                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


LEROY CLINTON WEST

v.   Record No. 0036-95-4                      MEMORANDUM OPINION *
                                                   PER CURIAM
BETSY E. WEST                                     JULY 18, 1995


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Gerald Bruce Lee, Judge

            (Elaine H. Cassel, on brief), for appellant.
            (David H. Fletcher; Gannon, Cottrell & Ward, on
            brief), for appellee.



     Leroy Clinton West (husband) appeals the decision of the

circuit court requiring him to pay Betsy E. West (wife)

$135,046.27 in spousal support arrearage, interest, and

attorney's fees. Husband raises the following issues on appeal:
          (1) whether the trial court erred in finding
          insufficient evidence to support his defenses
          of equitable estoppel or waiver;

           (2) whether the trial court erred in
           awarding pre-judgment interest from the date
           each support payment was due;

           (3) whether the trial court erred in
           awarding attorney's fees; and

           (4) whether the trial court erred in
           granting wife's motion to compel compliance
           when the final decree of divorce did not
           state when payments were to begin or when
           payments were due.


Upon reviewing the record and briefs of the parties, we conclude
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that this appeal is without merit.    Accordingly, we summarily

affirm the decision of the trial court.   Rule 5A:27.

     On appeal, we view the evidence in the light most favorable

to wife as the prevailing party below and we grant to the wife

all reasonable inferences fairly deducible therefrom.     McGuire v.

McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990).    "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).

                 I.   Defense of Equitable Estoppel

     Husband argues that wife is barred from recovering any

spousal support arrearage under the doctrine of equitable

estoppel.   "'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,

431 S.E.2d 55, 61 (1993) (citation omitted).

     The record demonstrates that after the husband informed wife

that he was unemployed, wife wrote to husband stating, in part:
          Though you said you would send $100 of your
          unemployment benefits, I realized it would be
          a difficult time for you and I said nothing
          when that was not sent. However, I am
          puzzled that I have heard nothing further
          from you and I am sure by now you are
          working.
                          * * * * * * *
          I realize your note indicated you will cover



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           the back payments and I do not question that
           intention. However, I would appreciate your
           putting at least partial payment of the
           amount high in the priorities in your own
           budget.
                           * * * * * * *
           Please notify me soon about your payment
           plans.


The trial court determined that husband failed to prove wife made

any representations concerning discontinuing spousal support.

That determination is not plainly wrong.

                       II.    Defense of Waiver
     Husband also argues that wife waived her rights to support

and support arrearages.      "Waiver is the voluntary, intentional

abandonment of a known legal right, advantage, or privilege.

'[B]oth knowledge of the facts basic to the exercise of the right

and the intent to relinquish that right are essential elements.'"

 Fox v. Deese, 234 Va. 412, 425, 362 S.E.2d 699, 707 (1987)

(citations omitted).

     Husband concedes wife made no express waiver of her right to

the payments.   He asserts that wife's failure to seek relief

earlier amounted to an intentional abandonment of her right to

relief.   However, "a party's passive acquiescence in nonpayment

of support [does not] operate to bar that party from later

seeking support arrearages."      Goodpasture v. Goodpasture, 7 Va.

App. 55, 58, 371 S.E.2d 845, 847 (1988).     The last correspondence

between the parties indicated wife was not waiving her right to

either spousal support or the support arrearage.     The trial court

found that wife's explanations for why she did not assert her



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rights earlier were credible.      Thus, credible evidence supports

the trial court's findings that wife made no representations to

husband suggesting that she no longer expected spousal support or

payment of the accruing arrearage and that wife did not

intentionally waive her rights to either the support or

arrearage.

                            III.   Interest

     The principle is "well established . . . that court-ordered

support becomes vested when it accrues and the courts are without

authority to make any change with regard to arrearages."         Smith

v. Smith, 4 Va. App. 148, 152, 354 S.E.2d 816, 818-19 (1987).

However, "'[t]he general rule is that in the absence of factors

making it inequitable, interest should be assessed on unpaid

installments of alimony from the date they mature or become due

until the date they are paid.'"         Pledger v. Pledger, 6 Va. App.

627, 630, 371 S.E.2d 43, 44 (1988) (citation omitted, emphasis

deleted).    "[T]he right to interest for the . . . forbearance of

money, when not expressly waived, is implied and begins when the

debt is due and payable."    Id.

     The statutory scheme authorizes a court to "include an

amount for interest on the [support] arrearage . . . if the

person to whom such arrearage is payable requests that interest

be charged."   Code § 20-78.2.     Moreover, "a court may grant

appropriate relief even though it is not specifically requested."

 Taylor v. Taylor, 14 Va. App. 642, 649, 418 S.E.2d 900, 904




                                    4
(1992).   The record establishes that the wife requested interest

at the hearing.

     The parties' agreement is silent as to interest on

arrearages, and husband points to no other evidence to

demonstrate wife expressly waived her implied right to interest

on past due amounts.   While Code § 20-109 directs a court to

enter orders complying with the terms of a pre-existing

stipulation or contract signed by the parties, the statute does

not bar the award of interest on past due payments where the

parties' agreement is silent.   Therefore, we find no error in the

trial court's award of pre-judgment interest on the spousal

support arrearage.
                       IV. Attorney's Fees

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

sound discretion of the trial court 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).      The key to a proper award

of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985).   Based on the number of issues involved and the

respective abilities of the parties to pay, we cannot say that

the award was unreasonable or that the trial judge abused his

discretion in making the award.

     While the parties' agreement contains a provision entitled

"Attorney's Fees," that paragraph deals only with the payment of




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fees attributable to the entry of the divorce decree and does not

address the payment of any other fees.        The agreement does not

bar an award of attorney's fees under the present circumstances.

                         V.   Motion to Compel

        Husband asserts that, as the parties' agreement did not

state when the spousal support payments were to begin, the order

was unenforceable.    We disagree.       The agreement states that the

husband was to pay the amount "per month."        Moreover, husband

made regular monthly payments from 1971 until the beginning of

1979.    "Generally, the interpretation placed upon an agreement by

the parties themselves is entitled to the greatest weight."
Smith v. Smith, 3 Va. App. 510, 518, 351 S.E.2d 593, 598 (1986).

We find no error in the trial court's determination that the

agreement was enforceable.     Therefore, as the trial court's

decision was not plainly wrong or without evidence to support it,

we affirm the court's decision.

        Accordingly, the decision of the circuit court is summarily

affirmed.
                                                               Affirmed.




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