                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bumgardner and Lemons


JAMES D. STRICKLAND, JR.
                                           MEMORANDUM OPINION *
v.   Record No. 0865-99-1                      PER CURIAM
                                             OCTOBER 5, 1999
PAULA J. STRICKLAND


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                  H. Thomas Padrick, Jr., Judge

           (Richard H. Doummar; Henry E. Howell, III;
           Doummar & Howell, L.L.P., on brief), for
           appellant.

           (Constantine A. Spanoulis, on brief), for
           appellee.


     James D. Strickland, Jr., (husband) appeals the decision of

the circuit court granting the motion to show cause filed by

Paula J. Strickland (wife).   Wife sought to recover spousal

support arrearages accrued since 1995.   Husband raises four

arguments on appeal:   (1) wife waived her right to spousal support

in the letter memorandum she signed in 1995; (2) wife was

equitably estopped from seeking accrued spousal support by

husband's reliance on the signed memorandum; (3) the letter

memorandum memorialized an oral agreement between husband and

wife; and (4) the oral contract was a binding contract enforceable

against wife.   Upon reviewing the record and briefs of the


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court.

See Rule 5A:27.

     The evidence was received during a hearing before the trial

court.   "The judgment of a trial court sitting in equity, when

based upon an ore tenus hearing, will not be disturbed on appeal

unless plainly wrong or without evidence to support it."        Box v.

Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).

Certain facts were uncontested.   The parties were divorced by

final decree entered August 13, 1989.     Under paragraph 5(h) of

the divorce decree, wife was awarded "fifty per cent (50%) of

the [husband's] disposable retirement income, which is now

vested . . . .    Said sum is subject to increase or decrease in

the future, as the case may be, but percentage to be received by

the [wife] is constant at fifty."    Under paragraph 6, wife was

awarded $375 in monthly spousal support.     On June 29, 1995,

husband filed a motion to terminate spousal support.      The

parties discussed husband's proposal that wife waive spousal

support.   As found by the trial court, the parties agreed that

any agreement reached "was to be filed with the Court for entry

of an Order modifying the decree."      Husband sent a signed

memorandum to wife, setting out his understanding of the agreed

upon terms.   Wife modified the written memorandum by adding an

additional sentence clarifying her understanding of the

agreement, then signed the memorandum and returned it to

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husband.   Husband called the trial court and indicated that the

matter was resolved.   The trial court dismissed husband's

motion.    The memorandum was never filed with the court, and no

order was ever issued modifying the final decree of divorce.

Husband never signed the memorandum after wife made her

handwritten modifications.

     The trial court found that

            the writing in controversy does not
            constitute a legally binding contract. The
            prospective agreement lacked mutual assent
            and consideration. Based upon the
            undisputed facts, the Court construes
            [husband's] proposed agreement as an offer
            which [wife] rejected, by interlineating a
            modification and amendment, creating a
            counter offer, which counter offer [husband]
            rejected by not signing subsequent thereto
            and by refusing to let the amended writing
            be entered as an Order of the Court as both
            parties understood as being required and
            intended to be done.

                               Waiver

     Husband contends that wife waived her right to spousal

support.   We find no merit in this contention.

            No support order may be retroactively
            modified. Past due support installments
            become vested as they accrue and are
            thereafter immune from change. Parties
            cannot contractually modify the terms of a
            support order without the court's approval.
            Nor does a party's passive acquiescence in
            nonpayment of support operate to bar that
            party from later seeking support arrearages.
            Should circumstances change requiring
            alteration in the amount of support, a
            party's remedy is to apply to the court for
            relief.


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Goodpasture v. Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845,

847 (1988) (citations omitted).    "[J]ust as a party cannot by

contract or acquiescence modify the terms of a support order, a

party cannot by waiver modify the terms of a support order."

Id. at 58, 371 S.E.2d at 847.     The parties never reached a

binding contractual agreement to modify the existing decree.

Wife's written modification of husband's memorandum did not

affect her rights under the existing, unmodified, support order.

     Husband cites Bethell v. Bethell, 597 S.W.2d 576 (Ark.

1980), in support of his contention that wife waived spousal

support.   We find Bethell neither applicable nor persuasive.

Bethell concerned a father's payment of private school tuition

in lieu of spousal support pursuant to the parties' agreement.

That case arose under significantly different facts and was

based upon the premise that spousal support may be waived by

acquiescence or inference.   That is not the law in Virginia.

See Goodpasture, 7 Va. App. at 58, 371 S.E.2d at 847.     We also

reject husband's reliance upon Acree v. Acree, 2 Va. App. 151,

342 S.E.2d 68 (1986).   In Acree, a mother sought a child support

arrearage attributable to one child under an existing order

despite the fact that the father had assumed full custody of the

child until her majority.    The father was allowed credit for a

portion of the arrearage due to his full support of the child

during the intervening years pursuant to the parties' agreement

to permanently switch custody.    The Acree Court expressly

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limited its decision to the unique circumstances.     See id. at

157-58, 342 S.E.2d at 71-72.    Here, husband was obligated by the

final decree to pay $375 in monthly spousal support and to

ensure wife received an unreduced fifty percent of his monthly

retirement pay.   The facts do not support a finding that husband

was entitled to a credit for other payments made to wife

sufficient to cover both these obligations.

     Husband contends that wife received consideration through

the agreement to forego litigation.     It is true that an

agreement to forego a claim can be consideration for a contract.

See Troyer v. Troyer, 231 Va. 90, 93-94, 341 S.E.2d 182, 185

(1986).   Here, however, the trial court found that "the writing

only sought to grant [wife] what she was already entitled . . .

and contained no affirmative act of forbearance by [husband]

which conferred a benefit on [wife]."    In light of the fact that

the parties failed to reach an agreement, we need not further

consider whether there was adequate consideration to support an

agreement.

                          Equitable Estoppel

     Husband also argues that wife is equitably estopped from

seeking spousal support.    "'The elements necessary to establish

equitable estoppel are (1) a representation, (2) reliance, (3)

change of position, and (4) detriment, and the party who relies

upon estoppel must prove each element by clear, precise, and

unequivocal evidence.'"    Webb v. Webb, 16 Va. App. 486, 494-95,

                                - 5 -
431 S.E.2d 55, 61 (1993) (citation omitted).     The trial court

found that husband failed to prove the elements of equitable

estoppel.   We agree.   Wife did not make any representations upon

which husband relied.    He did not change his position due to a

representation by wife.    He resigned from his employment prior

to any discussion with wife regarding spousal support.    Although

the parties recognized that any modification of their decree had

to be entered as an order to be effective, husband neither

executed the modified memorandum nor forwarded it to the court.

Instead, he merely contacted the court to dismiss his motion to

terminate spousal support.    Therefore, we find no merit in

husband's assertion that wife was equitably estopped from

seeking the spousal support arrearage.

                        Binding Oral Agreement

     Finally, husband contends that the written memorandum

memorialized the parties' oral agreement and that the oral

agreement was binding and enforceable.    These contentions also

lack merit.   "Mutual assent by the parties to the terms of a

contract is crucial to the contract's validity."     Wells v.

Weston, 229 Va. 72, 78, 326 S.E.2d 672, 676 (1985).     "To be

valid and enforceable, the terms of an oral agreement must be

reasonably certain, definite, and complete to enable the parties

and the courts to give the agreement exact meaning."     Richardson

v. Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688, 690 (1990).

"The proponent of [an] oral contract has the burden of proving

                                - 6 -
all elements" of the contract.     Id. at 396, 392 S.E.2d at 690

(citation omitted).   The trial court found no indication that

the parties had reached an oral agreement.    Husband's written

memorandum was modified by wife, and no evidence supported a

finding that husband accepted the changes.    Husband never

presented the modified agreement to the court, despite the fact

that both parties acknowledged it was necessary to have a new

order entered to modify the terms of their final decree of

divorce.    The evidence supports the conclusion of the trial

court that no enforceable oral agreement was reached.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                          Affirmed.




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