                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


BILLIE PAXTON EINSELEN
                                        MEMORANDUM OPINION * BY
v.         Record No. 1778-96-1          JUDGE RICHARD S. BRAY
                                           FEBRUARY 25, 1997
PETER C. EINSELEN


           FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                     Wilford Taylor, Jr., Judge
           Robert E. Long (Robert E. Long, Ltd., on
           brief), for appellant.

           John F. Rixey (Rixey and Rixey, on brief),
           for appellee.



     Billie Paxton Einselen (wife) complains on appeal that the

trial court erroneously declined to order Peter C. Einselen

(husband) to pay spousal support and her entire attorney's fee

related to these proceedings and to obtain two policies of

insurance on his life, all in accordance with a stipulation

agreement of the parties.   On cross-appeal, husband contends that

the trial court lacked jurisdiction to consider spousal support,

and erroneously awarded wife a portion of her attorney's fee and

costs.   We find no merit in husband's arguments but conclude that

the court should consider wife's petition for spousal support and

require husband to provide the disputed insurance coverage.   The

subject decree is, therefore, affirmed in part and reversed in

part, with the unresolved issues remanded to the trial court for
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
adjudication, including consideration of attorney's fees and

costs attendant to such remand.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

I.   Spousal Support

     A.   Jurisdiction

     Husband contends that the trial court was without

jurisdiction to consider spousal support because the issue was

not addressed in the original divorce decree.    Although the

decree makes no mention of spousal support, it "confirmed,

ratified and approved" the parties' property settlement

agreement, "incorporat[ing] [it] by reference into [the] final

decree of divorce."    Thus, all provisions of the agreement became

"for all purposes . . . a term of the decree [itself], . . .

enforceable in the same manner as any provision of such decree."

Code § 20-109.1; see also Fry v. Schwarting, 4 Va. App. 173,
178-79, 355 S.E.2d 342, 345 (1987).     Paragraph 8 of the agreement

provides that the parties "reserve the right to request a Court

of competent jurisdiction to award an amount for support in the

future as the needs and resources of the parties may justify to

the extent that either Husband or Wife would be entitled to such

support as a matter of law," clearly preserving the court's

jurisdiction to adjudicate spousal support upon certain future

circumstances.



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       Husband's contention that wife otherwise relinquished in the

agreement "any and all rights of whatsoever kind and character

growing out of the marriage relationship" is also without merit.

The agreement is subject to the same principles of construction

which govern all contracts.    See, e.g., id. at 180, 355 S.E.2d at

346.   Generally, "the provisions of a contract should be

construed together and those which appear to conflict should be

harmonized whenever it is reasonably possible."     Chantilly
Constr. Corp. v. Department of Highways & Transp., 6 Va. App.

282, 293, 369 S.E.2d 438, 444 (1988) (quoting Seward v. American

Hardware Co., 161 Va. 610, 626, 171 S.E. 650, 659 (1933)).

"[A]ny apparent inconsistency between a clause that is general

and broadly inclusive in character, and a clause that is more

specific in character, should be resolved in favor of the

latter."    Id. at 294, 369 S.E.2d at 445.   The parties specified

that the court retain jurisdiction over spousal support, and this

express intention controls.

       B.   Laches and Change in Circumstances
       [L]aches or delay, in order to be effectual as a bar to
       the party [against whose claim the defense of laches is
       asserted], must be accompanied with circumstances and
       facts showing an intention on his part to abandon the
       [claim]. [The delay] must be unreasonable and
       injurious to the other party.


Murphy v. Holland, 237 Va. 212, 215, 377 S.E.2d 363, 365 (1989)

(quoting Hamilton v. Newbold, 154 Va. 345, 351, 153 S.E. 681, 682

(1930)).   Assuming, without deciding, that laches is a defense

available to husband in these proceedings, it is an affirmative


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shield which must be proven by him.     See Princess Anne Hills

Civic League v. Susan Constant Real Estate Trust, 243 Va. 53, 58,

413 S.E.2d 599, 602 (1992).

     Husband asserts that "[a]t no time in the period of twelve

years and eight months between the Final Decree of this suit [and

the filing of wife's petition for support] did [she] ever make

any claim for spousal support."   However, wife obviously had no

viable claim to prosecute until the onset of her financial

reversals in 1990.   See Meredith v. Goodwyn, 219 Va. 1025, 1029,

254 S.E.2d 74, 76-77 (1979) (laches cannot bar the claim of one,

without negligence, ignorant of his or her rights); cf. Murphy,

237 Va. at 216, 377 S.E.2d at 365 (laches not applicable to

minor's claim until minor attains the age of majority).

Accordingly, the defense must be assessed in the context of those

circumstances which occurred between the commencement of wife's

misfortunes in 1990 and the filing of the instant petition for

support.

     The commissioner made no explicit finding that wife intended

to abandon her right to future spousal support.    Rather, he

suggested that "[husband] was justified in believing [wife] had

abandoned her claim of her own choice."    However, the record

reflects no conduct which evinced such intent.    Following loss of

employment, wife attempted to continue support of herself,

working at several positions, while seeking other employment and

drawing upon her retirement accounts.    She pursued spousal



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support from husband only in financial desperation.

        Moreover, wife's conduct visited no prejudice on husband

but, to the contrary, was to his financial advantage.     Husband

does not claim, and the record does not disclose, that time

compromised relevant evidence or otherwise impaired his defense

to wife's claim.     See id.   The record surely does not support

husband's generalized claim of financial misdirection

attributable to wife's delay.     If husband was concerned that his

economic future might prove incompatible with spousal support, he

should have limited such contingent liability by appropriate

provision in the agreement.
        With respect to wife's entitlement under the agreement to

seek judicial resolution of the spousal support issue, we, again,

are guided by paragraph 8.     While the provision initially

requires "Husband [to] pay nothing to the Wife for her support

and maintenance," each "reserve[d] the right to request a Court

of competent jurisdiction to award . . . support in the future as

the needs and resources of the parties may justify to the extent

that either . . . would be entitled to such . . . as a matter of

law."    Thus, to invoke the court's jurisdiction, wife was

required to establish a material change in her financial needs or

husband's resources, or both.      See, e.g., Moreno v. Moreno, ___

Va. App. ___, ___, ___ S.E.2d ___, ___ (Feb. 11, 1997).

        In denying wife's petition, the court approved the

commissioner's finding that wife's diminished income did not




                                  - 5 -
constitute a material change in circumstances because she simply

"returned . . . to the [original] circumstances she agreed to and

voluntarily chose," a conclusion clearly unsupported by the

evidence.   Wife became fully employed in 1981, nearly

coincidental with her execution of the agreement and before entry

of the divorce decree.     Her subsequent unemployment resulted in

significant economic hardships, with attendant circumstances much

different than those which prevailed in January, 1982.     In

contrast, husband's income increased from approximately $30,000

annually in 1981 and 1982 to $200,000 in 1991 and $375,000-

$400,000 in 1994.      Such evidence demonstrates a significant

material change in the parties' circumstances as a matter of law.
II.   Insurance

      A.    Standing

      In order to have standing to sue, a plaintiff must show

"'that he has a justiciable interest in the subject matter in

litigation; either in his own right or in a representative

capacity.'"    Lynchburg Traffic Bureau v. Norfolk & W. Ry. Co.,

207 Va. 107, 108, 147 S.E.2d 744, 745 (1966) (citation omitted).

Here, contrary to the findings of both the commissioner and the

court, wife had standing to judicially pursue husband's covenant

to maintain the insurance coverage on his life, both for the

benefit of the parties' children and herself.

      B.    Laches
      Again, assuming, without deciding, that laches is a defense




                                  - 6 -
available to wife's right to seek enforcement of the insurance

provisions of the agreement, husband's evidence does not

establish the bar.   Wife's cause of action did not accrue until

husband breached the agreement by failing to maintain the

policies, and nothing in the record suggests she knowingly

delayed pursuit of her remedies, without excuse and to the

prejudice of husband.   Husband's reliance on extrinsic evidence

to establish the purpose of the policies was inadmissible to

upset the plain language of the agreement.   Wife is entitled to

enforcement of the agreement in accordance with its terms, and we

remand for the trial court to order husband to replace the

policies in compliance with the agreement.    See, e.g., Smith v.

Smith, 3 Va. App. 510, 513-14, 351 S.E.2d 593, 595-96 (1986).

III.    Attorney's and Commissioner's Fees

       Husband contends that the trial court erroneously required

him to pay wife $3,000 in attorney's fees related to a real

estate dispute resolved prior to the hearing and to satisfy the

entire commissioner's fee.   The commissioner found that, although

"both parties attempted to bring about a settlement to [sic] the

requirements of [the property settlement agreement,] . . .    the

resolution of the differences would not have occurred had not

[wife] caused this petition to be filed and pursued."   The

agreement provided that if wife should prevail in "proceedings to

enforce any of the terms of [the property settlement agreement],"

husband would "pay the reasonable attorney's fees, court costs



                                - 7 -
and expenses incurred by the Wife."      Thus, the agreement clearly

contemplated husband's payment of the disputed fees and costs.

"An award of attorney's fees is a matter submitted to the trial

court's sound discretion and is reviewable on appeal only for an

abuse of discretion."     Graves v. Graves, 4 Va. App. 326, 333, 357

S.E.2d 554, 558 (1987).    We find no abuse of discretion in this

instance.   Governed by the same rationale, we also affirm the

assessment of the commissioner's fee against husband.
     Accordingly, we affirm the ruling of the trial court in

part, reverse in part, and remand for further proceedings

consistent with this opinion, including consideration of

additional attorney's fees and costs incidental thereto.

                                            Affirmed in part,
                                            reversed in part,
                                            and remanded.




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