                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia


CHRISTOPHER IPPOLITO
                                           MEMORANDUM OPINION * BY
v.   Record No. 0686-00-4               JUDGE JERE M. H. WILLIS, JR.
                                              JANUARY 16, 2001
NADINE CLAIRE BLYN


            FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                   James W. Haley, Jr., Judge

          Timothy W. Barbrow (Joseph A. Vance, IV &
          Associates, on brief), for appellant.

          Matthew B. Lowery (Rinehart, Lowery,
          Strentz & Butler, P.L.C., on brief), for
          appellee.


     Upon Nadine Claire Blyn's motion to enforce a provision of

a separation and property settlement agreement, the trial court

ordered Christopher Ippolito to pay her spousal support.    On

appeal, Mr. Ippolito contends that the trial court erred (1) in

failing to consider the factors set forth in Code § 20-107.1,

(2) in awarding spousal support retroactively, and (3) in

considering Ms. Blyn's claim after he had filed a voluntary

petition in bankruptcy.     Upon reviewing the record and the

briefs, we find the record inadequate to address issues one and




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
two.   We conclude that issue three is without merit and affirm

the judgment of the trial court.

                            I.   BACKGROUND

       Nadine C. Blyn and Christopher Ippolito were married on

December 24, 1986.    They separated on August 16, 1998.    On

October 23, 1998, they entered into a separation and property

settlement agreement that resolved all issues of spousal support

and equitable distribution.      On May 24, 1999, a final decree of

divorce affirmed, ratified and incorporated by reference the

separation and property settlement agreement.

       Pursuant to paragraph six of the separation agreement, Ms.

Blyn agreed to endorse one or more notes for one or more loans,

not to exceed $40,000, for which Mr. Ippolito had previously

applied.   Mr. Ippolito agreed to hold Ms. Blyn harmless from any

and all liability for this debt.     The parties further agreed

that the loan or loans could be secured by real estate that had

been conveyed to Ms. Blyn in accordance with the separation

agreement.

       Paragraph seven of the separation agreement, entitled

"SPOUSAL SUPPORT," provides:

                  A. The parties hereby waive any
             present or future right to receive any
             support or maintenance from each other,
             except as specifically provided in this
             numbered paragraph.

                  B. Notwithstanding paragraph number
             7.A. hereinabove, in the event Husband fails
             in any manner to hold the wife harmless and

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            make all payments as required by the lender
            of that certain note not exceeding $40,000
            described in numbered paragraph six
            hereinabove, the parties specifically agree
            that the wife may reopen the question of
            spousal support and petition a court of
            competent jurisdiction for an award of the
            same. The parties further agree that any
            such spousal support shall be in an amount
            not less than wife's then current liability
            under the said note, and as spousal support
            shall specifically not be dischargeable in
            bankruptcy.

     Mr. Ippolito subsequently obtained two loans totaling

$40,000.    The notes were endorsed by Ms. Blyn.   Thereafter, Mr.

Ippolito stopped making payments on the notes.     From

September 1, 1999 to December 10, 1999, Ms. Blyn was required to

make six payments of $497.95 each, totaling $2,987.70 on one

note, and five payments of $494.05 each, totaling $2,470.25, on

the other note.    She also paid $64.55 in late fees on the

defaulted loans.

     On October 21, 1999, Ms. Blyn moved to enforce the

separation agreement.   On November 18, 1999, Mr. Ippolito filed

a voluntary petition for bankruptcy in the United States

Bankruptcy Court of the Eastern District of Virginia, Richmond

Division.

     On November 19, 1999, during the hearing before the trial

court, Mr. Ippolito conceded that he had not made the required

payments on the two notes.   However, he objected to proceeding

with the hearing, arguing that his spousal support obligation

under the separation agreement was in the nature of a property

                                - 3 -
settlement award and was not in the nature of spousal support.

Therefore, he argued that the hearing was stayed by his

bankruptcy.   The trial court overruled this objection.    It

ordered Mr. Ippolito to pay monthly spousal support of $992, the

amount due each month on the two notes until both loans are paid

completely and released as encumbrances on Ms. Blyn's land.     It

ruled that this spousal support obligation was not dischargeable

in bankruptcy.   It determined that Mr. Ippolito owed $5,520.50

in spousal support arrearages for the period of September 1,

1999 to December 10, 1999.    Mr. Ippolito's appeal addresses that

order.

                      II.    STATUTORY FACTORS

     An appellate court is not bound by a trial court's

construction of a property settlement agreement.    See Bergman v.

Bergman, 25 Va. App. 204, 211-12, 487 S.E.2d 264, 267-68 (1997).

"'[I]f 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 be readily ascertained by this

court.'"   Id. at 212, 487 S.E.2d at 268 (quoting Fry v.

Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987)).

     The parties produced evidence before the trial court.

However, we have been provided no transcript of that hearing.

At that time, Mr. Ippolito conceded that he had not made the

required payments on the notes.    We have no record of what

                                - 4 -
evidence, if any, the parties submitted concerning the factors

set forth in Code § 20-107.1.     The statement of facts recites

only Mr. Ippolito's contention "that the support obligation

created under the Separation Agreement was in the nature of a

property settlement award and was not in the nature of spousal

support."    Mr. Ippolito's endorsement of the final order

contains only an objection "on grounds that spousal support is

unwarranted and is in nature of liquidated damages and not

support."    These arguments did not assert before the trial court

consideration of the factors set forth in Code § 20-107.1 and

did not preserve that question for appeal.       "The Court of

Appeals will not consider an argument on appeal which was not

presented to the trial court."      Ohree v. Commonwealth, 26 Va.

App. 299, 308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18.       We

perceive no reason to invoke the good cause or ends of justice

exceptions to Rule 5A:18.

                          III.   RETROACTIVITY

     Mr. Ippolito next contends that the trial court erred in

awarding spousal support retroactively to a date which preceded

the date on which the motion to enforce was filed or notice of

same was given to him.    He did not preserve this issue for

appeal.     See Rule 5A:18.   Although he objected to the award of

spousal support, neither the recitals in the statement of facts

nor his endorsement of the order reflect an objection to the

establishment of an arrearage prior to the date of filing.

                                  - 5 -
Thus, Rule 5A:18 bars our consideration of this issue.    The

record reflects no reason to invoke the good cause or ends of

justice exceptions to Rule 5A:18.

                          IV.   BANKRUPTCY

     Mr. Ippolito next contends that the trial court erred in

considering Ms. Blyn's claim after he had filed a voluntary

petition in bankruptcy.   He argues that this filing stayed the

proceeding against him in the trial court.   See 11 U.S.C.

§ 362(a)(1).   We disagree.

     Section 362(b)(2)(B) of 11 U.S.C. excepts from the

automatic stay "the collection of alimony, maintenance or

support from property that is not property of the estate."      Id.

To fall within this statutory exception, the monies sought to be

collected must constitute a debt in the nature of alimony,

maintenance or support under 11 U.S.C. § 523(a)(5).

     In pertinent part, 11 U.S.C. § 523 provides:

          (a) A discharge under section 727, 1141,
          1228(a), 1228(b), or 1328(b) of this title
          does not discharge an individual debtor from
          any debt --

           *       *      *      *      *      *      *

          (5) to a spouse, former spouse, or child of
          the debtor, for alimony to, maintenance for,
          or support of such spouse or child, in
          connection with a separation agreement,
          divorce decree, or other order of a court of
          record, determination made in accordance
          with State or territorial law by a
          government unit, or property settlement
          agreement, but not to the extent that --


                                - 6 -
             *      *      *      *       *     *        *

                 (B) such debt includes a liability
            designated as alimony, maintenance, or
            support, unless such liability is actually
            in the nature of alimony, maintenance, or
            support; . . . .

     Mr. Ippolito's obligation to Ms. Blyn under paragraph seven

of the separation and property settlement agreement is

specifically labeled "SPOUSAL SUPPORT" and is "actually in the

nature of alimony, maintenance, or support."   It is not a "debt

arising out of the resolution of property rights and

obligations."    It does not represent a division of the parties'

property.   Rather, it is support necessary to permit Ms. Blyn to

maintain herself reasonably and properly under her

circumstances, which have changed due to her obligation to

satisfy the notes that she endorsed.    Therefore, it was not a

debt dischargeable in bankruptcy, and the trial court did not

err in proceeding against Mr. Ippolito.

     The judgment of the trial court is affirmed.

                                                             Affirmed.




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