COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

JOHN DAVID PELLEGRIN 

 MEMORANDUM OPINION* BY 

v. Record No. 0143-96-4 JUDGE ROSEMARIE ANNUNZIATA 

 OCTOBER 29, 1996 

DIANE LYNN BINGMAN PELLEGRIN 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jack B. Stevens, Judge 

 Daniel G. Dannenbaum (The Lewis Law Firm, on 

briefs), for appellant. 

 David M. Levy (Surovell, Jackson, Colten & 

Dugan, P.C., on brief), for appellee. 

 Appellant, John David Pellegrin ("husband"), and appellee, 

Diane Lynn Bingman Pellegrin ("wife"), were divorced by final 

decree entered March 5, 1991, affirming, ratifying and 

incorporating the parties' Property, Custody, and Support 

Settlement Agreement dated February 12, 1990 (the "agreement"). 

In 1995, each party filed motions to compel the other to comply 

with the agreement. Husband appeals from the court's order 

resolving the issues raised in the parties' cross-motions, 

contending the following: (1) the court erred in ordering husband 

to provide an accounting of accounts identified as the "First 

American" accounts; (2) the court erred in relying on tax tables 

to determine the amount husband owed wife for the 1994 income tax 

liability incurred on support payments from husband; (3) the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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court erred in ordering husband to pay $3,433.29 to wife for 

unreimbursed medical expenses and in refusing to allow husband to 

present evidence of wife's waiver of her right to such payments; 

(4) the court erred in ordering husband to pay wife $7,500 in 

attorney's fees; (5) the court erred in interpreting "gross 

income" as used in paragraph eight of the agreement to mean 

income earned only from wife's employment; and (6) the court 

erred in refusing to allow husband to fully and fairly present 

his case-in-chief. Finding no reversible error, we affirm the 

trial court's order. 

 I. 

 In her motion, wife alleged that husband had failed to 

comply with paragraph nine of the agreement. Paragraph nine 

provides, in part, that "there exist certain trust funds for the 

children as to which husband shall remain trustee but shall on a 

quarterly basis keep wife apprised as to the status of such trust 

accounts, including deposits and withdrawals and institutional 

statements as to same." She requested the court to compel 

husband to provide an accounting of certain funds held in the 

First American Bank and to reimburse the accounts for any 

improper expenditures. 

 The court found insufficient the accounting husband had 

provided relative to the First American accounts. Accordingly, 

the court ordered husband to comply with the agreement by 

providing wife an additional accounting, with copies of the 
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checks he had drawn on the accounts. 

 On appeal, husband alleges that the parties' agreement does 

not contemplate the First American accounts and that the court 

therefore erred in ordering the accounting. However, as 

husband's only objection to the trial court's ruling was that he 

had provided a sufficient accounting of the First American funds, 

the issue he now raises is procedurally barred. See Rule 5A:18. 

 II. 

 Wife alleged husband had failed to pay her taxes on the 

$12,000 in support payments she received in 1994. According to 

the federal and state tax tables which wife submitted in her 

pleading, the tax liability on $12,000 was $2,275 in 1994. 

Neither at the hearing nor on appeal does husband dispute the 

amount of support wife received, the accuracy of the tax tables, 

or the amount of the tax liability which results from the 

application of the tax tables. 

 At the hearing, husband argued that, because of certain 

deductions and exemptions available to wife, wife's ultimate tax 

liability for a given year could be less than the tax solely 

attributable to wife's support income by application of the tax 

tables, or might even result in a tax refund. Accordingly, 

husband argued he should receive a credit for wife's deductions 

and exemptions or share proportionally in any tax savings or 

refund. Without hearing evidence, the court disagreed, finding 

that the language of the agreement was unambiguous in requiring 
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husband to pay the tax on the support payments, regardless of any 

deductions wife might or should have taken. Accordingly, the 

court ordered husband to pay $2,275 as the tax on wife's support 

payments for 1994. 

 On appeal, husband contends that the court erred in 

determining his tax obligation in accordance with the tax tables. 

 He argues that the agreement unambiguously requires him to pay 

only the "actual" tax liability wife incurs on her support income 

in light of her total tax liability for a given year. We 

disagree with the interpretation of the agreement husband urges 

this Court to adopt. 

 "`Where an agreement is complete on its face, is plain and 

unambiguous in its terms, the court is not at liberty to search 

for its meaning beyond the instrument itself.'" Tiffany v. 

Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985) (quoting 

Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983)). 

 "`[C]ourts cannot read into contracts language which will add to 

or take away from the meaning of the words contained therein,'" 

Great Falls Hardware Co. v. South Lakes Village Center Assocs., 

238 Va. 123, 126, 380 S.E.2d 642, 644 (1989) (quoting Wilson v. 

Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984)), even 

when the contract may appear to reach an unfair result, see

Kaufman v. Kaufman, 7 Va. App. 488, 501, 375 S.E.2d 374, 381 

(1988). 

 Paragraph eight provides, in part, that "[h]usband will pay 
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wife's taxes (State and Federal) on the spousal support payments 

for the years 1990-1995." The issue is not further addressed. 

Nothing in this provision relates husband's obligation to wife's 

taxable income, as derived from her deductions and exemptions, as 

well as all sources of income. Nothing in the agreement even 

remotely suggests husband is entitled to share in any refund of 

taxes due wife or that his obligation bears any relation to 

wife's decisions concerning exemptions and deductions. A plain 

reading of the provision's language shows that it premises 

husband's obligation not on wife's ultimate tax liability, but on 

her taxable income derived solely from support payments. 

 We are unpersuaded by husband's argument that the strict 

application of the tax tables results in a "windfall" to wife. 

Strict application of the tax tables results in a federal tax of 

approximately 15% on $12,000. That extenuating circumstances may 

result in wife having to "actually" pay less than 15% of $12,000 

is no more a "windfall" to wife than would be the benefit to 

husband of applying the tax tables to the support income alone 

were wife's total tax liability assessed at a rate greater than 

15% of her total taxable income. 

 The agreement, of course, provides no mechanism for dealing 

with the myriad potentialities that could arise. We conclude the 

omission was intentional, designed to promote simplicity and 

constancy in the application of the agreement during the life of 

its enforcement. In accordance with well-established principles, 
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we have no authority to read the agreement to provide anything 

else. As such, we affirm the decision of the trial court. 
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 III. 

 In her motion to compel, wife alleged that husband failed to 

reimburse her for medical expenses not covered by insurance in 

the amount of $2,730.42 and asked the court to order husband to 

reimburse her for "all of the uncovered medical and dental 

expenses that she has paid." In support of her position, wife 

relies on paragraph thirteen of the agreement, which states, in 

part, that husband shall provide health insurance for wife and 

the children under the policy he had in effect at the time of the 

agreement, "or a comparable policy thereto," and pay either 

directly or by reimbursing wife the expense of any necessary 

medical expense not covered by the insurance. 

 The court admitted evidence of wife's medical expenses for 

which she claimed reimbursement. This evidence shows expenses in 

the amount of $2,730.42, as wife alleged in her pleading, and 

shows an additional $1,392.57 for expenses allegedly incurred 

after she filed her pleading. 

 On appeal, husband contends the court erred in considering 

wife's evidence that she had an additional $1,392.57 in expenses 

on the ground that wife had failed to allege that amount in her 

pleading. It is undisputed that wife did not allege the 

$1,392.57 amount in her pleading. 

 Moreover, husband waived any objections he could raise to 

the admission of such evidence and, therefore, his contention is 

procedurally barred. Husband not only failed to object to the 
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admission of wife's evidence showing that amount, see Rule 5A:18, 

he also sought, through his own testimony, to establish that he 

had, in fact, reimbursed wife some of the $1,392.57 amount. See

Snead v. Commonwealth, 138 Va. 787, 801-02, 121 S.E. 82, 86 

(1924) (waiver of objection where objecting party introduces on 

his own behalf testimony similar to that to which the objection 

applies). Thus, regardless of whether such evidence should have 

been admitted, we cannot say that the trial court erred in 

considering it in light of husband's waiver. 

 Husband also contends that the amount of the court's award 

is not supported by the evidence. We disagree. Based on wife's 

evidence, the total amount husband owed was $3,897.99. In its 

final order, however, the court ordered husband to pay $3,433.29. 

 That amount is $464.70 less than wife's evidence proved she was 

owed. Although the evidence in the case was in conflict, the 

conflict was resolved by the trier of fact in favor of wife and 

there is no question wife's evidence supports the award. See, 

e.g., Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 

163 (1992) (conflicts in evidence present factual questions that 

are to be resolved by the trial court, and its findings will not 

be disturbed on appeal unless plainly wrong). 

 Moreover, even were we to consider husband's testimony that 

he was due an offset of $145 and his proffer that he was due an 

additional offset of $199, the alleged total offset is less than 

$464.70, the amount which wife's evidence shows should have been 
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included in the award but was not. Thus, any error of the trial 

court in computing the award benefits husband and is no basis for 

complaint. See, e.g., Director General v. Lucas, 130 Va. 212, 

218, 107 S.E. 675, 677 (1921) (error favorable to appellant 

constitutes no grounds for reversal). 

 Husband further contends that wife waived her right to be 

reimbursed for her medical expenses, arguing the expenses were 

incurred at a time when she failed to cooperate with his attempts 

to procure medical insurance for her "comparable" to that which 

existed at the time of the agreement. Husband contends that such 

failure was a waiver of her right to be reimbursed. He also 

contends that the court erred by refusing to allow him to fully 

examine wife on this issue in his case-in-chief. 

 This argument is without merit. The agreement requires 

husband to provide insurance coverage for wife under the plan 

existing at the time of the agreement or under a "comparable" 

plan. Husband attempted to prove wife's alleged noncooperation 

with his efforts to obtain comparable coverage through the 

testimony of Julie Bonilla, husband's office manager and 

bookkeeper. While Bonilla testified that wife had not been 

cooperative with husband's recent attempts to change insurance 

coverage, husband produced no insurance policies for purposes of 

comparison. Nor did he produce an insurance expert to compare 

policies. The court properly sustained wife's objections to 

Bonilla's testimony on the grounds that there was no foundation 
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 upon which she could state the new insurance coverage was 

"comparable" to the former policy. Moreover, Bonilla testified 

that wife's insurance coverage, as it existed at the time of the 

agreement, was in effect when she incurred the medical expenses 

in question. By inference, there was no need for a new health 

insurance plan and, under the agreement, husband was obligated to 

reimburse wife her medical expenses. In sum, absent evidence 

establishing the need for a new policy or, assuming the need was 

established, absent evidence showing the comparability of any new 

coverage husband sought to substitute for the former policy, 

evidence of wife's failure to cooperate is a moot point, and the 

trial court's ruling on the issue was not error. 

 IV. 

Paragraph eight of the agreement provides, inter alia, that 

 [i]f, as of May 1, 1995, the wife is 

employed, or thereafter becomes employed, 

with an annual gross income in excess of 

$25,000.00, husband's obligation to pay 

spousal support and maintenance shall be 

reduced . . . . 

In the absence of this provision, the parties do not dispute that 

as of May 1, 1995, husband's support obligation was $3,000 per 

month. Nor do the parties dispute that during the six months 

from May to October 1995, husband paid wife $2,000 per month. 

 Husband alleged wife was employed and "earned gross annual 

income in excess of $25,000.00" and sought to employ the 

provision to reduce his support obligation. Wife did not deny 

she was employed but alleged she was "not employed with an annual 
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income in excess of $25,000" and sought to enforce what she 

considered to be a $6,000 arrearage. 

 At the hearing, husband's counsel proffered that wife's 

annual income included $9,000 from employment, $19,600 from 

rental income, and $24,000 from alimony for a total gross income 

of $52,600. However, before hearing testimony, the court ruled 

that the agreement referred to "earned income of the wife of 

$25,000, not rental income." Accordingly, the court ordered 

husband to pay the $6,000 arrearage. 

 On appeal, husband argues that the phrase "with an annual 

gross income in excess of $25,000.00" refers to income from 

whatever source derived, not to income earned solely from 

employment. We disagree. 

 In the context of paragraph eight, we find the phrase "with 

an annual gross income in excess of $25,000.00" unambiguously 

refers to gross income from employment. As wife contends, the 

phrase clearly places a condition on wife's employment which must 

be met before the reduction provision applies. Under husband's 

construction, even support payments in excess of $25,000 

annually, which would clearly occur if husband continued to pay 

$3,000 per month, would trigger an automatic reduction under this 

provision, so long as wife was employed and irrespective of any 

wage she earned. Nothing in the agreement supports the 

conclusion that the parties intended such anomalous results. The 

trial court's decision on this issue is, therefore, affirmed. 
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 V. 

 Next, husband argues on appeal that the trial court erred in 

refusing to allow him to fully present his case-in-chief and, 

specifically, to conduct direct examination of wife on the issue 

of her compliance with his attempts to procure insurance. There 

is no merit in this contention. 

 This case was scheduled to be heard in one day. Wife's 

case-in-chief was presented first, interrupted by husband's 

out-of-turn examination of one of his witnesses, Julie Bonilla. 

After wife testified in her own behalf, husband's counsel 

cross-examined her, and ended his examination, noting he intended 

to recall wife in husband's case-in-chief. 

 The presentation of husband's direct testimony in his 

case-in-chief continued until the end of the day, necessitating a 

second day of hearing. The court stated that the direct 

examination of husband by husband's counsel would have to be 

concluded before adjournment that day. The court further stated 

it would continue the case to the following day to allow wife's 

counsel the opportunity to cross-examine husband. Wife's counsel 

then agreed to ask only two questions on cross-examination so the 

case could end that day. 

 Husband's counsel continued the direct examination of 

husband, eliciting testimony on the offsets to be applied to 

wife's claimed medical expenses. While husband testified to the 

amounts he claimed to have made in reimbursing wife, he could not 
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produce specific checks reflecting the payments he claimed. The 

court declined to hear further testimony on the issue, ordering 

husband to produce the checks instead. Wife then cross-examined 

husband briefly. The court set the matter down for a second day 

of hearing and stated that no new witnesses would testify on that 

day. Husband did not object. 

 When the hearing resumed, husband was represented by 

different counsel. Husband asked for a few hours to continue to 

present his case on his motion to compel. The court initially 

refused, responding that the issues husband raised in his motions 

were "fully explored" at the October hearing. Husband's counsel 

persisted, arguing that husband had not had a chance to call wife 

in his case-in-chief and, due to the scope of wife's direct, had 

not been able to cross-examine her on the issue of courses for 

which husband had paid and which wife had allegedly dropped. The 

court granted husband's request, and husband called and examined 

wife on that issue. The court also allowed husband the 

opportunity to present the specific checks it had requested in 

the earlier hearing to demonstrate any offsets to wife's claimed 

medical expenses. Husband never produced the checks requested 

for the court's review. 

 Trial conduct is committed to the discretion of the trial 

court. E.g., Cunningham v. Commonwealth, 2 Va. App. 358, 365, 

344 S.E.2d 389, 393 (1986). In his case-in-chief, husband 

examined Julie Bonilla and gave testimony himself. The court 
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interrupted the testimony of Bonilla because it properly found 

her testimony irrelevant to the issues before it. The court 

directed husband to conclude his testimony at the end of the 

first day of hearing and specifically stated, without objection, 

that no new witnesses would be heard on the second day of the 

hearing. On the second day of the hearing the court agreed to 

allow husband to produce specific checks establishing his claim 

of offset to wife's unreimbursed medical expenses. Husband 

failed to produce the specific checks to demonstrate the alleged 

offset. Thus, any harm to husband's case-in-chief on these 

issues resulted from his own failure of proof. 

 Furthermore, the court permitted husband to call and examine 

wife in his case-in-chief on the second day of the hearing to the 

extent he requested. Having failed to request further 

examination of wife on the issue of her failure to cooperate in 

obtaining comparable health insurance, this issue on appeal is 

procedurally barred. See Rule 5A:18. Husband's only request 

respecting the scope of examination of wife was granted. 

 VI. 

 Next, husband argues the court erred in awarding wife 

attorney's fees. Paragraph twenty-four of the agreement provides 

that expenses, including attorney's fees, incurred by one of the 

parties in successfully enforcing any of the agreement's 

provisions or in successfully defending any action for 

enforcement shall be borne by the other party. It is clear both 
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from the trial court's order and, thus, from the posture of this 

case on appeal, that wife was successful in both enforcing the 

agreement's provisions and in defending husband's actions for 

enforcement. 

 On appeal, husband contends the fee award was excessive. He 

further argues that wife failed to present proper proof to 

support the award of attorney's fees and that wife should have 

presented expert testimony to justify the fees. Husband failed 

to raise these objections to wife's evidence before the trial 

court. Accordingly, husband's contention that wife presented 

insufficient evidence in support of the attorney's fees award and 

that the amount of the award was excessive is procedurally 

barred. See Rule 5A:18. 

 Accordingly, the decision of the circuit court is affirmed. 

 This matter is remanded to the trial court to assess and award 

appropriate appellate attorney's fees to wife. 

Affirmed and remanded.