COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Lemons 

Argued at Richmond, Virginia 

DONALD BLAIR DeVORE 

 MEMORANDUM OPINION* BY 

v. Record No. 0552-98-2 JUDGE JAMES W. BENTON, JR. 

 FEBRUARY 2, 1999 

SUZANNE MARGARET BINDEMAN DeVORE 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 Deanna D. Cook (Bremner, Janus & Cook, on 

briefs), for appellant. 

 Robert C. Bode (Hooker, Bode, Collier, 

Dickinson & Gardner, on brief), for appellee. 

 Upon Donald Blair DeVore's motion to enforce a provision of 

a property settlement agreement, the trial judge conditionally 

relieved DeVore (the husband) of his obligation to pay spousal 

support to his former spouse, Suzanne Margaret Bindeman DeVore 

(the wife). On this appeal, the husband contends that the trial 

judge erred in not permanently terminating his spousal support 

obligation. We agree. 

 I. 

 The parties were divorced in 1990. The final decree 

"affirmed, ratified, and incorporated" by reference the parties' 

property settlement agreement that obligated the husband to pay 

spousal support pursuant to the following provision: 

 The husband shall pay to the wife for her 

support and maintenance the sum of $750.00 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
- 2 - 

per month, with such amount being payable 

$375.00 on the first day of each month and 

$375.00 on the 15th day of each month. These 

payments shall continue for twelve months 

from the date of June 1, 1989, until extended 

or terminated per provisions of this 

paragraph. 

 The husband and wife own a business known 

as Delicacies, Limited. Under other 

provisions of this Agreement, the husband 

conveys all of his right, title and interest 

in such business to the wife. If at the end 

of twelve months from the date of this 

Agreement the wife elects, at her sole 

option, not to place such business on the 

market for sale, the obligation of the 

husband to the wife to pay spousal support 

shall terminate permanently. If at the end 

of twelve months from the date of this 

Agreement the wife elects to place such 

business on the market for sale, the husband 

shall continue to pay $750.00 per month as 

set forth above for the support and 

maintenance of the wife until the wife has 

sold the business, obtained new employment 

and has received her first pay check from 

such employment, but such extension of the 

spousal support payments beyond the twelve 

months from the date of this Agreement shall 

be for an additional period not to exceed six 

months unless otherwise extended per the 

following paragraph. 

 If the wife elects to place the business 

on the market for sale and the wife is not 

able to obtain employment grossing $20,000.00 

a year annually or more following the above 

18-month period (12 months plus possible 

6-month extension), then the husband may be 

obligated to pay spousal support to the wife 

in an amount and if so ordered by an 

appropriate court; if the wife under such 

circumstances does obtain employment grossing 

her at least $20,000.00 a year, the husband 

shall then have no obligation to pay spousal 

support to the wife. 

 In addition to the above, the husband 

shall maintain reasonable and adequate 

medical and hospitalization insurance 
- 3 - 

coverage for the benefit of the wife so long 

as he is obligated to pay spousal support to 

the wife. 

 In 1997, the husband filed a motion to terminate his 

obligation to pay spousal support and alleged that the wife was 

earning a salary of $26,000 per year. The wife responded by 

filing a motion to increase the amount of spousal and child 

support, to hold the husband in contempt for breach of the 

agreement, to order reimbursement from the husband for money she 

spent for medical expenses on behalf of their child, and to have 

her attorney's fees and costs reimbursed. At the hearing on the 

husband's motion to terminate his obligation to pay spousal 

support, the trial judge ruled inadmissible the wife's evidence 

concerning her allegation that the husband breached the agreement 

in 1989 and 1992 when he failed to pay certain marital debts. 

The trial judge ruled that if the wife had a cause of action for 

breach of the agreement based upon the failure to pay the debts, 

that matter had to be addressed in a separate action. Following 

testimony by the husband and the wife, the trial judge entered an 

order finding, as pertinent to the issues on this appeal, that 

the wife's gross annual income exceeded $20,000 and ruled that 

the husband was "relieve[d] . . . of any obligation to pay 

spousal support so long as [the wife] earns $20,000 or more in 

gross annual income." 

 II. 

 The husband contends that the trial judge erred in not 
- 4 - 

permanently terminating his spousal support obligation. The wife 

contends that the trial judge correctly interpreted the agreement 

to allow a future reinstatement of spousal support. By 

cross-appeal, the wife further contends on brief that the trial 

judge erred (1) in refusing to hear evidence of the husband's 

breach of the agreement by failing to pay marital debts, (2) in 

terminating the spousal support payments, and (3) in not awarding 

her attorney's fees and costs. 

 III. 

 When a trial judge has "affirm[ed], ratif[ied] and 

incorporate[d] by reference in [the] . . . decree of divorce 

. . . any valid agreement between the parties . . . concerning 

the conditions of the maintenance of the parties," Code 

§ 20-109.1, the trial judge later may not enter a "decree or 

order directing the payment of support and maintenance for the 

spouse . . . except in accordance with that [agreement]." Code 

§ 20-109(C). 

 This provision of Code § 20-109 inhibits 

the power of the court to award or consider 

modification of the decree to the extent that 

spousal support and maintenance are provided 

for in the incorporated agreement of the 

parties. In such cases, the intent of the 

parties as expressed in the agreement 

controls, and the agreement is treated as a 

contract and construed in the same manner as 

all contracts. 

White v. White, ___ Va. ___, ___, ___ S.E.2d ___, ___ (January 8, 

1999) (citations omitted). 

 The trial judge determined that the agreement was 
- 5 - 

unambiguous and construed its terms. In their briefs, the 

parties agree that the agreement is not ambiguous. However, the 

parties disagree as to the meaning of the words in the agreement. 

See Douglas v. Hammett, 28 Va. App. 517, 523, 507 S.E.2d 98, 101 

(1998) (noting that although the parties may "advance different 

interpretations of the provisions of . . . [the] agreement, this 

'does not necessarily imply the existence of ambiguity where 

there otherwise is none'"). 

 In our review, "we are not bound by the trial [judge's] 

conclusions as to the construction of the disputed provisions." 

Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986). 

 "'The guiding light in the construction of a contract is the 

intention of the parties as expressed by them in the words they 

have used, and [we] are bound to say that the parties intended 

what the written instrument plainly declares.'" Wilson v. 

Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984) (citation 

omitted). 

 The trial judge determined that the parties intended to 

relieve the husband of the obligation to pay spousal support for 

only so long as the wife earns $20,000 or more in gross annual 

income. However, the agreement does not contain any language 

that suggests that the husband's obligation, once suspended, can 

be reinstated. The agreement provides that when "the wife under 

[the specified] circumstances does obtain employment grossing 

. . . at least $20,000 a year, the husband shall then have no 
- 6 - 

obligation to pay spousal support to the wife." Nothing in that 

provision or in any other provision of the agreement suggests 

that the husband must resume spousal support payments if the 

wife's annual income drops below $20,000 in the future. 

 The evidence proved that the circumstances specified in the 

agreement occurred and that the wife "[did] obtain employment 

grossing at least $20,000.00 a year." The agreement explicitly 

states that "the husband shall then have no obligation to pay 

spousal support to the wife." Clearly, the word "then" refers to 

the occurrence of the specific income level that the wife has 

"obtain[ed]." The agreement does not provide for a future review 

of the wife's income status. It also contains no language 

indicating that the husband is to be conditionally relieved of 

his obligation to pay spousal support. We find nothing in the 

agreement that suggests the spousal support payments, once ended, 

would ever resume. See Bergman v. Bergman, 25 Va. App. 204, 214, 

487 S.E.2d 264, 269 (1997) (absent other qualifying language, the 

use of the term "shall cease" in a property settlement agreement 

proviso regarding spousal support does not mean "temporarily 

suspend"). 

 Our function is "'to construe the contract made by the 

parties, not to make a contract for them.'" Id. at 211, 487 

S.E.2d at 268 (citation omitted). To read the agreement, as 

suggested by the wife, to provide for a temporary suspension of 

payments for so long as the wife is earning in excess of $20,000, 
- 7 - 

would be to make a new contract. That we cannot do. 

 IV. 

 By cross-appeal, the wife contends that the trial judge 

erred in refusing to admit evidence concerning her allegation 

that the husband breached the agreement by failing to pay certain 

marital debts. We find no error. 

 This proceeding began when the husband filed a motion to 

terminate spousal support in accordance with the spousal support 

provision of the agreement. The wife alleged in her pleadings 

that the refused evidence proved a change in circumstances. The 

trial judge's ruling that evidence of events occurring six to 

nine years earlier was irrelevant to the spousal support issue 

was not an abuse of discretion. The wife's evidence of "a change 

in circumstance" was not germane to the specific issue whether 

the wife's salary had reached the level specified in the 

agreement. The trial judge's ruling was within his "broad 

discretion to determine the admissibility of evidence." Piatt v. 

Piatt, 27 Va. App. 426, 435, 499 S.E.2d 567, 571 (1998). 

 Furthermore, the record indicates that the wife raised the 

issue of breach of the agreement and failure to pay the marital 

debts as a predicate "for an Order holding [the husband] in 

Contempt of Court for his failure to comply with the terms and 

conditions of the . . . written agreement and the Final Decree." 

 The record does not indicate that the wife pursued her contempt 

claim in the circuit court. Thus, that matter is not on appeal. 
- 8 - 

 Accordingly, we have no occasion to address any ruling 

concerning the contempt issue. 

 V. 

 The wife also contends that the trial judge erred in not 

awarding her attorney's fees and costs for the hearing in the 

circuit court. The rule is well established and long standing 

that whether to make an award of attorney's fees is within the 

trial judge's discretion. See Wilkerson v. Wilkerson, 214 Va. 

395, 398, 200 S.E.2d 581, 584 (1973). The record fails to 

establish a basis upon which we could conclude that the trial 

judge abused his discretion. 

 For these reasons, we reverse the trial judge's ruling that 

the husband's spousal support payments may be reinstated in the 

future. In addition, we affirm the trial judge's rulings barring 

the evidence and denying an award of attorney's fees and costs. 

 Reversed in part and

affirmed in part.