COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

RAYMOND A. PENDLETON 

 OPINION BY 

v. Record No. 2055-95-2 JUDGE SAM W. COLEMAN III 

 JUNE 11, 1996 

EVELYN M. PENDLETON 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 Donald K. Butler (Morano, Colan & Butler, on 

brief), for appellant. 

 No brief or argument for appellee. 

 In this appeal, the husband contends that the trial court 

erred by ordering an increase in his spousal support obligation. 

 He asserts that Code § 20-1091 precluded the court from 

 

 1Code § 20-109 reads: 

 Upon petition of either party the court may 

increase, decrease, or terminate spousal 

support and maintenance that may thereafter 

accrue, whether previously or hereafter 

awarded, as the circumstances may make 

proper. However, in suits for divorce, 

annulment and separate maintenance, and in 

proceedings arising under subdivision A 3 or 

L of § 16.1-241, 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. Upon the death 

or remarriage of the spouse receiving 

support, spousal support shall terminate 

unless otherwise provided by stipulation or 

contract. If such a stipulation or contract 
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modifying spousal support where, as here, the parties 

contractually agreed upon the amount of spousal support in their 

property settlement agreement and the agreement had been approved 

and incorporated into the final divorce decree. We agree and 

reverse the trial court's modification decree. 

 Raymond A. Pendleton (husband) and Evelyn M. Pendleton 

(wife) separated in July 1986. They entered into a property 

settlement agreement, as amended, that divided all of their 

property and an amended agreement in which they divided their 

property and included a requirement that husband pay wife spousal 

support in the amount of $250 per week. The agreement provided 

that the court could modify spousal support only if husband 

suffered a reduction in wages as a result of involuntary 

termination or a medical or physical disability.2 By order dated 

(..continued) 

is filed after entry of a final decree and if 

any party so moves, the court shall modify 

its decree to conform to such stipulation or 

contract. 

 2The agreement reads: 

 Support and Maintenance of Wife: . . . 

[T]he [support] payments shall terminate upon 

the death of either of the Parties, the 

remarriage of the Wife, the involuntary 

termination or the retirement, which for this 

purpose voluntary retirement shall not count 

until he reaches the age of 65, of the 

husband from Fluor Daniel Corporation. In 

the event of the said involuntary termination 

or medical or physical disability of the 

Husband which results in a reduction of 

wages, the payments shall be renegotiated 

between the Parties, or shall be set by the 

appropriate Court. 

 It is specifically agreed between the 
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(..continued) 

February 12, 1992, the trial court "affirmed, ratified, and 

incorporated" the parties' agreement into the final decree. 

 Husband and wife amended the settlement agreement on May 19, 

1992 to require husband to pay wife an additional $175 per month 

in spousal support. This amendment expressly provided that 

husband's spousal support obligation was not otherwise altered or 

amended under the settlement agreement and the additional $175 

was for the purpose of enabling wife to purchase medical and 

hospitalization insurance. 

 On January 4, 1995, wife filed a motion requesting an 

increase in spousal support. Husband filed a motion to dismiss 

on the ground that the agreement and provisions of Code § 20-109 

precluded the court from being able to modify spousal support. 

The trial court denied the motion to dismiss. At the 

modification hearing, wife presented evidence which showed that 

her monthly expenses exceeded her monthly income. The trial 

court ordered an increase in spousal support from $250 to $350 

Parties that the said weekly spousal support 

payments of Two Hundred Fifty and no/100 

($250.00) Dollars per week are to be 

continued thereafter for a minimum period of 

two hundred, sixty (260) weeks irrespective 

of any provisions of this Agreement. This 

provision shall further be binding upon the 

estate of the Husband, except if the 

husband's employment with Fluor Daniel 

Corporation is terminated due to medical or 

physical disability which results in a 

reduction of his wages then the payments 

shall be renegotiated between the Parties, or 

shall be set by the appropriate Court. 
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per week, plus the additional $175 per month that the parties had 

included in the amended property settlement agreement in May 

1992. 

 Code § 20-109 authorizes the trial court to modify spousal 

support and maintenance upon the petition of either party if the 

court determines that there has been a material change in 

circumstances that justifies a modification. See Hollowell v. 

Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988). 

However, where the parties contract or stipulate to the amount of 

spousal support and that agreement is filed without objection 

prior to the entry of the final divorce decree, "no decree or 

order directing the payment of support and maintenance for the 

spouse . . . shall be entered except in accordance with that 

stipulation or contract." Code § 20-109 (emphasis added). 

Parties who are sui juris may bilaterally contract and bind 

themselves to the amount of spousal support that one spouse shall 

be obligated to pay and to the amount that the other shall be 

entitled to receive. Accordingly, where, as here, the parties 

have agreed to a sum of spousal support and the agreement has 

been incorporated into the final decree of divorce, the trial 

court does not have the authority to modify support, except as 

provided in the agreement. Parrillo v. Parrillo, 1 Va. App. 226, 

228, 336 S.E.2d 23, 24 (1985). 

 Here, husband and wife entered into a valid settlement 

agreement which specified the amount of spousal support he would 
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pay and she would receive. Wife did not object when the trial 

court affirmed, ratified, and incorporated the agreement into the 

final divorce decree. The trial court held that it could modify 

the agreement because it contained the provision that it "shall 

be construed and governed in accordance with the law of the State 

of Virginia." The trial court ruled that because "the law of the 

State of Virginia" allows it to modify spousal support, it had 

the power to do so. 

 The court's construction of this general language is in 

direct conflict with the specific provisions of Code § 20-109, 

which recognize the right of the parties to contract and bind 

themselves as to spousal support. The contract's pronouncement 

that the agreement "shall be construed and governed in accordance 

with the law of Virginia" was a choice of laws provision that 

designated which state's law would govern the construction of the 

contract and did not grant the trial court the authority to 

modify spousal support contrary to the contract and Code 

§ 20-109. Accordingly, we hold that the trial court exceeded its 

authority under Code § 20-109 by overruling husband's motion to 

dismiss and by modifying the support agreement and decree. We 

reverse and remand the case to the trial court to vacate the 

modified support award and to reinstate the former support award. 

Reversed and remanded.