COURT OF APPEALS OF VIRGINIA

Present: Judges Clements, Haley and Senior Judge Bumgardner Argued at Alexandria, Virginia

RONALD D. WOLFE MEMORANDUM OPINION * BY v. Record No. 1273-07-4 JUDGE JEAN HARRISON CLEMENTS MARCH 18, 2008 STEPHANIE A. ARTHUR

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Stanley P. Klein, Judge David M. Zangrilli, Jr. (J. Patrick McConn ell; Odin, Feldman & Pittleman, P.C. , on brief), for appellant. David D. Masterman (Masterman & Graham, P.C., on brief), for appellee.

Ronald D. Wolfe (husband) appeals from an order of the Circuit Court of Fairfax County (trial court) requiri ng him to pay Stephanie A. Art hur (wife) $34,621.17 in child support arrearages, $5,944.57 in interest on those arrearages, and $3,000 in attorney’s fees. On appeal, husband contends the trial court erred in (1) miscalculating the amount of the child support arrearage he owed, (2) applying th e wrong judgment rate of interest to the part of the arrearage that accrued before July 1, 2004, a nd (3) awarding wife attorney’s fees. Both parties request an award of attorney’s fees and cost s in connection with this appeal. For the reasons that follow, we affirm the trial court’s judgment in part, reverse the court’s ju dgment in part, and remand for further proceedings. As the parties are fully conversant with th e record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - incidents of the proceedings as are necessary to the parties’ understandin g of the disposition of this appeal.

I. BACKGROUND The parties were married in 1988. One ch ild was born of the marriage on August 27, 1988. After separating in 1993, the parties entered into a marita l settlement agreement (MSA) on June 17, 1994. The MSA provided that ch ild support would be paid as follows: The Husband promises to pay to the Wife, for the support and maintenance of the minor child, a monthly sum of money equal to his U.S. Army Basic Allowance for Quarters, at the “with dependent” rate (i.e., BAQ), regard less of whether he is paid BAQ by the Army. (BAQ is a monthly allowance normally paid to soldiers in an amount according to their rank, and is adjusted upward annually.) At the present time, the Husband’s rank authorizes monthly BAQ in the amount of $415.50. The monthly child support specified herein has been paid by the Husband to the Wife since December 1993, and shall continue to be paid (by the 5th day of the month) until the minor child shall attain the age of 18 years or shall become emancipated, whichever shall occur soonest. . . . Should the Husband depart active duty in the U.S. Army prior to termination of his child support obligation, he promises to continue making child support payments in an amount equal to the support guidelines utili zed in the state the parties shall have obtained their divorce.

Husband left the m ilitary in September 1994 and began paying wife $3 00 per month in child support in October 1994. The parties were divor ced by final divorce decree entered by the trial court on August 15, 1995. The MSA was affirmed, ratified, and incorporated by reference into the divorce decree. The decree did not specify a mont hly amount of support, but instead reiterated the terms of the MSA, specifically stating that, “[ s]hould the Husband depart active duty in the U.S. Army prior to termination of his child support ob ligation, he promises to continue making child support payments in an amount equal to th e support guidelines utilized in the state the parties shall have obtained their

divorce.” The decree further stated that no arrearage existed and th at child support was to continue- 3 - until the minor child “reache[d] the age of nineteen or graduate[d] from high school, whichever first occur[red],” provided the child wa s “(i) a full-time high school st udent, (ii) not self-supporting and (iii) living in the home of the Wife.” Following entry of the divorce decree, husban d continued to pay wife $300 per month in child support until January 2003, at which time he unilaterally starte d paying $350 pe r month. In January 2004, he unilaterally increased his support pa yments to $500 per mont h. In July 2004, he ceased paying child support alto gether. At no point did eith er party petition the court for

modification of husband’s cour t-ordered support obligation. In February 2005, wife petitioned the trial court for a rule to show ca use, alleging husband had not complied with the child support provisions of the MSA. After issuing a rule to show cause and hearing evidence an d argument on the rule, the court en tered an order on May 6, 2005, declining to find husband in cont empt of court. Nevertheless, th e court concluded that husband had failed to pay child support cons istent with the Virgin ia child support guid elines following his departure from the military in 1994, as required by the MSA. The court further concluded that, given the divorce decree’s recitation that there was no child support arrearage, any arrearage owed by husband necessarily co mmenced after the decree was entere d. Directing counsel to calculate husband’s arrearage on their own, if possible, the court instructed co unsel to exchange the parties’ income documentation and comput e the amount of post-de cree child support hu sband should have paid under the guidelines “based upon the respective incomes of the parties at the relevant periods

of time.” Unable to agree on how husban d’s arrearage should be calcula ted, counsel again appeared

before the trial court on Januar y 12, 2006. After hearing argumen t by counsel, the court adopted wife’s view that, because there had been a change in the parties’ incomes every year from 1995 to 2005, husband’s post-decree chil d support obligation should be re computed anew each year under- 4 - the guidelines in effect at the time. Thus, the cour t ruled that the amount of child support owed by husband was to be recalculated annually by applying th e guidelines as of the first day of each year to the parties’ respective income s from their tax returns for the pr evious year. Applying that method, the court foun d that, for the period Sept ember 1, 1995, to January 12, 2006, husb and had an arrearage of $34,621.17. The trial court further ag reed with wife that in terest on the unpaid balance of the arrearage accrued at the judgment ra te “from the date each payment of support was du e until paid in full” and that the applicable judgment rate was 9% through June 30, 2004, and 6% therea fter. Accordingly, the court found that husband owed $5,944.57 in in terest. The court further awarded wife $3,000 in attorney’s fees and increased husband’s chil d support obligation to $70 1 per month effective February 1, 2006. The trial court entered an order memorializing its rulings on January 30, 2006. The court subsequently denied husband’s motion to reconsider, and this appeal followed.

II. CHILD SUPPORT ARREARAGE On appeal, husband challenges the trial court’ s calculation of the arrearage. He first contends that, in deciding husband’s past due ch ild support obligation was to be recalculated under the guidelines annually, th e court misconstrued the terms of the MSA and retroactively modified husband’s child suppor t obligation. We agree. [I]f all the evidence wh ich is necessary to construe a contract was presented to the trial court and is before the reviewing court [on appeal], the meaning and effect of the contract is a question of law which can readily be asce rtained by this court. Property settlement and support agreements are subject to the same rule s of construction and interpretation a pplicable to contracts generally. Fry v. Schwarting , 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987) (citation omitted). Thus, a court may “not insert by constr uction, for the benefit of a party, an exception or condition which the parties omitted from their contract by design or neglect. Moreover, a court must construe the- 5 - words as written and not make a new contract for the parties.” Bridgestone/Firestone v. Prince William Square Assocs. , 250 Va. 402, 40 7, 463 S.E.2d 661, 664 (1995). Accordingly, “[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 cour t may not impose an obligation not found in the agreement itself.” Jones v. Jones , 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764 (1994). In other words, courts may “not rewrite contracts to insert provisions that have been omitted by the parties.” Jones v. Harrison , 250 Va. 64, 68, 45 8 S.E.2d 766, 769 (1995). “The guiding light . . . is the intention of the parties as expressed by them in the words they have us ed, and courts are bound to say that the parties in tended what the writte n instrument plai nly declares.” W. F. Magann Corp. v. Virginia-Carolina Electrical Works , 203 Va. 259, 264, 123 S.E.2d 377, 381 (1962). Moreover, it is well established that “a cour t may modify only future support payments.” Riggins v. O’Brien , 263 Va. 444, 447, 559 S. E.2d 673, 675 (2002). He nce, court-ordered child support may not be modi fied retroactively. Id. (citing Code § 20-108); Shoup v. Shoup , 37 Va. App. 240, 249, 556 S. E.2d 783, 788 (2001) (citing Code § 20-108); see also Commonwealth v.

Skeens , 18 Va. App. 154, 158, 442 S. E.2d 432, 434-35 (1994) (“Child support payments required under a valid court order become vested as they acc rue, and the court is wi thout authority to make any change as to past due installments.”). Because no support arrearage existed when the divorce decree was entered and because husband had already left the military when the MSA was incorporated into the decree, our initial focus is on the provision in the MSA stating that , “[s]hould . . . [h]usband depart active duty in the U.S. Army prior to termination of his ch ild support obligation, he promises to continue making child support payments in an amount equal to the support guidelines utilized in the state the parties shall have obtained their divorce.” As relevant to the issue befo re us, this provision is plain and unambiguous, and clearly manifests the parties’ intention that, upon husband’s- 6 - departure from the military, his child support obliga tion was to continue and was to be based on the Virginia statutory child support guide lines, rather than onhis former BAQ. Accordingly, we agree with the tr ial court that, following his de parture from the military in 1994, husband was required to pay child suppor t consistent with the Virginia child support guidelines. Consequently, upon leaving the military, husband was obligate d, under the terms of the MSA, to start paying child suppor t in an amount comput ed in accordance with the guidelines in effect at the time. That suppo rt amount then became an order of the cour t when the MSA was incorporated into the divorce decree. See Shoup , 37 Va. App. at 250, 55 6 S.E.2d at 788 (“Where the court adopts the partie s’ agreement by incorporating it into its decree, it is enforceable, to the word, as any other term of th e decree.”); Code § 20-109.1. Against this backdrop, we turn to the trial court’s decision th at husband’s post-decree child support obligation was to be recalculated annually under the guidelines. Upon our de novo review of the MSA, we conclude that the court’s decision is in derogation of the terms of the parties’ agreement and thus contrary to the established law prohibiting the retroactive modification of support. As previously mentioned, the MSA expres sly provides that husband’s child support obligation was to be automatically modified when he left the military: rath er than paying an amount equal to his BAQ, he was to star t paying an amount calculated unde r the statutory guidelines. The MSA, however, makes no othe r provision, either expressly or imp licitly, for modifica tion of support under the guidelines. The agre ement neither mentions the guidelines again nor references any periodic modification of support. Likewise, it does no t require the parties to exchange income

information or otherwise contain an y mechanism for the periodic review of the parties’ incomes. In short, after providing for the initial adjustment of child support under the gu idelines upon husband’s- 7 - departure from the militar y, the MSA is silent as to any further income-bas ed adjustments to child support. Had the parties intended to provide for the au tomatic annual modification of husband’s child support obligation, they could have included a provision to that effect in the MSA. See Shoup , 37 Va. App. at 250, 556 S.E.2dat 788 (finding valid and enforceabl e the language in an incorporated agreement requiring the parties, upon the occurrence of any of several enumerated changes in circumstances, to “follow the ch ild support guidelines . . . for determination of child support”); Code § 20-109.1 (“Provisions in [incorporated] agreements for th e modification of child support

shall be valid and enforceable. Unless otherw ise provided for in such agreement or decree incorporating such agreement, su ch future modifications shall not require a subsequent court decree.”). However, they did not do so. Inde ed, other than the adjust ment upon husband’s exit from the military, the only modificat ion to child support the MSA prov ides for is the termination of child support upon certain conditions. It is clear, therefore, that, while the MSA reflects th e parties’ intention that husband’s child support obligation was to be recalculated upon his leaving the military , the MSA contains nothing to suggest the parties intended that husband’s obligation was ever to be automatically modified again under the guidelines, much less on an annual basis. Accord ingly, the imposi tion of such a requirement constitutes a re writing of the parties’ agreement to incl ude a provision that the parties themselves did not include in the agreement. Indeed, to find such a provision in the agreement, we “would have to insert words into the writing c ontrary to the elementary rule that the function of the court is to construe the contract made by the parties, not to make a contract for them.” Cave Hill Corporation v. Hiers , 264 Va. 640, 646, 570 S.E.2d 790, 793 (2002). In the absence of such a pr ovision in the MSA for automatic modification, wife’s remedy was to file a motion to modify support based upon a material change of circumstance. See- 8 - generally Goodpasture v. Goodpasture , 7 Va. App. 55, 58, 371 S.E.2d 845, 847 (1988) (“Should circumstances change requiring al teration in the amount of [cour t-ordered] support, a party’s remedy is to apply to the court for relief.”). Because neither party petitioned the court for

modification of husband’s court-or dered support obligation, the su pport amount that was to be computed under the guidelines wh en husband left the mi litary remained unch anged until the trial court increased husband’s child support obligation effective February 1, 2006. Thus, the court ’s award of arrearages to wife, which was based on annual modi fications of husband’s post-decree child support obligation, constitutes an impermissi ble retroactive modification of a support order. We hold, therefore, that the tr ial court erred in awarding wife $34,621.17 in arrearages. Accordingly, we reverse the trial court’s decisi on and remand for recalcula tion of the appropriate child support arrearage, if any. Husband also challenges the trial court’s award of arrearages on the ground that, pursuant to the express terms of the divor ce decree requiring child suppor t only as long as the parties’ minor child was “living in the home of the Wife,” he owed no child support after June 2004 because the minor child was no longer living in wife ’s home. Specifically, he contends the trial court erred “by failing to rule that [husband] did not have a child support oblig ation to [wife] during times when the child was not living in [wif e’s] home, and by failing to allow [husband] an evidentiary hearing on this issue.” We find no merit in these contentions. “[D]ecisions concerning . . . child support rest within the sound discretion of the trial court and will not be reversed on appeal unle ss plainly wrong or unsupported by the evidence.” Floyd v. Floyd , 17 Va. App. 222, 224, 436 S.E.2d 457, 458 (1993). We view the evidence in the light most favorable to wi fe, who prevailed below. Anderson v. Anderson , 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). Moreover, “[a]bsent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the law was correctly- 9 - applied to the facts.” Yarborough v. Commonwealth , 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977); see also Johnson v. Commonwealth , 12 Va. App. 391, 396, 40 4 S.E.2d 384, 387 (1991) (“On appeal, the judgment of the trial court is presumed correct.”). The party alleging reversible error has the burden “to show by the reco rd” that the alleged error occurred. Johnson , 12 Va. App. at 396, 404 S.E.2d at 387. Indeed, our review of an app eal is restricted to the record. Turner v.

Commonwealth , 2 Va. App. 96, 99, 342 S.E. 2d 400, 401 (1986). “An a ppellate court must dispose of the case upon the record and ca nnot base its decision upon ap pellant’s petition or brief, or statements of counsel in open co urt. We may act only upon fact s contained in the record.” Smith v.

Commonwealth , 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993). Here, the record establishes th at wife retained “primary phys ical custody” of the parties’ minor child during the relevant peri od. While husband’s counsel assert ed in the trial court that the

child did not live in wife’s home after June 2004, no evidence was pr esented to support that assertion. Wife’s counsel repres ented to the trial cour t that wife “was living both in Florida and Virginia at times” and that the child “stay[ed] predominantly with the stepfather at the time,” but did not stipulate or otherwise conced e that the child did not live in wife’s home after June 2004. Husband put on no evidence showi ng that the child’s stay with the stepfather was not in wife’s home. Indeed, husb and neither presented nor proffered any evidence about where or with whom the child was living. Nor di d husband ever manifestly seek to present or pr offer any such evidence. Because the record fails to support a finding that the child was ever not living in wife’s home, we cannot say the trial court abused its disc retion in “failing to rule that [husband] did not have a child support obligation to [wife] during ti mes when the child was not living in [wife’s] home.” Likewise, because the record fails to show that husband ever even attempted to present or proffer evidence regarding the child’s reside nce, we cannot say the trial court abused its discretion in “failing to allow [husband] an eviden tiary hearing on this issue.” Thus, even if we- 10 - assume, without deciding, that, as husband asserts, the language in the divorce decree upon which husband relies may be read literally despite its apparent ambiguity, 1 we conclude the record fails to support husband’s claims of error.

III. JUDGMENT INTEREST

Husband contends the trial court erred in awarding wife $5,944.57 in interest on his past due child support obligation. Spec ifically, he argues the court improperly applied the judgment

rate of interest “from the date each payment of support was due until paid in full” and incorrectly determined the applicable judgment rate was 9% through June 30, 2004, and 6% thereafter. Because the amount of interest owed by husb and is dependent on the ultimate determination of husband’s child support arrearage, if any, and because we remand this case to the trial court for the recalculation of husband’s child support arrear age, we reverse the court’s interest award and

remand for reconsideration. We note, however, that Code § 20-78.2 provides that “[t]he entry of an order or decree of support for a spouse or fo r support and maintenance of a child u nder the provisions of this chapter . . . shall constitute a final judg ment for any sum or sums in arrears.” Code § 20-78.2 further provides, as pertinent he re, that an order of support arrearage “shall also include an amount for interest on the arrearage at the judgment interest rate as establ ished by [Code] § 6.1-330.54.” See

also Code § 8.01-382 (“If a judgment or decree be rendered which does not provide for interest, the judgment or decree . . . sh all bear interest at the judgment rate of interest as prov ided for in [Code] § 6.1-330.54 from its date of entry . . . .”). Co de § 6.1-330.54 provides that “[t]he rate of interest for a judgment shall be the judgment ra te of interest in effect at the time of entry of the judgment and shall not be affected by any subsequent changes to the rate of interest stat ed in this section.”

1 The trial court found the language was inhe rently ambiguous. Given our resolution of the matter, we need not address that specific issue.- 11 - Effective July 1, 2004, the judgment rate of interest was lowered from 9% to 6%. Code § 20-60.3(12) provides that “the su pport obligation as it becomes due and unpaid creates a judgment by operation of law.” Thus, “inter est should be assessed on unpaid installmen ts of [support] from the date they mature or become due until the da te they are paid.” Alig v. Alig , 220 Va. 80, 85, 255 S.E.2d 494, 498 (1979). Accordingly, insofar as husb and’s underlying argument remains pertinent on remand, we conclude the trial court did not err in applying th e judgment rate of inte rest “from the date each payment of support was due until paid in full” or in de termining the applicable judgment rate was 9% through June 30, 2 004, and 6% thereafter.

IV. ATTORNEY’S FEES Husband contends the trial court abused its discretion in awarding wife $3,000 in attorney’s

fees. Whether to award attorney’s fees “‘is a matte r submitted to the sound discretion of the trial court and is reviewable on appeal only for an abuse of discretion.’” Northcutt v. Northcutt , 39 Va. App. 192, 199-200, 571 S. E.2d 912, 916 (2002) (quoting Graves v. Graves , 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987)). “The key to a proper award of counsel fees is reasonableness

under all the circumstances.” Joynes v. Payne , 36 Va. App. 401, 429, 55 1 S.E.2d 10, 24 (2001). Here, the MSA provides that, “[ i]f it becomes necessary to enforce the provisions of this . . . Agreement, the prevailing party shall be entitled to reimbursement by th e other of his or her enforcement costs, to include attorn ey fees.” Because th e question whether to award attorney’s fees is dependent on the ultimate determination of husba nd’s child support arrearag e, if any, and because

we remand this case to the trial court for the reca lculation of husband’s chil d support arrearage, we

reverse the court’s award of attorn ey’s fees and remand for reconsid eration. “We al so remand for- 12 - consideration of an award of court costs and attorn ey’s fees on appeal, consistent with it s decision and the terms of the agreement.” Shoup , 37 Va. App. at 255, 556 S.E.2d at 790.

V. CONCLUSION

For these reasons we affirm the trial court’s judgment in part, revers e the court’s judgment in part, and remand for further procee dings consistent with this opinion. Affirmed in part, reversed in part, and remanded.