                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia


WILLIAM CARL SMITH
                                            MEMORANDUM OPINION * BY
v.   Record No. 2991-02-4                    JUDGE LARRY G. ELDER
                                                 JUNE 24, 2003
NINA E. ROSEN


                FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Gaylord L. Finch, Jr., Judge

          Betty A. Thompson (Kenneth N. Hodge; Betty A.
          Thompson, Ltd., on briefs), for appellant.

          Richard M. Wexell (Douglas E. Milman; Richard
          M. Wexell & Associates, on brief), for
          appellee.


     William Carl Smith (husband) appeals from a decision

entered at the request of his former wife, Nina E. Rosen (wife),

holding him responsible for certain educational expenses for the

parties' daughter (daughter).     On appeal, husband contends the

court erroneously (1) interpreted the provision of the parties'

property settlement agreement (the agreement) regarding

husband's liability for daughter's educational expenses, (2)

failed to conclude that wife was not entitled to recover the

claimed educational expenses because she breached her duty to

husband under the agreement to seek his approval before


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
enrolling their daughter in school, and (3) ruled that husband

remained unconditionally liable for the future costs of "any

other appropriate college or university," without regard to the

agreement's provision that his duty to pay was subject to his

approval of the school.   Wife contends the court erroneously

failed to award her attorney's fees under the term of the

agreement providing for fees and costs "in the successful

enforcement of" the agreement.

     We hold the trial court's interpretation of the agreement

was erroneous because the agreement expressly conditioned

husband's obligation to pay on his approval of the school

selected as long as such approval was not unreasonably withheld.

However, because the agreement did not require approval prior to

enrollment, any failure of wife to secure husband's approval

prior to enrollment was not a breach excusing husband's

performance.   Further, because husband did not claim that his

disapproval of either school choice was an alternative reason

for finding he was not liable under the agreement, we hold he

has waived the right to assert such a claim as a defense to

payment.   Thus, we affirm the decision that husband is liable

for the challenged educational expenses.

     However, based on wife's concession of error, we vacate the

portion of the trial court's ruling that implies husband might

be liable for future educational expenses at other unnamed

schools.   We also hold the trial court erred in failing to award

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attorney's fees and costs for wife's successful enforcement of

husband's child support and educational expense obligations

under the agreement.   Thus, we affirm in part, reverse in part,

vacate in part, and remand for additional proceedings consistent

with this opinion.

                                I.

     "[P]roperty settlement agreements are contracts . . .

subject to the same rules of formation, validity, and

interpretation as other contracts."     Smith v. Smith, 3 Va. App.

510, 513, 351 S.E.2d 593, 595 (1986).    "Where the agreement is

plain and unambiguous in its terms, the rights of the parties

are to be determined from the terms of the agreement and the

court may not impose an obligation not found in the agreement

itself."   Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d

762, 764 (1994).   The trial court ruled, and the parties agree,

that the contract is unambiguous.

     "In construing the terms of a property settlement

agreement, just as in construing the terms of any contract, we

are not bound by the trial court's conclusions as to the

construction of the disputed provisions."     Smith, 3 Va. App. at

513, 351 S.E.2d at 595.   "If all the evidence which is necessary

to construe a contract was presented to the trial court and is

before the reviewing court, the meaning and effect of the

contract is a question of law which can readily be ascertained



                               - 3 -
by this court."     Fry v. Schwarting, 4 Va. App. 173, 180, 355

S.E.2d 342, 346 (1987).

                                  A.

                    CONDITIONS PRECEDENT TO PAYMENT

        Here, husband contends wife forfeited her right to obtain

reimbursement from him under the agreement for daughter's

tuition and other expenses at the Bullis School and the College

of Charleston because she failed to obtain his approval of

either school prior to daughter's enrollment.     The trial court

rejected husband's claim, ruling that husband had, at most, a

right to participate in discussions regarding the choice of

schools and had a contractual obligation to pay tuition and

expenses regardless of whether he approved of the schools

ultimately selected.    We hold the correct interpretation of the

parties' agreement lies between these two positions and is

governed by our prior decision in Harris v. Woodrum, 3 Va. App.

428, 350 S.E.2d 667 (1986).

        Harris involved a property settlement agreement containing

language similar but not identical to the language at issue

here.     Id. at 429, 350 S.E.2d at 668.   In Harris, the father

agreed to pay educational expenses "'subject to [his] approval

of the particular school or schools prior to the child's being

enrolled therein, which approval the [father] agrees not to

unreasonably withhold.'"     Id. (emphasis added).    Although the

agreement in Harris conditioned the father's duty to pay on his

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approval "'prior to the child's . . . enroll[ment],'" the mother

apparently sought that approval prior to the enrollment because

the only issue in dispute was the meaning of the remaining

portion of that provision, "'subject to the [father's] approval

. . . , which approval the [father] agrees not to unreasonably

withhold.'"   Id.

     The mother in Harris noted that "[the father] agreed to pay

'room and board.'   She asserts that this is proof that the

parties anticipated that attendance in a boarding school was a

possibility and, therefore, for [the father] to now withhold

approval of daughter's entrance into Foxcroft is . . . in breach

of the contract."     Id. at 432-33, 350 S.E.2d at 669.   We

disagreed, holding that "[s]uch construction of the contract

[would] . . . render[] nugatory the words, 'subject to [the

father's] approval,'" and "[w]e decline[d] to give the contract

that construction."     Id. at 433, 350 S.E.2d at 669-70.

     Here, the parties' agreement expressly provides that

husband's obligation to pay daughter's educational expenses as

outlined in the agreement is "subject to husband's approval of

such school (which approval shall not be unreasonably

withheld)." (Emphasis added).    In contrast to Harris, the

agreement does not require that husband's approval be obtained

prior to enrollment.    As such, we reject husband's claim that he

is not liable under the agreement merely because wife did not



                                 - 5 -
obtain his approval of the Bullis School or the College of

Charleston prior to daughter's enrollment in those schools.

     Nevertheless, our holding in Harris controls to the extent

it provides that husband's approval of the school selected is a

condition to his obligation to pay tuition and other expenses as

outlined in the agreement, as long as husband does not withhold

that approval unreasonably.   The trial court's ruling that the

parties' agreement does not provide husband with "'veto' power"

over his duty to pay for the school of daughter's or wife's

choice "renders nugatory the words, 'subject to [h]usband's

approval.'"   Harris, 3 Va. App. at 432-33, 350 at 669-70; see

also Jones, 19 Va. App. at 270, 450 S.E.2d at 764 ("These

terms[,] linked together one sentence after another in the same

paragraph, can only be read to condition Mr. Jones's obligation

to pay on his agreement to the college his child attends.    To

read those terms otherwise deprives either one or the other of

any significance.").

     In sum, we hold that husband's approval prior to enrollment

was not required by the agreement and, thus, that any failure by

wife to obtain his approval prior to enrollment was not a breach

excusing husband's performance.   The agreement does expressly

provide that husband's approval, or a judicial finding that he

unreasonably withheld such approval, is a condition precedent to

his duty to pay.   However, husband did not specifically assert

in the trial court and does not argue on appeal that his

                               - 6 -
disapproval of either school choice was an alternative reason

for finding he was not liable under the agreement.      His entire

argument hinged on his claim that wife's failure to obtain his

approval prior to daughter's enrollment was a breach excusing

his duty to pay.    Thus, we hold husband has waived his right to

object to wife's and daughter's choices or to have a court

determine whether such an objection would have been reasonable.

See Rule 5A:18.    Accordingly, husband is obligated to pay,

pursuant to the agreement, for daughter's tuition and related

educational expenses covered by the agreement for the Bullis

School and the College of Charleston.

     Husband also objects to the trial court's ruling that

"[husband] is obligated to pay the remaining tuition and

expenses for the College of Charleston, or any other appropriate

College or University as set forth in the [agreement]."     Wife

concedes on appeal that this portion of the ruling was error to

the extent that it may be interpreted to conflict with the

parties' agreement.    Thus, we vacate this portion of the trial

court's ruling.

                                  B.

                  ATTORNEY'S FEES UNDER THE AGREEMENT

     Wife challenges the trial court's ruling denying her

request for attorney's fees pursuant to the provision in the

agreement that fees and costs for "the successful enforcement"

of the agreement "shall be borne by the defaulting party."

                                 - 7 -
Although the court awarded wife the contested educational

expenses, it ruled wife was not entitled to attorney's fees

based on husband's nonpayment of those educational expenses

because "the agreement was litigated not for mere enforcement

but for interpretation" and because "there was no default that

would deem the unsuccessful litigant a defaulting party."   It

made no mention of wife's request for fees associated with her

successful efforts to obtain payment of child support

arrearages.

     We hold the trial court's ruling was erroneous insofar as

it failed to award wife fees for resolving the issue of the

child support arrearage.   Wife included the arrearage issue in

her petition originating this action.    Husband conceded prior to

trial that he owed wife support arrearages in excess of $20,000

and executed an income deduction order.   Wife represented to the

trial court that she incurred attorney's fees in resolving this

issue.   Paragraph 35 of the parties' agreement expressly

provides that fees and costs "incurred . . . in the successful

enforcement of any of the . . . provisions of this agreement,

whether through litigation or other action necessary to compel

compliance herewith shall be borne by the defaulting party."

(Emphasis added).   Husband's concession regarding the arrearage

and voluntary execution of the income deduction order

established that wife successfully enforced the agreement

against husband, the defaulting party.    Thus, wife was entitled

                               - 8 -
to an award of fees and costs associated with enforcement of

this portion of the agreement.

     The court also erred in failing to award wife's fees and

costs related to the contested educational expenses.   As we held

above, husband is obligated under the agreement to pay those

educational expenses.   Further, the parties' agreement makes no

distinction between fees related to interpretation of the

agreement and those related to its enforcement.    Although the

parties' dispute centered around their differing interpretations

of the agreement, the litigation regarding the educational

expenses involved wife's effort to enforce the agreement and was

"necessary to compel [husband's] compliance" with the agreement

as wife interpreted it.

     Our holding in Allsbury v. Allsbury, 33 Va. App. 385, 533

S.E.2d 639 (2000), relied on by husband at trial, is

distinguishable based on the language of the agreement at issue

in that case.   Although paragraph 25(C) of the agreement in

Allsbury entitled a party seeking "to enforce th[e] agreement"

to obtain an award of attorney's fees against the party who

"breach[ed] . . . th[e] agreement," that paragraph was not the

only language in the agreement that addressed the recovery of

fees and costs.   Id. at 392, 533 S.E.2d at 643.   Paragraph 25(D)

provided that "where the parties cannot agree on disputed

matters, the trial court has the power to award counsel fees and

costs against a party who the court finds acted unreasonably."

                                 - 9 -
Id.   We held, based on the express language of paragraph 25(D)

of the Allsburys' agreement, language not contained in the

agreement at issue here, that the trial court made a finding

that Mr. Allsbury's position on the interpretation of a disputed

provision, although incorrect, was reasonable.   Id.    Thus, the

ruling in Allsbury turned on the specific language of the

agreement and does not constitute a general ruling that an

action to enforce an agreement does not encompass a dispute over

interpretation of the agreement's terms.

      For these reasons, we reverse the trial court's ruling

denying wife's request for attorney's fees and costs and remand

for entry of an appropriate award for fees and costs.

                                II.

      In sum, we hold the trial court's interpretation of the

agreement was erroneous because the agreement expressly

conditioned husband's obligation to pay on his approval of the

school selected as long as such approval was not unreasonably

withheld.   However, because the agreement did not require

approval prior to enrollment, any failure of wife to secure

husband's approval prior to enrollment was not a breach excusing

husband's performance.   Further, because husband did not claim

that his disapproval of either school choice was an alternative

reason for finding he was not liable under the agreement, we

hold he has waived the right to assert such a claim as a defense



                              - 10 -
to payment.   Thus, we affirm the decision that husband is liable

for the challenged educational expenses.

     However, based on wife's concession of error, we vacate the

portion of the trial court's ruling that implies husband might

be liable for future educational expenses at other unnamed

schools.   We also hold the trial court erred in failing to award

attorney's fees and costs for wife's successful enforcement of

husband's child support and educational expense obligations

under the agreement.   Thus, we affirm in part, reverse in part,

vacate in part, and remand for additional proceedings consistent

with this opinion.

                               Affirmed in part, reversed in part,
                                    vacated in part, and remanded.




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