                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia

WAYNE McCLELLAN
                                                MEMORANDUM OPINION *
v.   Record No. 0769-01-1                     JUDGE WILLIAM H. HODGES
                                                 FEBRUARY 5, 2002
PRISCILLA JO McCLELLAN


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                     Samuel B. Goodwyn, Judge

             Moody E. Stallings, Jr. (Melinda F. Seemar;
             Stallings & Richardson, P.C. on brief), for
             appellant.

             Jack E. Ferrebee for appellee.


     Wayne McClellan (husband) appeals the decision of the circuit

court overruling the finding of the commissioner in chancery.       The

commissioner had determined that husband and Priscilla Jo

McClellan (wife) had not reached a meeting of the minds concerning

a spousal support provision in their property settlement

agreement.    On appeal, husband contends the trial court erred in

determining that under the parties' oral stipulation agreement,

husband's spousal support obligation could be modified only after

wife's earned income exceeds $30,000 per year.       Husband asks that

we reverse the trial court's ruling and declare that the agreement

allows for support modification when wife's income reaches the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
specified amount, inclusive of support payments she received from

husband.

     On appeal, we view the evidence and all reasonable inferences

in the light most favorable to wife as the party prevailing below.

See McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346

(1990).

                      Procedural Background

     The parties married on April 28, 1972.   After living separate

and apart for over one year, they divorced on February 22, 2001.

The parties negotiated a separation agreement.    Following

execution of the agreement, the matter was referred to a

commissioner in chancery for the presentation of evidence

concerning grounds for divorce and the separation agreement.    The

commissioner bifurcated the proceeding and filed a report with the

court, finding that the parties failed to arrive at a meeting of

the minds with respect to the modification of spousal support.    He

recommended the support provision be stricken from the agreement.

Wife filed exceptions to the commissioner's report, and the

circuit court found that the parties had reached an agreement

concerning spousal support modification.   The court held that the

language of the agreement plainly provided that spousal support

would not be modifiable until wife earned income, exclusive of

spousal support, in excess of $30,000 annually.   The agreement was

thereafter affirmed, ratified, and incorporated into the final

decree of divorce.

                              - 2 -
                               Analysis

     During the course of the divorce action, the parties met,

negotiated the agreement with counsel present, and dictated its

terms to the court reporter.    Both parties acknowledged that the

agreement, as dictated, was their agreement.    The provision at

issue states:

             [H]usband shall pay to wife the amount of
             $2,250 per month as and for spousal support.
             The spousal support payments will be
             includable in wife's gross income . . . .
             Now, during the time husband has a spousal
             support obligation, it remains modifiable by
             a court of competent jurisdiction. For the
             purposes of modification, wife's income up to
             $30,000 shall be excluded from any
             consideration by the Court until she is 65
             years old. Conversely, wife nay not move for
             an increase in spousal support using the fact
             that she has income of less than $30,000 a
             year.

"Support agreements that are voluntarily made by the parties are

subject to the same rules of construction applicable to contracts

generally."    Goldin v. Goldin, 34 Va. App. 95, 107, 538 S.E.2d

326, 332 (2000).    "Where a settlement agreement is unambiguous,

its meaning and effect are questions of law to be determined by

the court."    Douglas v. Hammett, 28 Va. App. 517, 523, 507 S.E.2d

98, 101 (1998).    "Although parties may advance different

interpretations of the provisions in an agreement, this 'does not

necessarily imply the existence of ambiguity where there otherwise

is none.'"    Id. (quoting Smith v. Smith, 3 Va. App. 510, 513-14,

351 S.E.2d 593, 595 (1986)).


                                 - 3 -
     The contract expressly imputes $30,000 in annual earned

income to wife in determining the appropriate amount of spousal

support.    The contract then provides that her support payments

from husband cannot be modified downward unless wife actually

earns more than $30,000 per year at some future date.   The

agreement expressly prohibits consideration of a modification

until that threshold is exceeded.    The $30,000 figure was based

upon wife's earning capacity and clearly was not meant to include

the amount wife received from husband in support.

     Husband's interpretation of the contract illogically would

allow for immediate modification of the support provision, as wife

earned between $12,000 and $14,000 at the time the parties agreed

to the $27,000 support figure.

     The trial court did not err in overruling the commissioner's

finding.    Accordingly, the decision of the circuit court is

affirmed.

                                                          Affirmed.




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