                                                                   Tuesday                 14th

                  February, 2006.


Tarun Batra,                                                                                   Appellant,

against               Record No. 0047-05-4
                      Circuit Court No. CH21850

Julia B. Batra,                                                                                Appellee.


                                          Upon a Rehearing En Banc

          Before Chief Judge Fitzpatrick, Judges Benton, Elder, Frank, Humphreys, Clements,
                                    Felton, McClanahan and Haley

                  Fred M. Rejali for appellant.

                  Monica S. Call (Edward J. Fuhr; Terence J. Rasmussen; Hunton &
                  Williams LLP, on brief), for appellee.


       For the reasons given in the dissenting opinion to Batra v. Batra, 05 Va. App. UNP#0047054

(2005), we reverse the trial judge’s denial of the husband’s request for attorney’s fees expended in

connection with the wife’s challenge to the parties’ property settlement agreement. In accordance with

the terms of the agreement, the attorney’s fees sought and awarded by this ruling pertain solely to

services expended by the husband’s attorney in connection with the parties’ property settlement

agreement, not child custody and visitation issues. The husband represented at trial and concedes on

appeal that, although his request includes attorney’s fees associated with his preparation for the October

27, 2004 hearing, he is asserting no claim for attorney’s fees for the October 27, 2004 hearing itself

because the wife withdrew her objections to the property settlement at that hearing and only proceeded

on the custody and visitation issues.

       Accordingly, it is ordered that the June 21, 2005 mandate is vacated and we remand this case to

the trial judge to fix the amount of the husband’s reasonable attorney’s fees for those services.
       In addition, we award the husband his attorney’s fees and costs for this appeal. We direct the

trial judge on remand to fix the amount of the husband’s reasonable attorney’s fees for services incurred

on this appeal. See Hughes v. Hughes, 173 Va. 293, 306, 4 S.E.2d 402, 407-08 (1939); Sanford v.

Sanford, 19 Va. App. 241, 249-50, 450 S.E.2d 185, 190 (1994); Via v. Via, 14 Va. App. 868, 873, 419

S.E.2d 431, 434 (1992).

       Judge Humphreys dissents for the reason stated in the panel majority opinion.

       This order shall be certified to the trial court.


                                           A Copy,

                                                   Teste:

                                                                    Cynthia L. McCoy, Clerk

                                                   By:

                                                                    Deputy Clerk




                                                 -2-
VIRGINIA:
           In the Court of Appeals of Virginia on Tuesday            the 23rd day of August, 2005.


Tarun Batra,                                                                                       Appellant,

against             Record No. 0047-05-4
                    Circuit Court No. CH21850

Julia B. Batra,                                                                                    Appellee.


                                  Upon a Petition for Rehearing En Banc

                                            Before the Full Court


       On July 5, 2005 came the appellant, by counsel, and filed a petition praying that the Court set

aside the judgment rendered herein on June 21, 2005, and grant a rehearing en banc thereof.

       On consideration whereof, the petition for rehearing en banc is granted, the mandate entered

herein on June 21, 2005 is stayed pending the decision of the Court en banc, and the appeal is reinstated

on the docket of this Court.

       The parties shall file briefs in compliance with Rule 5A:35. The appellant shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

Court in this matter. It is further ordered that the appellant shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.


                                           A Copy,

                                                   Teste:
                                                                    Cynthia L. McCoy, Clerk

                                                   By:

                                                                    Deputy Clerk
                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Senior Judge Overton


TARUN BATRA
                                                                 MEMORANDUM OPINION* BY
v.      Record No. 0047-05-4                                     JUDGE NELSON T. OVERTON
                                                                       JUNE 21, 2005
JULIA B. BATRA


                      FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                  Burke F. McCahill, Judge

                  (Fred M. Rejali, on brief), for appellant. Appellant submitting on
                  brief.

                  No brief for appellee.


        Tarun Batra (husband) contends the trial court abused its discretion in refusing to award his

attorney’s fees and costs expended in the establishment of the validity and enforcement of the

Financial Agreement reached between husband and Julia Batra (wife). Husband also requests that

this matter be remanded for the trial court to determine the amount of fees and costs to be awarded

for this action on appeal. Finding no error, we affirm the trial court’s decision and deny husband’s

request for attorney’s fees and costs incurred in this appeal.

                                              Background

        The parties were married on March 29, 1993. On June 14, 2002, wife filed a bill of

complaint seeking, among other things, a divorce based on grounds of cruelty and constructive

desertion, spousal support, and equitable distribution of the parties’ assets. Husband filed an answer

and cross-bill of complaint on June 24, 2002.



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On August 28, 2004, after extensive discovery and negotiation, the parties reached the

Financial Agreement, which divided their assets and debts. Both parties and their counsel signed

the Financial Agreement, which contained the following language: “Parties agree this agreement

may be incorporated into a Decree. In case either party has to resort to litigation to enforce this

agreement the prevailing party shall receive their attorney’s fees.” The parties had also reached a

Custody and Visitation Agreement, but had not agreed upon child support. The Custody and

Visitation Agreement had been signed by the parties’ counsel, but not husband and wife.

       On September 1, 2004, the date scheduled for the trial of this matter, wife appeared in

court and discharged her attorney. Wife told the trial judge that she felt she had signed the

agreements under pressure and requested an extension of time to obtain new counsel. She

contended that she did not understand the Financial Agreement and that “in the Financial

Agreement there [were] some legitimate points that need to be discussed.” She stated that she

felt “there’s some things in the Financial Agreement that need to be revisited as far as selling the

airplane.” The trial court, over husband’s objection, continued the matter to October 1, 2004 for

review to allow wife time to obtain new counsel. The trial court ordered that wife report to the

trial court on October 1, 2004, regarding the attorney she had hired and that she “be in a position

to report the status of this . . . [and] also have your position in writing in terms of what

challenges you wish to make” to the Financial Agreement. The trial court indicated that it would

decide on October 1, 2004 whether the case could be heard that day or whether a hearing would

need to be scheduled.

       On October 1, 2004, wife appeared before the trial court with her new counsel. The trial

court instructed wife to file her objections to the agreements within fourteen days, and continued

the matter to October 27, 2004 for a final hearing.




                                                 -2-
       On October 15, 2004, wife filed a document with the trial court titled “Objections of Julia

Batra to Equitable Distribution and Custody and Visitation Agreements.” In that document, wife

raised the following objections with respect to the “Purported Equitable Distribution

Agreement”:

               - Mooney M20C Airplane – fails to address what happens if Mr.
               Batra fails to refinance the airplane. Who will be responsible for
               the shortfall if the plane is sold for less than the amount of the
               outstanding note, which both parties signed?

               - Fails to address the $2,968 child support arrearage ordered to be
               deducted from Mr. Batra’s equitable distribution portion. See this
               Court’s order of December 16, 2002.

               - Personal property distribution remains in dispute – see the
               parties’ respective inventories of personal property. Reassess
               distribution of personal property or remove disparaging references
               to diamond earrings given to Mrs. Batra by her mother in law.

       At the October 27, 2004 hearing, wife indicated that the first and third objections

regarding the airplane and the personal property distribution were “no longer issues at this point

. . . .” She then informed the trial court that the only remaining issue to be resolved with respect

to the Financial Agreement related to the $2,968 child support arrearage that the trial court had

previously ordered be paid out of husband’s portion of the equitable distribution award. Wife

contended that when the parties entered into the Financial Agreement, they overlooked the trial

court’s December 2002 order regarding the deduction of the child support arrearage from

husband’s equitable distribution portion. The trial judge noted “I don’t see any pleading in this

file making any claim regarding fraud, unconscionability, or duress, or anything else that

challenges the validity of the [Financial] [A]greement. I do understand that there are objections

regarding the arrearage and child support.” The trial judge also noted that visitation may be an

issue. Wife’s counsel acknowledged that wife had signed the Financial Agreement and that she

was not challenging the validity of that agreement. The trial court then sustained husband’s


                                                -3-
objection to wife’s testimony regarding her understanding about the $2,968 child support

arrearage based on the parol evidence rule. Having found that wife made no challenge to the

validity of the Financial Agreement, the trial court then proceeded to hear evidence and

argument regarding unresolved issues related to the Custody and Visitation Agreement and child

support. Thereafter, the trial court affirmed, ratified, and incorporated the Financial Agreement

into the final decree. The trial court acknowledged “[a]s previously noted in my ruling, there

really was no challenge to this [Financial] [A]greement. The Court found that, in this case, that

this is an agreement between the parties and I do find this is a valid agreement . . . .” The trial

court also affirmed, ratified, and incorporated the provisions of the Custody and Visitation

Agreement into the final decree, with certain exceptions. The trial court also ordered husband to

pay child support.

       At the conclusion of the October 27, 2004 hearing, in ruling upon husband’s request for

an award of attorney’s fees and costs related to the September 1, 2004 hearing and the October 1,

2004 hearing, the trial court stated as follows:

               I’m not going to make any award of attorney’s fees on that issue.
               This was not really an action to enforce the [Financial]
               [A]greement. It had not yet been moved into evidence. When you
               moved it into evidence today it was not objected to. I received it
               into evidence. I sustained your objection on evidentiary ruling.
               The Court then affirmed, ratified, and incorporated it. I only gave
               her the additional time if she was going to make a challenge. She
               did not make a challenge to the [Financial] [A]greement.

       On December 7, 2004, the trial court entered the final decree of divorce a vinculo

matrimonii between the parties. That decree affirmed, ratified, and incorporated the Financial

Agreement into the decree; affirmed, ratified, and incorporated the Custody and Visitation

Agreement into the decree with certain exceptions; ordered husband to pay child support and




                                                   -4-
resolved certain other issues related to the parties’ minor child; and denied husband’s request for

attorney’s fees and costs.1

                                                    Analysis

        Absent an agreement between the parties, the decision to award attorney’s fees is left to

the sound discretion of the trial court, and an award will be overturned on appeal only if the trial

court abused its discretion. See Kane v. Szymczak, 41 Va. App. 365, 375, 589 S.E.2d 349, 354

(2003). However, Code § 20-109(C) provides that:

                        In suits for divorce, annulment and separate maintenance,
                and in proceedings arising under subdivision A 3 or subsection L
                of § 16.1-241, if a stipulation or contract signed by the party to
                whom such relief might otherwise be awarded is filed before entry
                of a final decree, no decree or order directing the payment of
                support and maintenance for the spouse, suit money, or counsel fee
                or establishing or imposing any other condition or consideration,
                monetary or nonmonetary, shall be entered except in accordance
                with that stipulation or contract. If such a stipulation or contract is
                filed after entry of a final decree and if any party so moves, the
                court shall modify its decree to conform to such stipulation or
                contract.

Thus, the courts “are not at liberty to ignore a contractual provision specifically included by the

parties.” Hering v. Hering, 33 Va. App. 368, 372, 533 S.E.2d 631, 633 (2000). We review the

terms of the contract de novo. See Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624,

631, 561 S.E.2d 663, 667 (2002).

        Husband argues that because the Financial Agreement provided for an award of attorney’s

fees and costs to the prevailing party in the event that party had to resort to litigation to enforce the


        1
         We note that at the October 27, 2004 hearing, husband’s counsel indicated that husband
was not making a claim for attorney’s fees and costs related to the October 27, 2004 hearing.
However, husband’s affidavit, made a part of the record on December 7, 2004, in support of his
claim for attorney’s fees and costs, included expenses related to his counsel’s court appearances
on September 1, 2004 and October 1, 2004, conferences between husband and his counsel on
October 6, 2004 and October 25, 2004, a telephone conference between the parties’ counsel on
October 27, 2004, preparation of the affidavit, and an estimated time for the court appearance on
October 27, 2004.
                                                -5-
Financial Agreement, the trial court abused its discretion by finding that wife did not challenge the

Financial Agreement and by refusing to award attorney’s fees and costs to husband. We disagree.

       Initially, we note that contrary to husband’s contention on appeal, the language contained

in the Financial Agreement did not provide for an award of attorney’s fees in the event of

litigation to establish the agreement’s “validity.” Rather, the express language of the Financial

Agreement allowed for attorney’s fees and costs only in the event of litigation to “enforce” the

agreement.

       Here, the record established that the September 1, 2004, October 1, 2004, and October

27, 2004 hearings were not litigation resorted to by husband to enforce the Financial Agreement.

Rather, the September 1, 2004 hearing pertained to wife obtaining new counsel, not to litigation

to enforce the Financial Agreement. The October 1, 2004 hearing pertained to wife identifying

her new counsel and the trial court ordering wife to file any objections she had to the Financial

Agreement within fourteen days. At the October 27, 2004 hearing, wife withdrew her October

15, 2004 written objections related to the airplane and personal property distribution, and

conceded that she was not challenging the validity of the Financial Agreement. When she

attempted to testify regarding her understanding of the treatment to be given the $2,968 child

support arrearage in the Financial Agreement, the trial court sustained husband’s objection to that

testimony and did not allow wife to present evidence on that issue. Thus, husband was not required

to resort to litigation to enforce the Financial Agreement on October 27, 2004. The trial court then

ratified, affirmed, and incorporated the Financial Agreement into the decree. The remainder of the

October 27, 2004 hearing involved issues related to custody, visitation, and child support.

       Applying the terms of the parties’ Financial Agreement to this case, we find that husband

is responsible for his own attorney’s fees and costs. The attorney’s fees and costs requested by

husband were not incurred by him due to having to resort to litigation to enforce the Financial

                                                 -6-
Agreement. Thus, because the trial court’s denial of husband’s request for an award of

attorney’s fees and costs was not contrary to the parties’ binding contractual agreement, we find

that the trial court did not err in refusing to award husband his attorney’s fees and costs. The

trial judge’s order granted relief “according to the terms of [the] . . . contract signed by the

parties.” Blackburn v. Michael, 30 Va. App. 95, 100, 515 S.E.2d 780, 783 (1999).

          Accordingly, we affirm the trial court’s denial of husband’s request for an award of

attorney’s fees and costs and deny husband’s request for attorney’s fees and costs incurred in this

appeal.

                                                                                             Affirmed.




                                                 -7-
Benton, J., dissenting.

       Prior to trial, the parties entered into two agreements, one of which recites that the

“parties agree this agreement may be incorporated into a Decree” and further that “[i]n case

either party has to resort to litigation to enforce this agreement the prevailing party shall receive

their attorney’s fees.” The majority agrees that, notwithstanding the express provisions that the

agreements may be incorporated into the divorce decree and that the prevailing party is entitled

to attorney fees in litigation to enforce the agreements, the wife objected to the agreements and

attempted to thwart their incorporation into the decree. Yet, the majority concludes that the

husband’s successful defense of the agreements and effort to have the agreements incorporated

into the decree was not a resort to litigation to enforce the agreements. I disagree.

       “It is well established that a property settlement agreement is a contract between the

parties and that their rights and obligations are defined under it.” Pellegrin v. Pellegrin, 31

Va. App. 753, 759, 525 S.E.2d 611, 614 (2000). Furthermore, property settlement agreements

are statutorily accorded preference in divorce proceedings by virtue of Code § 20-109, which

provides, in pertinent part, as follows:

                   In suits for divorce, . . . if a stipulation or contract signed by the
               party to whom such relief might otherwise be awarded is filed
               before entry of a final decree, no decree or order directing the
               payment of support and maintenance for the spouse, suit money, or
               counsel fee or establishing or imposing any other condition or
               consideration, monetary or nonmonetary, shall be entered except in
               accordance with that stipulation or contract. If such a stipulation
               or contract is filed after entry of a final decree and if any party so
               moves, the court shall modify its decree to conform to such
               stipulation or contract.

Code § 20-109(C).

       Thus, when a property settlement agreement provides for the payment of attorney’s fees

under a defined set of circumstances, the trial judge must enforce the agreement. Sanford v.

Sanford, 19 Va. App. 241, 249-50, 450 S.E.2d 185, 190 (1994); Lockhart v. Baxter, 12 Va. App.
                                                 -8-
600, 605, 405 S.E.2d 434, 437-38 (1991). “[W]e have never intimated that [Code § 20-109(C)]

permits a trial judge to grant relief in derogation of the terms of the parties’ agreement.”

Rutledge v. Rutledge, 45 Va. App. 56, 62, 608 S.E.2d 504, 507 (2005).

       The trial judge’s ruling, that Julia Batra did not contest the agreements she made with her

husband, is plainly wrong. The record proves that the wife terminated her attorney after the

August 28, 2004 agreements were signed. At the hearing at which the wife sought a continuance

to obtain a new attorney, the attorney whom she terminated informed the judge that the parties

had reached two agreements, one regarding the property and the other on custody and visitation,

leaving only the issue of child support for the judge to decide. Her attorney also informed the

judge that the wife, whom he represented during the negotiations, “feels that . . . she was tricked,

coerced, or somehow signed the agreement without proper legal representation.” The wife

agreed with the attorney’s assessment and told the judge she signed the agreements “under

pressure without fully understanding” them, that the agreements “would require some changing

in the wording,” and that she has “difficulties living with such an agreement.”

       Granting a continuance to allow the wife to hire a new attorney and file objections to the

agreement, the trial judge remarked as follows:

               I feel that under these circumstances, as difficult as it may be and
               as problematic as it may be for you, Mr. Batra, in terms of your
               suspicions in regard to her motivation or the lack of bona fides in
               terms of her presenting these issues, I feel it would be an abuse of
               discretion having just discharged her counsel to at least not have
               the opportunity to explore that opportunity. We need another
               attorney to determine whether or not there is any basis for her to
               mount these challenges.

                   Obviously, that impacts you personally. It impacts everyone. It
               impacts the Court as well, because as I said, the Court doesn’t like
               to necessarily continue cases. I think it burdens me to come down
               on these cases. I don’t like to see situations, but if I were to do
               otherwise, then I would be in essence prejuding several things;
               first, that her motivation is less than pure, that it’s simply to inflict
               pain upon you or cause delay or just dilatory behavior on her part,
                                                 -9-
              and secondly; more importantly, I would be prejuding that this is a
              valid agreement and forcing her to litigate without counsel today
              the validity of this agreement. I think she needs to probably at
              least have that opportunity.

       The wife hired a new attorney. Prior to the hearing from which this appeal arises, the

wife’s new attorney filed the following pleading:

                           OBJECTIONS OF JULIA BATRA
                                       TO
                            EQUITABLE DISTRIBUTION
                                      AND
                       CUSTODY AND VISITATION AGREEMENTS

              Comes now Julia Batra, by counsel, and for her Objections to the
              alleged Agreements of August 28, 2004 states as follows:

              1) PURPORTED EQUITABLE DISTRIBUTION AGREEMENT

              -   Mooney M20C Airplane - fails to address what happens if Mr.
                  Batra fails to refinance the airplane. Who will be responsible
                  for the shortfall if the plane is sold for less than the amount of
                  the outstanding note, which both parties signed?

              -   Fails to address the $2,968 child support arrearage ordered to
                  be deducted from Mr. Batra’s equitable distribution portion.
                  See this Court’s order of December 16, 2002.

              -   Personal property distribution remains in dispute - see the
                  parties’ respective inventories of personal property. Reassess
                  distribution of personal property or remove disparaging
                  references to diamond earrings given to Mrs. Batra by her
                  mother in law.

              2) PURPORTED CUSTODY AND VISITATION AGREEMENT

              -   Not in substantial compliance with this Court’s Order of May
                  18, 2004 in the following respects:

                  a) no change o[f] circumstances has occurred to merit
                  overnight visitation on Sunday and Wednesday evenings, other
                  than an attempt to reduce child support by forcing a shared
                  custody support calculation;

                  b) language concerning “no corporal punishment and no
                  massaging” of the child is omitted in this Order;



                                              - 10 -
               -   Summer Vacation - one three week block for father, with prior
                   notice. If he is in town, mother allowed one weekday evening
                   for dinner with child

               -   Thanksgiving - acceptable as written

               -   Christmas - divided between the parties: end of school until
                   Dec. 27 evening with one parent (mother this year), and from
                   December 27 until the evening before school begins with
                   father. This schedule to alternate each year.

               -   Spring Break - add provision that parent without custody that
                   week will be allowed dinner with child one night if child and
                   parent are in town.

               -   Child’s Birthday, Parent’s Birthdays - to be celebrated by each
                   parent on the weekend closest to the birthday.

               -   Mother’s Day and Father’s Day - to be spend with the
                   respective parent, regardless of whose it weekend it is.

               3) CHILD SUPPORT

               - Not addressed in the purported agreements and we request that it
               be decided at this time, including calculation of existing
               arrearages.

               WHEREFORE, Julia Batra respectfully asks that the Court order
               that the parties incorporate its previous rulings into the
               Agreements, or schedule a hearing on the above issues.

                                                             Respectfully submitted,
                                                             Julia Batra, by counsel

       Simply put, by filing a pleading that raised these multifarious objections to the

agreements, the wife required the husband to resort to litigation to enforce the agreements. As

the majority recognizes, these issues were specifically addressed by the attorneys, the judge, and

the wife at the later evidentiary hearing. Indeed, the issues were litigated and resolved by

intervention of the judge after the wife’s new attorney informed the judge at the hearing that “the

issues that are outstanding are the issues that we’ve raised in our pleading.” The wife’s new

attorney also conceded, however, that she “prepared this pleading . . . without looking at without



                                               - 11 -
seeing the September 1 [visitation] order.” During extensive discussions between the judge and

the attorneys, the following colloquy occurred:

               COURT: So that, notwithstanding, you listed three items. The
               only issue that really is a concern is this issue of arrearage. Is that
               correct?

               [WIFE’S ATTORNEY]: Of the arrearage that was to be paid out
               of Mr. Batra’s portion of an ED award, yes.

               [HUSBAND’S ATTORNEY]: So, is my understanding correct
               that the issue about the Muni airplane and the division of personal
               properties are no longer issues at this point anymore?

               [WIFE’S ATTORNEY]: That’s correct. What it really gets down
               to is that the parties ignored the Court’s Order and, I may have
               inartfully drafted it, there’s a February, I think that it’s 2002 Order,
               that, December 2002, that the child support arrearage was to be
               paid out of Mr. Batra’s portion of the equitable distribution, and
               that has not been addressed at all.

               [HUSBAND’S ATTORNEY]: Alright, I just want, and I don’t
               mean to belabor the point, but we have come from a slew of
               problems with this agreement, the Property Settlement Agreement,
               to what was five or six problems with it in the last letter that we
               received on October 1st, to what was three problems with it, which
               we received on October 14th, to now only one issue that they want
               to address about that. Is that, I just want to make sure, and I’m
               prepared to address anyone of those three issues or one.

       After a brief recess to allow the wife to confer with her attorney, the wife’s attorney

indicated the wife wanted the custody agreement amended.

               COURT: May I inquire then, is what you’re saying is that, and I
               just want to be clear on this, that in this purported agreement that
               there is a custody visitation provision, is that correct?

               [WIFE’S ATTORNEY]: Yes sir.

               COURT: And that it is satisfactory with you and your client,
               except for that your client believes that there should be language in
               any Final Decree that addresses those two components?

               [WIFE’S ATTORNEY]: Yes sir.




                                                - 12 -
               COURT: No corporal punishment and no massaging of the child?

               [WIFE’S ATTORNEY]: Yes sir.

       The wife also challenged the genuiness of her first attorney’s signature on the custody

agreement. Apparently, the wife’s new attorney had not conferred with the wife’s first attorney

about this matter. In any event, to address this concern, the husband’s attorney called as a

witness the wife’s first attorney. The wife’s first attorney testified that the custody agreement

contained his signature and that he signed the agreement in the presence of the wife, the husband,

and the husband’s attorney. The wife’s new attorney did not cross-examine the wife’s former

attorney. The wife’s new attorney did not pursue this issue further.

       The wife’s new attorney then continued to challenge the property settlement agreement

and offered the wife as a witness to establish her intent in signing the property agreement. The

husband objected to the testimony citing the parol evidence rule. In response the wife’s attorney

argued:

               [The document is not the final expression of her intent] under these
               circumstances where she has raised issues about the agreement and
               the Court has allowed her to raise her issues. The one issue she
               has, I think she should be allowed to testify about the relevance.
               The question to her is did she intend for this to be waived or not.
               Did she understand what she was doing at the time she signed the
               agreement?

The trial judge sustained the husband’s objection.

       The trial judge then considered evidence concerning child support, an issue that both

parties agree was to be decided by the trial judge per the parties’ written agreement. At the

conclusion of the evidence, the trial judge affirmed, ratified, and incorporated into the final

decree both the property agreement and the custody and visitation agreement. The trial judge

further ordered that the husband would not massage the child.




                                                - 13 -
       Unquestionably, the record establishes that the wife sought to overturn the parties’

agreement and resorted to the trial process to do so. The husband was required to resort to

litigation to defend and enforce the agreement. When, as here, the parties agreed to the award of

attorney’s fees to the prevailing party in litigation contesting the agreement, the trial judge erred

in denying the husband’s request for attorney fees because the judge was “not at liberty to ignore

a contractual provision specifically included by the parties.” Hering v. Hering, 33 Va. App. 368,

372, 533 S.E.2d 631, 633 (2000).

       For these reasons, I would hold that the husband’s defense of the agreements, by any

measure, was “litigation to enforce this agreement” and that the trial judge erred in refusing to

award attorney fees to the husband. I would reverse the decision and remand for imposition of a

reasonable attorney fee to include services rendered on this appeal.




                                                - 14 -
