COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

JAMES D. STRICKLAND, JR. 

 MEMORANDUM OPINION*

v. Record No. 0865-99-1 PER CURIAM 

 OCTOBER 5, 1999 

PAULA J. STRICKLAND 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

H. Thomas Padrick, Jr., Judge 

 (Richard H. Doummar; Henry E. Howell, III; 

Doummar & Howell, L.L.P., on brief), for 

appellant. 

 (Constantine A. Spanoulis, on brief), for 

appellee. 

 James D. Strickland, Jr., (husband) appeals the decision of 

the circuit court granting the motion to show cause filed by 

Paula J. Strickland (wife). Wife sought to recover spousal 

support arrearages accrued since 1995. Husband raises four 

arguments on appeal: (1) wife waived her right to spousal support 

in the letter memorandum she signed in 1995; (2) wife was 

equitably estopped from seeking accrued spousal support by 

husband's reliance on the signed memorandum; (3) the letter 

memorandum memorialized an oral agreement between husband and 

wife; and (4) the oral contract was a binding contract enforceable 

against wife. Upon reviewing the record and briefs of the 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the decision of the trial court. 

See Rule 5A:27. 

 The evidence was received during a hearing before the trial 

court. "The judgment of a trial court sitting in equity, when 

based upon an ore tenus hearing, will not be disturbed on appeal 

unless plainly wrong or without evidence to support it." Box v. 

Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986). 

Certain facts were uncontested. The parties were divorced by 

final decree entered August 13, 1989. Under paragraph 5(h) of 

the divorce decree, wife was awarded "fifty per cent (50%) of 

the [husband's] disposable retirement income, which is now 

vested . . . . Said sum is subject to increase or decrease in 

the future, as the case may be, but percentage to be received by 

the [wife] is constant at fifty." Under paragraph 6, wife was 

awarded $375 in monthly spousal support. On June 29, 1995, 

husband filed a motion to terminate spousal support. The 

parties discussed husband's proposal that wife waive spousal 

support. As found by the trial court, the parties agreed that 

any agreement reached "was to be filed with the Court for entry 

of an Order modifying the decree." Husband sent a signed 

memorandum to wife, setting out his understanding of the agreed 

upon terms. Wife modified the written memorandum by adding an 

additional sentence clarifying her understanding of the 

agreement, then signed the memorandum and returned it to 

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husband. Husband called the trial court and indicated that the 

matter was resolved. The trial court dismissed husband's 

motion. The memorandum was never filed with the court, and no 

order was ever issued modifying the final decree of divorce. 

Husband never signed the memorandum after wife made her 

handwritten modifications. 

 The trial court found that 

the writing in controversy does not 

constitute a legally binding contract. The 

prospective agreement lacked mutual assent 

and consideration. Based upon the 

undisputed facts, the Court construes 

[husband's] proposed agreement as an offer 

which [wife] rejected, by interlineating a 

modification and amendment, creating a 

counter offer, which counter offer [husband] 

rejected by not signing subsequent thereto 

and by refusing to let the amended writing 

be entered as an Order of the Court as both 

parties understood as being required and 

intended to be done. 

Waiver

 Husband contends that wife waived her right to spousal 

support. We find no merit in this contention. 

No support order may be retroactively 

modified. Past due support installments 

become vested as they accrue and are 

thereafter immune from change. Parties 

cannot contractually modify the terms of a 

support order without the court's approval. 

Nor does a party's passive acquiescence in 

nonpayment of support operate to bar that 

party from later seeking support arrearages. 

Should circumstances change requiring 

alteration in the amount of support, a 

party's remedy is to apply to the court for 

relief. 

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Goodpasture v. Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845, 

847 (1988) (citations omitted). "[J]ust as a party cannot by 

contract or acquiescence modify the terms of a support order, a 

party cannot by waiver modify the terms of a support order." 

Id. at 58, 371 S.E.2d at 847. The parties never reached a 

binding contractual agreement to modify the existing decree. 

Wife's written modification of husband's memorandum did not 

affect her rights under the existing, unmodified, support order. 

 Husband cites Bethell v. Bethell, 597 S.W.2d 576 (Ark. 

1980), in support of his contention that wife waived spousal 

support. We find Bethell neither applicable nor persuasive. 

Bethell concerned a father's payment of private school tuition 

in lieu of spousal support pursuant to the parties' agreement. 

That case arose under significantly different facts and was 

based upon the premise that spousal support may be waived by 

acquiescence or inference. That is not the law in Virginia. 

See Goodpasture, 7 Va. App. at 58, 371 S.E.2d at 847. We also 

reject husband's reliance upon Acree v. Acree, 2 Va. App. 151, 

342 S.E.2d 68 (1986). In Acree, a mother sought a child support 

arrearage attributable to one child under an existing order 

despite the fact that the father had assumed full custody of the 

child until her majority. The father was allowed credit for a 

portion of the arrearage due to his full support of the child 

during the intervening years pursuant to the parties' agreement 

to permanently switch custody. The Acree Court expressly 

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limited its decision to the unique circumstances. See id. at 

157-58, 342 S.E.2d at 71-72. Here, husband was obligated by the 

final decree to pay $375 in monthly spousal support and to 

ensure wife received an unreduced fifty percent of his monthly 

retirement pay. The facts do not support a finding that husband 

was entitled to a credit for other payments made to wife 

sufficient to cover both these obligations. 

 Husband contends that wife received consideration through 

the agreement to forego litigation. It is true that an 

agreement to forego a claim can be consideration for a contract. 

See Troyer v. Troyer, 231 Va. 90, 93-94, 341 S.E.2d 182, 185 

(1986). Here, however, the trial court found that "the writing 

only sought to grant [wife] what she was already entitled . . . 

and contained no affirmative act of forbearance by [husband] 

which conferred a benefit on [wife]." In light of the fact that 

the parties failed to reach an agreement, we need not further 

consider whether there was adequate consideration to support an 

agreement. 

Equitable Estoppel

 Husband also argues that wife is equitably estopped from 

seeking spousal support. "'The elements necessary to establish 

equitable estoppel are (1) a representation, (2) reliance, (3) 

change of position, and (4) detriment, and the party who relies 

upon estoppel must prove each element by clear, precise, and 

unequivocal evidence.'" Webb v. Webb, 16 Va. App. 486, 494-95, 

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431 S.E.2d 55, 61 (1993) (citation omitted). The trial court 

found that husband failed to prove the elements of equitable 

estoppel. We agree. Wife did not make any representations upon 

which husband relied. He did not change his position due to a 

representation by wife. He resigned from his employment prior 

to any discussion with wife regarding spousal support. Although 

the parties recognized that any modification of their decree had 

to be entered as an order to be effective, husband neither 

executed the modified memorandum nor forwarded it to the court. 

Instead, he merely contacted the court to dismiss his motion to 

terminate spousal support. Therefore, we find no merit in 

husband's assertion that wife was equitably estopped from 

seeking the spousal support arrearage. 

Binding Oral Agreement

 Finally, husband contends that the written memorandum 

memorialized the parties' oral agreement and that the oral 

agreement was binding and enforceable. These contentions also 

lack merit. "Mutual assent by the parties to the terms of a 

contract is crucial to the contract's validity." Wells v. 

Weston, 229 Va. 72, 78, 326 S.E.2d 672, 676 (1985). "To be 

valid and enforceable, the terms of an oral agreement must be 

reasonably certain, definite, and complete to enable the parties 

and the courts to give the agreement exact meaning." Richardson 

v. Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688, 690 (1990). 

"The proponent of [an] oral contract has the burden of proving 

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all elements" of the contract. Id. at 396, 392 S.E.2d at 690 

(citation omitted). The trial court found no indication that 

the parties had reached an oral agreement. Husband's written 

memorandum was modified by wife, and no evidence supported a 

finding that husband accepted the changes. Husband never 

presented the modified agreement to the court, despite the fact 

that both parties acknowledged it was necessary to have a new 

order entered to modify the terms of their final decree of 

divorce. The evidence supports the conclusion of the trial 

court that no enforceable oral agreement was reached. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.

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