Robert B. Strain v. Josephine C. Strain

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ROBERT B. STRAIN
MEMORANDUM OPINION *
v. Record No. 3097-99-4 PER CURIAM
JUNE 13, 2000
JOSEPHINE C. STRAIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
(Kenneth L. Crosson, on briefs), for
appellant.
(Lawrence H. Bowen; Paula W. Rank; Byrd
Mische P.C., on brief), for appellee.
Robert B. Strain (husband) appeals the decision of the
circuit court denying his "Motion for the Reduction in Maintenance
and Support." The trial court found that, under the terms of the
parties' "Property and Support Settlement Agreement" (agreement)
which was incorporated into the final decree of divorce, it lacked
jurisdiction to modify the monthly spousal support husband pays to
Josephine C. Strain (wife). Husband contends that the trial court
erred in finding that it lacked jurisdiction to modify spousal
support. In response, wife seeks an award of appellate attorney's
fees. Upon reviewing the record and briefs of the parties, we
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule 5A:27.
The record on appeal contains neither a transcript nor a
written statement of facts. In his response to our "Rule to
Show Cause" why this appeal should not be dismissed, husband
contends that the record, including the parties' agreement and
the trial court's decrees, is sufficient to address the issues
raised. We agree. Therefore, we proceed to the merits of
husband's appeal.
The parties executed their agreement on February 3, 1989.
In paragraph 7, entitled "SPOUSAL SUPPORT," the agreement
provides:
The husband agrees to pay to the wife, as
and for her support and maintenance, the sum
of One Thousand Dollars ($1,000.00) per
month, the first payment to be made on the
1st day of February, 1989, and to continue
in consecutive monthly installments on the
1st day of each month thereafter until such
time as the wife's remarriage or death, or
husband's death, whichever first occurs.
The agreement also requires all modifications to be in writing.
The parties agreed to present the agreement for incorporation
into a decree, but specifically provided that "this Agreement
shall independently remain in full force and effect, and shall
survive any decree, order, or judgment hereafter entered and
shall forever be binding and conclusive upon the parties."
In the decree of divorce entered April 17, 1989, the trial
court awarded wife spousal support pursuant to the terms of the
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parties' agreement. The decree expressly provided that the
support payments "shall be governed as to termination, reduction
and/or increase in accordance with the Property Settlement
Agreement dated February 3, 1989 affirmed, ratified, and
incorporated herein . . . ."
By motions filed January 29, 1999, husband sought to reopen
this matter and filed his motion seeking to reduce spousal
support. Wife also filed a motion seeking to enforce the
agreement. By order entered November 30, 1999, the trial court
ruled that it lacked jurisdiction to modify the spousal support
payments. The trial court granted wife's motion and awarded
wife $750 in attorney's fees.
"In Virginia property settlement agreements are contracts and
subject to the same rules of formation, validity and
interpretation as other contracts." Smith v. Smith, 3 Va. App.
510, 513, 351 S.E.2d 593, 595 (1986) (citation omitted). "[O]n
appeal if all the evidence which is 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 this court."
Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346
(1987).
The parties' agreement provides that husband will pay wife
$1,000 a month in spousal support until wife remarries or one of
the parties dies. The agreement contains no provision allowing
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either party to seek a modification in the amount of support.
Under Code § 20-109, the trial court could not enter an order
"except in accordance with that stipulation or contract" signed
by the parties and presented to the court. While husband argues
that the agreement does not specifically prohibit modification
and is merely silent, we disagree.
"'[C]ourts cannot read into contracts
language which will add to or take away from
the meaning of the words already contained
therein.'" "Where there is no ambiguity in
the terms of a contract, we must construe it
as written, . . . and we are not at liberty
to search for the meaning of the provisions
beyond the pertinent instrument itself."
Bergman v. Bergman, 25 Va. App. 204, 214, 487 S.E.2d 264, 269
(1997) (citations omitted). The express language of the agreement
provides for a set amount of monthly support unless one of the
three stated contingencies occurs. Therefore, because the
agreement contains no provision allowing modification, the trial
court did not err in ruling that it lacked jurisdiction to
consider husband's motion seeking to modify support.
Appellate Attorney's Fees
Wife was awarded $750 in attorney's fees under the terms of
the parties' agreement. She seeks an award of additional
attorney's fees incurred in connection with her defense against
husband's appeal. We note that paragraph 18 of the parties'
agreement provides that the costs of enforcing "any of the
provisions of this Agreement, whether through litigation or
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other action necessary to compel compliance herewith, shall be
borne by the defaulting party." We grant wife's request for an
award of her appellate attorney's fees and remand this matter to
the trial court for it to determine the proper amount of the
award.
Accordingly, the decision of the circuit court is summarily
affirmed, and the matter is remanded to the trial court for the
determination of wife's appellate fees.
Affirmed and remanded.
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