                               COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Felton and McClanahan
Argued at Alexandria, Virginia


KIMBERLY M. MATTINGLY
                                                             MEMORANDUM OPINION* BY
v.     Record No. 0424-03-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                   APRIL 13, 2004
DANIEL T. McCRYSTAL


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                   Jane M. Roush, Judge

                 Kimberly M. Mattingly, pro se.

                 No brief or argument for appellee.


       Kimberly M. Mattingly (wife) appeals an award of attorney’s fees to Daniel T. McCrystal

(husband). The trial court entered the award after wife nonsuited a motion to modify custody.

She argues two grounds in support of her claim that the award must be reversed. First, she

contends that the award violated her statutory right to take a first nonsuit without penalty.

Second, she argues that the imposition of attorney’s fees violated the parties’ voluntary

settlement agreement which provided that each party “shall be responsible for his or her counsel

fees.” Mattingly also contends that the trial court exceeded its authority by entering the Written

Statement of Facts filed by husband in response to her proffered Written Statement of Facts to

which he had noted objections. For the reasons that follow, we reverse.

                                           I. Background

       The parties were married on January 5, 1991, and they divorced on May 18, 2001. One

child was born of the marriage. In accordance with the parties’ “Marital Settlement Agreement,”

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the divorce affirmed, ratified, and incorporated, but did not merge, the Agreement into the

decree.

          Under the Agreement, husband had primary physical custody of the child, except for

certain stipulated periods of “custodial time” granted to the mother. The Agreement also

provided that

                 [e]ach of the parties shall be responsible for his or her counsel fees
                 incurred in connection with the negotiation and drafting of this
                 Agreement, as well as any other legal matters heretofore or
                 hereafter pending between the parties; provided, however, that
                 either party shall be entitled to reasonable counsel fees incurred in
                 securing the adherence of the other party to the terms of this
                 agreement.

          Wife filed a motion to modify custody on September 4, 2002, in which she claimed a

“significant change in circumstances” based on husband’s “persistent denial of access to . . . their

son and persistent refusal to coordinate custody exchanges at times which are in the best interests

of the child.” Wife subsequently requested a nonsuit. The trial court entered an order of nonsuit

on December 11, 2002. Husband thereafter filed a motion for attorney’s fees on December 11,

2002, based on claims that wife “had an insufficient basis to file such a serious motion, nonsuited

the motion on the day before the hearing, and has filed several such insufficient motions since

the Final Decree of Divorce.” The motion was heard on January 16, 2003, and attorney’s fees

were awarded.1 This appeal followed.

                                  II. The Award of Attorney’s Fees

          Absent an agreement between the parties, the decision to award attorney’s fees is left to

the sound discretion of the trial court, and an award will be overturned on appeal only if the trial

court abused its discretion. Kane v. Szymczak, 41 Va. App. 365, 375, 589 S.E.2d 349, 354


          1
         The trial court did not expressly identify the grounds upon which it relied in awarding
attorney’s fees.

                                                  -2-
(2003). However, the trial court has no authority or discretion to award attorney’s fees where the

parties have agreed by contract to be responsible for their own fees. The courts “are not at

liberty to ignore a contractual provision specifically included by the parties.” Hering v. Hering,

33 Va. App. 368, 372, 533 S.E.2d 631, 633 (2000). We review the terms of the contract de novo.

See Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667

(2002).

          Wife argues that the trial court had no authority to award attorney’s fees because the

parties’ marital settlement agreement provides that each party “shall be responsible for his or her

counsel fees.”2 We agree.

          The agreement between the parties clearly states that “each of the parties shall be

responsible for his or her counsel fees incurred in . . . any . . . legal matters heretofore or

hereafter pending between the parties.” The only exception to this rule provides that “either

party shall be entitled to reasonable counsel fees incurred in securing the adherence of the other

party to the terms of this agreement.” (Emphasis added). We conclude the exception does not

apply for three reasons.

          First, there is no evidence in this case from which the court could conclude that husband

incurred attorney’s fees in order to secure wife’s adherence to the terms of the marital settlement

agreement. By filing a motion to modify custody, wife was not violating or failing to adhere to

the parties’ agreement. She was merely exercising her statutory right to seek a modification of

the present custody arrangement. See Code § 20-108.



          2
        Husband argues in his statement of facts that wife did not preserve this argument for
appeal because she did not raise the issue at the hearing. However, wife raised the argument in
her motion for reconsideration filed within twenty-one days of the trial court’s final award
decree. Wife’s argument relying on the marital settlement agreement is therefore not barred by
Rule 5A:18. Lee v. Lee, 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991).

                                                  -3-
       Second, we note that husband’s motion for attorney’s fees was not based on wife’s failure

to adhere to the terms of the agreement. Rather, husband based his request upon wife’s

“insufficient motions,” the “insubstantial content” of wife’s motion to modify custody, and the

fact that she nonsuited her motion to modify custody one day before the hearing.3 In relevant

part, husband’s motion requesting attorney’s fees stated that wife “filed a Motion to Modify

Custody, had an insufficient basis to file such a serious motion, non-suited the motion on the day

before the hearing, and has filed several such insufficient motions.” Because husband’s request

for attorney’s fees before the trial court was not based on an argument that wife failed to adhere

to the terms of the agreement, and because he has presented no such argument to this Court, we

will not affirm the trial court’s award on this ground.

       Third, we decline to read the exception in the parties’ settlement agreement as

encompassing the circumstances of this case, in which wife petitioned for a modification of the

custody arrangement. Under such an interpretation, the exception would swallow the general

rule. Therefore, we find that the exception in the parties’ agreement allowing recovery of

counsel fees does not apply to this dispute.

       Applying the terms of the parties’ agreement to this case, we find that husband is

responsible for his own attorney’s fees. Virginia favors marital settlement agreements as a

means of ending litigation between the parties. Richardson v. Richardson, 10 Va. App. 391, 399,

392 S.E.2d 688, 692 (1990), overruled on other grounds by Flanary v. Milton, 263 Va. 20, 556

S.E.2d 767 (2002). So long as the agreement has been “‘entered into by competent parties upon

valid consideration for lawful purposes,’” it “‘will be enforced unless [its] illegality is clear and

certain.’” Parra v. Parra, 1 Va. App. 118, 128, 336 S.E.2d 157, 162 (1985) (quoting Cooley v.


       3
         Although husband attempted to invoke the sanctions provisions of Code § 8.01-271, the
court declined to hear this argument. Husband failed to note an objection to the court’s ruling,
making any claim based on the statute procedurally defaulted. Rule 5A:18.
                                             -4-
Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980)); see also Code § 20-109. Because the trial

court entered an award of attorney’s fees contrary to the parties’ binding contractual agreement,

we find that the court erred in awarding attorney’s fees and reverse on that ground.4

                                                                                        Reversed.




       4
          Because we agree that the award of attorney’s fees violated the parties’ settlement
agreement, we need not address wife’s alternate argument that an award of attorney’s fees, made
in conjunction with a first nonsuit, is improper. We further decline to address wife’s final
argument that the court erroneously adopted husband’s proffered Written Statement of Facts
because the case on appeal may be decided without consideration of husband’s Written
Statement of Facts. The following are part of the record and constitute a sufficient basis for our
review: (1) wife’s pleadings, specifically her motion for reconsideration in which she argues that
the parties’ marital settlement agreement controls this dispute; (2) the parties’ settlement
agreement; (3) the court’s decree awarding attorney’s fees; (4) and all motions made by each
party. Accordingly, wife’s challenge on appeal to the trial court’s consideration and adoption of
husband’s Written Statement of Facts need not be addressed.
                                                -5-
