                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


MARTHA C. TWINAM
                                              MEMORANDUM OPINION *
v.   Record No. 0765-96-4                         PER CURIAM
                                               NOVEMBER 12, 1996
TIMOTHY W. TWINAM


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     M. Langhorne Keith, Judge

           (Brad L. Martin; Martin & Rubin, on briefs),
           for appellant.
           (Judith S. Landry, on brief), for appellee.



     Martha C. Twinam (mother) appeals from a decision of the

circuit court concerning a 1989 amendment to the parties'

property settlement agreement.   Mother contends that the trial

court erred in (1) holding that the modification clause of the

settlement agreement enabled the parties to modify the amount of

child support without court approval; (2) holding that the 1989

modification was valid when it was not executed with the same

formality as the settlement agreement; and (3) not granting

mother attorney's fees and costs.   Timothy W. Twinam (father)

contends that the trial court correctly found mother was estopped

to challenge the modification.   Upon reviewing the record and

briefs of the parties, we conclude that this appeal is without

merit.   Accordingly, we summarily affirm the decision of the

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial court.    Rule 5A:27.

               Modification of the Settlement 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).      "[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."       Id.

     The parties' agreement provided in part as follows:
          14. MODIFICATION: At any time, the parties
          may by mutual consent amend or modify the
          terms of this Agreement; provided that any
          such amendment or modification (or waiver of
          any of the terms of this Agreement) shall be
          of no effect unless in writing and executed
          with the same formality as this Agreement.


Father also agreed to increase child support payments annually in

proportion to his salary increases.         The parties executed the

agreement and their signatures were notarized.        Subsequently, the

agreement was incorporated into the parties' final decree of

divorce.   In February 1989, pursuant to the modification clause

of the agreement, the parties agreed to reduce father's monthly

child support payments from $500 to $400.        Father remained liable
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for annual increases.
     1
      While father failed to make the annual increases in child
support payments pursuant to the terms of the agreement, the
resulting arrearage was satisfied prior to the hearing in the
trial court.


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     Mother contends that because no agreement may divest the

trial court of its jurisdiction over child support, the parties

lacked authority to modify their agreement as to child support

without court approval. It is true that
          [b]oth parents owe a duty of support to their
          minor children. A divorce court retains
          continuing jurisdiction to change or modify
          its decree relating to the maintenance and
          support of minor children. Consequently,
          parents cannot contract away their children's
          rights to support nor can a court be
          precluded by agreement from exercising its
          power to decree child support.


Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994)

(citations omitted).   Compare Code § 20-109 (court has no

authority to enter decree concerning spousal support or certain

other issues contrary to parties' contract) with Code § 20-108

(court retains authority to revise decrees concerning minor

children).

     Here, however, the parties' agreement did not purport to

contract away the children's right to support or bar the court's

exercise of its jurisdiction.   Instead, it allowed the parties

the option of resolving issues, including those related to child

support, without returning to court for approval.   Cooperation

between divorced parents concerning the welfare and support of

their children is commendable and does not diminish in any way

the authority of the court to safeguard the children's best

interests.   This is not an instance where one party unilaterally

reduced child support, nor was any evidence presented to indicate



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that the modification adversely affected the children's

circumstances.   Therefore, we do not agree with mother's

contention that the agreement was void ab initio because it

allowed the parties to modify support by agreement without first

seeking court approval.

                      Formality of Execution

     Mother also contends that the modification was ineffective

because it was not notarized and, therefore, was not "executed

with the same formality" as the agreement.     Father contends the

trial court properly found that mother was estopped to contest

the validity of the modification.
     The agreement does not expressly require notarized

signatures.   The modification was in writing and signed by both

parties.   The parties operated under the modification from 1989

until the present dispute.   Father, acting on the modification,

borrowed money to pay the outstanding arrearage attributable to

his salary increases.
          "The general rule of equitable estoppel, or,
          as it is frequently called, estoppel in pais,
          is that when one person, by his statements,
          conduct, action, behavior, concealment, or
          even silence, has induced another, who has a
          right to rely upon those statements, etc.,
          and who does rely upon them in good faith, to
          believe in the existence of the state of
          facts with which they are compatible, and act
          upon that belief, the former will not be
          allowed to assert, as against the later
          [sic], the existence of a different state of
          facts from that indicated by his statements
          or conduct, if the latter has so far changed
          position that he would be injured thereby."




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Emrich v. Emrich, 9 Va. App. 288, 294, 387 S.E.2d 274, 276-77

(1989) (citation omitted).   Mother's conduct in signing the

modification and accepting the modified payments induced father

to believe that the modification was uncontested.      Mother's

challenge to the modification, if successful, would result in a

substantial back debt owed by father.      We find no error in the

trial court's determination that mother was estopped from

complaining that the modification lacked sufficient formality

because it was not notarized.
                      Attorney's Fees and Costs

     An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion.       Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987).      The key to a proper award

of counsel fees is reasonableness under all the circumstances.

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985).   Mother asserted that she was entitled to attorney's fees

under the settlement agreement because she incurred expenses to

enforce the terms of the agreement.      Father asserted he was

entitled to fees because he substantially prevailed in the trial

court.

     The trial court denied an award of fees or costs to either

party.    An unspecified portion of mother's attorney's fees

related to father's failure to make the annual increases required

by the agreement.   That arrearage was satisfied prior to the show



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cause hearing.   Mother incurred additional fees in her attempt to

enforce terms other than those of the modified agreement.    In

light of the issues involved, we cannot say that the trial

court's decision was unreasonable or an abuse of the court's

discretion.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                        Affirmed.




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