                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


RICHARD KENNETH WHEELER
                                      MEMORANDUM OPINION * BY
v.   Record No. 0820-97-2              JUDGE MARVIN F. COLE
                                          MARCH 24, 1998
FAYE POND WHEELER


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      Timothy J. Hauler, Judge
           Richard P. Kruegler (Durrette, Irvin &
           Bradshaw, on briefs), for appellant.

           William F. Etherington (Beale, Balfour,
           Davidson & Etherington, P.C., on brief), for
           appellee.



      Richard Kenneth Wheeler (husband) appeals the decision of

the circuit court ordering him to continue to pay Faye Pond

Wheeler (wife) monthly spousal support of $2,000.   Husband

contends that the trial court erred in:   (1) deciding issues

previously ruled upon by the circuit court and this Court; (2)

interpreting the parties' written and oral agreements; (3)

holding that wife was entitled to monthly spousal support of

$2,000 from February 1988 until the parties negotiated otherwise;

and (4) awarding husband only a portion of his attorney's fees.

We find that the trial court did not rule on previously decided

issues.   We also find that the trial court erred in concluding

that the parties' 1988 oral agreement that husband would pay wife

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
$2,000 per month in spousal support modified their written

agreement.    We further find that, under the parties' written

agreement, spousal support payments ceased when husband reached

age sixty and no longer received his draw from his former law

firm, subject to renegotiation.    We affirm the court's award of

attorney's fees to husband.

                              Background

     Husband and wife were divorced in 1984.    The final decree

incorporated the parties' property settlement agreement.     In

pertinent part, the agreement provided as follows:
          3. PERIODIC SPOUSAL SUPPORT

                  Husband shall pay to Wife annually
             $42,000.00 per year so long as they shall
             both live and she shall remain unmarried, by
             paying $3,500.00 on the first day of each
             month commencing with the month of February,
             1984. However, Husband shall pay initially
             to Wife $3,225.00 as periodic support.

                  If Husband's draw, which is now
             $9,000.00 per month is increased, he shall
             pay to Wife 25% of such increase . . . .

                  If there is a reduction in Husband's
             draw, not due to his voluntary act, choice or
             decision, the periodic spousal support shall
             be proportionately reduced . . . .

                  Upon Husband attaining the age of Sixty
             (60) years and retiring from his professional
             practice or employment, if spousal support
             has not been terminated earlier by force of
             the other provisions of this Agreement, the
             parties will negotiate in good faith, based
             upon the circumstances and conditions at the
             time, to fix the amount of spousal support
             the Wife is entitled to, if any.


     Husband paid wife monthly spousal support pursuant to the


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agreement until January 1988, when his monthly draw from his law

firm was reduced from $10,417 to $4,000.   Husband agreed to pay

spousal support of $2,000 a month, although he contended that he

was required to pay approximately $700 per month pursuant to the

formula set out in their written agreement.   By petition filed in

1992, wife sought to recover a support arrearage.   In December

1992, the trial court ruled in its opinion letter that wife was

estopped from seeking an arrearage.   The court also ruled that

the term "draw" used by the parties in their agreement referred

only to husband's draw from his employment with Hunton & Williams

and did not refer to all income he earned as an attorney.    The

trial court also awarded husband his attorney's fees and costs.

After the court issued its letter ruling in December 1992,

husband reduced his monthly spousal support payments to $700

pursuant to his interpretation of the formula set out in the

parties' agreement.   The final order was entered in March 1993.
     Wife appealed the circuit court's March 1993 order, which

was affirmed by this Court.   See Wheeler v. Wheeler, Record No.

0722-93-2 (Va. Ct. App. July 5, 1994).   Neither party appealed

this Court's decision.   No appellate attorney's fees were awarded

to husband.

     Following remand, husband filed a motion seeking attorney's

fees and costs.   In a December 1994 hearing, the trial court

indicated orally that it would not rule on the wife's allegation

of spousal support arrearage because wife had not properly




                                 3
presented the matter to the court.   In January 1995, wife filed a

petition seeking an arrearage of $1,300 because of husband's

unilateral reduction of support payments to $700 per month in

January 1993.   The matter was heard by a different trial judge

because the first trial judge had died in the interim.    Based

upon oral argument, the record, and transcripts of the previous

hearings, the judge found that husband was obligated to pay wife

$2,000 in monthly spousal support from the time of the oral

modification in February 1988 until the amount was renegotiated;

that there was insufficient evidence that wife agreed to forego

litigation in exchange for a greater spousal support payment; and

that husband was entitled to attorney's fees and costs incurred

only through March 1993.   Husband appeals.

                     Previously Decided Issues

     As noted above, this matter was previously before the Court

of Appeals on wife's appeal of the circuit court's March 15, 1993

order.   Neither party appealed this Court's decision affirming

the circuit court's order.   Under the doctrine of the law of the

case, the parties are barred from relitigating matters

necessarily decided in the prior appeal or which could have been

appealed at that time but which were not.     "'Where there have

been two appeals in the same case, between the same parties and

the facts are the same, nothing decided on the first appeal can

be re-examined on a second appeal.'"   Kaufman v. Kaufman, 12 Va.

App. 1200, 1208, 409 S.E.2d 1, 6 (1991) (quoting Steinman v.



                                 4
Clinchfield Coal Corp., 121 Va. 611, 620-21, 93 S.E. 684, 687

(1917)).

     As such, in accordance with the findings set out in our

previous opinion, the parties are bound by our previous

determination that "draw," as used in their written agreement,

meant husband's monthly income from his former law firm of Hunton

& Williams, and did not mean husband's overall salary from the

practice of law.   We also determined that wife was equitably

estopped from recovering any alleged arrearage resulting from the

reduction of support to $2,000 per month in 1988.
     Husband contends that the parties' written agreement, as

modified by their oral agreement, rested on an agreement to

forego litigation, that wife breached that agreement in May 1992

when she filed her petition seeking a support arrearage, and that

the trial court so ruled in its March 15, 1993 order when it

denied wife's petition to rehear.    Nowhere in the record is there

evidence to support husband's assertion that the trial judge

ruled that wife's action to enforce the terms of the agreement

breached an agreement to forego litigation.   Although wife's

agreement to forego litigation may explain husband's willingness

to pay more than the support amount required under the parties'

written agreement, the record does not demonstrate that the trial

judge ruled in March 1993 that the parties agreed to forego

litigation.

     Moreover, no order but the one from which husband now



                                 5
appeals addressed husband's January 1993 reduction of spousal

support to $700 per month.      "A court of record speaks only

through its written orders," Hill v. Hill, 227 Va. 569, 578, 318

S.E.2d 292, 297 (1984), and remarks made from the bench which are

not subsequently reduced to a written order have no effect.

Nevertheless, we note the following exchange between husband's

counsel and the former trial judge in the December 6, 1994

hearing:
            [COUNSEL]: On the issue of arrearages, are
            you finding that it's the law of the case
            that none exists.
            THE COURT:   At the present time?

            [COUNSEL]:   Yes.

            THE COURT: No, sir. I don't think he
            brought a suit properly for that ruling, and
            I'm not going to rule.


     While the parties adjudicated the amount of spousal support

due prior to May 1992 when wife was found to be equitably

estopped from seeking an arrearage as of that date, the court did

not decide whether the parties' agreement was breached by either

wife's petition seeking an arrearage or husband's unilateral

reduction in support to $700 per month.     Therefore, husband has

not demonstrated that the trial court erred by ruling on matters

previously decided.

           Spousal Support Required under Parties' Agreement

     In our earlier decision, we determined that the parties'

agreement defined their rights and obligations.     However, we were



                                    6
not called upon to interpret the parties' written agreement

beyond the definition of "draw."        In this appeal, however, the

question is how the parties' oral agreement affected the other

provisions concerning spousal support under their written

agreement.

     "Property settlement and support agreements are subject to

the same rules of construction and interpretation applicable to

contracts generally."   Fry v. Schwarting, 4 Va. App. 173, 180,

355 S.E.2d 342, 346 (1987).   "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 court."   Id.       "Since the interpretation of a

contract is a question of law, we are not bound by the trial

court's conclusions on this issue, and we are permitted the same

opportunity as the trial court to consider the contract

language."   Garcia Enterprises, Inc. v. Enterprise Ford Tractor,
Inc., 253 Va. 104, 107, 480 S.E.2d 497, 498-99 (1997).        Parties

may modify a written contract by parole agreement.        See Warren v.

Goodrich Strip & Screen Co., 133 Va. 366, 388-89, 112 S.E. 687,

693-94 (1922).

     The matter before us presents two questions:        first, whether

husband was barred from unilaterally reducing spousal support to

$700 per month in January 1993, which was the level contemplated

by the written terms of the agreement; and, second, whether he




                                    7
was required to pay $2,000 per month in spousal support after he

reached age sixty in July 1994 and no longer received his draw

from his former law firm.

     We find that husband was not barred from reducing his

monthly spousal support payment to $700 according to the terms of

the agreement.   In her brief and at oral argument, wife admitted

that she "acquiesced" in husband's proposal to pay her $2,000 per

month.   Indeed, her testimony in the record clearly established

that she did.    Mere acquiescence in accepting a lesser amount

does not support the trial court's conclusion that the parties

"mutually modified those portions of the Property Settlement

Agreement dated January 24, 1984 which sought to set spousal

support by means of a fixed formula."   Acquiescence to payments

in excess of that called for under the parties' agreement

required no consideration on wife's part.   The evidence does not

support husband's assertion that wife agreed to forego litigation

in exchange for the greater payment.    However, nothing precludes

husband from paying wife pursuant to the terms of the parties'

agreement.   According to the terms of the agreement, husband was

required to pay $700 per month based upon his draw.   Therefore,

the trial court erred in finding that a spousal support arrearage

began to accrue after January 1993.
     We also find that the trial court erred in interpreting the

parties' agreement to require spousal support payments after

husband reached age sixty and no longer received his draw.   In




                                  8
pertinent part, the parties' agreement provided as follows:
          Upon Husband attaining the age of Sixty (60)
          years and retiring from his professional
          practice or employment, if spousal support
          has not been terminated earlier by force of
          the other provisions of this Agreement, the
          parties will negotiate in good faith, based
          upon the circumstances and conditions at the
          time, to fix the amount of spousal support
          the Wife is entitled to, if any.


Under this provision, the original support obligation ran only

through the time husband was under age sixty and still receiving

his draw.   Clearly, if husband was not receiving a monthly income

from Hunton & Williams, wife's spousal support was eliminated by

operation of the parties' agreement.      The parties also

contemplated the possibility that, notwithstanding the fact that

support had not otherwise terminated, wife would no longer be

entitled to spousal support after husband's retirement.        The

agreement clearly did not extend support payments at the previous

level indefinitely.   While husband agreed to pay support to wife

"so long as they shall both live and she shall remain unmarried,"

the more specific provision required renegotiation in good faith,

with the possible cessation of any support, after husband reached
                         1
age sixty and retired.       As both these criteria have now

occurred, husband's obligation to pay spousal support ended.

     1
      We previously ruled that the spousal support payment was
based upon husband's draw, not his employment as an attorney.
Husband's draw ended in July 1994, the same month husband turned
sixty. The fact that husband did not retire from the practice of
law until October 1995 does not extend the time for which spousal
support payments were required to be made.




                                    9
Code § 20-109 is self-executing and no longer requires that a

party obtain a decree terminating spousal support when the terms

of the agreement explicitly provide for termination.    Under the

terms of the agreement, the parties are required to renegotiate

the amount of spousal support to which wife is now entitled, if

any, in light of their current "circumstances and conditions."

In the event they do not agree, the issue of support shall be for

the court to decide.

                           Attorney's Fees

     The trial court awarded husband attorney's fees attributable

to the first action.   In the absence of a specific remand for the

determination of attorney's fees, the trial court did not err in

failing to award any fees attributable to the first appeal.        See

 O'Loughlin v. O'Loughlin, 23 Va. App. 690, 691, 479 S.E.2d 98,

98 (1996).   On remand, the trial court may consider whether to

award husband additional attorney's fees attributable to the

proceedings in the trial court that occurred after the remand

from this Court's prior decision.     On remand, the trial judge

shall also award husband reasonable fees for this appeal.
                             Conclusion

     In summary, the circuit court's decision that husband was

required to pay $2,000 in monthly spousal support to wife

beginning in January 1993 is reversed and the matter remanded to

the trial court for further proceedings consistent with this

decision.    The circuit court's award of attorney's fees is




                                 10
affirmed.   On remand, the circuit court may consider an

additional award of attorney's fees to husband attributable to

the proceedings before it and on appeal.
                                               Affirmed in part,
                                          reversed in part,
                                     and remanded.




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