COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

JOSEPH A. SPAGNOLO, JR. 

 OPINION BY 

v. Record No. 2172-94-2 JUDGE JAMES W. BENTON, JR. 

 AUGUST 29, 1995 

SUSAN D'ALUISIO SPAGNOLO (MURPHY) 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 Dana L. Gay (Duty, Duty & Gay, on brief), 

 for appellant. 

 Shirley L. Hennessy (Scott D. Landry; Shirley 

 L. Hennessy & Associates, P.C., on brief), for 

 appellee. 

 Joseph A. Spagnolo appeals from a final order accompanying 

the decree of divorce from his wife, Susan D'Aluisio Spagnolo 

Murphy. He contends that the trial judge erred in (1) affirming, 

ratifying, and incorporating by reference the property settlement 

agreement into the final order; (2) ordering him to pay child 

support consistent with the statutory guidelines and inconsistent 

with the terms of the agreement; (3) finding that he had an 

outstanding contractual obligation for spousal support in the 

amount of $16,800; and (4) awarding attorney's fees to his wife. 

 We affirm the order in part, reverse in part, and remand for 

reconsideration. 

 I. 

 Following mediation and prior to the filing of the divorce 

suit, the parties entered into a property settlement agreement on 

January 20, 1993. The agreement, which was drafted by an 
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independent mediator and was to be reviewed by the parties with 

their attorneys, sought to resolve all issues concerning property 

rights, spousal support, and support for a minor child. The 

agreement required the husband to make the following child 

support payments: (1) $200 per month until the earliest 

occurrence of three months after the child's graduation from high 

school or the child's nineteenth birthday; (2) one-half of the 

first $300 of any extraordinary expenses and seventy-five percent 

of extraordinary expenses that exceeded $300; (3) all the costs 

of health insurance for the child until the child reached age 

nineteen or graduated from college, whichever occurred later; and 

(4) tuition, room, board, books and other college expenses at a 

state supported college, reserving to the father the right to 

require the child to earn a reasonable portion of his college 

expenses. The agreement also contained the following clause 

regarding child support: 

 RATIONALE FOR CHILD SUPPORT FIGURE 

 Husband and Wife agree that Husband's child 

support payment shall be $200 a month rather 

than the amount set forth in the child 

support guidelines because Husband has agreed 

to assume full responsibility for [the 

child's] college expenses and has agreed to 

pay for health insurance for [the child] 

until [the child] graduates from college. 

The child was sixteen years of age when these divorce proceedings 

commenced. 

 Further sections of the agreement provided that (1) the 

husband would pay $2,800 per month spousal support; (2) each 
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party would pay his or her own attorney's fees, except that a 

defaulting party would be liable to pay reasonable expenses 

incurred by the other to enforce the agreement; (3) the agreement 

could not be modified by the parties, except by written 

instrument executed in the same manner as the agreement; and (4) 

the parties would request the judge "to affirm, ratify and 

incorporate by reference but not merge the provisions of this 

agreement and any qualified modification into any final decree of 

divorce." 

 The wife filed a bill of complaint for divorce on January 

20, 1994, in which she requested that the agreement be affirmed, 

ratified, and incorporated into the final decree of divorce. The 

husband objected. The trial judge entered a decree of divorce on 

June 8, 1994, and reserved for later consideration matters of 

spousal support, child custody and support, equitable 

distribution, attorney's fees, and incorporation of the 

agreement. After hearing evidence ore tenus, the trial judge 

affirmed, ratified, and incorporated by reference the agreement 

into the final decree of divorce. The trial judge also 

determined, however, that "circumstances would justify 

application of the presumptive statutory guidelines" and ordered 

the husband to pay, contrary to the agreement, child support in 

the amount of $973.93 per month, which included a credit for 

health insurance paid by husband on the child's behalf. The 

trial judge also awarded the wife $16,800 in accrued spousal 
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support and $1,000 in attorney's fees. 
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 II. 

 "The language of Code § 20-109.1 gives the trial [judge] 

discretion in determining whether a property settlement agreement 

should be [affirmed, ratified, and] incorporated by reference 

into a final decree of divorce." Forrest v. Forrest, 3 Va. App. 

236, 239, 349 S.E.2d 157, 159 (1986). Ordinarily, absent an 

abuse of discretion, the trial judge's decision will be upheld on 

appeal. Id. However, we have stated that "[w]here parties to a 

pending case enter into a definite, certain and unambiguous . . . 

settlement agreement, in the absence of good cause not to do so, 

the [trial judge] should [affirm, ratify, and] incorporate [by 

reference] the agreement in the judgment of the court and thereby 

terminate the litigation." Richardson v. Richardson, 10 Va. App. 

391, 399, 392 S.E.2d 688, 692 (1990). In addition, Code § 20-109 

provides that "in suits for divorce, . . . if a stipulation or 

contract signed by the party to whom such relief might otherwise 

be awarded is filed before entry of a final decree, no decree or 

order directing the payment of support and maintenance for the 

spouse, suit money, or counsel fee or establishing or imposing 

any other condition or consideration, monetary or nonmonetary, 

shall be entered except in accordance with that stipulation or 

contract." 

 During the divorce proceedings, the wife requested the trial 

judge to affirm, ratify, and incorporate by reference the 

agreement into the divorce decree. The trial judge asked: "Is 
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it [the wife's] position that, if this agreement is found to be 

enforceable, she is wanting, also, a departure from the child 

support guidelines and to have [the husband] responsible for the 

college education of the parties' minor son?" The wife's counsel 

responded affirmatively. 

 At the conclusion of the evidence, the trial judge entered a 

final decree which recited "that the Agreement entered into 

between the parties dated January 20, 1993 is a valid enforceable 

contract, it is therefore ADJUDGED, ORDERED AND DECREED that the 

terms and provisions of the Agreement between the parties are 

hereby affirmed, ratified and incorporated herein as fully and as 

amply as if set forth herein verbatim." Despite the language in 

the final decree incorporating all of the provisions of the 

agreement, the trial judge ordered in the final decree, contrary 

to the agreement, that the father pay an increased amount of 

monthly child support as follows: 

 After consideration of all the factors 

under Sections 20-108.1 and 20-108.2 of the 

Code of Virginia, 1950, as amended, the court 

does hereby find that circumstances . . . 

would justify application of the presumptive 

guidelines set forth in Section 20-108.2 of 

the Code of Virginia, 1950, as amended. . . . 

 Accordingly, it is hereby ORDERED that the 

defendant shall pay to the plaintiff the sum 

of NINE HUNDRED SEVENTY-THREE DOLLARS AND 

93/100 ($973.93) per month for the support 

and maintenance of [the child], commencing on 

July 5, 1994 and payable on the fifth day of 

each month thereafter until said child shall 

reach the age of eighteen or, if the said 

child is still in high school at the time of 

reaching his eighteenth birthday, said 

support shall be payable until he shall reach 

the age of nineteen or graduate from high 
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school, whichever shall first occur. It is 

further ORDERED that the defendant shall 

continue to maintain the minor child as a 

beneficiary on his health and dental 

insurance coverage through his employment. 

 We hold that the trial judge erred by affirming, ratifying, 

and incorporating in the final decree the child support provision 

of the agreement, which included the husband's obligation to pay 

college expenses and insurance for the child after the child's 

minority, when the trial judge at the same time also increased 

the monthly amount that the husband was required to pay as child 

support. The agreement that the parties negotiated and executed 

expressly provided that the monthly amount of the child support 

was determined and fixed in consideration for the husband's 

agreement to pay the child's future college expenses and health 

insurance benefits beyond the child's minority. Those support 

payments and obligations were mutually dependent and the balance 

struck between those arrangements was integral to the agreement 

that the parties reached regarding the child's support. 

 The trial judge gave no reason for failing to give effect to 

the part of the agreement that contained the rationale for the 

reduced child support. Thus, the trial judge's decision, without 

explanation, effectively ordered the husband to abide by the 

portions of the agreement that the judge could not have otherwise 

ordered, i.e., to pay for the child's college expenses and postminority health insurance. It is beyond dispute that the 

husband's agreement to pay post-minority benefits for the child 
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could not have been lawfully ordered by the trial judge, except 

by enforcement of the parties' own validly negotiated agreement. 

See Code § 20-107.2. See also Eaton v. Eaton, 215 Va. 824, 827, 

213 S.E.2d 789, 792 (1975); Fry v. Schwarting, 4 Va. App. 173, 

180, 355 S.E.2d 342, 346 (1987). When the trial judge severed 

the child support provision as if it was one of a series of 

separate and independent parts of the agreement, he both violated 

the parties' express agreement and adopted a remedy that exceeded 

the statutory limitation on his power. See Code § 20-107.2. 

 We have held that a trial judge is not required to accept or 

adopt an agreement made by parents regarding child support if the 

amount of child support is in dispute. Alexander v. Alexander, 

12 Va. App. 691, 695, 406 S.E.2d 666, 668 (1991). Implicitly, we 

recognized that nothing in Code § 20-109 encompasses matters of 

child support. 

 [I]f the amount of child support is in 

dispute, in spite of a prior agreement, the 

trial court must address "the issue of 

determining child support." Code § 20-108.1. 

 Consequently, it must do so in accord with 

Code §§ 20-108.1 and 20-108.2 and must, 

therefore, first determine the presumptive 

amount of child support in accordance with 

Code § 20-108.2. 

 Once the presumptive amount is determined, 

the trial court may deviate from the 

presumptive amount if such deviation is 

justified by factors recognized in Code 

 §§ 20-108.1 and 20-107.2. These factors 

may be reflected in provisions in the 

separation agreement which may, therefore, be 

the basis for deviating from the guidelines. 

Id. at 695-96, 404 S.E.2d at 668. 
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 When the trial judge was faced with the dispute in this case 

concerning child support, the trial judge ruled that the 

presumptive statutory amount of child support should be awarded. 

 In so deciding, the trial judge implicitly declined to follow 

the agreement that the parties reached regarding child support. 

However, the final decree affirmed, ratified, and incorporated by 

reference the entirety of the parties' agreement, which included 

the provision regarding child support. Those actions were 

inconsistent and erroneous. 

 If a property settlement agreement contains the parties' 

agreement regarding child support and the trial judge determines 

to exercise his or her statutory authority to set child support, 

the trial judge may ratify, affirm, and incorporate the 

agreement, except for the provisions concerning child support, if 

that result is consistent with the terms of the agreement. See

Code §§ 20-109 and 20-109.1. See also Watkinson v. Henley, 13 

Va. App. 151, 159, 409 S.E.2d 470, 474 (1991); Scott v. Scott, 12 

Va. App. 1245, 1248, 408 S.E.2d 579, 581 (1991). If the trial 

judge had not affirmed, ratified, and incorporated by reference 

the child support provision of the agreement in this case, the 

husband would have retained the right to assert his defenses to 

the obligations to pay the child's college expenses and the 

health benefits beyond age eighteen. He could have asserted 

those defenses whenever the wife or child may have brought a 

separate suit to enforce those obligations. See Buchanan v. 
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Buchanan, 174 Va. 255, 273, 6 S.E.2d 612, 619 (1940) (a suit for 

specific performance may be brought to enforce child support 

obligations contained in a property settlement agreement). See

also Chattin v. Chattin, 245 Va. 302, 307, 427 S.E.2d 347, 350 

(1993) (As a defense to a suit for specific performance, a party 

may plead "enforcement would be inequitable[,] . . . fraud, 

misapprehension, or mistake"); Andrews v. Sams, 233 Va. 55, 59, 

353 S.E.2d 735, 738 (1987) (a substantial failure of 

consideration could give rise to a contract defense); Wells v. 

Weston, 229 Va. 72, 77-78, 326 S.E.2d 672, 675-76 (1985) (In a 

suit for specific performance of a property settlement agreement, 

the parties to the contract may assert defenses of fraud and 

voidness for lack of mutuality). In light of the alternative 

available to the trial judge and the clear intent of the parties, 

the trial judge's decision to affirm, ratify, and incorporate by 

reference a portion of the child support provision of the 

agreement was plainly wrong. 

 The trial judge's own findings reflect his concerns about 

the agreement. In view of his express reservation regarding the 

agreement, the decision to incorporate by reference a portion of 

the child support provisions of the agreement was unreasonable 

and an abuse of discretion. See Conway v. Conway, 10 Va. App. 

653, 659, 395 S.E.2d 464, 467 (1990).1

 Where, as in this case, 

 

 1Although the final decree is silent as to the effect of 

affirming, ratifying, and incorporating this particular agreement, 

we note that the precise language of the parties' agreement states 

that "[t]he parties agree to file this agreement with the 
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the parties negotiate benefits for the child that exceed the 

benefits a trial judge may statutorily award and expressly state 

that the benefits are conferred in consideration for a reduction 

in the monthly support payment, if the trial judge decides to 

disregard the agreement and proceed under the judge's statutory 

authority to make an award for child support, the child support 

provision of the agreement may not be incorporated by reference 

into the final decree. The trial judge is required to follow the 

agreement or the statutes, but not both. 

 III. 

 The trial judge made no findings concerning the need to 

disregard the parties' agreement regarding child support. No 

evidence proved that the child's current circumstances were such 

that he needed greater support than provided in the agreement or 

pleadings in the case and request the court, pursuant to Section 

20-109.1 of the Code of Virginia, 1950, as amended, to affirm, 

ratify and incorporate by reference but not merge the provisions 

of this agreement and any qualified modification into any final 

decree of divorce which may be entered by the court." 

 Code § 20-109 prohibits the trial judge from entering a 

decree in a divorce suit except in accordance with a property 

settlement agreement signed by the parties. Since the agreement 

provides that if it is affirmed, ratified, and incorporated in the 

final decree it shall not be merged in the final decree, the final 

order must be read to give effect to that agreement. "'Where the 

circumstances are such that the agreement, although incorporated 

or approved in the decree, is not merged therein, the parties may 

enforce it by suing on the agreement rather than on the 

judgment.'" Doherty v. Doherty, 9 Va. App. 97, 99-100, 383 S.E.2d 

759, 760 (1989) (quoting 24 Am. Jur. 2d Divorce and Separation § 

858 (1983)). See also McNelis v. Bruce, 367 P.2d 625, 631-32 

(Ariz. 1961) (property settlement agreement which provided that 

the agreement be incorporated by reference but not be merged in 

the decree did not merge in the final decree). 
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that the child's current circumstances outweighed the advantages 

of the future benefits that were available to the child under the 

agreement. In Watkinson, this Court held as follows: 

 We hold that where parents have agreed upon 

an amount, or agreed upon other provisions, 

for the support and maintenance of a child, 

the trial [judge] must consider the 

provisions of the agreement, that relate to 

the factors in Code §§ 20-107.2 and 20-108.1, 

in deciding whether the presumptive amount 

would be unjust or inappropriate in a 

particular case. In so doing, the trial 

[judge] must consider whether the agreed 

provisions for the child would better serve 

the interest or "equities" for the parents 

and children. Code § 20-107.2(2)(h). The 

best interest of the child or children is the 

paramount and guiding principle in setting 

child support, whether it be adopting the 

presumptive amount, calculating an alternate 

sum after the presumptive amount has been 

rebutted, ordering the amount agreed upon 

between the parents, or approving, ratifying 

and incorporating, in whole or in part, the 

child support provisions of a contract. 

Furthermore, we hold that if the trial 

[judge] finds that the presumptive amount is 

unjust or inappropriate because the 

provisions in a separation agreement serve 

the best interest of the child, the [judge] 

may vary from the guidelines by ordering 

support be paid in an amount equal to the 

benefits provided for in the contract. 

Alternately, the [judge] may, rather than 

judicially set support, elect to affirm, 

ratify and incorporate by reference the 

agreement between the parties, or any 

provisions thereof, concerning the 

maintenance and support of the minor 

children, or establish or impose any other 

condition or consideration, monetary or 

nonmonetary. 

13 Va. App. at 158-59, 409 S.E.2d at 474 (citations omitted). 

 The record contains no indication that the trial judge 
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addressed the entire package of benefits in the agreement 

available to the child or compared the two situations to decide 

which was in the best interest of the child. As this Court 

observed in discussing this precise issue: 

 [T]he greater amount of periodic support will 

[not] necessarily be in the child's best 

interest. For example, the agreement may 

provide for a lesser amount of support than 

presumptively payable under Code § 20-107.2, 

but the contract may provide for support 

beyond the age of the child's majority or 

contain provisions for education which would 

render the agreement more beneficial to the 

children. Under these circumstances, the 

trial [judge] may well be justified in 

approving, ratifying, affirming and 

incorporating the contract and child support 

provision without entering an order for the 

presumptive amount under Code § 20-108.2 as 

long as written reasons are given for the 

deviation. 

Scott, 12 Va. App. at 1250, 408 S.E.2d at 582. Accordingly, we 

reverse the decision and remand for reconsideration. 

 IV. 

 The record supports the trial judge's order that the husband 

pay to the wife $16,800 to satisfy an outstanding spousal support 

obligation. The evidence proved that this amount represented the 

husband's unpaid obligation under the agreement. The parties' 

agreement imposed on husband the obligation to pay wife $2,800 

per month in spousal support. Because the evidence proved that 

the husband failed to make these payments from January through 

June 1994, the trial judge's order regarding spousal support was 

not plainly wrong or without evidence to support it. Lyle v. 
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Eskridge, 14 Va. App. 874, 876, 419 S.E.2d 863, 864 (1992). 

 V. 

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

trial [judge'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) (citing Ingram v. Ingram, 217 Va. 

27, 29, 225 S.E.2d 362, 364 (1976)). In pertinent part, 

provision eight of the agreement states: 

 Husband and Wife shall each pay his or 

her own attorney's fees incurred in the 

review of this agreement and for any suit for 

divorce that may be filed between them. The 

parties further agree that in the event 

either party defaults under the provisions of 

this agreement, the defaulting party shall be 

liable for all reasonable expenses incurred 

by the non-defaulting party in connection 

with the enforcement of this agreement, 

including but not limited to legal fees and 

costs. 

(Emphasis added). "[T]aking into account what the [trial judge] 

believe[d] to be the portion of that fee that is properly related 

to two hearings," the trial judge ordered husband to pay to the 

wife $1,000 for her attorney's fees. This award was not 

unreasonable. The evidence established that the husband failed 

to make the spousal support payments pursuant to the schedule 

stated in the agreement. When the wife sought payment, the 

husband attempted to invalidate the agreement on the ground of 

unconscionability. Moreover, the trial judge heard evidence 

concerning the amount of fees the wife would have expended had 

the agreement not been contested. Therefore, we hold that the 
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$1,000 attorney fee award at which the trial judge arrived was 

not an abuse of discretion under the circumstances. 

 For the foregoing reasons, we affirm, in part, and reverse, 

in part, the final order accompanying the decree of divorce, and 

we remand for proceedings consistent with our holding. 

 Affirmed, in part, reversed,

in part, and remanded. 
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Elder, J., concurring in part, dissenting in part. 

 I concur in Sections IV and V of the majority opinion 

regarding outstanding spousal support and attorney fees. 

However, I believe that the trial court did not abuse its 

discretion by incorporating the entire property settlement into 

the final order; for this reason, I respectfully dissent from 

Sections II and III of the majority opinion. 

 The majority fails to give proper deference to the familiar 

principle of appellate review, which dictates that "we review the 

evidence in the light most favorable to . . . the prevailing 

party below. . . . The judgment of a trial court sitting in 

equity, when based on evidence heard ore tenus, will not be 

disturbed on appeal unless plainly wrong or without evidence to 

support it." Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 

232, 237 (1988) (citations omitted). "The language of Code 

§ 20-109.1 gives the trial court discretion in determining 

whether a property settlement agreement should be incorporated by 

reference into a final decree of divorce. Absent an abuse of 

discretion, the trial court's decision must be upheld on appeal." 

Forrest v. Forrest, 3 Va. App. 236, 239, 349 S.E.2d 157, 159 

(1986). 

 As an initial matter, I address husband's contention that 

the agreement was unenforceable due to its oral modification, 

changed circumstances, or unconscionability. I conclude that the 

trial court did not err in finding that the agreement was 
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enforceable. The applicable law states: 

"[M]arital property settlements entered into by 

competent parties upon valid consideration for lawful 

purposes are favored in the law and such will be 

enforced unless their illegality is clear and certain." 

Cooley v. Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52 

(1980) (citation omitted); Derby v. Derby, 8 Va. App. 

19, 25, 378 S.E.2d 74, 77 (1989). Therefore, in this 

case, [husband] "had the burden at trial to prove by 

clear and convincing evidence the grounds alleged to 

void or rescind the agreement." Drewry v. Drewry, 8 

Va. App. 460, 463, 383 S.E.2d 12, 12 (1989). 

Webb v. Webb, 16 Va. App. 486, 491, 431 S.E.2d 55, 59 (1993). 

 According to the agreement's terms, neither party could 

modify the agreement unless in writing, even in the event of 

changed circumstances. In this case, there was no written 

modification. Additionally, there is no evidence to support 

husband's allegation that the agreement was unconscionable. 

Instead, ample evidence supports the trial court's finding that 

the agreement was fair and equitable at the time it was entered 

into by the parties. Finally, husband did not allege any of the 

other grounds necessary for a recision or modification of the 

agreement.2

 Next, addressing the central issue in this case, I would 

hold that the trial court did not err in incorporating every 

provision of the agreement, even after ordering husband to pay 

child support pursuant to the presumptive statutory guidelines. 

 

 2See Derby, 8 Va. App. at 26, 378 S.E.2d at 77 (examining 

agreement for unconscionability, fraud, or duress); Frey v. Frey, 

14 Va. App. 270, 273, 416 S.E.2d 40, 42 (1992) (examining 

agreement for potential ambiguity). 
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I commence this "analysis with the general principle that the 

jurisdiction of a divorce court to provide for child support is 

statutory. Code § 20-107.2. . . . Divorcing parents cannot by 

agreement divest a divorce court of its jurisdiction to award 

child support." Scott v. Scott, 12 Va. App. 1245, 1247, 408 

S.E.2d 579, 581 (1991). 

[W]here parents have agreed upon an amount . . . for 

the support and maintenance of a child, the trial court 

must consider the provisions of the agreement, that 

relate to the factors in Code §§ 20-107.2 and 20-108.1, 

in deciding whether the presumptive amount would be 

unjust or inappropriate in a particular case. In so 

doing, the trial court must consider whether the agreed 

provisions for the child would better serve the 

interest or "equities" for the parents and children. 

Code § 20-107.2(2)(h). 

Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 474 

(1991). See also Scott, 12 Va. App. at 1248, 408 S.E.2d at 581. 

 In this case, the trial court followed Scott's principles. 

The trial court (1) determined the presumptive amount of child 

support in accordance with the terms of Code § 20-108.2; and (2) 

decided not to deviate from the presumptive amount in light of 

the pertinent facts and circumstances.3

 Contrary to the 

majority's assertion, the record does contain an indication that 

the trial court compared the package of benefits the minor child 

would receive under the agreement with what he would receive 

 

 3

The trial court specifically stated in its order that 

it considered "all of the factors under Sections 20-108.1 

and 20-108.2" and found that "circumstances would justify 

application of the presumptive guidelines set forth in 

Section 20-108.2 . . . ." 
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under the statutory guidelines. The trial court heard evidence 

regarding changes in the parties' financial circumstances after 

the agreement's execution and their current respective abilities 

to provide for the minor child's current needs. First, evidence 

showed that husband had discontinued his monthly spousal support 

payments to wife in January 1994, which significantly decreased 

her ability to support the minor child. See Turner v. Turner, 

213 Va. 42, 43, 189 S.E.2d 361, 363 (1972) (discussing the legal 

duty of a spouse to support children according to "the station in 

life to which he has accustomed them"). Second, husband had been 

relieved of his obligation to pay for one-half of the mortgage on 

the marital home, which represented a savings of approximately 

$700 per month. Third, husband's salary had increased to 

approximately $117,000 per year, a greater income than when he 

entered into the agreement. Furthermore, while husband was 

ordered to pay $773.93 more per month in child support than the 

agreement stated, this obligation presumably would have lasted 

for only twenty-four months.4

 Under the facts of this case, it 

was within the trial court's discretion to decline to eliminate 

the college and insurance provisions. 

 Considering all of these factors, among others, the trial 

 

 4The minor child was born on May 3, 1978, and will turn 

eighteen on May 3, 1996. The child will presumably graduate from 

high school in June 1996, one month after his eighteenth birthday. 

 Thus, the court's order obligated husband to pay $773.93 more per 

month from July 5, 1994 until approximately June 1996, for a total 

of twenty-four months. 
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court arrived at a support amount that satisfied the child's 

current needs and that was in the child's best interests--

considerations that the presumptive statutory guidelines are 

meant to reflect. See Williams v. Williams, 4 Va. App. 19, 25, 

354 S.E.2d 64, 67 (1987); Lee v. Lee, 3 Va. App. 631, 634, 352 

S.E.2d 534, 535-36 (1987). This support amount was not plainly 

wrong. 

 As the majority recognizes, a trial court may incorporate, 

"in whole or in part, the child support provisions of a 

contract," and it may incorporate "any provisions thereof." 

Watkinson, 13 Va. App. at 158-59, 409 S.E.2d at 474 (emphasis 

added). I believe that in this case, Section 2 of the agreement 

contained five provisions (sub-A through E), each one outlining a 

distinct element of the child support package (such as monthly 

payments, health insurance, and college expenses). See id. at 

159, 409 S.E.2d at 474 (stating that trial courts may incorporate 

an agreement or "provide specific support provisions, such as 

educational, insurance, and health care benefits . . . .") 

(emphasis added). Because the trial court had authority to 

incorporate any or all of the provisions of the agreement, it was 

not obliged to strike all of Section 2 merely because it did not 

follow provision sub-A (monthly support payments), nor was it 

error to have declined to view provision sub-A and provisions 

sub-C and D as mutually dependent.5 Therefore, I do not agree 

 

 5If husband wished for the insurance and college tuition 

provisions (sub-C and D) to be invalidated if and when he was 
- 21 - 

 

with the majority that the trial court adopted a remedy that 

exceeded its statutory authority, nor do I agree that the trial 

court "was required to follow the agreement or the statutes, but 

not both." 

 For the foregoing reasons I concur in part and dissent in 

part. 

ordered to pay a greater amount of monthly child support, the 

agreement itself should have been drafted to specifically provide 

for this scenario.