THE CIRCUIT COURT OF HENRICO COUNTY Richard S. Wallerstein,
P. Walsh (Denbigh Law Center, on briefs), for appellant.
M. Poss (Defazio Bal, P.C., on brief), for appellee.
Present: Judges Humphreys, O'Brien and Malveaux Argued at
GRACE O'BRIEN JUDGE.
Edward Jones ("husband") appeals the court's
failure to award him attorney's fees from Lori Michelle
Gates ("wife") pursuant to a property settlement
agreement. Specifically, he contends:
The trial court erred in denying [husband]'s motion for
an award of attorney's fees and costs incurred in the
successful defense of [wife]'s attempts to have entered
various drafts of a Military Qualifying Court Order each of
which were found to be in conflict with the provisions of the
parties' written agreement which was incorporated into
the Final Decree, where the Agreement of the parties
specifically provided that, ". . . any such costs
incurred by a party [in] the successful defense [to] any
action [for] enforcement of the agreements, covenants, or
provisions of [the] Agreement shall be borne by the party
seeking [to enforce compliance]."
no error, we affirm the court's ruling.
December 30, 2013, the parties entered into a property
settlement agreement ("the agreement")
establishing, among other provisions, that "Wife shall
receive one-half of the marital share of Husband's
military retirement accounts/plans. Such division shall be
done by QDRO, ADRO, or other required mechanism. The costs of
preparing the paperwork shall be at Wife's expense."
The agreement also addressed the costs of enforcement as
(a) Husband and Wife agree that any costs, including, but not
limited to counsel fees . . . incurred by a party in the
successful enforcement of any of the agreements, covenants,
or other provisions of this Agreement, whether through
litigation or other action necessary to compel compliance
herewith, shall be borne by the defaulting party.
(b) Husband and Wife further agree that any such costs
incurred by a party in the successful defense to any action
for enforcement of any of the agreements, covenants[, ] or
provisions of this Agreement shall be borne by the party
seeking to enforce compliance. The court incorporated the
agreement into the parties' final decree of divorce on
February 12, 2014. The matter remained on the docket for
entry of an order dividing husband's military retirement
30, 2014, the parties appeared before the court to enter a
Military Qualifying Court Order ("MQCO") dividing
the retirement benefits. Husband objected to the language of
wife's proposed order and submitted an alternative. The
court subsequently entered a modified version of wife's
order and reserved husband's request for attorney's
appealed the court's entry of the MQCO and failure to
award him attorney's fees. We held that the court did not
err by including language in the MQCO requiring husband to
indemnify wife in the event of merger or waiver, despite the
lack of an indemnification clause in the agreement. Jones
v. Jones, No. 0062-15-2, 2016 Va.App. LEXIS 29, at
*14-16 (Feb. 2, 2016). We further ruled that the court did
err by inserting certain injunctive provisions into the
order. Id. at ...