COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Petty and McCullough Argued at Alexandria, Virginia

STEPHEN D. SLYE MEMORANDUM OPINION  BY v. Record No. 1312-13-4 JUDGE WILLIAM G. PETTY FEBRUARY 4, 2014 SUSAN K. SLYE

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Robert J. Smith, Judge Jennifer L. McCammon (David R. Clarke; Blankingship & Keith, P.C., on briefs), for appellant. Benton S. Duffett III (Grenadi er, Anderson, Star ace, Duffett & Keisler, P.C., on brie f), for appellee.
Stephen D. Slye (“husband”) appeals from the circuit court’s denial of his petition for a modification of his spousal support obligation to Su san K. Slye (“wife”). Husband presents two assignments of error on appeal: (1) the circuit court erred in denying a modification of lifetime spousal support when the court’s decision wa s based on all factors under Code § 20-107.1(E) rather than the current financia l circumstances of the parties; and (2) the circuit court had no authority to award attorney ’s fees to wife. For the reasons st ated below, we affirm the ruling of the circuit court on the first assi gnment of error and re verse on the second assignment of error.
I. Because the parties are fully conversant w ith the record in this case and this memorandum opinion carries no precedential valu e, we recite below only those facts and incidents of the proceedings as are necessary to the parties’ understandin g of the disposition of

 Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - this appeal. “On appeal, we view the evidence in the light most favorable to . . . the party prevailing below, ‘and grant all reasonable infere nces fairly deducible therefrom.’” Johnson v. Johnson, 56 Va. App. 511, 513-14, 694 S.E.2d 797, 799 (2010) (quoting Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999)).
II. Spousal Support Husband argues that the circuit court erred in denying a modification of spousal support. Specifically, husband argues that the circuit cour t erred in considering the factors under Code § 20-107.1(E), instead of considering only the curre nt financial circumstances of the parties. 1 We disagree. “Upon petition of either party, a court may . . . [modify] . . . spousal support . . . as the circumstances may make proper.” Code § 20-109. In order to modify a prior support order, the moving party is “required to prove both a material change in circumstance s and that this change warrants a modification of s upport.” Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989). The material change in circ umstances must have o ccurred after the most recent judicial review of the award, see Hiner v. Hadeed, 15 Va. App. 575, 577, 425 S.E.2d 811, 812 (1993), and “must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay,” Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988). “The crucial question, once a material ch ange in circumstances has been shown, is the ‘ability of the supporting spouse to pay.’” Driscoll v. Hunter, 59 Va. App. 22, 33, 716 S.E.2d 477, 482 (2011) (quoting Moreno v. More no, 24 Va. App. 190, 195, 480 S.E.2d 792, 795

1 At the modification hearing, husband told the circuit court that it n eeded to consider the Code § 20-107.1(E) factors in determining whet her to modify the spousal support award. Husband later submitted a motion for reconsider ation which clarified his position that it was error to consider the factors.- 3 - (1997)). Moreover, “[t]he determination whether a spouse is entitled to [a reduction or increase in spousal] support, and if so how much, is a matt er within the discretion of the [trial] court,” Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986), and we will not disturb the trial court’s decision “unless it is plainly wrong or without evidence in the record to support it,” Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1999) (internal quotations omitted). The text of Code § 20-109 doe s not prohibit the court from considering the factors listed in Code § 20-107.1(E). The statut e broadly mentions that the c ourt may modify spousal support “as the circumstances may ma ke proper.” Code § 20-109. Moreover, there is no case law that states it is error for a circuit court to consider the Code § 20-107.1(E) factors in determining whethe r to modify a spousal support award. Husband relies on our unpublished decision in Allis on v. Allison, No. 1516-95-4, 1996 Va. App. LEXIS 271 (Va. Ct. App. Apr. 16, 1996), to support his ar gument. Husband’s reliance is misplaced. Notwithstanding the fact that Allison is an unpublis hed opinion, we stated in Allison that “[t]he consideration of all of the factors in Code § 20-107.1 is not required when a judge rules upon a motion to reduce the award under Code § 20-109.” Id. at *2 (emphasis added). We did not say that it is error for a tr ial court to consider th e factors in Code § 20-107.1. Here, the circuit court found that there was a material change in circumstances because of the decrease in husband’s income. However, af ter reviewing the Code § 20-107.1 factors, the circuit court stated that husband was able to travel extensively both in the United States and abroad and that he recently made a $400,000 down pa yment on a house. It further found that he increased his net income by refinancing the mortgage from fifteen years to thirty years. Thus, while the trial court found that husband’s income was reduced, it concluded that the reduction of income did not warrant a modification of the s pousal support award because husband, at the time of the hearing, still had the ability to pay the award. This decision rested within the discretion of- 4 - the circuit court. After review ing the record, we cannot say that the circuit court abused its discretion in reaching this decision. Attorney’s Fees Husband next argues that the circuit court e rred in awarding wife attorney’s fees because they were not specifically authorized in the par ties’ marital settlement agreement. We agree. This issue is controlled by our decisi on in Rutledge v. Rutledge, 45 Va. App. 56, 608 S.E.2d 504 (2005). In Rutledge, the wife filed a motion for modification of her spousal support award. Id. at 58, 608 S.E.2d at 505. The trial co urt granted the wife’s motion and awarded her attorney’s fees. Id. at 58-59, 608 S.E.2d at 505. The husband filed a motion to reconsider the award of attorney’s fees, and the trial court gr anted his motion. Id. at 60, 608 S.E.2d at 506. The wife appealed to this Court. We analyzed th e property settlement agreement and found that “no ‘terms’ of the agreement provid[ed] for attorney’s fees in the instance of either party seeking a modification of spousal support.” Id. at 64, 608 S.E.2d at 508. Accordingly, we held, “Because Code § 20-109(C) restricts the tria l judge’s jurisdiction such that he could enter ‘no decree or order directing the payment of . . . counsel fees . . . except in accordance with that . . . contract,’ we hold that the trial judge did not err in refusing to award to the wife her a ttorney’s fees.” Id. at 64, 608 S.E.2d at 509. Here, the parties’ property settlement ag reement expressly provides for an award of attorney’s fees in some instances but did not do so for spousal support modification proceedings:
10. ENFORCEMENT OF THE AGREEMENT Any reasonably necessary expense including, but not limited to, attorney’s fees, court costs and tr avel expenses incurred by a party in the successful enforcement of any of the provisions of this Agreement, whether through litigatio n or other action necessary to compel compliance, shall be borne by the defaulting party against whom such enforcement was obtai ned. Any such cost(s) incurred by a party in the successful defe nse to any action for enforcement- 5 - of such provision(s) shall be borne by the party seeking unsuccessfully to enforce compliance. This provision provides for an award of attorn ey’s fees in the event that either party defaults in the performance of any provision of the agreement or either party successfully defends an action to enforce compliance with a pr ovision of the agreement. This case does not concern either scenario. None of the provisions of the prope rty settlement agreement address a post-divorce modification proceeding. Therefore, we hold that the award of attorney’s fees against husband was contrary to the language of th e property settlement agreement. See 9 Peter N. Swisher, Lawrence D. Diehl & James R. Cottr ell, Family Law: Theory, Practice, and Forms § 9:21, at 390 (2013 ed.) (“[W]here the parties ha ve entered into a written property separation agreement and no provision for the award of attorn ey’s fees is provided as to future spousal support obligations arising out of the agreement’ s support terms, the court has no authority to award attorney’s fees in such a modification pr oceeding. This is based upon the limits of the court where the terms of an agreem ent are filed with the court, or incorporated in the final decree based upon § 20-109(A) and (C).”). Accordingly, the trial court erred in awarding attorney’s fees to wife.
III. For the foregoing reasons, we affirm the ci rcuit court’s decision on the modification of the spousal support award, and we reverse the circuit court’s deci sion granting wife attorney’s fees. Affirmed in part, and reversed in part.