Agreements - § 6-3 - § 6-4

    § 6-3    Attorney’s Fees

2016---Lewis v. Lewis, Va. Ct. of Appeals, Unpublished, No. 1042-15-1
The circuit court erred in awarding Wife a portion of her attorney’s fees where the parties’ settlement agreement provided for an award of attorney’s fees only in successful enforcement proceedings. Although Wife initially pursued a show cause action against Husband in the juvenile court, the circuit court on the de novo appeal did not rule on the show cause, but instead reformed the parties’ agreement upon Wife’s request.

2015---Deluca v. Deluca, Va. Ct. of Appeals, Unpublished, No. 1158-14-3
In a proceeding to enforce the terms of the parties separation agreement, the trial court did not err in denying Wife’s request for attorney’s fees. Code of Virginia §20-109(C) provides that where the parties have executed a property settlement agreement prior to the entry of a final divorce decree, the trial court is prohibited from entering a decree or order directing payment of attorney’s fees unless it is in accordance with the terms of the agreement. The function of a court is to construe the contract made by the parties, not to make a contract for them. Here, the parties’ separation agreement provides that each party “shall pay his or her attorney’s fees and the parties shall equally divide the costs of any uncontested divorce proceeding . . . .” Although the agreement provides for fees in limited circumstances, it does not provide for attorneys’ fees specifically in enforcement proceedings. (Citing Rutledge v. Rutledge, 45 Va. App. 56 (2005)).

2015---Sabio v. Sabio, Va. Ct. of Appeals, Unpublished, No. 1099-14-4
The trial court did not err in refusing to award Husband the attorney’s fees he incurred seeking reimbursement of pendente lite attorney’s fees that the court erroneously awarded to Wife. The parties’ property settlement governed the issue, and the agreement only provided for the award of attorney’s fees to the prevailing party in an enforcement action. Neither party was before the trial court for an alleged breach or violation of the agreement.

2015---Everett v. Carome, 65 Va. App. 177

A settlement agreement’s provision that Wife was entitled to her attorney’s fees and costs should Husband ever seek to modify child support - regardless of who prevailed - was enforceable. Such a provision is not unconscionable and does not place an impermissible barrier to instituting a suit for modification.

2014---Quinn v. Irons, Va. Ct. of Appeals, Unpublished, No. 0851-14-4
The trial court did not abuse its discretion by refusing to award Husband his attorney’s fees associated with the enforcement of the parties’ property settlement agreement. An award of attorney’s fees is a matter submitted to the trial court’s sound discretion. During a show cause hearing, the trial court stated that it would award Husband his attorney’s fees, but deferred the matter to a later hearing. At the later hearing, the trial court reconsidered and reversed its earlier ruling, finding that neither party took an unreasonable or sanctionable position. Although the trial court initially determined it would award attorney’s fees, that decision was not final. Therefore, the issue of whether to award attorney’s fees remained subject to the trial court’s sound discretion.

2014---Caldwell v. Caldwell, Va. Ct. of Appeals, No. 2108-13-3
The trial court did not err by awarding attorney’s fees to Wife based on Husband’s breach of the parties’ separation agreement. The agreement specifically provided that a defaulting party was liable to the non-defaulting party for “all expenses incurred by the non-defaulting party in connection with the enforcement of [the] Agreement, including, but not limited to, all legal fees….” The trial court expressly found that Husband failed to pay for Wife’s health insurance and unreimbursed medical expenses as required under the agreement. Furthermore, the trial court admitted, without objection, an affidavit setting forth Wife’s attorney’s fees.

2013--Howard v. Thompson, Va. Ct. of Appeals, Unpublished, No. 2264-12-4.
Where the parties’ Property Settlement Agreement provided attorney’s fees for a prevailing party in enforcement proceedings, the trial court erred in holding the Husband wholly responsible for Wife’s attorney’s fees where the Wife did not prevail on each motion before the trial court.

2013--Manson v. Manson, Va. Ct. of Appeals, Unpublished, No. 1224-13-4
Where a settlement agreement provides for attorney’s fees in specific instances, the maxim expressio unius est exclusio alterius implies parties’ intention to preclude an award of fees in other, not specifically-referenced instances.

2013---Harris v. Harris, Va. Ct. of Appeals, Unpublished, No. 0038-13-3
The trial court did not err when it denied Husband’s request for attorney’s fees associated with enforcing the parties’ property settlement agreement. Although the Agreement provided that a defaulting party would be liable for all expenses incurred by the non-defaulting party in the enforcement of the Agreement, the trial court found that wife’s challenge to the “validity, enforceability, applicability and construction” of the Agreement, and her requests for a fault-based divorce and equitable distribution contrary to the Agreement did not constitute an action to “enforce a breach or default” of the Agreement.

2012---Wright v. Wright, Va. Ct. of Appeals, Unpublished, No. 1314-11-4
The trial court erred in declining to award wife her attorney’s fees in a show cause action that wife filed to enforce the parties’ settlement agreement, where the agreement specifically provided for an award to a party who filed suit to enforce the agreement. In declining wife’s request, the trial court held that the matter involved “a close issue” and that “both parties made a good faith effort to resolve it.” However, the language in the parties’ agreement regarding attorney’s fees was unambiguous, and contained no exception for “good faith” or “close issues.”

2010---Hughes v. Hughes, Va. Ct. of Appeals, Unpublished, No. 2602-09-4
Trial court erred in denying wife's request for attorney's fees incurred in pursuing a show cause against husband for failure to pay child support where the settlement agreement of the parties' expressly provided that any non-breaching party would be entitled to costs and fees in any successful action to enforce the agreement.

2009---Hopkinson v. Hopkinson, Va. Ct. of Appeals, Unpublished, No. 0013-09-4
The trial court erred in awarding husband attorney's fees incurred in seeking a divorce from wife where the settlement agreement entered into by the parties provided for an award of attorney's fees only in the event of a breach of the agreement or in the event that a party successfully defended an action for the enforcement of the agreement. The express reference to attorney's fees in those two particular instances implies the preclusion of attorney's fees in other instances under the maxim expressio unius est exclusio alterius. The omission of a particular covenant or term from a contract reduced to writing shows an intent to exclude it.

2009---Stroud v. Stroud, 54 Va. App. 231
Husband not entitled to attorney’s fees for defending against Wife’s petition to enforce Property Settlement Agreement.  Provision providing for termination of spousal support upon “cohabitation…in relationship analogous to marriage” was not self-executing, and therefore did not entitle Husband to terminate support payments without seeking entry of a proper court order.  Upon Husband’s unilateral termination of payments, Wife had no choice but to seek judicial remedy, and doing so did not constitute a demand for support in contravention of the Agreement.  Thus, Husband was not entitled to attorney’s fees pursuant to the “Default” clause in the Agreement. 

2005---Figueroa v. Nelson, Va. Ct. of Appeals, Unpublished, No. 2221-04-4
Trial court did not err in requiring husband to pay $15,000 in attorney’s fees incurred by wife for her motions to modify visitation, child support, and her petition for show cause against husband, despite language in the parties’ settlement agreement that each party would be responsible for their own attorney’s fees in connection with any future matters. Courts have the power to award attorney’s fees incurred where contempt proceedings have to be initiated and conducted to enforce a prior order of the court, particularly in cases of child custody or child support. No contractual agreement regarding attorney’s fees prevents a court from awarding fees and costs in subsequent custody litigation in which one party is held in willful contempt of prior court orders.

2005---Rutledge v. Rutledge,  45 Va. App. 56
Trial court did not err in denying wife’s motion for attorney’s fees incurred in a spousal support modification proceeding, where the separation agreement between the parties provided for the payment of attorney’s fees only (i) for costs incurred in getting the divorce, and (ii) for any breach of the agreement.  When an agreement has been entered into by the parties, Virginia Code § 20-109(C) restricts a judge from ordering attorney’s fees except in accordance with that agreement.  Although wife contended that the court had the discretionary authority to award fees because the agreement was silent with regard to fees in support modification proceedings, the court found that express reference to attorney’s fees for only certain situations implied the preclusion of an award of attorney’s fees in other situations, under the maxim, expressio unius est exclusio alterius.

    § 6-4    Child Support

2016 --- Host v. Host, Va. Ct. of Appeals, Unpublished, No. 2134-14-4
A Settlement Agreement provision setting child support for the parties’ three children at $2,000 per month and specifying that such amount “shall not be reduced or terminated” based on where the children resided or the older children’s emancipation, and specifying that child support could be modified upward due to a change in circumstances but could not be modified downward was void ab initio. When child support is at issue, there are limits on what the parties can do by way of agreement. An agreement cannot preclude a court from exercising its power to decree child support. Because the parties’ final decree of divorce incorporated the void provision of the agreement, that provision of the decree was also void, regardless of the fact that the parties agreed to the provision and had abided by it for years.

2015---Everett v. Carome, 65 Va. App. 177
The trial court did not err in refusing to modify child support for the parties’ adult child where parties had agreed that child support would continue beyond majority. A court cannot modify support for a child who is no longer a minor simply because a settlement agreement requires payment of support after the child has reached the age of majority. Instead, there must be specific language in an agreement that clearly allows for modification of child support after the child turns eighteen or graduates from high school. In the absence of such language, the court’s jurisdiction to modify ends, per statute, when the child ceases to be a minor. A provision that provides a remedy to one parent if the other seeks a reduction in child support is not sufficient to grant the court jurisdiction to modify the support in the agreement.

2012---Devillier v. Devillier, Va. Ct. of Appeals, Unpublished, No. 0414-12-2
Although a consent order regarding child support specifically stated that it was "to be considered pendente lite in nature, and shall not create any presumptive effect in any subsequent support proceedings," the trial court nonetheless did not err in requiring father to prove that he had experienced a non-voluntary reduction in income to achieve a reduction in support.

In addition to the pendente lite language, the consent order also contained language indicating that father's non-voluntary reduction in income may . . . if proved by the [father], form a basis for a modification of support" in the future. The Court of Appeals upheld the trial court's rejection of father's argument that the "modification" language in the consent order applied only to modifications of that order during the pendente lite time period contemplated by the order itself.

2012---Virostko v. Virostko, 59 Va. App. 816
Where the parties’ settlement agreement provided that husband would pay an amount of child support “until the end of his current employment,” and thereafter “pay a percentage of his income that is agreed upon by [the parties], or the parties will let a court of competent jurisdiction decide the percentage,” the trial court properly rejected husband’s argument that the language entirely eliminated his support obligation from the time his employment ended until the parties or a court determined an appropriate amount.  Husband’s position violated that mandate of Shoup v. Shoup, 37 Va. App. 240 (2001), which prohibits any child support modification provision in a settlement agreement from terminating a parent’s duty to support his/her child.

Va. Code §20-109.1 allows parties to contract for future modifications of child support without returning to the court for approval, but only if the modification provision is self-executing.  If the modification provision is self-executing – meaning that it refers to objective standards for calculating support, such as the Child Support Guidelines or a stated formula – the parties need not obtain court approval for the modification to legally take effect.  If the provision is not self-executing, the parties must return to court to obtain approval of the modification.  In this case, the modification provision stating that the parties will either agree upon a new amount based on father’s income, or, assuming they cannot agree, they will return to court and let a court decide, points to no objective standards by which the parties could determine a new amount of child support.  Thus, the provision is not self-executing.

2011---Lewis v. Bailey, Va. Ct. of Appeals, Unpublished, No. 2596-10-1
Trial court did not err in denying mother’s request that father be required to pay tuition for private schools for the children. Under the parties’ initial settlement agreement, incorporated into a court order, the parties noted that the children would attend a particular Montessori School, and that the costs of said school had been factored into the child support guidelines. There was no language regarding different schools. In a subsequent agreement reached in mediation and incorporated into a court order, the father’s child support obligation increased, based on increased tuition at the Montessori School. Again, no language in that agreement addressed other schools. Thus, when mother moved the children to different private schools subsequent to the agreements of the parties, she could not rely on the agreements to establish that the father had agreed to pay for tuition at those schools.

2010---Azandeh v. Azandeh, Va. Ct. of Appeals, Unpublished, No. 1064-10-4
Provision in parties’ settlement agreement whereby wife agreed not to seek child support for ten years after divorce in exchange for husband’s agreement to forego the marital share of all assets was null and void, as it affected the trial court’s ability to modify child support for a ten-year period. The Court of Appeals noted that Wife’s retention of all of the marital assets pursuant to the agreement, despite the setting aside of the child support provision, did not constitute a windfall to wife.

2010--- Hughes v. Hughes, Va. Ct. of Appeals, Unpublished, No. 2602-09-4
Husband was not entitled to unilaterally reduce child support by half upon the emancipation of one of the children where the parties’ settlement agreement, though identifying emancipation as a material change on which a future reduction could be based, did not contain self-executing language setting forth precisely how the child support was to be modified upon the emancipation.

2009---Murphy v. Commonwealth of Virginia, Dep't of Social Srvc's, et al., Va. Ct. of Appeals, Unpublished, No. 1060-09-4
Trial court did not err in calculating father's child support arrearages using the unitary amount for both children for each month of nonpayment, despite the fact that the oldest child became emancipated approximately 18 months prior to the hearing. The parties entered into a settlement agreement which set a unitary amount of support for both children, and stated that "child support shall continue to be paid for a child until that child [becomes emancipated]." The agreement further stated that each party had a right to petition a court for a recalculation pursuant to Virginia law. The Court of Appeals found that such language regarding emancipation and recalculation was not self-executing, thereby leaving no specific language in the agreement for how the parties should recalculate support when the oldest child became emancipated. Thus, father owed the unitary support amount until a court entered an order modifying it, regardless of the emancipation of his oldest child.

2002---Riggins v. O’Brien, 263 Va. 444
A 1991 decree providing for child support and stating that the amount payable for child support shall be renegotiated or submitted to a court for adjudication on the first event of emancipation, as to each child, was valid and, because the parties did not obtain court approval of their renegotiations, Father was obligated to pay the arrearages and interest as determined by the trial court.

2001---Shoup v. Shoup, 34 Va. App. 347 
Parties cannot modify child support by agreement without prior court approval. 

2001---Shoup v. Shoup, 37 Va. App. 240
Cases involving Va. Code §20-109.1 place only three limitations upon parties’ rights to contract regarding child support. First, the court must review the provisions of the agreement for their consistency with the best interests of the child or children whose welfare the agreement addresses. Second, the parties may not, by agreement, prevent the court from exercising its power to change, modify, or enforce its decree concerning the custody and maintenance of minor children. Third, the parties cannot terminate by agreement a parent’s duty to support a child.

An agreement between the parties, incorporated into a court order, that allowed father to reduce his child support obligation each time a child emancipated and allowed the parties to adjust the amount of support each year based on child care expenses incurred, did not circumvent the court’s jurisdiction to enforce, modify, or intervene in matters of child support upon the petition of either party. Either party was free at any time to invoke the court’s jurisdiction to determine child support beyond the agreement. A rule requiring parents to return to court for approval of a renegotiated amount of child support, as provided in an agreement that has been affirmed, ratified, and incorporated into an earlier decree, would undermine the Commonwealth’s policy in favor of prompt resolution of disputes concerning child support.

2000---Riggins v. O’Brien, 34 Va. App. 82
Parties cannot modify court ordered child support by agreement.

2000---Looney v. Looney, 32 Va. App. 135
Mother agreed to reduced child support in agreement then asked for full guidelines support.  Court of Appeals affirmed trial court’s downward deviation in accordance with agreement.

2000---Goldin v. Goldin, 34 Va. App. 95
Where a contract between parties to provide child support after a child has reached the age of majority is incorporated into a court order, such contracts can only be enforced, not modified, by the court. However, with regard to provisions in such contracts for support of the child prior to reaching the age of majority, the court has the authority to modify support payments until the child reaches nineteen or graduates from high school, whichever occurs first.
Trial court did not err in reducing the monthly child support payable by husband for one of his minor children “until she reached age eighteen or age nineteen if still in high school,” despite the parties’ agreement, embodied in a prior court order, that husband would continue to support the child beyond the age of majority. Noting that the trial court lacked the authority to modify the parties’ agreement regarding post-minority support, the Court of Appeals held that, because the trial court’s order did not expressly terminate post-minority support for the child, it would not presume that the trial judge intended by implication to rule contrary to the parties’ agreement on that issue. Thus, the Court of Appeals found that the trial court did not address the issue of post-minority support by entering the order, and therefore did not err.
Trial court erred in terminating support for a twenty-year-old child where the agreement entered into by the parties’ required husband to continue paying support until the child reached age 23 or graduated from college, whichever occurred first. The trial court based its holding on the fact that the child no longer resided with either parent, and that the agreement between the parties did not provide for support in such circumstances where the child does not reside with the parent receiving support. However, the Court of Appeals held that the agreement expressly obligated husband to pay support after the child reached the age of majority, and contained no language conditioning husband’s obligation upon the child’s place of residence.

1998---Saleem v. Saleem, 26 Va. App. 384
Trial court erred in applying New York law in calculating guideline child support for purposes of father’s modification proceeding, despite the fact that the parties agreed in an addendum to their settlement agreement that any modifications would be addressed pursuant to the law of the state in which the children resided at the time. A contractual agreement between parties does not confer authority on the trial court to use a different procedure in establishing child support. The trial court was required, pursuant to Va. Code §20-108.1, to first establish a presumptive amount of support using the Virginia child support guidelines before considering any other factors pertaining to support, including an agreement by the parties. Though the parties’ agreement to use New York law in determining the support amount could be considered as a factor for deviating from the presumptive amount set forth by the Virginia guidelines, such agreement did not give the court the authority to consider the New York guidelines prior to first establishing a presumptive amount pursuant to the Virginia guidelines.

1996---Schlenk v. Schlenk, Va. Ct. of Appeals, Unpublished, No. 2757-95-4
The trial court erred in holding that father was in arrears for child support based solely on the fact that the language of the parties settlement agreement upon which father relied when temporarily reducing his support was not specifically recited in the final decree of divorce. The parties’ settlement agreement, which was incorporated into the divorce decree, allowed father to reduce his support when the children were in his custody. The divorce decree itself recited the monthly support amount, but did not specifically recite the reduction language of the agreement. Virginia law makes clear that where terms of a settlement agreement are incorporated into a decree, the agreement provisions are deemed to be terms of the decree, regardless of whether the decree recites them specifically. Thus, the trial court erred in basing its arrearage finding solely on the fact that the decree did not specifically recite the reduction language of the parties’ agreement upon which husband relied.

However, the Court of Appeals found the error to be harmless on “wrong reason, right result” grounds. The parties’ settlement agreement appeared to use the terms “visitation” and “partial custody” interchangeably, such that father’s six-week period of “custody” during the summer was merely “visitation,” rather than a divestment of mother’s primary physical custody. Thus, the language in the parties’ settlement agreement stating that father owed support only while the children were in the mother’s custody didn’t apply here, because the children were always in mother’s primary physical custody, despite father’s extended periods of visitation.

1996---Twinam v. Twinam, Va. Ct. of Appeals, Unpublished, No. 0765-96-4

A provision in parties’ settlement agreement which provided for modification by mutual consent did not contract away the children of the parties’ right to support, nor bar the court’s exercise of jurisdiction to determine support. Instead, it provided the parties with a means of resolving issues, including those related to child support, without returning to the court for approval. The ability of the parties to modify child support without first seeking court approval did not render the settlement agreement void ab initio.

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.

1995---Spagnolo v. Spagnolo, 20 Va. App. 736
Trial court erred in incorporating parties’ entire settlement agreement, including provisions related to child support, while simultaneously ordering a different amount of monthly child support than was called for by the agreement. The parties’ agreed that husband would pay a lower amount of monthly support than was called for under the guidelines, in exchange for husband’s agreement to pay college expenses after the children reached the age of majority. The trial court attempted to incorporate the parties’ agreement with regard to the college expenses while at the same time rejecting the lower monthly support amount agreed to as consideration for the post-majority obligations. Where the parties negotiate benefits for the child that exceed the benefits a trial judge may statutorily award and expressly state that the benefits are conferred in consideration for a reduction in the monthly support payment, if the trial judge decides to disregard the agreement and proceed under his statutory authority to make an award for child support, the remaining child support provisions cannot be incorporated by reference into the final decree. The trial judge must follow the agreement or the statutes (where they conflict), but not both.

1994 --- Kelley v. Kelley, 248 Va. 295
The provisions of a settlement agreement stating that “Husband shall never be responsible for child support;” that Wife would “never file a petition in any court” requesting support for the children; and that Wife would reimburse Husband for any amount of child support he might ever be required to pay, contracted away Husband’s legal duty to support his children and were therefore null and void.

1991---Alexander v. Alexander, 12 Va. App. 691
If the amount of child support is in dispute, in spite of a prior agreement, the trial court must determine the presumptive amount of child support in accordance with the child support guidelines contained in Va. Code §20-108.2. Once the presumptive amount is determined, the trial court may then deviate from the presumptive amount if such deviation is justified by the factors of Va. Code §§ 20-108.1 and 20-107.2. These factors may be reflected in provisions in the separation agreement which may, therefore, be the basis for deviating from the guidelines.

1991---Scott v. Scott, 12 Va. App. 1245
Trial court erred in ruling that it would deviate from the amount of child support fixed in a separation agreement of the parties only upon a showing by the husband that he could not possibly carry out the provisions of the separation agreement, and erred in holding that it would not deviate from the amount fixed in the agreement unless husband proved a material change in circumstances. When awarding child support and presented with a provision for child support in an agreement, a trial court need not award child support in the statutorily presumptive amount if a deviation is justified. However, it must determine the guideline amount and then may compare this amount with the provisions of the separation agreement, (emphasis added). If the factors of Va. Code §§20-107.2 and 20-108.1 justify an award based on the provisions of the agreement instead of the statutorily presumptive amount, it may then enter an award in the amount provided for in the agreement by affirming, ratifying and incorporating the agreement.

1979---Cutshaw v. Cutshaw, 220 Va. 638
The court held that where a contract to support the children after their minority was incorporated into a support decree by a divorce court, the court has authority to enforce, but not modify, the parties’ agreement.

1976---T. v. T, 216 Va. 867
An express oral contract for child support was established where, prior to marriage, husband promised wife, who was then-pregnant with another man’s child, that if she married him rather than moving and giving the child up for adoption, he would care for the child “as if it were his own.” Subsequent to the child’s birth, husband agreed for his name to be on the child’s birth certificate, claimed the child as a dependent for tax purposes, and treated the child as his own for four years prior to the separation of the parties. Moreover, because the parties had partly performed the oral agreement (wife married husband, husband treated child as his own), the statute of frauds did not apply. Even had it been applicable, husband was equitably estopped from pleading it because, in reliance on his promise, wife changed her original plans, acted to her detriment, and performed her obligations under the agreement by marrying husband and raising the child with him.

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