COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

RICHARD KENNETH WHEELER 

 MEMORANDUM OPINION* BY 

v. Record No. 0820-97-2 JUDGE MARVIN F. COLE 

 MARCH 24, 1998 

FAYE POND WHEELER 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 Richard P. Kruegler (Durrette, Irvin & 

Bradshaw, on briefs), for appellant. 

 William F. Etherington (Beale, Balfour, 

Davidson & Etherington, P.C., on brief), for 

appellee. 

 Richard Kenneth Wheeler (husband) appeals the decision of 

the circuit court ordering him to continue to pay Faye Pond 

Wheeler (wife) monthly spousal support of $2,000. Husband 

contends that the trial court erred in: (1) deciding issues 

previously ruled upon by the circuit court and this Court; (2) 

interpreting the parties' written and oral agreements; (3) 

holding that wife was entitled to monthly spousal support of 

$2,000 from February 1988 until the parties negotiated otherwise; 

and (4) awarding husband only a portion of his attorney's fees. 

We find that the trial court did not rule on previously decided 

issues. We also find that the trial court erred in concluding 

that the parties' 1988 oral agreement that husband would pay wife 

 

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

designated for publication. 
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$2,000 per month in spousal support modified their written 

agreement. We further find that, under the parties' written 

agreement, spousal support payments ceased when husband reached 

age sixty and no longer received his draw from his former law 

firm, subject to renegotiation. We affirm the court's award of 

attorney's fees to husband. 

Background

 Husband and wife were divorced in 1984. The final decree 

incorporated the parties' property settlement agreement. In 

pertinent part, the agreement provided as follows: 

 3. PERIODIC SPOUSAL SUPPORT

 Husband shall pay to Wife annually 

$42,000.00 per year so long as they shall 

both live and she shall remain unmarried, by 

paying $3,500.00 on the first day of each 

month commencing with the month of February, 

1984. However, Husband shall pay initially 

to Wife $3,225.00 as periodic support. 

 If Husband's draw, which is now 

$9,000.00 per month is increased, he shall 

pay to Wife 25% of such increase . . . . 

 If there is a reduction in Husband's 

draw, not due to his voluntary act, choice or 

decision, the periodic spousal support shall 

be proportionately reduced . . . . 

 Upon Husband attaining the age of Sixty 

(60) years and retiring from his professional 

practice or employment, if spousal support 

has not been terminated earlier by force of 

the other provisions of this Agreement, the 

parties will negotiate in good faith, based 

upon the circumstances and conditions at the 

time, to fix the amount of spousal support 

the Wife is entitled to, if any. 

 Husband paid wife monthly spousal support pursuant to the 
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agreement until January 1988, when his monthly draw from his law 

firm was reduced from $10,417 to $4,000. Husband agreed to pay 

spousal support of $2,000 a month, although he contended that he 

was required to pay approximately $700 per month pursuant to the 

formula set out in their written agreement. By petition filed in 

1992, wife sought to recover a support arrearage. In December 

1992, the trial court ruled in its opinion letter that wife was 

estopped from seeking an arrearage. The court also ruled that 

the term "draw" used by the parties in their agreement referred 

only to husband's draw from his employment with Hunton & Williams 

and did not refer to all income he earned as an attorney. The 

trial court also awarded husband his attorney's fees and costs. 

After the court issued its letter ruling in December 1992, 

husband reduced his monthly spousal support payments to $700 

pursuant to his interpretation of the formula set out in the 

parties' agreement. The final order was entered in March 1993. 

 Wife appealed the circuit court's March 1993 order, which 

was affirmed by this Court. See Wheeler v. Wheeler, Record No. 

0722-93-2 (Va. Ct. App. July 5, 1994). Neither party appealed 

this Court's decision. No appellate attorney's fees were awarded 

to husband. 

 Following remand, husband filed a motion seeking attorney's 

fees and costs. In a December 1994 hearing, the trial court 

indicated orally that it would not rule on the wife's allegation 

of spousal support arrearage because wife had not properly 
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presented the matter to the court. In January 1995, wife filed a 

petition seeking an arrearage of $1,300 because of husband's 

unilateral reduction of support payments to $700 per month in 

January 1993. The matter was heard by a different trial judge 

because the first trial judge had died in the interim. Based 

upon oral argument, the record, and transcripts of the previous 

hearings, the judge found that husband was obligated to pay wife 

$2,000 in monthly spousal support from the time of the oral 

modification in February 1988 until the amount was renegotiated; 

that there was insufficient evidence that wife agreed to forego 

litigation in exchange for a greater spousal support payment; and 

that husband was entitled to attorney's fees and costs incurred 

only through March 1993. Husband appeals. 

Previously Decided Issues

 As noted above, this matter was previously before the Court 

of Appeals on wife's appeal of the circuit court's March 15, 1993 

order. Neither party appealed this Court's decision affirming 

the circuit court's order. Under the doctrine of the law of the 

case, the parties are barred from relitigating matters 

necessarily decided in the prior appeal or which could have been 

appealed at that time but which were not. "'Where there have 

been two appeals in the same case, between the same parties and 

the facts are the same, nothing decided on the first appeal can 

be re-examined on a second appeal.'" Kaufman v. Kaufman, 12 Va. 

App. 1200, 1208, 409 S.E.2d 1, 6 (1991) (quoting Steinman v. 
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Clinchfield Coal Corp., 121 Va. 611, 620-21, 93 S.E. 684, 687 

(1917)). 

 As such, in accordance with the findings set out in our 

previous opinion, the parties are bound by our previous 

determination that "draw," as used in their written agreement, 

meant husband's monthly income from his former law firm of Hunton 

& Williams, and did not mean husband's overall salary from the 

practice of law. We also determined that wife was equitably 

estopped from recovering any alleged arrearage resulting from the 

reduction of support to $2,000 per month in 1988. 

 Husband contends that the parties' written agreement, as 

modified by their oral agreement, rested on an agreement to 

forego litigation, that wife breached that agreement in May 1992 

when she filed her petition seeking a support arrearage, and that 

the trial court so ruled in its March 15, 1993 order when it 

denied wife's petition to rehear. Nowhere in the record is there 

evidence to support husband's assertion that the trial judge 

ruled that wife's action to enforce the terms of the agreement 

breached an agreement to forego litigation. Although wife's 

agreement to forego litigation may explain husband's willingness 

to pay more than the support amount required under the parties' 

written agreement, the record does not demonstrate that the trial 

judge ruled in March 1993 that the parties agreed to forego 

litigation. 

 Moreover, no order but the one from which husband now 
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appeals addressed husband's January 1993 reduction of spousal 

support to $700 per month. "A court of record speaks only 

through its written orders," Hill v. Hill, 227 Va. 569, 578, 318 

S.E.2d 292, 297 (1984), and remarks made from the bench which are 

not subsequently reduced to a written order have no effect. 

Nevertheless, we note the following exchange between husband's 

counsel and the former trial judge in the December 6, 1994 

hearing: 

 [COUNSEL]: On the issue of arrearages, are 

you finding that it's the law of the case 

that none exists. 

 THE COURT: At the present time? 

 [COUNSEL]: Yes. 

 THE COURT: No, sir. I don't think he 

brought a suit properly for that ruling, and 

I'm not going to rule. 

 While the parties adjudicated the amount of spousal support 

due prior to May 1992 when wife was found to be equitably 

estopped from seeking an arrearage as of that date, the court did 

not decide whether the parties' agreement was breached by either 

wife's petition seeking an arrearage or husband's unilateral 

reduction in support to $700 per month. Therefore, husband has 

not demonstrated that the trial court erred by ruling on matters 

previously decided. 

Spousal Support Required under Parties' Agreement

 In our earlier decision, we determined that the parties' 

agreement defined their rights and obligations. However, we were 
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not called upon to interpret the parties' written agreement 

beyond the definition of "draw." In this appeal, however, the 

question is how the parties' oral agreement affected the other 

provisions concerning spousal support under their written 

agreement. 

 "Property settlement and support agreements are subject to 

the same rules of construction and interpretation applicable to 

contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180, 

355 S.E.2d 342, 346 (1987). "On appeal if 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 is a question of law which can readily be 

ascertained by this court." Id. "Since the interpretation of a 

contract is a question of law, we are not bound by the trial 

court's conclusions on this issue, and we are permitted the same 

opportunity as the trial court to consider the contract 

language." Garcia Enterprises, Inc. v. Enterprise Ford Tractor, 

Inc., 253 Va. 104, 107, 480 S.E.2d 497, 498-99 (1997). Parties 

may modify a written contract by parole agreement. See Warren v. 

Goodrich Strip & Screen Co., 133 Va. 366, 388-89, 112 S.E. 687, 

693-94 (1922). 

 The matter before us presents two questions: first, whether 

husband was barred from unilaterally reducing spousal support to 

$700 per month in January 1993, which was the level contemplated 

by the written terms of the agreement; and, second, whether he 
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was required to pay $2,000 per month in spousal support after he 

reached age sixty in July 1994 and no longer received his draw 

from his former law firm. 

 We find that husband was not barred from reducing his 

monthly spousal support payment to $700 according to the terms of 

the agreement. In her brief and at oral argument, wife admitted 

that she "acquiesced" in husband's proposal to pay her $2,000 per 

month. Indeed, her testimony in the record clearly established 

that she did. Mere acquiescence in accepting a lesser amount 

does not support the trial court's conclusion that the parties 

"mutually modified those portions of the Property Settlement 

Agreement dated January 24, 1984 which sought to set spousal 

support by means of a fixed formula." Acquiescence to payments 

in excess of that called for under the parties' agreement 

required no consideration on wife's part. The evidence does not 

support husband's assertion that wife agreed to forego litigation 

in exchange for the greater payment. However, nothing precludes 

husband from paying wife pursuant to the terms of the parties' 

agreement. According to the terms of the agreement, husband was 

required to pay $700 per month based upon his draw. Therefore, 

the trial court erred in finding that a spousal support arrearage 

began to accrue after January 1993. 

 We also find that the trial court erred in interpreting the 

parties' agreement to require spousal support payments after 

husband reached age sixty and no longer received his draw. In 
 9 

 

pertinent part, the parties' agreement provided as follows: 

 Upon Husband attaining the age of Sixty (60) 

years and retiring from his professional 

practice or employment, if spousal support 

has not been terminated earlier by force of 

the other provisions of this Agreement, the 

parties will negotiate in good faith, based 

upon the circumstances and conditions at the 

time, to fix the amount of spousal support 

the Wife is entitled to, if any. 

Under this provision, the original support obligation ran only 

through the time husband was under age sixty and still receiving 

his draw. Clearly, if husband was not receiving a monthly income 

from Hunton & Williams, wife's spousal support was eliminated by 

operation of the parties' agreement. The parties also 

contemplated the possibility that, notwithstanding the fact that 

support had not otherwise terminated, wife would no longer be 

entitled to spousal support after husband's retirement. The 

agreement clearly did not extend support payments at the previous 

level indefinitely. While husband agreed to pay support to wife 

"so long as they shall both live and she shall remain unmarried," 

the more specific provision required renegotiation in good faith, 

with the possible cessation of any support, after husband reached 

age sixty and retired.1

 As both these criteria have now 

occurred, husband's obligation to pay spousal support ended. 

 1We previously ruled that the spousal support payment was 

based upon husband's draw, not his employment as an attorney. 

Husband's draw ended in July 1994, the same month husband turned 

sixty. The fact that husband did not retire from the practice of 

law until October 1995 does not extend the time for which spousal 

support payments were required to be made. 
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Code § 20-109 is self-executing and no longer requires that a 

party obtain a decree terminating spousal support when the terms 

of the agreement explicitly provide for termination. Under the 

terms of the agreement, the parties are required to renegotiate 

the amount of spousal support to which wife is now entitled, if 

any, in light of their current "circumstances and conditions." 

In the event they do not agree, the issue of support shall be for 

the court to decide. 

Attorney's Fees

 The trial court awarded husband attorney's fees attributable 

to the first action. In the absence of a specific remand for the 

determination of attorney's fees, the trial court did not err in 

failing to award any fees attributable to the first appeal. See

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 691, 479 S.E.2d 98, 

98 (1996). On remand, the trial court may consider whether to 

award husband additional attorney's fees attributable to the 

proceedings in the trial court that occurred after the remand 

from this Court's prior decision. On remand, the trial judge 

shall also award husband reasonable fees for this appeal. 

Conclusion

 In summary, the circuit court's decision that husband was 

required to pay $2,000 in monthly spousal support to wife 

beginning in January 1993 is reversed and the matter remanded to 

the trial court for further proceedings consistent with this 

decision. The circuit court's award of attorney's fees is 
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affirmed. On remand, the circuit court may consider an 

additional award of attorney's fees to husband attributable to 

the proceedings before it and on appeal. 

 Affirmed in part, reversed in part, and remanded.