COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Russell and Malveaux

Argued by videoconference

ERIC JOHN PRICE

MEMORANDUM OPINION* BY

v. Record No. 1100-20-4 JUDGE MARY BENNETT MALVEAUX

JUNE 15, 2021

BONNY FRANCES PRICE

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY

James P. Fisher, Judge

Erin E. Masin (Warner F. Young; Allred, Bacon, Halfhill & Young, 

P.C., on brief), for appellant.

David M. Zangrilli, Jr. (Odin, Feldman & Pittleman, PC, on brief),

for appellee.

Eric John Price (“husband”) appeals an order of the circuit court finding him in contempt 

for violating provisions of a final order of divorce from Bonny Frances Price (“wife”). Husband 

argues the circuit court erred by finding him in contempt and awarding wife attorney’s fees. For 

the reasons that follow, we affirm the decision of the circuit court and remand for an award of 

appellate attorney’s fees.

I. BACKGROUND

In accordance with well-established principles of appellate review, we view the facts in 

the light most favorable to wife, the party who prevailed in the circuit court. See Shah v. Shah, 

70 Va. App. 588, 591 (2019). 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED 
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The Parties’ PSA

Husband and wife married in 2005 and subsequently had two sons, J. and S.1 In 2015, 

the parties divorced. Pursuant to their divorce, husband and wife entered into a custody, support,

and property settlement agreement (“PSA”). Under the terms of the PSA, the parties would have 

joint legal custody of J. and S., wife would have primary physical custody of the children, and 

husband would have visitation rights. The PSA included additional provisions that are at issue in 

this appeal. 

First, the PSA provided that husband would pay $844 per month in child support and 

33.5% of wife’s reasonable and necessary work-related childcare costs. Both these provisions 

were subject to Paragraph 2(C)(iii) of the PSA, which provided that the parties could “agree 

upon a revision of . . . child support or their percentage shares for payment of ‘child related 

costs’ (i.e., daycare costs . . . , etc.).” 

Second, the PSA provided that the parties would share the costs of their children’s 

extracurricular activities. Specifically, Paragraph 2(E) of the PSA stated that 

[s]ubject to being consulted in advance and agreeing to same, 

which consent shall not be unreasonably withheld, the parties shall 

pay, proportionate to their gross incomes last used for calculating 

child support, the reasonable costs, expenses and/or fees for any of 

the children’s extracurricular and similar type activities/events to 

include, but not necessarily be limited to, school activity fees, 

musical instrument purchase or rental fees, fees and costs for 

reasonable extracurricular activities, sports (e.g., soccer, 

swimming, etc.) and camps. Any agreement between the parties to 

be effective shall be in writing, which can include confirming 

emails.

Third, the PSA acknowledged and provided for the disposition of several college savings 

accounts held by the parties for their children. Specifically, Paragraph 4 of the PSA, entitled 

“Children’s College Educations,” noted that husband maintained two Virginia 529 accounts for 

1 We use the children’s initials, rather than their names, to protect their privacy.
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J. and wife maintained an E*TRADE account for each child and a USAA 529 account for S. 

Paragraph 4 provided that 

[t]he parties agree that the funds in these accounts and any future 

accounts which the parties create and choose to use for the 

children’s education, shall be used first at the time the children 

matriculate in college or other four year post-high school training 

to cover tuition, room and board, books, standard fees, or other 

post-high school training for up to four years. . . . [In] the event 

there are any funds in either child’s designated accounts once he 

has graduated from any post-secondary education, . . . then all 

remaining funds shall be paid to such child without restriction. . . . 

Once all educational funds for a child are depleted, it is the 

intention of the parties to contribute toward additional college 

expenses for each child as their financial circumstances allow . . . . 

Fourth, the PSA noted that husband and wife had contracted with a firm to store 

umbilical cord blood and tissue for each of their children. Paragraph 7(B) of the PSA provided 

that husband and wife would equally divide the annual storage fees until each child reached the 

age of twenty-five. Further, “Wife shall make the annual payment and provide . . . Husband with 

proof of such payment and . . . Husband shall reimburse his half of the cost within thirty (30) 

days of receipt thereof.”

Fifth, the PSA provided for the disposition of a condominium in Fairfax that the parties 

owned as tenants by the entirety. Under the terms of the PSA, wife was to convey to husband 

her title to and interest in the property. Husband would then remove wife from liability for a 

mortgage on the condominium. Specifically, Paragraph 6(D)(ii) of the PSA provided that “If 

permitted by a mortgage lender, . . . Husband may do an assumption of the current mortgage . . . .

If an assumption is not completed, permitted or preferred, . . . Husband will refinance the current 

mortgage or otherwise remove . . . Wife from all liability thereon.” An assumption, refinance, or 

some other procedure for removing wife from liability for the mortgage was to be completed 

within 120 days from the execution of the PSA. 
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Lastly, Paragraph 27 of the PSA, entitled “Modification or Waiver of Terms,” provided 

that “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.” The PSA was signed and 

notarized by the parties.

The circuit court entered a final order of divorce that incorporated the PSA by reference 

on September 8, 2015. 

Wife’s Petitions for Rules to Show Cause

Wife filed a petition for rule to show cause in February 2016 alleging that husband had 

failed to assume or refinance the mortgage on the condominium within the required time period. 

In an August 25, 2016 consent order, the circuit court found that husband held title to the 

condominium and that the property was still encumbered by the mortgage. Under the terms of 

the order, the parties agreed that husband would convey the condominium to wife and that she 

would apply to assume the mortgage. The order specifically provided that husband “shall not 

file for or declare bankruptcy . . . until the assumption process is completed” and that he “shall 

not allow any additional liens to be brought against the condominium.” Husband duly conveyed 

the condominium to wife. 

On October 18, 2019, wife filed an affidavit and petition for rule to show cause. Wife 

alleged that husband had failed to pay child support since October 2016 and failed to pay his 

portion of work-related childcare expenses since January 1, 2016. She further contended that 

husband had not paid his share of any of their children’s extracurricular activity expenses since 

October 2016, failed to pay his portion of the parties’ cord blood and tissue storage fees from 

2017 through 2019, and liquidated some or all of the funds in J.’s two Virginia 529 accounts. 

Wife also alleged that husband had impermissibly allowed an additional lien to be brought 

against the condominium. Specifically, she contended that approximately two weeks before she 
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would have completed the mortgage assumption process as per the terms of the consent order, 

husband violated the order by filing for bankruptcy. The mortgage holder then put her 

assumption application on hold and would not approve it. Thus, wife was unable to assume the 

mortgage. Further, wife alleged then when she later attempted to sell the property, she 

discovered that there was a lien against it based upon a judgment against husband. Wife 

represented that the judgment had been awarded while the parties were negotiating the consent 

order, that husband had not disclosed it, and that in order to sell the condominium she had to 

agree to satisfy the judgment. Wife requested the court to find husband in contempt, order him 

to pay the amounts due her with interest, impose jail time on husband, and award her attorney’s 

fees and costs.

The Hearing on Wife’s Second Petition for Rule to Show Cause

The circuit court conducted a hearing on wife’s second petition on September 8, 2020. 

Relevant proceedings are discussed below.

Child Support and Childcare Expenses

Wife’s exhibits included a spreadsheet documenting each child support payment due and 

amount received from husband from August 2016 through March 2020, inclusive. The 

spreadsheet indicated that on numerous occasions husband had either failed to make any 

payment at all or underpaid the amount due. The spreadsheet also indicated husband’s 

accumulated arrearage.

Wife testified that in 2016 she and husband had several discussions via email about 

whether she would agree to a change in the amount of child support. She acknowledged that at 

one point she had agreed to such a change but maintained that she had also provided husband 

“with instruction as to how I understood some of the PSA [requirements] for it to be binding.” 
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Ultimately, while wife and husband had discussed modifying child support, “the number that he 

and I . . . discussed [was] never ratified.”

Wife’s exhibits also included a series of email exchanges in which the parties discussed 

modifying husband’s child support and childcare obligations. On October 25, 2016, wife 

informed husband that she was “not opposed to adjusting the child support” in order to 

accommodate husband’s strained financial circumstances. On December 9, 2016, wife emailed 

husband that she had “re-calculated the child support based on your new salary” and “added the 

daycare costs directly into the spreadsheet so everything is in one place . . . . [T]he attached 

represents your total monthly payment for support and childcare.” On December 14, 2016, wife 

reminded husband that “the current, court-ordered child support amount is still in place and your 

portion (to include daycare) is normally about $1250/month. I agreed to change the amount due 

to $905 as of October 1, 2016 per the calculations I sent but I will not agree to anything else.” 

Wife further stated that “If we cannot mutually agree on a number, then you will need to submit 

an order to the court to have the child support calculation revised and in the meantime, you will 

owe the amount currently in place ($1250).”

Husband testified to his belief that the parties had agreed to modify child support.

Extracurricular Activity Expenses

Wife entered into evidence a chart and related invoices detailing the expenses she had 

paid for the children’s extracurricular activities and the amounts owed and unpaid by husband. 

She testified that the parties had exchanged emails in which “we discussed soccer, we discussed 

Tae Kwan Do, we discussed tennis” and that husband had stated that “he wanted [J. and S.] 

involved in activities.”

Wife also entered into evidence several email exchanges in which she and husband 

discussed extracurricular activities for their children. On February 23, 2016, wife emailed 
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husband the costs of enrolling both J. and S. in soccer camp. Husband replied six days later, 

stating “Soccer – OK.” A month later, on March 30, 2016, husband emailed wife to say he had 

“authorized [her] to sign them up for soccer.” On September 23, 2016, husband emailed wife to 

ask if there were “plans for sports or extra curricular activities for the boys through the fall / 

winter?”

On March 30, 2017, husband emailed wife to ask, “Is [J.] signed up to play this Spring? 

We both discussed his weight and overall health, and agreed that him playing sports and being 

active this spring is the best way to do that.” Husband also asked, “what about [S.].” Wife 

replied that same day that J. had been signed up to play soccer. On May 16, 2017, husband 

wrote to wife asking when and where an upcoming match would be held “because I really want 

to go to that.”

On February 7, 2018, husband emailed wife and stated, “The last couple of times I have 

visited with the boys they have expressed interest in sports this spring.” He further related that J. 

“has told me on several occasions that he doesn’t want to play soccer again. He is interested in 

tennis. I could care less what sports he plays, but he needs to play an organized sport or activity. 

BOTH boys do, to learn discipline, teamwork, and many lessons in life.” Husband believed this 

was important “not only for their health, but for their mental development, especially for [S.] –

he could use some discipline and routine.” Husband then recommended a local tennis league 

“that [J.] might be interested in. . . . As far as [S.], he has expressed interest in Tae Kwon Do.” 

After including a link to an online coupon for martial arts lessons, husband stated, “This I would 

be willing to buy for [S.].” Husband asked wife to “keep me updated in [sic] what they are going 

to be doing this Spring” and told her that “when i [sic] am down there for the weekend visits I 

will be happy to take them to activities / games . . . .” Wife emailed husband on February 21, 

2018, to say that she had selected a tennis activity for J. and a tae-kwon-do activity for S. 
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Husband replied on February 28, 2018, stating, “Ok good, please keep me updated on schedules 

and status of the spring Sports.” 

Husband emailed wife on January 7, 2019, to state that 

[J.] seems to be really into Tennis and that is great, but he also said 

that he can’t do tennis until the spring . . . . Is there any alternative 

to having him do nothing until the Spring? Camps / other sports –

anything that he can do a couple of times a week?

Also, for [S.] is he still doing Karate on Tuesdays / 

Saturdays? . . . I hope he is still doing those classes. . . . 

The point of this email is to have a dialog [sic] with you 

about them . . . . What can I help with, find classes / or sports for 

them? Please let me know. 

On March 28, 2019, husband emailed wife that he was planning a trip to the area and asked if 

there were activities such as karate or tennis scheduled for the weekend of his visit.

During the hearing, counsel for husband asked wife about husband’s consent to certain 

activities. Wife clarified that of the extracurricular activities listed in her chart, she had

discussed [them] with [husband] in terms of his knowledge that 

these things were happening, yes. Discussed [them] with [him] in 

terms of me saying is it okay if I sign them up for tennis, or karate, 

or whatever, . . . there are some emails in where he does agree and 

suggests a place where I could even sign S[.] up for one of those 

classes. . . . I wanted them involved in activities, but [husband] 

was well aware that that was happening, and he was even taking 

them to games or lessons, or things of that nature, practices when 

he was down for the weekend. This was not stuff he didn’t know 

about.

Husband testified that he had not reimbursed wife for his share of extracurricular activity 

expenses because wife “did not follow[] the letter of the . . . PSA, . . . she did not consult me 

before she signed up for any of [the] activities of the kids as far as extracurriculars.” When 

husband was asked whether he felt he had unreasonably withheld his agreement with respect to 

extracurricular activities, he responded, “No, I was never asked.” 
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The 529 Plans

Husband testified that he had withdrawn $52,000 from the two Virginia 529 accounts that 

he maintained for J. He stated that he had used the withdrawn funds for living expenses during a 

financially difficult time and that it was his intention to repay the withdrawn funds. Asked 

whether he had been aware that it violated the terms of the PSA to withdraw the funds, husband 

replied, “No.” Husband further testified that he had been under the impression that he “had . . . 

up until [J.] graduated high school and was ready to go to college to pay it back.”

Cord Blood and Tissue Storage Fees

Wife maintained that she had not received any payment of husband’s share of the parties’ 

cord blood and tissue storage fees for J. and S. She submitted exhibits including an invoice for 

storage fees from 2017 through 2020 and a series of receipts indicating that wife had paid those 

fees. Wife’s exhibits also contained a copy of a January 31, 2020 email to husband to which 

wife had attached both the invoice and the copies of her receipts.

The Lien on the Condominium

Wife testified that she had paid off the lien on the Fairfax condominium as evidenced by 

the fact that she had subsequently been able to sell the property. Satisfying the judgment against 

husband in order to have the lien removed had cost her “in the neighborhood of sixteen, 

seventeen thousand dollars.”

Husband acknowledged that the court’s August 25, 2016 consent order had required that 

he not allow any additional liens to be brought against the condominium. He further 

acknowledged that Bank of America had secured a judgment against him for unpaid credit card 

debt and a copy of the judgment, dated June 29, 2016, was entered into evidence as one of wife’s 

exhibits. Those exhibits also included a copy of husband’s bankruptcy petition, filed on 
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September 30, 2016, which reflected an unsecured claim against him by Bank of America for 

credit card debt in the amount of $15,250.

The Circuit Court’s Ruling

Ruling from the bench, the circuit court found husband in contempt. It specifically found 

that wife was more credible than husband “on the issues that were in dispute in this particular 

matter.” The court determined that the total amount due from husband to wife was $97,563.95

and also awarded wife $11,143.50 in attorney’s fees. Husband’s purge amount was set at 

$75,000, and the remainder of the amount due from him would be paid by husband in 

twenty-four monthly installments.

In an order dated September 18, 2020 the circuit court memorialized its ruling that 

husband was in willful disobedience of its orders. The court made clear that the $97,563.95 due 

from husband included $52,000 for monies withdrawn from J.’s 529 college saving plans and 

that to purge his contempt, husband would have to pay a lump sum amount of $75,000 “either 

directly to [wife] or to the Clerk of the Court.”

Husband appealed to this Court. 

II. ANALYSIS

Husband argues that the circuit court erred in finding him in contempt for violating its 

orders, including the final order of divorce incorporating the parties’ PSA. 

“[W]e review the exercise of a court’s contempt power under an abuse of discretion 

standard. [A] trial court by definition abuses its discretion when it makes an error of law.” Mills 

v. Mills, 70 Va. App. 362, 373 (2019) (alterations in original) (citation omitted) (quoting Zedan 

v. Westheim, 60 Va. App. 556, 574 (2012)). A court may also abuse its discretion when “a 

relevant factor that should have been given significant weight is not considered; when an 

irrelevant or improper factor is considered and given significant weight; and when all proper 
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factors, and no improper ones, are considered, but the court, in weighing those factors, commits a 

clear error of judgment.” Shebelskie v. Brown, 287 Va. 18, 26 (2014) (quoting Lawlor v. 

Commonwealth, 285 Va. 187, 213 (2013)). When reviewing a contempt finding where the 

“‘evidence was taken ore tenus[,] . . . the conclusion on the facts stands upon the same plane as 

the verdict of a jury.’ As such, the circuit court’s factual findings may ‘not be disturbed on 

appeal unless plainly wrong or without evidence to support’ them.” Mills, 70 Va. App. at 373 

(alterations in original) (citation omitted) (first quoting Drake v. Nat’l Bank of Com. of Norfolk, 

168 Va. 230, 240 (1937); then quoting Ware v. Ware, 203 Va. 189, 195 (1962)). 

A circuit court’s reading of a PSA presents a question of law that is reviewed de novo. 

Id. This is so because PSAs “are contracts subject to the same rules of formation, validity, and 

interpretation as other contracts.” Allen v. Allen, 66 Va. App. 586, 595-96 (2016) (quoting 

Bergman v. Bergman, 25 Va. App. 204, 211 (1997)). “In construing the terms of a property 

settlement agreement, just as in construing the terms of any contract, [this Court is] not bound by 

the trial court’s conclusions as to the construction of the disputed provisions.” Id. at 595 

(alteration in original) (quoting Smith v. Smith, 3 Va. App. 510, 513 (1986)). However, “[i]f 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 . . . can readily be ascertained 

by this [C]ourt.” Id. (second alteration in original) (quoting Fry v. Schwarting, 4 Va. App. 173, 

180 (1987)). 

“In Virginia, ‘[i]t is axiomatic that when the terms in a contract are clear and 

unambiguous, the contract is construed according to its plain meaning. Words that the parties 

used are normally given their usual, ordinary, and popular meaning.’” Cabral v. Cabral, 62 

Va. App. 600, 609-10 (2013) (alteration in original) (citation omitted) (quoting TravCo Ins. Co. 

v. Ward, 284 Va. 547, 552 (2012)). We must also “assume[] that no word or clause is without 
- 12 -

purpose.” Allen, 66 Va. App. at 596. Further, “[a] contract is not ambiguous merely because the 

parties disagree as to the meaning of the terms used” and it will be “construed as written, without 

adding terms that were not included by the parties.” Id. (quoting TM Delmarva Power, L.L.C. v. 

NCP of Va., L.L.C., 263 Va. 116, 119 (2002)). “The guiding light in the construction of a 

contract is the intention of the parties as expressed by them in the words they have used, and 

courts are bound to say that the parties intended what the written instrument plainly declares.” 

Craig v. Craig, 59 Va. App. 527, 536 (2012) (quoting Irwin v. Irwin, 47 Va. App. 287, 293 

(2005)). 

A. Child Support and Childcare Expenses

Husband argues that the circuit court erred by finding him in contempt for failure to pay 

child support and his share of wife’s work-related childcare costs. He contends that his childcare 

and support obligations were “legally changed without a Court Order” by the “[m]odification 

entered in to by the parties on or about December 9, 2016,” as permitted by the PSA. Husband 

argues that because the modification, “while binding on [husband], was not a Court Order,” if he 

“failed to comply with its terms there [was] no cause of action for contempt.”2

Husband’s argument is unpersuasive. As noted above, wife testified that in 2016 the 

parties exchanged emails in which they discussed whether she would agree to a change in the 

amount of child support. Wife acknowledged that at one point she agreed to such a change but 

maintained that “the number . . . discussed [was] never ratified.” Wife’s emails, entered into 

evidence, reflect that on December 9, 2016, wife emailed husband that she had “re-calculated the 

child support” while adding daycare costs to produce a new total monthly payment for support 

2 We note that at the hearing, husband argued that child support may not be modified 

without a court order but that language in the PSA “suggest[ing] that the parties can, with or 

without a court order, enter [into] an agreement” to modify support led him to believe the parties 

had agreed to a valid modification. It was only after husband retained new counsel that he 

advanced the argument presented on brief and in oral argument before this Court. 
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and childcare. On December 14, 2016, wife emailed husband that she had “agreed to change the 

amount due to $905.” However, she also stated that “If we cannot mutually agree on a number, 

then you will need to submit an order [sic] to the court to have the child support calculation 

revised and in the meantime, you will owe the amount currently in place ($1250).” Even 

assuming arguendo that the parties’ emails indicated an agreement to modify husband’s child 

support and childcare obligations, that agreement did not satisfy the requirements for a 

modification under the terms of the PSA. As noted above, Paragraph 27 of the PSA provides 

that “[n]o modification . . . of any of the terms of this [PSA] shall be valid unless in writing and 

executed with the same formality as this [PSA].” Here, the parties’ emails, including wife’s 

email of December 9, 2016, did not constitute writings executed with the same formality as the 

PSA—i.e., the email communications were not signed and notarized by the parties. Accordingly, 

the parties did not modify the terms of the PSA as alleged by husband. Husband remained 

obligated to pay the child support and childcare expenses provided for by the PSA. Further, wife 

provided credible testimony and other evidence that husband did not meet those obligations. 

Accordingly, we hold that the circuit court did not err in finding husband in contempt for failure 

to pay child support and his portion of the parties’ childcare costs.3 

B. Extracurricular Activity Expenses

Husband argues that the circuit court erred by finding him in contempt for failure to pay 

his share of the children’s extracurricular activity expenses. Specifically, he contends that wife 

“provided no evidence of [his] prior written agreement to any specific activity” and that she also 

“provided no evidence that she consulted [husband] ‘in advance’ of scheduling any 

3 Husband further argues that the modification agreement of the parties was “done in 

compliance with . . . Code [§] 20-109.1 and was self-executing,” and thus that the parties were 

not required to seek a modification order from the circuit court. Given our resolution of this 

issue, we need not reach this argument.
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extracurricular activity.” Consequently, husband argues, the court ignored the requirements of 

the PSA and ignored the evidence in finding him in contempt for failing to pay his portion of the 

relevant expenses.

We are not persuaded by husband’s argument. As noted above, Paragraph 2(E) of the 

PSA provides that “[s]ubject to being consulted in advance and agreeing to same, which consent 

shall not be unreasonably withheld,” the parties shall each pay a proportion of the reasonable 

costs, expenses, and fees for their children’s extracurricular activities. Paragraph 2(E) further 

provides that “[a]ny agreement between the parties to be effective shall be in writing, which can 

include confirming emails.” Although the PSA does not define the term “agreement,” we note 

that the plain, usual, and ordinary meaning of that term is “[a] mutual understanding between 

two or more persons . . . ; a manifestation of mutual assent by two or more persons.” Agreement, 

Black’s Law Dictionary (11th ed. 2019). See also id. (defining “agree” as “[t]o unite in thought; 

to concur in opinion or purpose,” or to “unite in an engagement to do or not do something”).

Here, wife testified that she had discussed the children’s extracurricular activities with 

husband “in terms of his knowledge that these things were happening” and “in terms of me 

saying is it okay if I sign them up for tennis, or karate, or whatever.” She further testified that 

there were “some emails in where he does agree.” Wife also stated that she wanted the children 

“involved in activities” and that husband “was well aware that that was happening, and he was 

even taking them to games or lessons, or things of that nature, practices when he was down for 

the weekend. This was not stuff he didn’t know about.” Wife’s evidence also included 

numerous emails between herself and husband detailing their consultations about their children’s 

extracurricular activities. Both husband and wife expressed concern that their children should be 

involved in activities that would contribute to their health and well-being. When wife emailed 

husband about enrolling the children in soccer programs, husband replied, “Soccer – OK.” He 
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subsequently explicitly confirmed that he had authorized her “to sign them up for soccer” and 

expressed interest in attending their games. After J. and S. expressed to husband that they were, 

respectively, interested in tennis and martial arts, husband recommended programs for the two 

children and asked wife to keep him updated on what the children would be doing. Wife then 

emailed husband to say she had selected martial arts and tennis programs for the children and 

husband replied, “Ok good, please keep me updated on schedules and status.” When wife 

subsequently wrote husband that the children’s programs would be starting soon, he responded 

by asking whether J. and S. would have any activities scheduled for a certain date so that he 

could take them to the activities. Husband also expressed an interest in helping to find “classes / 

or sports for them” to enroll in. In advance of trips to the area, husband specifically asked if 

there were activities scheduled for the periods of his visit.

The parties’ email exchanges and wife’s testimony, which the circuit court found more 

credible than husband’s, do not support husband’s argument at trial and on brief that wife did not 

consult him in advance before scheduling any extracurricular activities and that he did not give 

prior written agreement to any activities. Instead, they demonstrate that the parties manifested in 

writing their mutual assent to their children participating in extracurricular classes and sports and 

a mutual understanding that their children would participate in the activities.

4

 Thus, the record 

does not support husband’s argument that the circuit court erred in finding him in contempt for 

failing to pay his share of those expenses as required by the terms of the PSA. Accordingly, we 

4 Further, even assuming arguendo that the evidence failed to demonstrate a 

manifestation of the parties’ mutual written assent to their children’s activities, husband’s 

repeated expression of his desire that the children be involved in such activities would render any 

objections to them an unreasonable withholding of consent. 
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hold that the circuit court did not abuse its discretion by finding husband in contempt for failure 

to pay his share of extracurricular activity expenses.

5

 

C. The Virginia 529 Accounts

Husband argues that the circuit court erred by finding him in contempt for withdrawing 

funds from the two Virginia 529 accounts he maintained for J. Specifically, husband contends 

that there was “no ‘express command’” in the PSA that prohibited him from removing funds 

from the 529 accounts or “otherwise restricted [him] from utilizing the funds for other necessary 

purposes, or . . . borrowing funds from the account[s].” Husband’s argument is premised on his

reading of Paragraph 4 of the PSA, which as noted above states that 

[t]he parties agree that the funds in these accounts and any future 

accounts which the parties create and choose to use for the 

children’s education, shall be used first at the time the children 

matriculate in college or other four year post-high school training 

to cover tuition, room and board, books, standard fees, or other 

post-high school training for up to four years.

Husband contends that the paragraph’s limitations on when funds may be withdrawn and how 

they must be used apply only to funds from accounts which the parties “choose to use for the 

children’s education,” and thus “[t]here is no prohibition . . . that the parties not withdraw funds 

for any other purpose than . . . to use for the children’s education.”

Husband’s argument is unpersuasive because it ignores both the clear intent of the parties 

in drafting Paragraph 4 and the plain language of the paragraph. The purpose of this provision of 

the PSA was to provide for the post-secondary education of the parties’ children. Paragraph 4 

5 Husband further argues that the circuit court erred “when it found . . . that [husband] 

had a duty to reimburse [wife] for the payment of extracurricular activities when [wife] failed to 

comply with the terms of the Divorce Decree and the Agreement.” Consequently, husband 

contends, the court “created its own interpretation of the PSA and Divorce Decree . . . and 

deleted the prerequisites created by the Parties.” We note that the circuit court made no such 

finding that husband had a duty to reimburse when wife was in noncompliance with the final 

order of divorce and the PSA. Consequently, we do not consider that argument. 
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acknowledges that at the time of the execution of the PSA, there were several existing accounts 

maintained for the parties’ children, including both the Virginia 529 accounts at issue here and 

an additional USAA 529 account for S. The express purpose of 529 accounts is to provide for 

the expenses of higher education. See 26 U.S.C. § 529(a)-(b) (providing, in pertinent part, for 

the establishment of tax-exempt programs under which persons “may make contributions to an 

account which is established for the purpose of meeting the qualified higher education expenses 

of the designated beneficiary of the account”). Paragraph 4 acknowledges not only “the[]

accounts” in existence when the PSA was executed but also anticipates that there might be 

“future accounts which the parties create” after the execution of the PSA. In order for any 

“future accounts” to be subject to the provisions of Paragraph 4 in the same way that the 

pre-existing accounts were subject to the paragraph’s provisions for higher education, they 

would have to be created for the same purpose, i.e., to provide for the post-high school education 

of J. and S. Thus, it would be necessary for the parties to “choose to use [such future accounts] 

for the children’s education” in order for those new accounts to be subject to the terms of 

Paragraph 4. Consequently, the phrase “choose to use for the children’s education” can only 

refer back to any “future accounts” created after the execution of the PSA, not to “the[]

accounts” enumerated by Paragraph 4 at the time of execution. Stated differently, the parties had 

already “cho[sen] to use” the Virginia 529 and other enumerated accounts solely for their 

children’s education by virtue of including them in Paragraph 4 when they drafted the PSA. The 

additional language of the paragraph supports this reading, as it is concerned with: insuring that 

accounts governed by the paragraph are not depleted before the children’s matriculation in 

post-secondary education; preventing the children from having unrestricted access to any 

remaining funds until they have completed their post-secondary education or attained the age of 

twenty-five; and encouraging the provision of additional educational funding “[o]nce all 
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educational funds for a child are depleted.” Because husband’s reading of Paragraph 4 of the 

PSA does not comport with the plain language of the provision and the parties’ clear intent in 

drafting it, we hold that the circuit court did not abuse its discretion when it found husband in 

contempt for withdrawing funds from J.’s Virginia 529 accounts before J. matriculated in posthigh school education.6

D. Cord Blood and Tissue Storage Fees

Husband argues that the circuit court erred by finding him in contempt for failing to pay 

his portion of the parties’ cord blood and tissue storage fees. He notes the requirement of 

Paragraph 7(B) of the PSA that “Wife shall . . . provide . . . Husband with proof of such payment 

[of the fees] and . . . Husband shall reimburse his half of the cost within thirty (30) days of 

receipt thereof.” Husband contends that wife did not satisfy the notification requirements of the 

PSA because he was only provided with proof of payment “the day prior to her executing her 

Petition . . . and fifteen days prior to her filing the Rule to Show Cause swearing that [husband] 

was already in violation of the PSA and Divorce Order.” Thus, husband argues, “instead of 

adhering ‘to the plain meaning of [the] stated terms’ of the PSA, the [c]ircuit [c]ourt ‘rewrote’ 

6 Husband also assigns error to the circuit court for “order[ing] [husband] to pay back the 

[529 plan] funds directly to [wife].” He asserts that the court required him to “pay Fifty-Two 

Thousand Dollars . . . directly to [wife]” and that the court “at most could have ordered that [he] 

repay the amounts directly to the 529 Plan Account[s], and not to [wife].” We note that the 

circuit court did not, in fact, order husband to pay $52,000 directly to wife. Rather, the court 

ordered husband to pay a purge amount of $75,000 “either directly to [wife] or to the Clerk of 

the Court.” We further note that even if husband had elected to pay $75,000 directly to wife, that 

amount was not specifically “to pay back the [529 plan] funds.” Instead, it was the amount the 

court determined was necessary to “purge [husband’s] contempt”—i.e., to rectify his “willful 

disobedience of th[e] Court’s Orders” and thus obtain his release from the court’s sanction of 

jail. See, e.g., Mills, 70 Va. App. at 381 (noting that a “contempt sanction based on an 

affirmative order addresses an ongoing contemptuous act that, due to its ongoing nature, may be 

purged at any moment by the contemnor’s performance of the mandated act” (quoting Int’l 

Union, United Mine Workers of Am. v. Covenant Coal Corp., 12 Va. App. 135, 144 (1991))). 
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the parties’ agreement to require [husband to] pay his share of the [fees] whether [wife] provided 

proof of payment or not.” 

Husband’s argument is without merit. As noted above, wife entered into evidence both 

an invoice for cord blood and tissue storage fees for the years 2017 through 2020 and a series of 

receipts for her payment of those fees. Wife also entered into evidence a copy of her January 31, 

2020 email to husband, to which she had attached both the invoice and copies of her receipts. 

The hearing on wife’s petition for rule to show cause occurred on September 8, 2020, more than 

thirty days after wife “provide[d] . . . [h]usband with proof of her payment” of the fees. At the 

hearing, wife maintained that she had not received any payment of husband’s share of the fees,

and husband neither testified nor introduced other evidence to indicate that he had paid wife

within thirty days of receiving her January 31, 2020 email. Thus, contrary to husband’s 

argument, in finding him in contempt the circuit court did not rewrite the parties’ agreement but 

instead adhered to and applied the plain meaning of the terms of Paragraph 7(B) of the PSA. 

Accordingly, we hold that the circuit court did not abuse its discretion when it held husband in 

contempt for failing to pay his portion of the parties’ cord blood and tissue storage fees. 

E. Creation of a Lien on the Condominium

Husband argues that the circuit court erred by finding him in contempt for creating a lien 

on the Fairfax condominium. He contends that the lien at issue was “created . . . by Bank of 

America” and that he never received notice of the bank’s suit, was not afforded the opportunity 

to dispute it, and had no opportunity to prevent a lien from being placed on the property. Thus, 

“the lien came into existence by a series of failures outside of [husband’s] control” and “without 

[his] knowledge or consent,” and “[a]ccordingly, the circuit court should have ruled that [he] was 

not in Contempt of Court related to [the] lien, and in fact had taken the necessary steps to resolve 

the underlying debt through his bankruptcy.”
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We are not persuaded by husband’s argument. As noted above, in its consent order of 

August 25, 2016, the circuit court found that husband held title to the condominium and that the 

property was still encumbered by the parties’ mortgage. The parties agreed that husband would 

convey the condominium to wife and that she would apply to assume the mortgage. The consent 

order specified that husband “shall not file for or declare bankruptcy . . . until the assumption 

process is completed” and that he “shall not allow any additional liens to be brought against the 

[c]ondominium.” Husband acknowledged the consent order’s lien provision in his testimony. 

He conveyed the condominium to wife as agreed under the order, although prior to that 

conveyance, Bank of America had obtained a judgment against him. Husband acknowledged in 

his testimony that the bank had secured its judgment based upon his unpaid credit card debt and 

a copy of the judgment was entered into evidence by wife. 

In her affidavit and petition for rule to show cause, wife alleged that about two weeks 

before she completed the mortgage assumption process as per the consent order, husband 

violated the order by filing for bankruptcy. Consequently, the mortgage holder put her 

assumption application on hold and wife was unable to assume the mortgage. Wife further 

alleged that when she later attempted to sell the condominium, she discovered there was a lien 

against the property based upon Bank of America’s judgment against husband. At the hearing, 

wife testified that she had paid off the lien but that satisfying the judgment against husband in 

order to remove the lien had cost her approximately sixteen or seventeen thousand dollars. 

Although husband argues that the lien was “created” by Bank of America and that it 

“came into existence by a series of failures outside of [his] control,” that is clearly not the case. 

Husband acknowledged that the judgment against him, which the bank perfected into a lien 

against the condominium, was based upon his unpaid credit card debt. It thereby follows that the 

lien was created as a consequence of husband’s conduct: his accrual of the debt and subsequent 
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failure to pay it in a timely fashion, leading in turn to the judgment and then to the lien. See

Create, Webster’s Third New International Dictionary (2002) (defining “create” as “to cause to 

be”). Accordingly, we hold that the circuit court did not abuse its discretion in finding husband 

in contempt of its consent order for allowing an additional lien to be brought against the 

condominium.7 See Bajgain v. Bajgain, 64 Va. App. 439, 453 (2015) (noting that we give 

deference to a circuit court’s interpretation of its own orders and review such an interpretation 

for abuse of discretion).

F. Attorney’s Fees

Husband argues that the circuit court erred by awarding wife the attorney’s fees she 

incurred during the contempt proceedings below. We review an award of attorney’s fees for 

abuse of discretion. See Koons v. Crane, 72 Va. App. 720, 742 (2021). 

Husband contends that because the court erred by finding him in contempt it necessarily 

abused its discretion by awarding wife attorney’s fees. Finding no error by the circuit court in its 

contempt determination, we reject husband’s argument and affirm the court’s award.8 

7 Husband further argues that the lien issue is “moot before this court” because it was 

“resolved . . . between the parties” when wife agreed to satisfy the judgment to remove the lien 

so she could sell the property. We note that the plain language of the consent order prohibits 

husband from allowing any additional liens to be brought against the condominium, per se; 

nothing in the language of the order provides that husband can “cure” a violation of the lien 

prohibition through an agreement with wife or by any other means. 

8 Husband also argues that the circuit court erred by failing to consider his ability to pay 

when it found him in contempt. He contends that the court should have found that even if his 

actions were in violation of the PSA, he was not in contempt, as his “actions were not ‘willful 

disobedience of a proper order’ because [he] was ‘unable to comply’ with the order as a result of 

his pecuniary status.” 

“[T]o hold a litigant in contempt, the litigant must be acting in bad faith or [in] willful 

disobedience of [the court’s] order.” Koons, 72 Va. App. at 737 (alterations in original) (quoting 

Zedan, 60 Va. App. at 574-75). It follows that “[i]n Virginia, inability to pay is a defense to a 

charge of contempt.” Street v. Street, 24 Va. App. 14, 20 (1997). In accordance with these 

principles, we note that “[i]n a show cause hearing, the moving party need only prove that the 

offending party failed to comply with an order of the trial court. Once the movant proves 

noncompliance, ‘the burden is on the obligor to provide justification for failure to comply.’” 
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G. Appellate Attorney’s Fees for Wife

Wife requests that this Court award her attorney’s fees and costs incurred on appeal. 

Code § 20-109(C) provides that where, as here, the parties execute a PSA prior to entry of a final 

decree of divorce, “no decree or order directing the payment of . . . suit money, or counsel 

fee[s] . . . shall be entered except in accordance with that . . . contract.” This appeal, like the 

proceeding below, is part of an enforcement action with respect to the PSA. The terms of the 

parties’ PSA provide that if either party takes legal action against the other “by reason of the 

other’s failure to abide by this [PSA], the party who substantially prevails shall be awarded his or 

her reasonable attorney fees . . . , court costs, and other costs reasonably incurred in the 

enforcement of this [PSA], all in the discretion of the Court.” Accordingly, we remand to the 

circuit court to determine what fees and costs wife is entitled to for this appeal under the terms of 

the PSA.

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the circuit court finding husband in 

contempt and remand for a determination of wife’s appellate attorney’s fees. 

Affirmed and remanded.

Koons, 72 Va. App. at 737-38 (citation omitted) (quoting Barnhill v. Brooks, 15 Va. App. 696, 

704 (1993)). 

At the show cause hearing, wife established that husband had failed to comply with 

several of his obligations under the PSA and that he violated other provisions of the court’s 

orders. Husband defended in part by arguing that he had been unable, rather than unwilling, to 

meet his financial and other obligations because of his financial circumstances. However, he did 

not provide the circuit court with any documents in support of his argument, such as pay stubs, 

unemployment benefit forms, or bank or retirement account statements. While wife’s exhibits 

included husband’s bankruptcy filing and numerous emails asserting husband’s inability to pay 

certain sums, those documents of themselves do not prove husband was unable to meet his 

financial obligations. Further, the court specifically found wife more credible in her testimony 

than husband. Accordingly, the record does not support that husband met his burden to provide 

financial justification for his failure to comply with the requirements of the court’s orders, 

including its final order of divorce incorporating the PSA. Thus, we hold that the court did not 

abuse its discretion in failing to consider husband’s ability to pay.