COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

BILLIE PAXTON EINSELEN 

 MEMORANDUM OPINION* BY 

v. Record No. 1778-96-1 JUDGE RICHARD S. BRAY 

 FEBRUARY 25, 1997 

PETER C. EINSELEN 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Wilford Taylor, Jr., Judge 

 Robert E. Long (Robert E. Long, Ltd., on 

brief), for appellant. 

 John F. Rixey (Rixey and Rixey, on brief), 

for appellee. 

 Billie Paxton Einselen (wife) complains on appeal that the 

trial court erroneously declined to order Peter C. Einselen 

(husband) to pay spousal support and her entire attorney's fee 

related to these proceedings and to obtain two policies of 

insurance on his life, all in accordance with a stipulation 

agreement of the parties. On cross-appeal, husband contends that 

the trial court lacked jurisdiction to consider spousal support, 

and erroneously awarded wife a portion of her attorney's fee and 

costs. We find no merit in husband's arguments but conclude that 

the court should consider wife's petition for spousal support and 

require husband to provide the disputed insurance coverage. The 

subject decree is, therefore, affirmed in part and reversed in 

part, with the unresolved issues remanded to the trial court for 

 

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

designated for publication. 
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adjudication, including consideration of attorney's fees and 

costs attendant to such remand. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

I. Spousal Support

 A. Jurisdiction

 Husband contends that the trial court was without 

jurisdiction to consider spousal support because the issue was 

not addressed in the original divorce decree. Although the 

decree makes no mention of spousal support, it "confirmed, 

ratified and approved" the parties' property settlement 

agreement, "incorporat[ing] [it] by reference into [the] final 

decree of divorce." Thus, all provisions of the agreement became 

"for all purposes . . . a term of the decree [itself], . . . 

enforceable in the same manner as any provision of such decree." 

 Code § 20-109.1; see also Fry v. Schwarting, 4 Va. App. 173, 

178-79, 355 S.E.2d 342, 345 (1987). Paragraph 8 of the agreement 

provides that the parties "reserve the right to request a Court 

of competent jurisdiction to award an amount for support in the 

future as the needs and resources of the parties may justify to 

the extent that either Husband or Wife would be entitled to such 

support as a matter of law," clearly preserving the court's 

jurisdiction to adjudicate spousal support upon certain future 

circumstances. 
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 Husband's contention that wife otherwise relinquished in the 

agreement "any and all rights of whatsoever kind and character 

growing out of the marriage relationship" is also without merit. 

 The agreement is subject to the same principles of construction 

which govern all contracts. See, e.g., id. at 180, 355 S.E.2d at 

346. Generally, "the provisions of a contract should be 

construed together and those which appear to conflict should be 

harmonized whenever it is reasonably possible." Chantilly 

Constr. Corp. v. Department of Highways & Transp., 6 Va. App. 

282, 293, 369 S.E.2d 438, 444 (1988) (quoting Seward v. American 

Hardware Co., 161 Va. 610, 626, 171 S.E. 650, 659 (1933)). 

"[A]ny apparent inconsistency between a clause that is general 

and broadly inclusive in character, and a clause that is more 

specific in character, should be resolved in favor of the 

latter." Id. at 294, 369 S.E.2d at 445. The parties specified 

that the court retain jurisdiction over spousal support, and this 

express intention controls. 

 B. Laches and Change in Circumstances

 [L]aches or delay, in order to be effectual as a bar to 

the party [against whose claim the defense of laches is 

asserted], must be accompanied with circumstances and 

facts showing an intention on his part to abandon the 

[claim]. [The delay] must be unreasonable and 

injurious to the other party. 

Murphy v. Holland, 237 Va. 212, 215, 377 S.E.2d 363, 365 (1989) 

(quoting Hamilton v. Newbold, 154 Va. 345, 351, 153 S.E. 681, 682 

(1930)). Assuming, without deciding, that laches is a defense 

available to husband in these proceedings, it is an affirmative 
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shield which must be proven by him. See Princess Anne Hills 

Civic League v. Susan Constant Real Estate Trust, 243 Va. 53, 58, 

413 S.E.2d 599, 602 (1992). 

 Husband asserts that "[a]t no time in the period of twelve 

years and eight months between the Final Decree of this suit [and 

the filing of wife's petition for support] did [she] ever make 

any claim for spousal support." However, wife obviously had no 

viable claim to prosecute until the onset of her financial 

reversals in 1990. See Meredith v. Goodwyn, 219 Va. 1025, 1029, 

254 S.E.2d 74, 76-77 (1979) (laches cannot bar the claim of one, 

without negligence, ignorant of his or her rights); cf. Murphy, 

237 Va. at 216, 377 S.E.2d at 365 (laches not applicable to 

minor's claim until minor attains the age of majority). 

Accordingly, the defense must be assessed in the context of those 

circumstances which occurred between the commencement of wife's 

misfortunes in 1990 and the filing of the instant petition for 

support. 

 The commissioner made no explicit finding that wife intended 

to abandon her right to future spousal support. Rather, he 

suggested that "[husband] was justified in believing [wife] had 

abandoned her claim of her own choice." However, the record 

reflects no conduct which evinced such intent. Following loss of 

employment, wife attempted to continue support of herself, 

working at several positions, while seeking other employment and 

drawing upon her retirement accounts. She pursued spousal 
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support from husband only in financial desperation. 

 Moreover, wife's conduct visited no prejudice on husband 

but, to the contrary, was to his financial advantage. Husband 

does not claim, and the record does not disclose, that time 

compromised relevant evidence or otherwise impaired his defense 

to wife's claim. See id. The record surely does not support 

husband's generalized claim of financial misdirection 

attributable to wife's delay. If husband was concerned that his 

economic future might prove incompatible with spousal support, he 

should have limited such contingent liability by appropriate 

provision in the agreement. 

 With respect to wife's entitlement under the agreement to 

seek judicial resolution of the spousal support issue, we, again, 

are guided by paragraph 8. While the provision initially 

requires "Husband [to] pay nothing to the Wife for her support 

and maintenance," each "reserve[d] the right to request a Court 

of competent jurisdiction to award . . . support in the future as 

the needs and resources of the parties may justify to the extent 

that either . . . would be entitled to such . . . as a matter of 

law." Thus, to invoke the court's jurisdiction, wife was 

required to establish a material change in her financial needs or 

husband's resources, or both. See, e.g., Moreno v. Moreno, ___ 

Va. App. ___, ___, ___ S.E.2d ___, ___ (Feb. 11, 1997). 

 In denying wife's petition, the court approved the 

commissioner's finding that wife's diminished income did not 
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constitute a material change in circumstances because she simply 

"returned . . . to the [original] circumstances she agreed to and 

voluntarily chose," a conclusion clearly unsupported by the 

evidence. Wife became fully employed in 1981, nearly 

coincidental with her execution of the agreement and before entry 

of the divorce decree. Her subsequent unemployment resulted in 

significant economic hardships, with attendant circumstances much 

different than those which prevailed in January, 1982. In 

contrast, husband's income increased from approximately $30,000 

annually in 1981 and 1982 to $200,000 in 1991 and $375,000-

$400,000 in 1994. Such evidence demonstrates a significant 

material change in the parties' circumstances as a matter of law. 

II. Insurance

 A. Standing

 In order to have standing to sue, a plaintiff must show 

"'that he has a justiciable interest in the subject matter in 

litigation; either in his own right or in a representative 

capacity.'" Lynchburg Traffic Bureau v. Norfolk & W. Ry. Co., 

207 Va. 107, 108, 147 S.E.2d 744, 745 (1966) (citation omitted). 

 Here, contrary to the findings of both the commissioner and the 

court, wife had standing to judicially pursue husband's covenant 

to maintain the insurance coverage on his life, both for the 

benefit of the parties' children and herself. 

 B. Laches

 Again, assuming, without deciding, that laches is a defense 
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available to wife's right to seek enforcement of the insurance 

provisions of the agreement, husband's evidence does not 

establish the bar. Wife's cause of action did not accrue until 

husband breached the agreement by failing to maintain the 

policies, and nothing in the record suggests she knowingly 

delayed pursuit of her remedies, without excuse and to the 

prejudice of husband. Husband's reliance on extrinsic evidence 

to establish the purpose of the policies was inadmissible to 

upset the plain language of the agreement. Wife is entitled to 

enforcement of the agreement in accordance with its terms, and we 

remand for the trial court to order husband to replace the 

policies in compliance with the agreement. See, e.g., Smith v. 

Smith, 3 Va. App. 510, 513-14, 351 S.E.2d 593, 595-96 (1986). 

III. Attorney's and Commissioner's Fees

 Husband contends that the trial court erroneously required 

him to pay wife $3,000 in attorney's fees related to a real 

estate dispute resolved prior to the hearing and to satisfy the 

entire commissioner's fee. The commissioner found that, although 

"both parties attempted to bring about a settlement to [sic] the 

requirements of [the property settlement agreement,] . . . the 

resolution of the differences would not have occurred had not 

[wife] caused this petition to be filed and pursued." The 

agreement provided that if wife should prevail in "proceedings to 

enforce any of the terms of [the property settlement agreement]," 

husband would "pay the reasonable attorney's fees, court costs 
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and expenses incurred by the Wife." Thus, the agreement clearly 

contemplated husband's payment of the disputed fees and costs. 

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

court's sound discretion 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). We find no abuse of discretion in this 

instance. Governed by the same rationale, we also affirm the 

assessment of the commissioner's fee against husband. 

 Accordingly, we affirm the ruling of the trial court in 

part, reverse in part, and remand for further proceedings 

consistent with this opinion, including consideration of 

additional attorney's fees and costs incidental thereto. 

 Affirmed in part,

reversed in part,

and remanded.