COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

THOMAS F. FRICKE 

 MEMORANDUM OPINION* BY 

v. Record No. 1184-96-4 JUDGE JOHANNA L. FITZPATRICK 

 JANUARY 7, 1997 

ROSANNE FRICKE 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Marcus D. Williams, Judge 

 Sharon K. Lieblich (Sharon K. Lieblich, P.C., 

on briefs), for appellant. 

 Philip F. Hudock for appellee. 

 On appeal, Thomas F. Fricke contends that the trial court 

erred (1) in failing to interpret and modify the parties' 

settlement agreements in light of his changed economic 

circumstances and (2) in awarding Rosanne Fricke attorney's 

fees.1 We find no error and affirm the judgment of the trial 

court. 

 

 *Pursuant to Code § 17-116.101 this opinion is not 

designated for publication. 

 1The husband also argues that "[t]he trial court erred in 

adjudicating a conditional contempt in advance of an event that 

might constitute contempt and thereby depriving [husband] of an 

opportunity to raise any defenses if unable to comply with the 

Court's order." At the hearing on the Rule to Show Cause filed 

by the wife, the court granted the husband's request for time to 

pay the expenses due, and ruled that failure to make timely 

payment would constitute contempt. However, the husband paid the 

arrearage and attorney's fees as ordered and no contempt 

proceedings were brought. Thus, we find this issue to be without 

merit. 
 2 

 BACKGROUND

 Thomas F. Fricke (husband) and Rosanne Fricke (wife) were 

married in 1976 and two children were born of the marriage. At 

the time of this appeal, their daughter, Katherine, was a 

sophomore at The Tisch School of Arts at NYU and their son, 

Thomas, was in the tenth grade at a private school in Fairfax 

County. 

 In 1990, the parties separated and entered into a property 

settlement agreement (PSA) dated March 19, 1990. Pursuant to the 

PSA, the husband agreed to pay the children's private school 

expenses, basic monthly child support, and to share in proportion 

to his gross income the total cost of each child's four-year 

college education. 

 The parties were divorced in 1992. The final decree of 

divorce incorporated the PSA. Shortly after the final decree was 

entered, the husband filed a motion to modify support. The trial 

court denied the husband's motion, and found that it was in the 

children's best interests to remain in private school. On 

appeal, we affirmed the trial court's decision. See Fricke v. 

Fricke, Record No. 1679-92-4, slip op. at 4 (Va. July 6, 1993). 

 In 1994, the husband's failure to make the private school 

tuition payments prompted further litigation between the parties, 

which was resolved by a second settlement agreement dated April 

1994. The agreement resulted in the withdrawal of the pending 

litigation between the parties and in the compromise of various 
 3 

claims of the parties. In this agreement, the husband again 

agreed to pay the children's private school expenses, and 

specifically "waive[d] any challenge to his obligations to make 

those payments." Additionally, the agreement set basic child 

support and provided for an adjustment of support upon the 

husband's change of income. This agreement was incorporated into 

the final decree on May 13, 1994. 

 After a change in the husband's employment status, he filed 

a motion to modify his child support obligations. In response to 

his failure to pay the children's private school and college 

expenses, the wife filed a motion to recover the arrearage due 

and a petition for a rule to show cause. In the evidentiary 

hearing held on April 18, 1996, the trial court affirmed the 

husband's obligation to pay private school and college expenses, 

decreased his basic child support payment, and awarded the wife 

the arrearage and attorney's fees. 

I. COLLEGE EXPENSES

 The husband contends that he entered into the PSA with the 

intent that it would "impose on him a reasonable burden of 

education expenses" and that the PSA mandates a consultation 

between the parties regarding the children's education. He 

argues that the trial court erred in concluding that it did not 

have the discretion to establish the proper cost of college and 

in failing to adopt a "reasonable" interpretation of the 

agreement. 
 4 

 "On appeal, we construe the evidence in the light most 

favorable to wife, the prevailing party below, granting to her 

evidence all reasonable inferences fairly deducible therefrom." 

Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 

(1995) (quoting McGuire v. McGuire, 10 Va. App. 248, 250, 391 

S.E.2d 344, 346 (1990)). 

 Separation agreements and property settlement agreements are 

contracts. See Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 

796, 799 (1985), and Jones v. Jones, 19 Va. App. 265, 269, 450 

S.E.2d 762, 763 (1994). "[T]herefore, we must apply the same 

rules of interpretation applicable to contracts generally." 

Tiffany, 1 Va. App. at 15, 332 S.E.2d at 799. Where a settlement 

agreement is unambiguous, its meaning and effect are questions of 

law to be determined by the court. Id. Moreover, "[w]here 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, 19 Va. App. at 268-69, 450 S.E.2d at 

764. 

 The evidence established, and the husband admits, that the 

final decree incorporated the PSA and specifically required the 

husband to pay his "proportional" share of his children's college 

expenses. The husband's intention to pay for these costs is 

firmly and unequivocally stated in Paragraph 6 of the PSA: 

 COLLEGE EDUCATION: The parties hereto agree 

to share the cost of a four year college 

education for each child with each party 
 5 

contributing a percentage of the total cost 

of said four year college education for each 

child including tuition, books, room and 

board, which contribution shall be in 

proportion to each party's gross income at 

the time such expenses are due and payable. 

Although the second agreement modified certain provisions of the 

PSA, it did not address the parents' obligation to pay the 

children's college expenses. However, as shown by the following 

language, the second agreement expressly affirmed the husband's 

"understanding" of the "consequences" of the agreement: 

 This Settlement Agreement shall not 

modify any provision of the PSA, except to 

the extent expressly set forth in this 

Settlement Agreement. All provisions of the 

PSA not expressly modified by this Settlement 

Agreement shall remain in force and effect, 

as originally written and agreed to by the 

parties.

* * * * * * * 

 Each party acknowledges that he or she 

has retained counsel to discuss this 

Settlement Agreement and all matters related 

thereto, and that they execute the Agreement 

with full understanding of its consequences, 

and not as the result of any duress or undue 

influence from any source. 

(Emphasis added). 

 "No law requires a parent to provide the expenses of an 

adult child to attend college. Such is true whether the parents 

are married or divorced. Thus, where parents seek to include 

such an obligation in their separation contract, the plain and 

unambiguous terms of their contract establish the rights and 

obligations of the parties." Jones, 19 Va. App. at 270, 450 
 6 

 

S.E.2d at 764. Such is the case here. 

 Finally, the husband argues that the contract required, as a 

condition precedent to his paying the college expenses, the 

parties to "confer" with each other and arrive at a "harmonious 

policy." However, the clear language of the agreements refutes 

this claim.2

 "Whatever his intentions may have been and no 

 2The husband attempts to distinguish Tiffany, 1 Va. App. 11, 

332 S.E.2d 796 and to analogize his position to Jones, 19 Va. 

App. 265, 450 S.E.2d 762. However, we disagree with his 

interpretation of these cases. The rationale of both cases 

applies to the instant case. In Tiffany, unlike the case at bar, 

the contract contained certain provisions that conditioned the 

husband's support obligation, including a provision that 

specified "as an express condition of the Husband's obligation, 

the Husband shall be entitled to participate in the decision 

making process as to the college to be attended by the said 

children." Tiffany, 1 Va. App. at 16-17, 332 S.E.2d at 800. We 

overruled the trial court's finding that this language required 

the parties to reach a mutual agreement and held: 

 While we acknowledge that the parties 

may have expected that a mutual agreement 

would result from their joint participation 

in the college selection process, they did 

not express this expectation as a condition 

precedent to [husband's] obligation to pay 

college support. The parties simply did not 

provide for what would happen if the son's 

initial selection of a college was 

unacceptable to either of the parents. 

 The plain language of the agreement does 

not require [the wife] or the son to select a 

college acceptable to [the husband]. The 

agreement does not confer upon [the husband] 

the right to reject a school . . . . We are 

not at liberty to find a veto power where the 

language used by the parties does not confer 

one. 

Id. The same reasoning applies to the instant case. Here, the 

plain language ("confer") does not give the husband the right to 

"veto" his daughter's choice of colleges. 
 7 

matter how reasonable those intentions may appear now, the 

contract language demonstrates that he bargained only for the 

right" to confer with his ex-wife on all important matters 

pertaining to the children's health, welfare, education, and 

upbringing. Tiffany, 1 Va. App. at 18, 332 S.E.2d at 801. 

Accordingly, we hold that the trial court did not err in refusing 

to modify these agreements to include the term "reasonable" as 

advocated by the husband. 

II. PRIVATE SCHOOL TUITION

 Husband next argues that the trial court erred in declining 

to modify his obligation to pay for his son's private school 

tuition. "The decree of the [c]hancellor determining questions 

of fact on conflicting evidence ore tenus has the weight of a 

jury verdict, and will be permitted to stand unless plainly wrong 

or without evidence to support it." Featherstone v. Brooks, 220 

Va. 443, 448, 258 S.E.2d 513, 516 (1979) (citing Mundy v. Hesson, 

215 Va. 386, 392, 209 S.E.2d 917, 921 (1974)). We find no error 

in the trial court's decision. 

 Code § 20-108 provides, in pertinent part: 

 The court may, from time to time after 

 

 In Jones, the agreement at issue provided the husband with 

the express right to "veto" the selection of a particular 

college, and by exercising that right, to eliminate any 

obligation to pay his parental share of the expenses incurred at 

a college he rejected. See Jones, 19 Va. App. at 270, 450 S.E.2d 

at 764. No such express language is present in the instant case. 

 Here, the husband admits that he "did not argue for a veto," but 

he argues that he sought "a reasonable interpretation of his 

contract." However, the record shows that he could not point to 

any contractual provision that contained this directive. 
 8 

decreeing as provided in § 20-107.2, . . . 

revise and alter such decree concerning the 

care, custody, and maintenance of the 

children and make a new decree concerning the 

same, as the circumstances of the parents and 

the benefit of the children may require. 

A trial court "retains continuing jurisdiction to change or 

modify its decree relating to the maintenance and support of 

minor children." Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 

55, 56 (1994) (citing Code § 20-108 and Featherstone, 220 Va. at 

446, 258 S.E.2d at 515). Although Code § 20-108.2 establishes a 

"rebuttable presumption that the amount of the award shall be the 

sum resulting from applying the guidelines," it may be error for 

a trial court not to consider whether the presumptive amount is 

"'unjust or inappropriate' by taking into account the child 

support provisions of the consent decree or amount agreed upon 

between the parties." See Watkinson v. Henley, 13 Va. App. 151, 

154, 409 S.E.2d 470, 471 (1991). 

 Additionally, the husband must demonstrate by a 

preponderance of the evidence a material change in circumstance 

for the trial court to consider whether that change justifies a 

modification of support award. Only then will the court consider 

the "'present circumstances of both parties and the children.'" 

Kaplan v. Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111, 113 

(1996) (quoting Watkinson, 13 Va. App. at 156, 409 S.E.2d at 

473); see also Crabtree v. Crabtree, 17 Va. App. 81, 88, 435 

S.E.2d 883, 888 (1993). 

 Where . . . the [husband] seeks a reduction 

in the amount of payments for the support and 
 9 

maintenance of his minor children because of 

a change in his financial condition, he must 

make a full and clear disclosure relating to 

his ability to pay. He must also show that 

his lack of ability is not due to his own 

voluntary act or because of his neglect. 

Hammers v. Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975). 

 In the case at bar, the final decree included a provision 

regarding the parents' payment responsibility for the children's 

primary and secondary school education: 

 In accordance with Paragraph 6.B. of the 

Agreement, the Defendant shall pay the 

Complainant private school tuition, as set 

forth below: 

 Commencing June 1, 1990, and thereafter 

so long as either child attends elementary or 

secondary school and is enrolled in an 

independent school which charges tuition for 

such enrollment, Husband agrees to pay one 

hundred percent (100%) of the total cost and 

related expenses, as and when the same may 

become due and payable. At his option, 

Husband may remit such amount or amounts as 

may from time to time be due for such tuition 

either directly to the institution charging 

the same or to the wife. 

(Emphasis added). The parties' second agreement, made in April 

1994 and incorporated by reference into the parties' final decree 

of divorce, reaffirms this obligation: 

 Thomas agrees to pay the tuition and 

related expenses for the attendance of his 

son, Thomas, at private school for academic 

year beginning September, 1994, and 

continuing until his son, Thomas, completes 

the 12th Grade, in accordance with Paragraph 

6(B) of the PSA, and waives any challenge to 

his obligation to make those payments. 

(Emphasis added). In 1992, the trial court determined that it 
 10 

was in the best interests of the children to remain in private 

school. We affirmed this decision and held that, 

 Contrary to the husband's contentions, the 

trial court's determination that it was in 

the children's best interest to remain in 

private school does not demonstrate an abuse 

of discretion. In balancing the equities, 

the trial court properly considered the 

evidence presented by both sides regarding 

the effect that a change in schools might 

have upon the children. 

See Fricke v. Fricke, Record No. 1679-92-4, slip op. at 3-4 (Va. 

July 6, 1993). At the hearing on April 18, 1996, the trial court 

found as follows: 

 In regard to the private school 

obligation, the Court recognizes this being a 

signed agreement which was, again in '94, it 

was expressed to as a 100 percent obligation 

of the father to pay the private schooling of 

the son, and further that he would not 

challenge it. 

 The evidence would indicate that [sic] 

is an agreement of the parties, and the Court 

finds no basis to modify that agreement. 

In accordance with this finding, the court ordered that "[t]he 

[husband's] obligation to pay private school expenses is a matter 

of the 1994 Settlement Agreement between the parties under which 

the [husband] agreed to pay 100% and not challenge these 

payments." 

 Clearly, the trial court did not find that it was without 

jurisdiction to modify the husband's obligation to pay the 

private school tuition. Rather, the court evaluated the evidence 

presented and declined to make the modification sought by the 
 11 

husband. The court considered that, in previous litigation, it 

determined that private school was in the children's best 

interest, and also that the parties had consistently contracted 

for the husband to provide the tuition costs. The husband made 

no showing that private school is not still in the son's best 

interest. Therefore, we affirm the decision of the trial court. 

 III. MODIFICATION OF BASIC SUPPORT

 The husband's next contention is that the trial court erred 

by "inadequately failing to take into account [his] rapidly 

increasing private school and college indebtedness and rapidly 

decreasing income when adjusting the amount of child support 

payable by him." Contrary to this argument, the evidence shows 

that the trial court considered the husband's present financial 

circumstance. 

 At the April 18, 1996 hearing, the trial court ordered a 

downward adjustment of the husband's basic child support 

obligation: 

 The basic child support shall be modified 

with the March 1, 1996 payment. The Court 

accepts the Complainant's guideline 

calculation for the presumptive amounts: 

Mother's gross: $1818/month; Father's gross: 

 $5,293/month. Father's presumptive 

guideline payment: $715/month. Because of 

other obligations of the father for his 

children, the guideline is reduced by 

$140/month to $575/month. 

The court explained: 

 For the purposes of this proceeding, having 

considered the evidence and looking at the 

circumstances of the parties with regard to 

their income earnings, I make the following 
 12 

findings: 

 I find that the '95 income for the 

father is the appropriate income and that it 

becomes $5,293 on a monthly basis. I will 

use the mother's income as presented by the 

mother, the $1,818. I don't believe the 

husband has supported his contention that 

there should be imputation of income. The 

evidence does not support that. 

 With regard to the guideline worksheet, 

for the purposes of determining the level of 

presumptive level of guideline support, I 

find that the father's obligation . . . is 

$715 . . . less the amount of direct payment 

of medical insurance. 

* * * * * * * 

 I will make a further adjustment -- I 

will deviate from the guidelines . . . in 

your favor given your other obligations 

. . . . I will allow a further deviation of 

$140, which basically represents the payments 

you will be making on the loan for college. 

 Moreover, the husband failed to present sufficient proof to 

establish either his 1996 income or the fact that it is "rapidly 

decreasing." See Hammers, 216 Va. at 32, 216 S.E.2d at 21-22. 

The husband's child support guideline worksheet reflected his 

calculation that his obligation, before deduction, totalled 

$727.50 per month. Accordingly, we find that the evidence 

supports the trial court's decision, and we affirm its 

determination of the husband's basic child support obligation. 

See Featherstone, 220 Va. at 448, 258 S.E.2d at 516. 

IV. ATTORNEY'S FEES

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

trial court's sound discretion and is reviewable on appeal only 
 13 

for an abuse of discretion." Graves v. Graves, 4 Va. App. 326, 

333, 357 S.E.2d 554, 558 (1987). The trial court must have 

evidence justifying or explaining the amount of attorney's fees 

awarded. See Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 

S.E.2d 523, 530 (1988). 

 In this case, the PSA provided that "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." (Emphasis added). 

 The evidence supported the judge's award of fees for the trial. 

See Featherstone, 220 Va. at 448, 258 S.E.2d at 516. 

 For the foregoing reasons, we affirm the trial court and 

remand for an award of attorney's fees incurred by the wife in 

this appeal. 

 Affirmed.