                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, McCullough and Senior Judge Haley
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              MATTHEW T. BAILEY
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 0981-15-4                                JUDGE STEPHEN R. McCULLOUGH
                                                                                 MARCH 22, 2016
              MAUREEN M. BAILEY


                                  FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                             William T. Newman, Jr., Judge

                               David D. Masterman (Carolé C. Krogmann; Jamel D. Rowe;
                               Masterman Krogmann P.C., on briefs), for appellant.

                               Jeff Evan Lowinger (Melissa L. Schefkind; New & Lowinger, P.C.,
                               on brief), for appellee.


                     Matthew T. Bailey assigns a number of errors in connection with the trial court’s denial

              of his motion to reduce his spousal support. For the reasons noted below, we reverse and

              remand.

                                                        BACKGROUND

                     Matthew and Maureen Bailey, whom we will refer to as husband and wife for the sake of

              simplicity, were divorced in 2013. Husband’s spousal support obligations are governed by a

              Separation and Property Settlement Agreement dated July 22, 2013. The clause governing

              spousal support provides in relevant part as follows:

                                      The Husband shall pay to the Wife as and for spousal
                               support the sum of Twenty Two Thousand Five Hundred Dollars
                               ($22,500.00) per month, beginning on the 1st day of June, 2013
                               and continuing on the 1st day of every month thereafter for a
                               period of 3 years (i.e., through the payment due May 1, 2016);

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                thereafter, the Husband shall pay to the Wife as and for spousal
                support the sum of Twenty Thousand Dollars ($20,000.00) per
                month, beginning on the 1st day of June, 2016 and continuing on
                the 1st day of every month thereafter for a period of 12 years (i.e.,
                through the payment due May 1, 2028), at which time the
                Husband’s obligation to pay spousal support to the Wife shall
                forever terminate.

                       ....

                         The parties acknowledge and agree that the amount, but not
                the duration, of the Husband’s spousal support obligation shall be
                subject to modification by a court of competent jurisdiction upon
                petition of either party in the event of a material change of
                circumstances in accordance with §§20-107.1 and 20-109 of the
                1950 Code of Virginia, as amended. The parties agree that up to
                the first $80,000 of earned income for Wife shall not constitute a
                material change in circumstances warranting modification of
                spousal support herein.

(emphasis in original).

       The Agreement also contained the following paragraph 10, titled “Private School

Tuition”:

                        The Husband hereby agrees to be solely responsible for
                payment of the private school tuition for each of the parties’
                children who are enrolled in private school each year, through each
                child’s graduation from high school, in an amount not to exceed
                $15,000 per child per year, for so long as the Husband’s annual
                income does not fall below 80% of his 2012 income (i.e., below
                $912,000).

       The court affirmed, ratified, and incorporated the parties’ Agreement into the final decree

of divorce.

       On February 2, 2015, husband filed a motion for the reduction of his spousal support.

Husband cited, among other things, a substantial reduction in his income as a ground for

modification.




                                                 -2-
        At a hearing on the motion, husband testified that he has been an equity partner in his

current firm since 2002, and was an equity partner in other firms before that. He specializes in

intellectual property litigation.

        In 2012, husband had earned approximately $1,040,000. In 2013, he earned

approximately $990,000. In 2014, husband earned approximately $850,000. The firm projected

husband’s income for 2015 at $668,710. Both husband and wife agreed that his income

fluctuated from year to year.

        Husband knew, at the time he negotiated the Agreement with wife, that his billable hours

were down and that he had just lost several clients, including his biggest client. Between 2013

and 2015, husband’s law firm experienced a period of turmoil and change. A prospective merger

with another firm about 18 months before the hearing was a source of division and turmoil

within the firm. In addition, husband testified that the firm had litigated some cases on a

contingency basis that did not bear fruit.

        A previous merger with a California firm diluted profitability of husband’s firm and led

some partners to leave the firm. This development, husband testified, had not been expected

when he negotiated the Agreement with the wife in 2013. Several entire practice areas had left

the firm since 2013, including the firm’s toxic torts practice and the firm’s governmental

contracts practice. These departures are expected to have a negative impact on firm profitability.

        Husband acknowledged that his billable hours had dropped significantly in 2014 and

2015, but he stated that he was working hard to rebuild them. He explained that it was a

challenging environment, particularly given the looming merger of his firm with a large

international law firm. Husband explained that his firm reassessed his compensation in January

of 2015, and the reevaluation resulted in fewer “units” attributed to husband. This, in turn,

lowered his compensation.

                                               -3-
       An expert for wife testified that in several key areas upon which compensation is based,

including working attorney’s fees collected and origination or business development, husband

had experienced significant drops. Over the past two years, husband experienced a 65% drop in

working attorney’s fees collected, a 96% drop in origination or business generation, and a similar

96% drop in billing responsibility.

       At the conclusion of the hearing, the court denied husband’s motion for modification.

The court found Mr. Bailey’s income for 2015 to be “approximately $700,000.” In denying the

motion, the court reasoned that there were times during the marriage that husband’s

compensation went up or down, and, therefore, it was something the parties contemplated. The

court also cited the parties’ provision that addressed husband’s obligations with respect to the

children’s private school tuition, which showed that the parties contemplated that his income

would go up or down. Because husband’s drop in income “was something that could have been

contemplated,” the court found that it could not form the basis of modification under the parties’

Agreement. The order entered by the court incorporated as its reasons for denying the motion

the explanation that the court provided in the transcript.

                                            ANALYSIS

       On appeal, we review the evidence, and all reasonable inferences fairly deducible from it,

in the light most favorable to the prevailing party below. Alphin v. Alphin, 15 Va. App. 395,

399, 424 S.E.2d 572, 574 (1992).

       The court’s authority to order a modification of husband’s spousal support is controlled

by the parties’ Agreement. See Code § 20-109(C). “Support agreements that are voluntarily

made by the parties are subject to the same rules of construction applicable to contracts

generally.” Goldin v. Goldin, 34 Va. App. 95, 107, 538 S.E.2d 326, 332 (2000). “When a

judgment is based upon the construction or interpretation of a contract, an appellate court is not

                                                -4-
bound by the trial court’s construction of the contract’s provisions.” Nicholson v. Nicholson, 21

Va. App. 231, 239, 463 S.E.2d 334, 338 (1995). Moreover, “on 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 [C]ourt.” Dziarnowski v. Dziarnowski, 14 Va. App. 758, 762, 418 S.E.2d

724, 726 (1992) (quoting Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987)).

Accordingly, “[t]he trial court’s interpretation of [a support agreement] is an issue of law that we

review de novo.” Stacy v. Stacy, 53 Va. App. 38, 43, 669 S.E.2d 348, 350 (2008) (en banc).

       “In reviewing the agreement, we must gather the intent of the parties and the meaning of

the language . . . from an examination of the entire instrument, giving full effect to the words the

parties actually used.” Rutledge v. Rutledge, 45 Va. App. 56, 64-65, 608 S.E.2d 504, 508 (2005)

(quoting Layne v. Henderson, 232 Va. 332, 337-38, 351 S.E.2d 18, 22 (1986)). “According to

the rules of construction, ‘courts cannot read into contracts language which will add to or take

away the meaning of words already contained therein.’” Id. at 64, 608 S.E.2d at 508 (quoting

Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984)).

       The key text of the Agreement provides that “Husband’s spousal support obligation shall

be subject to modification by a court of competent jurisdiction upon petition of either party in the

event of a material change of circumstances in accordance with §§20-107.l and 20-109 of the

1950 Code of Virginia, as amended.” The Agreement does not specify whether Code

§ 20-109(A) or Code § 20-109(B) supplies the standard to assess a request for a reduction in

spousal support based on a material change in circumstances. Code § 20-109(A) provides in

relevant part that “[u]pon petition of either party the court may increase, decrease, or terminate

the amount or duration of any spousal support and maintenance that may thereafter accrue,




                                                -5-
whether previously or hereafter awarded, as the circumstances may make proper.” Code

§ 20-109(B) provides that

              [t]he court may consider a modification of an award of spousal
              support for a defined duration upon petition of either party filed
              within the time covered by the duration of the award. Upon
              consideration of the factors set forth in subsection E of § 20-107.1,
              the court may increase, decrease or terminate the amount or
              duration of the award upon finding that (i) there has been a
              material change in the circumstances of the parties, not reasonably
              in the contemplation of the parties when the award was made . . . .

The court construed the Agreement based on Code § 20-109(B).

       Code § 20-109(B) addresses modifications of an “award.” Initially, husband contends

that Code § 20-109(B) does not apply, because the parties’ Agreement is not an “award.” Code

§ 20-107.1 mentions an “award” of spousal support, which the court makes after considering the

factors set forth in Code § 20-107.1(E), whereas Code § 20-109(C) speaks of a “decree or order

directing the payment of support and maintenance for the spouse” based on an agreement

between the parties. Code § 20-109(C) does not use the term “award.” Therefore, we agree with

husband that the spousal support provisions of the Agreement do not constitute an “award.” We

recognize that the term “award” in the colloquial sense would encompass any order of the court

directing the payment of money. And the court here did “award” spousal support in that

colloquial sense. Because the Code uses “award” in a more technical sense, however, and treats

an “award” differently from a “decree or order” when there is an agreement between the parties,

we conclude that the spousal support payments under the Agreement are not an “award” as the

Code employs that phrase. That, however, does not end the inquiry.

       The Agreement does not specify whether subsection (A) or (B) should govern a request

for modification. Although the two standards are similar, they are not identical. Code

§ 20-109(B) applies to the “modification of an award of spousal support for a defined duration”

and among other things requires that the change in circumstances was “not reasonably in the
                                              -6-
contemplation of the parties when the award was made.” This latter phrase does not appear in

Code § 20-109(A). The parties’ Agreement calls for spousal support of a defined duration.

Code § 20-109(B) governs modification of defined duration awards. With no clause in the

Agreement specifying whether subsection (A) or (B) applies, subsection (B) is a better fit for the

defined duration award under the Agreement.1

       The parties’ failure to specify exact income thresholds that would constitute a material

change in circumstances does not mean that the material change of circumstances clause should

be effectively written out of the Agreement, as wife suggests. The Agreement allows husband to

petition for a modification of his spousal support obligation if there is a material change in

circumstances. A diminution in income of nearly 40% clearly qualifies as a material change in

circumstances. The question then becomes whether such a change was “not reasonably in the

contemplation of the parties.”

       The court reasoned that husband’s income had fluctuated throughout the marriage and,

therefore, husband’s dramatic decrease in income “was something that could have been

contemplated.” We think this construction of the Agreement is far too restrictive.

       The evidence establishes that husband’s income fluctuated throughout the marriage. The

evidence also established, however, that husband faced circumstances that were not in the

contemplation of the parties at the time they negotiated the Agreement. First, the environment at


       1
          There is an additional interpretive conundrum. The Agreement references Code
§ 20-107.1. It is not clear whether this reference calls for the trial court to consider the factors
contained in Code § 20-107.1(E) in determining whether to modify spousal support, or whether
that reference simply makes clear that the trial court may modify the agreement, i.e., Code
§ 20-107.1(B) provides that maintenance and support “shall be subject to the provisions of
§ 20-109” and, in turn, Code § 20-109 addresses modification of support. In other words, the
Agreement may have mentioned Code § 20-107.1 for the sake of completeness, or it may have
mentioned Code § 20-107.1 because the parties intended for the trial court to apply the factors
found in Code § 20-107.1(E) when considering a request for modification of spousal support.
The parties may turn out to agree on how to read the reference to Code § 20-107.1 in the
Agreement, and in any event, they do not ask us to address it, so we do not resolve this issue.
                                                 -7-
his firm imposed a new and unforeseen series of challenges. The firm he worked for had

attempted a merger, but disagreement within the firm over the merger had proved unexpectedly

problematic. This led to an exodus of partners.

       The parties knew at the time they negotiated the Agreement that husband had lost a major

client. However, they did not know whether husband would be able to win new clients to

compensate for the loss of the major client who had left. Husband was working to gain

additional clients. Those efforts were made far more difficult due to the turmoil and uncertainty

within the firm from the previous merger as well as the uncertainty created by the upcoming

merger with a large international firm. In addition, husband’s firm reevaluated his compensation

after he entered into the Agreement with wife, resulting in a loss of “units,” upon which

husband’s compensation was, in part, based.

       Wife’s own expert witness testified that, with respect to key metrics of compensation,

husband had experienced significant drops since the parties negotiated the Agreement. His

working attorney’s fees collected dropped by 65% over the past two years. Under the origination

category, husband experienced a drop of 96% over the past two years, and for billing

responsibility he also experienced a drop of 96% over the same period. Such significant

developments are well beyond ordinary fluctuations in income.

       Although not dispositive, other clauses yield some clues concerning the parties’ intent.

Under the Agreement, wife’s earnings do not constitute a material change of circumstances until

she earns in excess of $80,000 per year. This stricture suggests that a drop in husband’s income

of almost six times $80,000 would constitute a material change in circumstances. Moreover,

paragraph 10 absolves husband of the obligation to pay his children’s private school tuition if his

income dropped to $912,000. A drop of several additional hundred thousand dollars below

$912,000 is, of course, even more significant.

                                                 -8-
       Husband’s near 40% drop in income since the parties negotiated their Agreement

constituted “a material change in the circumstances of the parties, not reasonably in the

contemplation of the parties when the award was made.” Code § 20-109(B). The next step is for

the trial court to consider any further relevant evidence2 and to determine to what extent, if any,

the spousal support should be modified. See Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d

827, 829 (1986).

                                          CONCLUSION

       We reverse the judgment below and remand for further proceedings not inconsistent with

this opinion.

                                                                           Reversed and remanded.




       2
         At a minimum, more up to date figures concerning husband’s income will be available.
At the time of the hearing, husband’s income was projected to be approximately $700,000.
                                              -9-
