                   COURT OF APPEALS OF VIRGINIA


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


DONALD BLAIR DeVORE
                                         MEMORANDUM OPINION * BY
v. Record No. 0552-98-2                JUDGE JAMES W. BENTON, JR.
                                           FEBRUARY 2, 1999
SUZANNE MARGARET BINDEMAN DeVORE


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Theodore J. Markow, Judge
          Deanna D. Cook (Bremner, Janus & Cook, on
          briefs), for appellant.

          Robert C. Bode (Hooker, Bode, Collier,
          Dickinson & Gardner, on brief), for appellee.



     Upon Donald Blair DeVore's motion to enforce a provision of

a property settlement agreement, the trial judge conditionally

relieved DeVore (the husband) of his obligation to pay spousal

support to his former spouse, Suzanne Margaret Bindeman DeVore

(the wife).   On this appeal, the husband contends that the trial

judge erred in not permanently terminating his spousal support

obligation.   We agree.

                                I.

     The parties were divorced in 1990.   The final decree

"affirmed, ratified, and incorporated" by reference the parties'

property settlement agreement that obligated the husband to pay

spousal support pursuant to the following provision:
             The husband shall pay to the wife for her
          support and maintenance the sum of $750.00
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
per month, with such amount being payable
$375.00 on the first day of each month and
$375.00 on the 15th day of each month. These
payments shall continue for twelve months
from the date of June 1, 1989, until extended
or terminated per provisions of this
paragraph.

   The husband and wife own a business known
as Delicacies, Limited. Under other
provisions of this Agreement, the husband
conveys all of his right, title and interest
in such business to the wife. If at the end
of twelve months from the date of this
Agreement the wife elects, at her sole
option, not to place such business on the
market for sale, the obligation of the
husband to the wife to pay spousal support
shall terminate permanently. If at the end
of twelve months from the date of this
Agreement the wife elects to place such
business on the market for sale, the husband
shall continue to pay $750.00 per month as
set forth above for the support and
maintenance of the wife until the wife has
sold the business, obtained new employment
and has received her first pay check from
such employment, but such extension of the
spousal support payments beyond the twelve
months from the date of this Agreement shall
be for an additional period not to exceed six
months unless otherwise extended per the
following paragraph.
   If the wife elects to place the business
on the market for sale and the wife is not
able to obtain employment grossing $20,000.00
a year annually or more following the above
18-month period (12 months plus possible
6-month extension), then the husband may be
obligated to pay spousal support to the wife
in an amount and if so ordered by an
appropriate court; if the wife under such
circumstances does obtain employment grossing
her at least $20,000.00 a year, the husband
shall then have no obligation to pay spousal
support to the wife.

   In addition to the above, the husband
shall maintain reasonable and adequate
medical and hospitalization insurance



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          coverage for the benefit of the wife so long
          as he is obligated to pay spousal support to
          the wife.


     In 1997, the husband filed a motion to terminate his

obligation to pay spousal support and alleged that the wife was

earning a salary of $26,000 per year.   The wife responded by

filing a motion to increase the amount of spousal and child

support, to hold the husband in contempt for breach of the

agreement, to order reimbursement from the husband for money she

spent for medical expenses on behalf of their child, and to have

her attorney's fees and costs reimbursed.   At the hearing on the

husband's motion to terminate his obligation to pay spousal

support, the trial judge ruled inadmissible the wife's evidence

concerning her allegation that the husband breached the agreement

in 1989 and 1992 when he failed to pay certain marital debts.

The trial judge ruled that if the wife had a cause of action for

breach of the agreement based upon the failure to pay the debts,

that matter had to be addressed in a separate action.    Following

testimony by the husband and the wife, the trial judge entered an

order finding, as pertinent to the issues on this appeal, that

the wife's gross annual income exceeded $20,000 and ruled that

the husband was "relieve[d] . . . of any obligation to pay

spousal support so long as [the wife] earns $20,000 or more in

gross annual income."
                               II.

     The husband contends that the trial judge erred in not




                              - 3 -
permanently terminating his spousal support obligation.    The wife

contends that the trial judge correctly interpreted the agreement

to allow a future reinstatement of spousal support.   By

cross-appeal, the wife further contends on brief that the trial

judge erred (1) in refusing to hear evidence of the husband's

breach of the agreement by failing to pay marital debts, (2) in

terminating the spousal support payments, and (3) in not awarding

her attorney's fees and costs.
                                 III.

     When a trial judge has "affirm[ed], ratif[ied] and

incorporate[d] by reference in [the] . . . decree of divorce

. . . any valid agreement between the parties . . . concerning

the conditions of the maintenance of the parties," Code

§ 20-109.1, the trial judge later may not enter a "decree or

order directing the payment of support and maintenance for the

spouse . . . except in accordance with that [agreement]."   Code

§ 20-109(C).
              This provision of Code § 20-109 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. In such cases, the intent of the
          parties as expressed in the agreement
          controls, and the agreement is treated as a
          contract and construed in the same manner as
          all contracts.


White v. White, ___ Va. ___, ___, ___ S.E.2d ___, ___ (January 8,

1999) (citations omitted).

     The trial judge determined that the agreement was


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unambiguous and construed its terms.   In their briefs, the

parties agree that the agreement is not ambiguous.   However, the

parties disagree as to the meaning of the words in the agreement.

 See Douglas v. Hammett, 28 Va. App. 517, 523, 507 S.E.2d 98, 101

(1998) (noting that although the parties may "advance different

interpretations of the provisions of . . . [the] agreement, this

'does not necessarily imply the existence of ambiguity where

there otherwise is none'").
     In our review, "we are not bound by the trial [judge's]

conclusions as to the construction of the disputed provisions."

Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986).

"'The guiding light in the construction of a contract is the

intention of the parties as expressed by them in the words they

have used, and [we] are bound to say that the parties intended

what the written instrument plainly declares.'"   Wilson v.

Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984) (citation

omitted).

     The trial judge determined that the parties intended to

relieve the husband of the obligation to pay spousal support for

only so long as the wife earns $20,000 or more in gross annual

income.   However, the agreement does not contain any language

that suggests that the husband's obligation, once suspended, can

be reinstated.   The agreement provides that when "the wife under

[the specified] circumstances does obtain employment grossing

. . . at least $20,000 a year, the husband shall then have no



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obligation to pay spousal support to the wife."   Nothing in that

provision or in any other provision of the agreement suggests

that the husband must resume spousal support payments if the

wife's annual income drops below $20,000 in the future.

     The evidence proved that the circumstances specified in the

agreement occurred and that the wife "[did] obtain employment

grossing at least $20,000.00 a year."    The agreement explicitly

states that "the husband shall then have no obligation to pay

spousal support to the wife."   Clearly, the word "then" refers to

the occurrence of the specific income level that the wife has

"obtain[ed]."   The agreement does not provide for a future review

of the wife's income status.    It also contains no language

indicating that the husband is to be conditionally relieved of

his obligation to pay spousal support.   We find nothing in the

agreement that suggests the spousal support payments, once ended,

would ever resume.   See Bergman v. Bergman, 25 Va. App. 204, 214,

487 S.E.2d 264, 269 (1997) (absent other qualifying language, the

use of the term "shall cease" in a property settlement agreement

proviso regarding spousal support does not mean "temporarily

suspend").

     Our function is "'to construe the contract made by the

parties, not to make a contract for them.'"    Id. at 211, 487

S.E.2d at 268 (citation omitted).   To read the agreement, as

suggested by the wife, to provide for a temporary suspension of

payments for so long as the wife is earning in excess of $20,000,




                                - 6 -
would be to make a new contract.     That we cannot do.

                                  IV.

     By cross-appeal, the wife contends that the trial judge

erred in refusing to admit evidence concerning her allegation

that the husband breached the agreement by failing to pay certain

marital debts.   We find no error.

     This proceeding began when the husband filed a motion to

terminate spousal support in accordance with the spousal support

provision of the agreement.   The wife alleged in her pleadings

that the refused evidence proved a change in circumstances.    The

trial judge's ruling that evidence of events occurring six to

nine years earlier was irrelevant to the spousal support issue

was not an abuse of discretion.    The wife's evidence of "a change

in circumstance" was not germane to the specific issue whether

the wife's salary had reached the level specified in the

agreement.   The trial judge's ruling was within his "broad

discretion to determine the admissibility of evidence."    Piatt v.
Piatt, 27 Va. App. 426, 435, 499 S.E.2d 567, 571 (1998).

     Furthermore, the record indicates that the wife raised the

issue of breach of the agreement and failure to pay the marital

debts as a predicate "for an Order holding [the husband] in

Contempt of Court for his failure to comply with the terms and

conditions of the . . . written agreement and the Final Decree."

The record does not indicate that the wife pursued her contempt

claim in the circuit court.   Thus, that matter is not on appeal.




                               - 7 -
Accordingly, we have no occasion to address any ruling

concerning the contempt issue.

                                  V.

     The wife also contends that the trial judge erred in not

awarding her attorney's fees and costs for the hearing in the

circuit court.   The rule is well established and long standing

that whether to make an award of attorney's fees is within the

trial judge's discretion.   See Wilkerson v. Wilkerson, 214 Va.

395, 398, 200 S.E.2d 581, 584 (1973).    The record fails to

establish a basis upon which we could conclude that the trial

judge abused his discretion.
     For these reasons, we reverse the trial judge's ruling that

the husband's spousal support payments may be reinstated in the

future.   In addition, we affirm the trial judge's rulings barring

the evidence and denying an award of attorney's fees and costs.
                                             Reversed in part and
                                             affirmed in part.




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