial court properly found that agreement unambiguously required Wife to hold or keep the college savings accounts for the children, not to liquidate the accounts or treat them as her own separate property.

The trial court did not err by refusing to consider parol evidence that Wife offered to interpret her obligations under the agreement’s college savings provision. When contract terms are contained in a clear and explicit writing, that writing is the sole memorial of the contract and the sole evidence of the agreement.

2014---Caldwell v. Caldwell, Va. Ct. of Appeals, No. 2108-13-3
The trial court did not err in finding that the parties’ separation agreement required Husband to provide Wife health insurance and to pay the premiums and unreimbursed medical expenses for an unlimited duration because the agreement clearly omitted a termination date for Husband’s obligation.

2012---Robinson v. Robinson, Va. Ct. of Appeals, Unpublished, No. 0694-12-2
Trial court did not err in ruling that the equity in the marital residence should be determined as of the date of sale to a third party or the date on which husband purchased wife’s interest in the home, rather than the date on which the parties executed their settlement agreement. The parties’ agreement provided for a “50/50” split of the equity in the residence, but did not specify a date for the determination of that equity. “According to rules of construction, ‘courts cannot read into contracts language which will add to or take away the meaning of words already contained therein.’” (citing Rutledge v. Rutledge, 45 Va. App. 56 (2005)).

2012---Goodwin v. Goodwin, Va. Ct. of Appeals, Unpublished, No. 1413-11-2
The trial court erred in requiring wife to reimburse husband for certain educational expenses incurred on behalf of the parties' daughter. Though the parties' settlement agreement required reimbursement, the expenses at issue were paid by husband prior to the parties entering into the agreement, and the agreement contained no provision or language indicating that wife's obligation for educational expenses was retroactive to dates or expenses incurred prior to the full execution of the agreement.

The trial court did not err in holding wife in contempt for failing to fulfill the obligation contained in the parties' settlement agreement that she cooperate in facilitating husband's refinance and payment to her for real property owned by the parties. Wife refused to sign a deed conveying her interest in the property, as was necessary for husband to obtain the refinance, on grounds that she would be required to sign and tender the deed prior to receiving the payment from husband from the refinance. While the settlement agreement did not expressly require wife to do so prior to receiving her payment, nothing in the agreement expressly required husband to make the payment prior to her signing the deed. The clear intent of the agreement was for husband and wife to cooperate facilitating the transaction, in no particular sequence. The trial court did not err in finding that wife failed to do so by refusing to sign and tender the deed prior to receiving payment.

2012---Bousman v. Lhommedieu, Va. Ct. of Appeals, Unpublished, No. 0932-11-4
The trial court did not err in construing the parties' settlement agreement to require husband to pay one-half of child's college education. The agreement contained two paragraphs, one dealing with the child's high school education, and the other dealing with college expenses. The paragraph dealing with high-school education required the parties to each pay one-half of the child's high school education, except that, in the event that husband disagreed with wife's choice about where the child would attend school, husband would not be required to pay. The following paragraph, which set forth each party's obligation to pay one-half of college expenses, did not contain a similar provision allowing husband to refuse payment if he disagreed with where the child attended college.

2012---Parsons v. Parsons, Va. Ct. of Appeals, Unpublished, No. 1051-11-4
The trial court did not err in considering the parties’ marital residence in equitable distribution, despite language in the pre-marital agreement purporting to waive all rights to equitable distribution.  Although the agreement contained a waiver by each party of all rights to equitable distribution, it contained an express exemption from that waiver any property acquired jointly “with an intent that the joint ownership vested an interest in each party.”  Because the marital residence was jointly titled, the trial court properly found that such titling evidenced a clear intent by the parties that joint ownership vested an interest in each party, and thus, properly considered the residence in equitable distribution.

2010---Trimble v. Trimble, Va. Ct. of Appeals, Unpublished, No. 2394-09-4
Trial court erred in applying the principle of "expressio unius est exclusio alterius " to hold that wife was not required to pay directly to husband the full $148,495 for his interest in the marital residence pursuant to the parties' settlement agreement regardless of whether the proceeds from the sale of the marital residence were sufficient to cover that amount. The parties' settlement agreement stated that wife shall pay husband $148,495 for his share of equity in the residence by a date certain, and that if she had not paid husband by that date, she would list the residence for sale and hold husband harmless from any debts that weren't able to be paid from the sales proceeds. The agreement was silent with regard to wife's obligation to pay husband the full $148,495 in the event that the sales proceeds were insufficient to cover the direct payment to husband. The Court of Appeals held that the because wife's obligation to pay husband directly was clearly laid out elsewhere in the agreement, the principle of expressio unius est exclusio alterius did not apply.

2010---Schuman v. Schuman, Va. Ct. of Appeals, Unpublished, No. 0631-09-4 (April 20, 2010)
The trial court erred in holding that provisions in an agreement, entered into by husband and wife prior to marriage for purposes of estate planning, applied in a divorce context, despite a separate provision in the agreement providing for the incorporation of the agreement into any order of divorce. Although the agreement was properly incorporated into the divorce decree as per its terms, each of the property-related provisions of the agreement specifically stated that the plan of distribution called for was to be implemented in the event of the death of one or both parties, not in the event of divorce. Thus, the trial court erred in applying those property distribution provisions to equitably distribute the property at issue.

2009---Nervo v. Nervo, Va. Ct. of Appeals, Unpublished, No. 2809-08-3
Trial court erred in finding that the language contained in the parties' settlement agreement did not establish a precondition to wife's obligations under the agreement. The agreement obligated Wife to purchase husband's interest in a marital business within 90 days, "subject to her obtaining final approval of her financing." The agreement also required wife to pay husband a deposit on that purchase, and further provided that "should wife not close on the transaction as specifically set forth herein, she shall forfeit to the husband the...deposit." The use of the term "subject to" created as a condition precedent to wife's obligation to purchase the property her obtaining financing. Her inability to obtain financing would thereby relieve her of that obligation. "A condition precendent calls for the performance of some act, or the happening of some event after the terms of the contract have been agreed upon, before the contract shall take effect." De la Rosa Herrera v. Martin, 49 Va. App. 469 (2007). Furthermore, the use of the term "as specifically set forth herein" in the provision regarding wife's forfeiture of the deposit was sufficient to incorporate the same precondition of wife's obtaining financing into the forfeiture provision. Thus, wife's inability to obtain financing relieved her of both the obligation to purchase as well as the forfeiture of her deposit.

2009---LaLuna v. Birchell, Va. Court of Appeals, Record No. 2267-08-2 (May 26, 2009) (UNPUBLISHED OP)
Provision in marital agreement providing that “In event that Husband’s employer corporation fails…thereby eliminating Husband’s ability to be employed by the corporation, Wife shall receive as spousal support a sum equal to 20% of Husband’s W-2’s and K-1’s” was unambiguous, and demonstrated parties’ intent that spousal support payments be recalculated each year using Husband’s most recent W-2’s and K-1’s, rather than calculated once based on Husband’s W-2’s and K-1’s from his last year of employment with the corporation and subsequently held constant for the remainder of the ten-year payment term. The intent was made apparent by the parties’ use of tax documents which are generated on an annual basis, as well as the language tying the spousal support payments to husband’s income, and therefore, his ability to pay.

2009---Hinerman v. Hinerman, Va. Ct. of Appeals, Record No. 2343-08-4 (April 14, 2009)
Trial court did not err in refusing to find ambiguity in parties Property Settlement Agreement, where one provision stated that Wife was to "maintain" the property for up to 12 months after the agreement, and another stated that Wife was to "pay and keep current the property taxes, insurance, and trust payments" until the property sold. "Maintain" means to "care for property or purposes of operation, productivity or appearance; to engage in general repair and upkeep," (citing Black Law Dictionary). Thus, the provision requiring Wife to "maintain" the property for up to twelve months was not contrary to the provision stating that Wife's financial obligations would continue until the property was sold.

2009---Stroud v. Stroud, 54 Va. App. 231
Settlement Agreement provision providing for termination of spousal support "upon cohabitation...in a situation analogous to marriage" is not self-executing. A provision is self-executing only when the triggering event is empirically determined, such as a date certain, reaching a specific age, or death. Provisions that require subjective determinations, such as elements of proof, interpretation, or witness credibility, cannot be self-executing simply because of the need for judicial resolution. The terms "cohabitation" and "analogous to marriage" have a precise legal meaning, and are therefore subject to judicial interpretation. Only if and until a court makes such a determination, is husband entitled to discontinue making support payments under the terms of an agreement.

2008---McKee v. McKee, 52 Va. App. 482 (2008)
Provision in settlement agreement that Wife would "indemnify and hold Husband harmless from any liability" for mortgage payments on the marital home, which Wife received as part of the Agreement, did not prevent Wife from including the mortgage payments as reasonable housing expenses for purposes of determining spousal support. Such a provision merely assures that Wife bears the obligation of the debt by requiring her to indemnify Husband for any claims made by the mortgage creditor in the case of default. The "indemnify and hold harmless" provision applies to each spouse's rights surrounding liability to the mortgage creditor, and in no way limits either spouse's right to seek spousal support under Va. Code §20-107.1.

2008---Stacy v. Stacy, 53 Va. App. 38
A trial court's interpretation of marital agreements is an issue of law that the Court of Appeals reviews de novo.

Trial court erred in treating Husband's mortgage payment obligation pursuant to a Property Settlement Agreement as spousal support under Va. Code §20-109, based solely on language stating that the mortgage payments were "in the nature of support" and thus non-dischargeable in bankruptcy. Having expressly and definitively waived rights to demand or receive spousal support in the preceding paragraph of the Property Settlement Agreement, language prohibiting discharge in bankruptcy did not evidence intent by the parties that the mortgage obligation be construed as a spousal support obligation. A contract is not ambiguous merely because the parties disagree as to the meaning of the terms used, Plunkett, 271 Va. 162 (2006).

2008---Nadolski v. Nadolski Va. Ct. of Appeals, Unpublished, No. 1781-07-2
Trial court erred in finding husband liable for full payments on wife's new mortgage of $207,000, where the separation agreement entered into by the parties provided that "husband would assist wife in obtaining a home up to a value of $150,000." The agreement stated that if wife purchased a home of greater value, husband agreed to pay only 20% of the down payment, up to $30,000. Husband also agreed to pay mortgage payments for 12 months. While the provision regarding mortgage payments contained no monetary limitation, construing the agreement to hold husband liable for mortgage payments regardless of the purchase price of the home acquired by wife would give husband potentially infinite liability on the mortgage payments and would thus render the monetary limitations on the purchase price contribution meaningless. 

Trial court did not err in including taxes and insurance resulting from wife's purchase of a new home within husband's liability, pursuant to the settlement agreement entered into by the parties, for mortgage payments.  Evidence revealed that taxes and insurance were necessarily included in wife's mortgage payments, which demonstrated that the parties intended the term "mortgage payment" in their agreement to include taxes and insurance. 

2007---Concannon v. Gladstone , Va. App. Unpublished,

As with contracts, interpretation questions concerning property settlement agreements are subject to a de novo review on appeal.  If all the evidence necessary to construe a contract was presented to the trial court and is before the reviewing court, the meaning and effect of the contract is a question of law which can readily be ascertained by the Court of Appeals. 

Trial court erred in holding that wife's failure to secure a loan pursuant to the parties' property settlement agreement constituted a breach, and thus erred in appointing a special commissioner to secure said loan on behalf of wife.  The settlement agreement provided for alternative payment methods should wife "fail" to obtain a loan within 90 days.  Despite efforts, wife was unable to secure the loan, thus triggering the alternative payment provisions, which did not include the appointment of a special commissioner or any other method by which to force wife to obtain the loan.  As the term "fail" was not defined anywhere in the agreement, the trial court erred in reading into the agreement additional requirements as to the number or nature of "good faith efforts" on wife's part for obtaining the loan.    

2006---Martin v. Martin, 2006 Va. App. Unpublished, 546
Wife failed to demonstrate that a marital separation agreement was unconscionable but rather merely alleged a disparity in the value exchanged.  Moreover, provision in the agreement that Husband would have exclusive right and possession of the marital property and all equity therein was not ambiguous.

2006---Miller v. Miller, Va. Ct. of Appeals, Unpublished, No. 1168-06-3
Trial court did not err in denying Wife's motion to increase spousal support.  The term that each party would be responsible for his/her medical insurance premium, as found in the property settlement agreement, was not ambiguous.  Even though Wife's medical insurance costs increased, she was not entitled to an increase in spousal support under the terms of the agreement she signed while represented by counsel. 

2006---Plunkett v. Plunkett, 271 Va. 162
Where Husband and Wife executed a marital agreement and mutual reciprocal wills, the trial court erred in considering extrinsic evidence pertaining to the agreement and in imposing a constructive trust.  The terms of the agreement and will incorporated therein were not ambiguous.  The spouses intended to leave their property first to the surviving spouse, and then to Husband's children.

Where the terms of a contract are clear and unambiguous, the contract is construed according to its plain meaning. "A contract is not ambiguous merely because the parties disagree as to the meaning of the terms used."

2005---Vilseck v. Vilseck, 45 Va. App. 581
Absent the necessity to consider extrinsic evidence, appellate courts review trial court interpretations of contractual texts de novo because the Court has an equal opportunity to consider the words within the four corners of the disputed provision.

Virginia law resolves contractual vagaries in one of three ways:  First, if no patent or latent ambiguities exist, a court should enforce the plain meaning of the contractual language without resort to extrinsic evidence.  Second, if an ambiguity exists, a court should still enforce the contract if the real meaning can be discerned from extrinsic evidence.  Third, if an ambiguity renders the alleged agreement too indefinite, even after the consideration of extrinsic evidence, for the court to determine the parties' intent, the contract cannot be enforced due to the absence of any discernable meeting of the minds.  (citing Smith v. Smith , 43 Va. App. 279 (2004).

Trial court erred in finding the text of a premarital agreement to be unambiguous with regard to "separate property."  A provision in the "recitals" section of the Agreement suggested that "separate property" was to be limited to property owned by either party prior to the marriage, but a later provision defined separate property to mean "property of each of the parties...now owned or hereafter acquired," which suggested an alternative intent to place more than just the premarital property of the parties outside the reach of equitable distribution.

2004--- Smith v. Smith . 43 Va. App. 279
Virginia courts resolve contract vagaries in one of three ways. First, if no patent or latent ambiguities exist, a court should enforce the plain meaning of the contractual language without resort to extrinsic evidence. Second, if an ambiguity exists, a court should still enforce the contract if the real meaning of the ambiguous provision can be discerned from extrinsic evidence. Third, if an ambiguity renders the alleged agreement too indefinite, even after the consideration of extrinsic evidence, for the court to determine the parties' intent, the contract cannot be enforced due to the absence of any discernable meeting of the minds.

In order for a court to declare the contract meaningless and to justify the conclusion that there was no meeting of the minds and that the contract accomplished nothing, "indefiniteness" must reach the point where construction becomes futile.

Trial court erred in setting aside the following provision of a premarital agreement as "less than clear" and "imprecise": "Except as otherwise set forth in this agreement, all property - real, personal, and mixed - which each party may hereafter acquire in his or her own name or possession shall remain the separate property of that person, along with all future appreciation, increases and other changes in value of that property and irrespective of any contributions either party may make to the property of the marriage, directly or indirectly." Furthermore, neither party contested that any ambiguity existed, nor argued that the contract failed to rebut the marital property presumption. While the consistent interpretation o f both parties of the intent of the provision was not binding on the court, it should have been given considerable weight.

2003---Hale v. Hale, 42 Va. App. 27
Trial court erred in finding that the settlement agreement entered into by the parties contemplated the equal division of husband's pension plan only, rather than the equal division of the both his pension 401K plans. The Court of Appeals held that the intent embodied in the agreement was that both plans be divided equally, based on the following: (i) use of the heading "DISTRIBUTION OF PENSION BENEFITS," which was plural rather than singular; (ii) the reference in the provision itself to husband's "vested pension plan with his employer to which wife would have a claim of equitable distribution," coupled with the facts that both plans were through husband's employer and presumably subject to equitable distribution; and (iii) a general statement in the agreement that the parties intended "the settlement of their property rights."

2002---Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624
Contract language is "ambiguous" when it may be understood in more than one way or when it refers to two or more things at the same time.

2000---Allsbury v. Allsbury, 33 Va. App. 385
Trial court did not err in holding that the language in the parties' settlement agreement which provided wife a portion of husband's state department pension benefits "regardless of marital status to the extent allowable by federal law" was intended to ensure that wife received the benefit notwithstanding subsequent remarriage, which, in the absence of the language in the agreement, would have disqualified her from receiving the benefit under the federal law governing the pension plan. The federal law governing the plan allowed parties to waive the remarriage disqualifier through agreement or court order. Furthermore, the Court of Appeals found that the agreement, when read as a whole, expressed a clear intent that wife receive the benefits regardless of what happened, as evidenced by numerous accompanying provisions preventing husband from subsequently taking action to reduce or eliminate the award.

2000---Campbell v. Campbell, 32 Va. App. 351
When the terms of a disputed provision are clear and definite, they are to be applied according to their ordinary meaning. 

2000---Pellegrin v. Pellegrin, 31 Va. App. 753
Wife's duty to obtain employment can be inferred from agreement even though not explicitly stated.

1999---Kelln v. Kelln, 30 Va. App. 113
Marital property can be transformed into separate property under the terms of a revocable trust agreement executed during a marriage. However, it is not enough to merely change legal title. Where the facts clearly and unambiguously support the conclusion that one of the parties has relinquished all right and interest in marital property and has transferred those rights unconditionally to the other, to the exclusion of the donor's continuing claim upon the property as a marital asset pursuant to Va. Code § 20- 107.3, a separate property right will be found to exist. Equivocal evidence of intent, including evidence of a purpose unrelated to the making of a gift, may defeat a claim that the property is separate. Where evidence of intent to relinquish all present and future dominion over the property so as to remove it from the marital estate is lacking, the presumption of Va. Code § 20-107.3(A)(2) that property acquired by either spouse during a marriage is marital remains unrebutted.

Trial court erred in classifying as separate property certain assets that were divided into equal shares and transferred during the marriage into two, separate inter vivos trusts owned by husband and wife, respectively. The agreement that set up the revocable trusts was clearly a mechanism intended to enable the parties to take advantage of certain tax code provisions in order to minimize federal estate tax liabilities upon either party's death, and did not express an intent by either party to make a "gift" to the other of the divided and transferred shares. The agreement lacked language of clear donative intent, and the fact that the trusts were revocable further rebutted the notion that either party had relinquished all rights and interest to the separate shares that were transferred into the other party's trust.

1999---White v. White, 257 Va. 139
Trial court erred in construing Husband's agreement to pay the mortgage on the marital residence in 120 equal installments to the bank as an obligation to pay spousal support after the mortgage debt was satisfied.  Husband ceased paying monthly mortgage payments when Wife sold house and used the proceeds to satisfy the remaining mortgage debt.  Despite language in final divorce order characterizing the incorporated agreement as "an agreement...with respect to maintenance and support," the agreement contained no provision for Husband to make payments to Wife, and evinced no intent by the parties that the obligation would survive the satisfaction of the mortgage debt, regardless of the manner in which the debt was extinguished.   

1998---Douglas v. Hammett, 28 Va. App. 517
Trial court did not err in awarding wife reimbursement for incidental expenses for child's attendance at college pursuant to an agreement by parties that husband would pay "the expenses of a college education for the child." Husband contended that "expenses of a college education" should be strictly construed to mean tuition, books, room and board, and any other fees necessary to participate in the educational program, but should not have included additional moneys provided to the child by his mother for incidentals, clothing, meals, and a computer which were not covered by the child's athletic scholarship. However, the Court of Appeals held, under the "plain-meaning rule," that the term college expenses also includes expenses for clothing, allowances, and incidentals. Although the parties did not specify in their agreement precisely what expenses would be related to the education, or what should happen due to the child's receipt of a full athletic scholarship and attendance for five instead of four years, husband put no limitation on his obligation to pay the expenses. The Court held that it was reasonable to include some amount of ordinary living expenses in determining the normal expenses for a college education.

1996---Jackson v. Harley, Va. Ct. of Appeals, Unpublished, No. 2138-95-3
Language in parties' settlement agreement stating that "should each of the parties decide to send any or all of their children to college, said educational expenses will be provided by the parties on a pro- rated basis of his or her income," clearly contemplated that both husband and wife must agree for each child to attend college before either party would be obligated to pay college expenses for that child.

1996---Davidson v. Davidson, Va. Ct. of Appeals, Unpublished, No. 1588-95-2
General provision in property settlement agreement that provided for the "mutual release and discharge" of "any and all causes of action, claims, rights, or demands whatsoever in law or equity" did not operate, by itself, as a waiver of Wife's right to seek divorce based upon adultery.

1995---Nicholson v. Nicholson, 21 Va. App. 231
General language in the parties' settlement agreement stating that the parties "desire to effect a full and complete settlement of their respective property rights;" that the parties agree that each has "the right to sell or otherwise dispose of any and all property, which he or she may now or in the future own personally (and not listed herein) without demand being made upon either of them;" and that the parties each "relinquish and release to the other all rights...that he or she may have in the property hereinafter acquired by either of them" did not constitute an express waiver, pursuant to 22 U.S.C. §4054(a), by wife of all rights to share in husband's Foreign Service pension. Although a general waiver or release may be sufficient if, from the terms of the agreement, the parties' intent to include pension or retirement benefits is clear and unambiguous, the settlement agreement of the parties here did not mention the pension or any other retirement accounts, either generally or specifically.

1995---Southerland v. Estate of Southerland, 249 Va. 584
Marital agreements are contracts and are subject to the same rules of construction that apply to the interpretation of contracts generally.

1992---Dziarnowski v. Dziarnowski, 14 Va. App. 758
Ordinarily, time is not "of the essence" of a contract unless made so by its terms or unless it is an element of a mere condition precedent. Even where time is of the essence, a breach of contract in that respect by one of the parties may be waived by the other party's subsequently treating the contract as still in force.

Wife's failure to supply income documents by the date required by the parties' settlement agreement did not cause her to waive her rights to spousal support under the agreement, where she provided the documents one month after the deadline. The agreement did not specifically state that time was of the essence. Furthermore, by making an additional spousal support payment and a demand for the income documents after the deadline, husband waived wife's non-compliance with the deadline.

1990---Davis v. Davis, 239 Va. 657
The trial court did not err in holding that a provision in the prenuptial agreement entered into by the parties did not preclude wife from attaching husband's separate property for purposes of satisfying a judgment for spousal support arrearages. The provision stated that either party may use or transfer separate property "free from any claim that may be made by the other party by reason of their marriage." The court rejected husband's argument that, because a claim for spousal support was a claim "made by the other party by reason of the marriage," wife had no standing to attach his separate property to recover spousal support arrearages. Instead, the court construed the provision to be a mutual waiver of any property interests that might accrue "by operation of law" to one party in the property of the other "by reason of the marriage," and held that, since spousal support is not a property interest and accrues only upon proof of entitlement rather than "by operation of law," the provision did not apply to cause a surrender of the parties' respective rights to claim and to prove entitlement to spousal support. Thus, wife was not precluded from attaching husband's separate property for purposes of recovering a judgment for spousal support arrearages.

1989---Shepherd v. Colton, 237 Va. 537
Unless absolutely necessary, a contract should not be construed to contain provisions impossible of performance

1989---Dean v. Dean, 8 Va. App. 143 (1989)
Wife's general waiver of her rights to equitable distribution, spousal support, and attorney's fees in the parties' settlement agreement did not alone constitute a waiver of her legal title or rights to jointly owned property, where the agreement did not address such rights. To read the agreement of the parties otherwise would require the court to read into the contract language which added or took away from the meaning of the words contained therein.

1986--- Smith v. Smith, 3 Va. App. 510
Property Settlement Agreements are contracts and subject to the same rules of interpretation as other contracts.

1984---Wilson v. Holyfield, 227 Va. 184
The guiding light in the construction of a contract is the intention of the parties as expressed by them in the words they have used, and courts are bound to say that the parties intended what the written instrument plainly declares.

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