COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

ANDREW T. SCHNEIDER 

 

v. Record No. 2078-96-4 

DENISE M. SCHNEIDER 

 MEMORANDUM OPINION* BY 

and JUDGE ROSEMARIE ANNUNZIATA 

 SEPTEMBER 9, 1997 

DENISE M. SCHNEIDER 

v. Record No. 2153-96-4 

ANDREW T. SCHNEIDER 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 (James W. Korman; Andrea M. Contreras; Bean, 

Kinney & Korman, on briefs), for Andrew T. 

Schneider. 

 (MaryEllen Craig; Nancy J. Wuerker; Craig & 

Hirsch, on briefs), for Denise M. Schneider. 

 Andrew T. Schneider (husband) and Denise M. Schneider (wife) 

appeal the decisions of the circuit court denying, by summary 

judgment, husband's motion for modification of spousal support 

and wife's motion for attorney's fees. For the following 

reasons, we affirm the circuit court's decisions. 

 I. 

 The parties were married in April 1988 and divorced by final 

decree entered in December 1994. The final decree incorporated 

 

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

designated for publication. 
 2 

the parties' property settlement agreement (PSA), which required 

husband to pay wife $2,150 per month in spousal support. The 

agreement provided that husband's spousal support obligation 

would continue, 

 for a maximum of fifteen (15) years, [until] 

the death of either party, the remarriage of 

the Wife, or the Wife becomes employed 

earning at least $40,000.00 annually, 

whichever is sooner; provided, however, 

either party may seek a modification during 

the period of said obligation, but in no 

event beyond fifteen (15) years, based upon a 

material change of circumstances. 

Husband's responses to wife's request for admissions established 

that a provision had been proposed for incorporation into the 

PSA, prior to its execution, which would have required wife to 

make a good faith effort to obtain employment. Husband's 

responses further established that wife rejected the proposed 

provision. The final agreement contained no provision requiring 

wife to seek employment. 

 In January 1996, husband filed a petition seeking a 

reduction in spousal support. He alleged that wife's failure to 

in good faith seek and obtain employment since the entry of the 

decree constituted a material change of circumstances "from what 

was reasonably anticipated by the parties at the time of the 

execution of the said Agreement, i.e. that [wife] would make 

persistent and good faith efforts to get employment." 

 It is undisputed that wife was not employed when the decree 

was entered and that she remained unemployed when husband 
 3 

petitioned for a modification of support. Husband contended that 

wife was employable both at the time the decree was entered and 

when he argued his petition. Wife contended that she had been 

fully disabled since prior to the entry of the decree. Neither 

party contended that wife's employability had changed since the 

entry of the decree. 

 Wife filed a demurrer to husband's petition, which the 

circuit court overruled. Following discovery, wife filed a 

motion for summary judgment, arguing that husband had failed to 

demonstrate a material change in circumstance. The court granted 

wife's motion for summary judgment, finding, 

 the PSA is not ambiguous and that counsel is 

conceding that the wife was unemployed at the 

time of this agreement and she is unemployed 

now, and I don't see what the change of 

circumstances from that day to this is under 

this agreement, particularly, the attempt of 

[husband] to insert a good faith obligation 

on the wife to seek employment which was 

rejected by wife's counsel and this document 

was executed. If this document was 

ambiguous, if it was, that would certainly in 

the court's view end this matter. 

 II. 

 The trial court made alternative findings. The court first 

found the PSA unambiguous. It refused, therefore, to look beyond 

the PSA to determine the parties' intentions and found no change 

of circumstance had occurred based on the parties' 

representations of wife's employment status and the absence of a 

requirement in the PSA that she seek or obtain employment. 

Alternatively, the court found the PSA ambiguous. It looked, 
 4 

therefore, to husband's admissions as evidence of the dispositive 

issue, viz., whether "what was reasonably anticipated by the 

parties at the time of the execution of the said Agreement, i.e. 

that [wife] would make persistent and good faith efforts to get 

employment" had changed. Those admissions led the court to the 

conclusion that the parties' expectations had not changed since 

the entry of the decree. 

 The question of whether a contract is ambiguous is one of 

law, to which we are not bound by the trial court's construction. 

E.g., Ross v. Craw, 231 Va. 206, 213, 343 S.E.2d 312, 316 

(1986). Here, we find the language in the PSA allowing a 

modification of support upon a material change in circumstance to 

be, by its very nature, ambiguous. The trial court's first 

finding was, therefore, erroneous. While the PSA enumerated 

certain, specific criteria affecting husband's support 

obligation, it also provided generally that husband's support 

obligation could be modified upon a "material change of 

circumstance[]." The determination whether the circumstances 

existing when the PSA was entered had subsequently changed 

depended on a determination of what those circumstances initially 

were, together with an examination of the present, "changed" 

circumstances which may warrant modification of support. The 

court had to look beyond the PSA to resolve the issue, because 

the PSA itself, addressing "circumstances" generally, does not 

answer either question. 
 5 

 In the present case, although first concluding the PSA was 

unambiguous, the court nevertheless considered evidence relevant 

to the issue of whether circumstances had changed since the entry 

of the decree. Specifically, the court considered husband's 

admissions in answering the specific question before it, viz., 

whether "what was reasonably anticipated by the parties at the 

time of the execution of the said Agreement, i.e. that [wife] 

would make persistent and good faith efforts to get employment" 

had changed. The answer, as the trial court correctly found, was 

no. As demonstrated by the proposed inclusion, but ultimate 

rejection, of a provision which would have required wife to seek 

employment, it is manifest that the circumstances under which the 

parties entered the PSA did not include their intent and 

expectation that wife would make persistent and good faith 

efforts to become employed. The trial court's alternative 

finding was, thus, correct. 

 Based on this analysis, we disagree with husband's 

contention that the circuit court improperly decided the issue on 

summary judgment. As determined from the parties' pleadings and 

admissions, there were no material facts genuinely in dispute. 

See Rule 2:21.1 Since the decree was entered in the present 

 

 1Contrary to husband's contention, it is unnecessary to rely 

on wife's answers to husband's requests for discovery to 

determine the issue. Furthermore, contrary to husband's 

argument, the overruling of wife's demurrer does not have 

preclusive effect on the court's award of summary judgment. 

There is a manifest distinction between the basis for the court's 

decision on a demurrer, viz., whether the petition stated a claim 

upon which relief may have been granted, and the basis for the 
 6 

(..continued) 

case, wife has remained unemployed. Furthermore, although the 

parties disagree as to whether wife is now employable, neither 

contends that her employability has changed since the entry of 

the decree.2

 Finally, the parties did not anticipate that wife 

would make persistent and good faith efforts to gain employment 

as a condition of the support husband obligated himself to pay.3

 III. 

 In her motion for summary judgment, wife also sought an 

award of attorney's fees. She alleged an award of attorney's 

fees was authorized under paragraphs 9, 11, 12, 14 and 18 of the 

PSA, as well as under Code § 20-99(5).4

 Paragraph 11 of the PSA provides: 

 In the event that either party defaults 

court's decision on a motion for summary judgment, viz., whether, 

after review of the pleadings, orders, and admissions, all coming 

subsequent to the demurrer, there are material facts genuinely in 

dispute. 

 2Indeed, husband does not contend that wife is any more or 

less employable today than she was when the decree was entered. 

 3To the extent husband contends that the law imposed a duty 

upon wife to reduce her support needs by obtaining employment, 

rendering her failure to do so over time a material change in 

circumstance, his contention is inapposite. Husband bargained 

away whatever duty the law imposed upon wife to obtain employment 

to reduce her support needs. Husband could have litigated the 

issue of wife's employability and pursued judicial enforcement of 

the duty he now suggests the law imposes. He did not. Instead, 

he chose to enter the PSA, an agreement suggesting by its very 

nature a compromise of the parties' interests upon their 

separation. Thereafter, the PSA was incorporated into a final 

decree of the trial court, and the issue of support became final. 

 4Code § 20-99(5) provides that in suits for divorce, 

annulment, or affirmation, "[c]osts may be awarded to either 

party as equity and justice may require." 
 7 

in the performance of any of the provisions 

of this Agreement, the defaulting party will 

indemnify the other for all reasonable 

expenses and costs, including attorney's 

fees, incurred in successfully enforcing the 

terms of this Agreement. 

 Paragraph 9 provides: 

 Each party shall be free from 

interference, authority or control, direct or 

indirect, by the other. Neither party shall 

molest, harass, annoy or in any way interfere 

with the other, and each of the parties 

hereto shall have full and complete 

independence of action and conduct in all 

business and social relations, and the public 

and private activities of each of them shall 

be entirely free from all restraint, 

supervision, control and censure by the 

other. 

 Paragraph 12 provides, in part: 

 The parties hereto agree to accept, and 

do hereby accept, the covenants and 

agreements herein contained in full, complete 

and final settlement of any and all claims 

and demands of every kind, whether the same 

be in law or in equity, which either may have 

against the other, and the parties do hereby 

agree that this agreement contains the entire 

undertaking between them and that there are 

no oral or written promises, inducements or 

agreements whatsoever between them, except as 

herein contained. 

 Paragraph 14 provides: 

 Each party shall at any time hereafter, 

take any and all steps and execute, 

acknowledge and deliver to the other party 

any and all further instruments and 

assurances that may be reasonably required by 

the other, his or her heirs, executors, 

administrators and assigns, for the purpose 

of perfecting a clear title to any property 

referred to in this agreement and for the 

purpose of giving full force and effect to 

the intent of the covenants, conditions and 

agreements contained herein. In the event 
 8 

either party fails or refuses to do so, or in 

the event of any default on the part of 

either party hereto, the costs and expenses 

of any litigation or other action of any 

nature necessary to compel compliance 

herewith, including attorney's fees, shall be 

borne by the defaulting party. 

 Paragraph 18 provides: 

 No modification or waiver of any of the 

terms of this Agreement shall be valid unless 

in writing and executed with the same 

formality as this Agreement. No waiver of a 

breach or default of any clause of this 

Agreement shall be deemed to constitute a 

waiver of any subsequent breach or default of 

the terms hereof. The failure of any party 

at any time to insist upon the strict 

performance of any of the terms or covenants 

of this Agreement shall not be deemed a 

waiver of the right to insist upon strict 

performance of the same or any other term or 

covenant of this Agreement at any time. 

 The circuit court found that the PSA contained no provision 

allowing an award of attorney's fees to the prevailing party in a 

dispute arising under its terms. The court interpreted the PSA 

to require an award of attorney's fees, under paragraph 11, only 

when a party defaulted in his or her performance under the PSA. 

Finding that husband had not defaulted in his performance, the 

circuit court granted husband's cross-motion for summary 

judgment, denying wife's request for attorney's fees. 

 IV. 

 Wife does not contend that the court improperly determined 

this issue by summary judgment; her contention is simply that the 

court erred as a matter of law. We disagree. 

 Wife alleges that husband breached and defaulted in his 
 9 

performance of the PSA by filing his petition for a modification 

of spousal support. She does not dispute that the PSA provided 

that husband could petition for a modification of support. She 

alleges, however, that husband's petition, not being premised on 

a material change in circumstances, was an attempt to impose an 

obligation on wife that was not contemplated by the PSA. That 

imposition, she contends, was a breach of his performance under 

the PSA, entitling her to attorney's fees under paragraph 11. 

 Specifically, wife alleges that husband breached the "no 

interference" provisions of paragraph 9 by "attempt[ing] to 

control and direct the activities of [wife] by alleging a duty 

that does not exist in the contract." She alleges husband 

breached the "mutual releases" provisions of paragraph 12 by "not 

accept[ing] the terms of the Agreement as full and complete 

compromise and settlement, and attempt[ing] by his Petition to 

make claims of additional conditions and duties on [wife]." She 

alleges husband breached the "further instruments and assurances" 

provisions of paragraph 14 by "fail[ing] to give such assurances 

and instead [taking] action to try to change the parties' 

contract." Finally, she alleges husband breached the "no 

modifications" provisions of paragraph 18 by "alleg[ing] an 

Agreement effectively modified by the unexpressed intent of the 

parties regarding [wife's] duty to obtain employment, rather than 

accepting the provision of the Agreement indicating that no 

modification of the Agreement could be made except in writing 
 10 

. . . ." 

 At length in her brief, wife applies various dictionary 

definitions, restatement of contracts principles and the holding 

of a Virginia Supreme Court case to establish that defective 

performance amounts to a "default" in performance. That 

principle, however, is inapposite. Husband's petition for a 

modification of support did not affect or effect performance 

under the PSA. 

 The PSA itself entitled husband to petition for a 

modification of support. Authorized by the PSA, husband's 

petition does not violate any of its terms. Furthermore, to the 

extent husband's petition was simply an attempt to impose a duty 

on wife not contemplated by the agreement, husband only alleged 

the duty; his performance under the agreement never changed. 

Indeed, there is no dispute concerning husband's continued 

payment of support. Finally, the paragraphs of the PSA upon 

which wife relies are inapposite to her claim. Paragraphs 12 

and 18 require no performance of any kind. Paragraph 12 provides 

that the agreement represents the entire undertaking between the 

parties, and paragraph 18 provides that no oral modifications to 

the agreement shall be valid. While both provisions may 

demonstrate that wife was not bound to seek or obtain employment 

under the PSA, neither provision proscribes husband from 

suggesting otherwise. Furthermore, husband's petition bears no 

relation to the performance required by paragraph 14, viz., that 
 11 

husband provide further instruments and assurances to give full 

force and effect to the PSA, or the non-performance required by 

paragraph 12, viz., that husband not interfere or control wife. 

 In short, husband has not defaulted under the PSA and, thus, 

the PSA provides no authority for an award of attorney's fees to 

wife. Although wife prevailed in this case, the PSA does not 

provide for an award of attorney's fees to the prevailing party 

in an action arising under the PSA. 

 Wife's reliance on statutory authority to support her 

request for an award of attorney's fees is likewise misplaced. 

"Code § 20-109 bars a trial court from `directing the payment of 

. . . suit money or counsel fee[s] . . . except in accordance 

with th[e] [parties'] . . . contract.'" Sanford v. Sanford, 19 

Va. App. 241, 249, 450 S.E.2d 185, 190 (1994). Here, as stated, 

the parties contracted not to provide the relief wife now seeks. 

 For the foregoing reasons, the judgment of the circuit court 

is affirmed. 

 Affirmed.