                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia


SUSAN K. SMITH
                                              MEMORANDUM OPINION * BY
v.   Record No. 0488-98-2                     JUDGE DONALD W. LEMONS
                                                   MARCH 30, 1999
WILLIAM S. SMITH


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge

          Mary-Leslie Duty (Duty, Duty & Gay, on
          brief), for appellant.

          Deanna D. Cook (Bremner, Janus & Cook, on
          brief), for appellee.


     Susan K. Smith appeals the trial court's dismissal of her

motion for an increase in spousal support.       The trial court held

that the provisions of Code § 20-109 and the terms of the

parties' separation agreement precluded the court from modifying

spousal support.   Although we hold that the parties' separation

agreement was ambiguous as to whether the court could modify the

amount of spousal support, we affirm the decision of the trial

court.

                            I.   BACKGROUND

     Susan K. Smith (wife) and William Scott Smith (husband)

were married on June 21, 1975.     The parties separated on

November 26, 1989.   On May 2, 1991, both parties entered into a

    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
property settlement agreement which resolved all issues of

spousal support, equitable distribution, child custody and

support.   On June 13, 1991, the final decree of divorce

affirmed, ratified and incorporated by reference the property

settlement agreement.   All matters regarding the support and

custody of the children were remanded to the Chesterfield

Juvenile and Domestic Relations District Court ("J & DR court").

     On July 3, 1996, the husband filed a petition in the J & DR

court seeking to have his child support payments reduced, based

upon the eldest child graduating from high school and having

reached the age of eighteen.   The wife filed a motion in the

circuit court to remand the issue of spousal support to the

J & DR court, which was done by court order.    The wife filed a

response to the husband's request to decrease child support and

filed a separate motion to increase spousal support.   The

husband objected to the court hearing the wife's motion, arguing

that the court lacked jurisdiction to increase the amount of

spousal support based upon the parties' property settlement

agreement of May 2, 1991 and Code § 20-109.1.

     On November 1, 1996, a hearing was held in the J & DR

court.   By order entered on December 10, 1996, the J & DR court

found that Code § 20-109.1 and the parties' written property

settlement agreement precluded the court's jurisdiction to

modify spousal support.   The wife appealed the order of the



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J & DR court to the circuit court and on March 13, 1997, a

hearing was held by the circuit court on the issue of whether

the court had jurisdiction to increase spousal support.      By

letter dated May 19, 1997, and order entered February 9, 1998,

the circuit court denied the wife's petition to increase spousal

support, stating that the court lacked jurisdiction to modify

spousal support.

           II.     JURISDICTION TO MODIFY SPOUSAL SUPPORT

     Pursuant to Code § 20-109, a trial court may modify the

existing terms of spousal support and maintenance upon the

petition of either party.    However, "where the parties contract

or stipulate to the amount of spousal support and that agreement

is filed without objection prior to the entry of the final

divorce decree, no decree or order directing the payment of

support and maintenance for the spouse . . . shall be entered

except in accordance with that stipulation or contract."

Pendleton v. Pendleton, 22 Va. App. 503, 506, 471 S.E.2d 783,

789 (1996) (citations omitted); see Code § 20-109(C).       Section

20-109(C) "inhibits the power of the court to award or consider

modification of the decree to the extent that spousal support

and maintenance are provided for in the incorporated agreement

of the parties."     White v. White, 257 Va. 139, 144, 509 S.E.2d

323, 325 (1999) (citations omitted).




                                 - 3 -
     The property settlement agreement signed by the parties on

May 2, 1991 contained the following pertinent provisions in

paragraph sixteen,

               [b]eginning August 1, 1991, the Husband
          shall pay to the Wife the sum of Five
          Hundred dollars ($500.00) per month as
          spousal support. Spousal support payment
          [sic] shall be due and payable on the first
          day of each month and continue thereafter
          until further Court Order or remarriage of
          the Wife.

               It is understood that these provisions
          for the payment of child support and spousal
          support are based upon an income of the
          Husband being $100,000.00. Should Wife
          remarry or for any reason not be entitled to
          spousal support, the child support payments
          would automatically increase by the same
          amount ($500.00) and continue until further
          Court Order.

     Paragraph eighteen of the agreement contained the following

waiver provision,

               [t]he Wife acknowledges that the
          foregoing provisions for her, together with
          her anticipated income from other sources
          will provide for her support and maintenance
          and that the foregoing, considering all of
          the Wife's circumstances, is fair, adequate
          and satisfactory to her and is in the
          keeping [sic] with her accustomed standard
          of living and her reasonable requirements,
          giving consideration to her own ability to
          provide for her own support.

          THE WIFE, THEREFORE, WAIVES ANY AND ALL
          CLAIM TO SUPPORT AND MAINTENANCE FOR HERSELF
          OTHER THAN THOSE TERMS AND CONDITIONS
          HEREIN, AND HEREBY RELEASES AND DISCHARGES
          ABSOLUTELY AND FOREVER FOR THE REST OF HER
          LIFE, FROM ANY AND ALL CLAIMS AND DEMANDS,



                              - 4 -
          PAST, PRESENT OR FUTURE, FOR SUPPORT,
          MAINTENANCE OR LUMP SUM SETTLEMENT.

     The final decree of divorce order entered on June 13, 1991

contained the following provisions,

               And it appearing to the Court that the
          parties to this cause have entered into an
          Agreement and Stipulation in accordance with
          Virginia Code Section 20-109 and 20-109.1,
          Code of Virginia, 1950, as amended, it is
          ADJUDGED, ORDERED and DECREED that said
          Agreement and Stipulation be, and the same
          is hereby affirmed, ratified, and
          incorporated by the Court, and that the
          parties fully comply with the terms of same,
          and that a copy thereof is on file with the
          papers in this cause.

          *      *      *      *      *      *      *

               It is hereby ORDERED that the defendant
          shall pay to the plaintiff the sum of Five
          Hundred Dollars ($500.00) per month as
          spousal support. Said spousal support shall
          be due and payable on the first day of each
          month and shall continue thereafter until
          further Court Order or remarriage of the
          plaintiff.

          *      *      *      *      *      *      *

               It is further ORDERED that, pursuant to
          Section 20.79(c) of the Code of Virginia,
          1950, as amended, all matters pertaining to
          the care, custody, visitation and support of
          the minor children of this marriage are
          transferred to the appropriate Juvenile and
          Domestic Relations District Court, having
          jurisdiction, for the enforcement of the
          decrees of this Court, or for the
          modification or revision thereof as the
          circumstances may require.




                              - 5 -
     At the trial court, the parties agreed to orally argue the

issue of the court's jurisdiction to modify the amount of

spousal support, considering only the property settlement

agreement and the final decree of divorce and not considering

any other evidence.   Both parties argued that the terms of the

property settlement agreement were clear and unambiguous.

However, each party asserted that the language "until further

Court Order" contained in the agreement supported a meaning

contrary to the meaning asserted by the other party.

     On appeal, the wife argues that the trial court erred in

finding that it did not have jurisdiction to modify the spousal

support order.   She states that Code § 20-109 grants the court

authority to "increase, decrease or terminate the amount or

duration of any spousal support and maintenance . . . whether

previously or hereafter awarded, as the circumstances may make

proper."   She maintains that the language in the property

settlement agreement and the divorce decree "until further Court

Order" was a clear and proper reservation of the right of either

party to request a modification of both the amount and the

duration of spousal support award.     The wife asserts further

that the agreement was based upon the husband's then-current

income of $100,000 per year and that the parties intended to

make the support award modifiable upon a change in his income.

In addition, the wife suggests that if the court does find that



                               - 6 -
the agreement is ambiguous, it must consider extrinsic evidence

to determine the intentions of the parties.

     Conversely, the husband argues on appeal that the court's

jurisdiction is limited to the modification of the duration of

spousal support and that the amount of support is non-modifiable

based upon the terms of the property settlement agreement.     The

husband contends that the language "until further Court Order or

remarriage of the Wife" allows the court to terminate support,

but not modify the amount.   The husband argues that the

agreement contains no explicit language reserving authority for

the court to increase or decrease the amount of spousal support

and that the court may not modify an award in the absence of

such a provision.   The husband argues further that paragraph

eighteen of the agreement constitutes a waiver of any right of

either party to seek any type of support from the other party in

the future.   The husband maintains that the court must read

paragraph eighteen, the waiver provision, in conjunction with

paragraph sixteen which sets the dollar amount of support, or

the waiver will be rendered meaningless.

     The husband also contends that the wife may not argue for

the first time on appeal that the agreement is ambiguous and

that the case should be remanded to the trial court for

consideration of parol evidence.   The husband asserts that if

the wife believed that the introduction of parol evidence was



                               - 7 -
necessary to determine the intent of the parties, she should not

have agreed to submit the issue of the trial court's

jurisdiction to modify the amount of spousal support without the

benefit of a full evidentiary hearing.

     An appellate court is not bound by the conclusions of the

trial court with respect to the construction of the terms of a

property settlement agreement.    See Bergman v. Bergman, 25 Va.

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

omitted).   "[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 (citation omitted).

     At the hearing held in the circuit court, the parties

agreed to argue orally whether the court had jurisdiction to

modify the amount of spousal support without introducing

extrinsic evidence of the parties' intentions.   Based upon the

arguments made by counsel, the court determined that it did not

have jurisdiction to modify the spousal support award.

     On the face of the document, it is unclear whether the

agreement of the parties preserves continuing jurisdiction over

modification of the amount of spousal support or the duration of

spousal support or both.   If the only language in question was

the meaning of the phrase "and continue thereafter until further



                                 - 8 -
court Order," we would find that the court had jurisdiction to

modify the amount of spousal support.    See Losyk v. Losyk, 212

Va. 220, 183 S.E.2d 135 (1971); Duke v. Duke, 239 Va. 501, 391

S.E.2d 77 (1990).   But in the same numbered paragraph of the

agreement the parties state that if spousal support terminates,

the sum certain of $500 would be added to child support.     This

additional provision of the agreement provides further support

for husband's argument that the amount was never to vary and

consequently could not be subject to modification by the court.

     We find the language of the agreement to be ambiguous on

the question of spousal support modification; however, neither

party submitted parol evidence to the trial court.   "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.

Neither party argued to the trial court that the agreement was

ambiguous, and the court had no parol evidence before it;

consequently, we have no evidence in the record sufficient to

resolve the ambiguity.   Even if we invoked the good cause or

ends of justice exceptions to Rule 5A:18, we have an

insufficient record to consider the issue.    See Smith v.

Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993).

     In this case, the wife bears the burden of demonstrating

that the trial judge's ruling was plainly wrong or without



                                 - 9 -
evidence to support it.    Although we find the language of the

agreement to be ambiguous, remand for the wife to have a "second

bite at the apple" is inappropriate.      Having chosen to submit

the issue to the trial court with each party insisting that the

language is unambiguous, the wife places limitations upon the

trial court and the appellate court.      With these limitations,

the wife fails in her burden on appeal.     Accordingly, the

decision of the trial court is affirmed.

                         III.   ATTORNEY'S FEES

        On appeal, the husband argues that he is entitled to

attorney's fees and costs incurred in defending the instant

appeal, and requests that we remand the case to the trial court

for its calculation of attorney's fees incurred by him in this

case.

             The rationale for the appellate court being
             the proper forum to determine the propriety
             of an award of attorney's fees for efforts
             expended on appeal is clear. The appellate
             court has the opportunity to view the record
             in its entirety and determine whether the
             appeal is frivolous or whether other reasons
             exist for requiring additional payment.

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98,

100 (1996).

        Although we find the agreement to be ambiguous on the issue

presented, we do not believe that the wife's assertion that it




                                 - 10 -
was ambiguous was frivolous.   The husband's request for

attorney's fees is denied.

                                                           Affirmed.




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