                   COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


ANDREW T. SCHNEIDER

v.         Record No.   2078-96-4

DENISE M. SCHNEIDER
                                            MEMORANDUM OPINION * BY
and                                       JUDGE ROSEMARIE ANNUNZIATA
                                             SEPTEMBER 9, 1997
DENISE M. SCHNEIDER
v.         Record No.   2153-96-4

ANDREW T. SCHNEIDER


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

           (James W. Korman; Andrea M. Contreras; Bean,
           Kinney & Korman, on briefs), for Andrew T.
           Schneider.

           (MaryEllen Craig; Nancy J. Wuerker; Craig &
           Hirsch, on briefs), for Denise M. Schneider.



      Andrew T. Schneider (husband) and Denise M. Schneider (wife)

appeal the decisions of the circuit court denying, by summary

judgment, husband's motion for modification of spousal support

and wife's motion for attorney's fees.        For the following

reasons, we affirm the circuit court's decisions.

                                    I.

      The parties were married in April 1988 and divorced by final

decree entered in December 1994.         The final decree incorporated

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the parties' property settlement agreement (PSA), which required

husband to pay wife $2,150 per month in spousal support.     The

agreement provided that husband's spousal support obligation

would continue,
          for a maximum of fifteen (15) years, [until]
          the death of either party, the remarriage of
          the Wife, or the Wife becomes employed
          earning at least $40,000.00 annually,
          whichever is sooner; provided, however,
          either party may seek a modification during
          the period of said obligation, but in no
          event beyond fifteen (15) years, based upon a
          material change of circumstances.

Husband's responses to wife's request for admissions established

that a provision had been proposed for incorporation into the

PSA, prior to its execution, which would have required wife to

make a good faith effort to obtain employment.   Husband's

responses further established that wife rejected the proposed

provision.   The final agreement contained no provision requiring

wife to seek employment.

     In January 1996, husband filed a petition seeking a

reduction in spousal support.   He alleged that wife's failure to

in good faith seek and obtain employment since the entry of the

decree constituted a material change of circumstances "from what

was reasonably anticipated by the parties at the time of the

execution of the said Agreement, i.e. that [wife] would make

persistent and good faith efforts to get employment."

     It is undisputed that wife was not employed when the decree

was entered and that she remained unemployed when husband




                                 2
petitioned for a modification of support.   Husband contended that

wife was employable both at the time the decree was entered and

when he argued his petition.   Wife contended that she had been

fully disabled since prior to the entry of the decree.    Neither

party contended that wife's employability had changed since the

entry of the decree.

     Wife filed a demurrer to husband's petition, which the

circuit court overruled.   Following discovery, wife filed a

motion for summary judgment, arguing that husband had failed to

demonstrate a material change in circumstance.    The court granted

wife's motion for summary judgment, finding,
          the PSA is not ambiguous and that counsel is
          conceding that the wife was unemployed at the
          time of this agreement and she is unemployed
          now, and I don't see what the change of
          circumstances from that day to this is under
          this agreement, particularly, the attempt of
          [husband] to insert a good faith obligation
          on the wife to seek employment which was
          rejected by wife's counsel and this document
          was executed. If this document was
          ambiguous, if it was, that would certainly in
          the court's view end this matter.


                                II.

     The trial court made alternative findings.     The court first

found the PSA unambiguous.   It refused, therefore, to look beyond

the PSA to determine the parties' intentions and found no change

of circumstance had occurred based on the parties'

representations of wife's employment status and the absence of a

requirement in the PSA that she seek or obtain employment.

Alternatively, the court found the PSA ambiguous.    It looked,



                                 3
therefore, to husband's admissions as evidence of the dispositive

issue, viz., whether "what was reasonably anticipated by the

parties at the time of the execution of the said Agreement, i.e.

that [wife] would make persistent and good faith efforts to get

employment" had changed.   Those admissions led the court to the

conclusion that the parties' expectations had not changed since

the entry of the decree.

     The question of whether a contract is ambiguous is one of

law, to which we are not bound by the trial court's construction.
 E.g., Ross v. Craw, 231 Va. 206, 213, 343 S.E.2d 312, 316

(1986).   Here, we find the language in the PSA allowing a

modification of support upon a material change in circumstance to

be, by its very nature, ambiguous.   The trial court's first

finding was, therefore, erroneous.   While the PSA enumerated

certain, specific criteria affecting husband's support

obligation, it also provided generally that husband's support

obligation could be modified upon a "material change of

circumstance[]."   The determination whether the circumstances

existing when the PSA was entered had subsequently changed

depended on a determination of what those circumstances initially

were, together with an examination of the present, "changed"

circumstances which may warrant modification of support.     The

court had to look beyond the PSA to resolve the issue, because

the PSA itself, addressing "circumstances" generally, does not

answer either question.



                                 4
      In the present case, although first concluding the PSA was

unambiguous, the court nevertheless considered evidence relevant

to the issue of whether circumstances had changed since the entry

of the decree.     Specifically, the court considered husband's

admissions in answering the specific question before it, viz.,

whether "what was reasonably anticipated by the parties at the

time of the execution of the said Agreement, i.e. that [wife]

would make persistent and good faith efforts to get employment"

had changed.   The answer, as the trial court correctly found, was

no.   As demonstrated by the proposed inclusion, but ultimate

rejection, of a provision which would have required wife to seek

employment, it is manifest that the circumstances under which the

parties entered the PSA did not include their intent and

expectation that wife would make persistent and good faith

efforts to become employed.    The trial court's alternative

finding was, thus, correct.
      Based on this analysis, we disagree with husband's

contention that the circuit court improperly decided the issue on

summary judgment.    As determined from the parties' pleadings and

admissions, there were no material facts genuinely in dispute.
See Rule 2:21. 1   Since the decree was entered in the present
      1
      Contrary to husband's contention, it is unnecessary to rely
on wife's answers to husband's requests for discovery to
determine the issue. Furthermore, contrary to husband's
argument, the overruling of wife's demurrer does not have
preclusive effect on the court's award of summary judgment.
There is a manifest distinction between the basis for the court's
decision on a demurrer, viz., whether the petition stated a claim
upon which relief may have been granted, and the basis for the



                                   5
case, wife has remained unemployed.    Furthermore, although the

parties disagree as to whether wife is now employable, neither

contends that her employability has changed since the entry of

the decree. 2   Finally, the parties did not anticipate that wife

would make persistent and good faith efforts to gain employment

as a condition of the support husband obligated himself to pay. 3

                                III.

     In her motion for summary judgment, wife also sought an

award of attorney's fees.    She alleged an award of attorney's

fees was authorized under paragraphs 9, 11, 12, 14 and 18 of the
                                         4
PSA, as well as under Code § 20-99(5).
     Paragraph 11 of the PSA provides:
               In the event that either party defaults
(..continued)
court's decision on a motion for summary judgment, viz., whether,
after review of the pleadings, orders, and admissions, all coming
subsequent to the demurrer, there are material facts genuinely in
dispute.
     2
      Indeed, husband does not contend that wife is any more or
less employable today than she was when the decree was entered.
     3
      To the extent husband contends that the law imposed a duty
upon wife to reduce her support needs by obtaining employment,
rendering her failure to do so over time a material change in
circumstance, his contention is inapposite. Husband bargained
away whatever duty the law imposed upon wife to obtain employment
to reduce her support needs. Husband could have litigated the
issue of wife's employability and pursued judicial enforcement of
the duty he now suggests the law imposes. He did not. Instead,
he chose to enter the PSA, an agreement suggesting by its very
nature a compromise of the parties' interests upon their
separation. Thereafter, the PSA was incorporated into a final
decree of the trial court, and the issue of support became final.
     4
      Code § 20-99(5) provides that in suits for divorce,
annulment, or affirmation, "[c]osts may be awarded to either
party as equity and justice may require."



                                  6
     in the performance of any of the provisions
     of this Agreement, the defaulting party will
     indemnify the other for all reasonable
     expenses and costs, including attorney's
     fees, incurred in successfully enforcing the
     terms of this Agreement.


Paragraph 9 provides:
          Each party shall be free from
     interference, authority or control, direct or
     indirect, by the other. Neither party shall
     molest, harass, annoy or in any way interfere
     with the other, and each of the parties
     hereto shall have full and complete
     independence of action and conduct in all
     business and social relations, and the public
     and private activities of each of them shall
     be entirely free from all restraint,
     supervision, control and censure by the
     other.

Paragraph 12 provides, in part:
          The parties hereto agree to accept, and
     do hereby accept, the covenants and
     agreements herein contained in full, complete
     and final settlement of any and all claims
     and demands of every kind, whether the same
     be in law or in equity, which either may have
     against the other, and the parties do hereby
     agree that this agreement contains the entire
     undertaking between them and that there are
     no oral or written promises, inducements or
     agreements whatsoever between them, except as
     herein contained.


Paragraph 14 provides:
          Each party shall at any time hereafter,
     take any and all steps and execute,
     acknowledge and deliver to the other party
     any and all further instruments and
     assurances that may be reasonably required by
     the other, his or her heirs, executors,
     administrators and assigns, for the purpose
     of perfecting a clear title to any property
     referred to in this agreement and for the
     purpose of giving full force and effect to
     the intent of the covenants, conditions and
     agreements contained herein. In the event



                           7
          either party fails or refuses to do so, or in
          the event of any default on the part of
          either party hereto, the costs and expenses
          of any litigation or other action of any
          nature necessary to compel compliance
          herewith, including attorney's fees, shall be
          borne by the defaulting party.


     Paragraph 18 provides:
               No modification or waiver of any of the
          terms of this Agreement shall be valid unless
          in writing and executed with the same
          formality as this Agreement. No waiver of a
          breach or default of any clause of this
          Agreement shall be deemed to constitute a
          waiver of any subsequent breach or default of
          the terms hereof. The failure of any party
          at any time to insist upon the strict
          performance of any of the terms or covenants
          of this Agreement shall not be deemed a
          waiver of the right to insist upon strict
          performance of the same or any other term or
          covenant of this Agreement at any time.

     The circuit court found that the PSA contained no provision

allowing an award of attorney's fees to the prevailing party in a

dispute arising under its terms.       The court interpreted the PSA

to require an award of attorney's fees, under paragraph 11, only

when a party defaulted in his or her performance under the PSA.

Finding that husband had not defaulted in his performance, the

circuit court granted husband's cross-motion for summary

judgment, denying wife's request for attorney's fees.

                                  IV.

     Wife does not contend that the court improperly determined

this issue by summary judgment; her contention is simply that the

court erred as a matter of law.    We disagree.

     Wife alleges that husband breached and defaulted in his



                                   8
performance of the PSA by filing his petition for a modification

of spousal support.   She does not dispute that the PSA provided

that husband could petition for a modification of support.    She

alleges, however, that husband's petition, not being premised on

a material change in circumstances, was an attempt to impose an

obligation on wife that was not contemplated by the PSA.     That

imposition, she contends, was a breach of his performance under

the PSA, entitling her to attorney's fees under paragraph 11.
     Specifically, wife alleges that husband breached the "no

interference" provisions of paragraph 9 by "attempt[ing] to

control and direct the activities of [wife] by alleging a duty

that does not exist in the contract."   She alleges husband

breached the "mutual releases" provisions of paragraph 12 by "not

accept[ing] the terms of the Agreement as full and complete

compromise and settlement, and attempt[ing] by his Petition to

make claims of additional conditions and duties on [wife]."    She

alleges husband breached the "further instruments and assurances"

provisions of paragraph 14 by "fail[ing] to give such assurances

and instead [taking] action to try to change the parties'

contract."   Finally, she alleges husband breached the "no

modifications" provisions of paragraph 18 by "alleg[ing] an

Agreement effectively modified by the unexpressed intent of the

parties regarding [wife's] duty to obtain employment, rather than

accepting the provision of the Agreement indicating that no

modification of the Agreement could be made except in writing




                                 9
. . . ."

     At length in her brief, wife applies various dictionary

definitions, restatement of contracts principles and the holding

of a Virginia Supreme Court case to establish that defective

performance amounts to a "default" in performance.   That

principle, however, is inapposite.   Husband's petition for a

modification of support did not affect or effect performance

under the PSA.
     The PSA itself entitled husband to petition for a

modification of support.   Authorized by the PSA, husband's

petition does not violate any of its terms.   Furthermore, to the

extent husband's petition was simply an attempt to impose a duty

on wife not contemplated by the agreement, husband only alleged

the duty; his performance under the agreement never changed.

Indeed, there is no dispute concerning husband's continued

payment of support.   Finally, the paragraphs of the PSA upon

which wife relies are inapposite to her claim.   Paragraphs 12

and 18 require no performance of any kind.    Paragraph 12 provides

that the agreement represents the entire undertaking between the

parties, and paragraph 18 provides that no oral modifications to

the agreement shall be valid.   While both provisions may

demonstrate that wife was not bound to seek or obtain employment

under the PSA, neither provision proscribes husband from

suggesting otherwise.   Furthermore, husband's petition bears no

relation to the performance required by paragraph 14, viz., that




                                10
husband provide further instruments and assurances to give full

force and effect to the PSA, or the non-performance required by

paragraph 12, viz., that husband not interfere or control wife.

        In short, husband has not defaulted under the PSA and, thus,

the PSA provides no authority for an award of attorney's fees to

wife.    Although wife prevailed in this case, the PSA does not

provide for an award of attorney's fees to the prevailing party

in an action arising under the PSA.
        Wife's reliance on statutory authority to support her

request for an award of attorney's fees is likewise misplaced.

"Code § 20-109 bars a trial court from `directing the payment of

. . . suit money or counsel fee[s] . . . except in accordance

with th[e] [parties'] . . . contract.'"     Sanford v. Sanford, 19

Va. App. 241, 249, 450 S.E.2d 185, 190 (1994).    Here, as stated,

the parties contracted not to provide the relief wife now seeks.

        For the foregoing reasons, the judgment of the circuit court

is affirmed.
                                                          Affirmed.




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