COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Felton and McClanahan Argued at Alexandria, Virginia

GEORGE C. PAPPAS MEMORANDUM OPINION * BY v. Record No. 2351-03-4 JUDGE WALTER S. FELTON, JR. AUGUST 17, 2004 CATHERINE E. PAPPAS

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Leslie M. Alden, Judge Dennis M. Hottell (Christopher Malinowski; Angela M. Cross; Dennis M. Hottell & Asso ciates, P.C., on briefs), for appellant. Peter M. Fitzner (Mat thews, Snider, Norton & Fitzner, on brief), for appellee.
George C. Pappas (husband) appeals the ju dgment of the trial cour t modifying the amount of spousal support previously awarded to Cather ine E. Pappas (wife) in the parties’ property settlement agreement (PSA ) which was incorporated , but not merged, into their final decree of divorce. Husband contends that the trial court er red in considering the pr ovisions of the PSA and the parties’ pre-PSA negotiations relating to spousal su pport in computing th e modified support award; that it erred in imputing income to husband; in ordering husband to pay the modified support award retroactive to Apri l 1, 2003 when payment of spousal support had be en suspended by a prior court order; and in ruling that it lacked authority to modify the duration of wife’s support award under the provisions of the PSA. Finding no error, we affirm th e judgment of the trial court.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - BACKGROUND George C. Pappas (husband) and Catherin e E. Pappas (wife) were married on June 18, 1989. No children were born of the marriage. On May 24, 2002, they entered into a property settlement agreement ( PSA), which resolved all issues of s pousal support and equitable distribution. The PSA was affirm ed, ratified and incorporated, but not merged, into the final decree dissolving the parties’ marriage. Under the provisions of the PSA , husband agreed to pay wi fe $5,700 per month from
December 2001 until June 2002, and thereafter $4,000 per month for twel ve years and four months, unless terminated due to wife’s remarriage, her ha bitual cohabitation analogous to marriage, or the death of either party. Pursuant to the PSA, husband received marita l property valued at $35,000 and wife received assets, including the marital residenc e, valued at $397,585. The PSA also provided that “either party may he reafter petition any court of competen t jurisdiction for an increase or decrease of spousal support and main tenance pursuant to § 20-109 . . . .” At the time the parties ente red into the PSA, husb and was the Presiden t and CEO of Plesk, Inc., an information technology company, where he had been empl oyed since June 2001 at an annual salary of $190,000. Both parties antic ipated husband’s employment would continue when they entered into the PSA. On December 16, 2002, husband’s em ployment at Plesk was terminated as the result of financial difficu lties experienced by his employer. Immediately following his te rmination, husb and began seeking comp arable alternative employment in the informa tion technology sector. Due to a poor market, employment opportunities consistent with his form er level of employment were largely unavailable. Meanwhile wife, who had not been employed during the marriage, obta ined employment earning approximately $46,000 annually.- 3 - On December 31, 2002, le ss than seven months af ter the entry of the final decree of divorce incorporating the parties’ PSA, husband filed a motion to modify spousal support. He simultaneously filed a pendente lite motion to suspend th e support payments, wh ich the trial court granted on January 10, 2003. On July 23, 2003, the tr ial court heard evidence ore tenus . Both parties presented expert testimony related to husband’s jo b search following his loss of employment. The trial court admitted the parties’ PSA into evidence, as well as evidence of the partie s’ pre-PSA negotiations regarding spousal support. The trial court found that th e PSA provided author ity for it to determ ine modification of spousal support. It concluded that husband’s termination of employmen t resulting from his employer’s financial difficultie s was a material ch ange in circumstan ces not reasonably contemplated by the parties at the time they entered into the PSA. It also fo und that its authority to modify the spousal support was li mited to modifying the amount of support, but no t its duration; that the evidence supported an im putation of $100,000 annual inco me to husband; and that after considering all the factors of Code § 20-107.1(E), hu sband’s monthly spousa l support payments should be reduced from $4, 000 a month to $2,500 a month, retroactive to Ap ril 1, 2003, and payable at that rate for the duration establ ished by the parties’ PS A. It denied wife’s request for an award of attorney’s fees. On August 6, 2003, the trial court entered a final order reflec ting its decision of July 23, 2003. Husband’s motion to reconsider was also de nied on Augu st 6, 2003.
ANALYSIS
I. On appeal, we review the evidence, and all r easonable inferences fairly deducible from it, in the light most favorable to the prevailing party below. Alphin v. Alphin , 15 Va. App. 395, 399, 424 S.E.2d 572, 574 (1992). When a trial court hears the evidence ore tenus , its findings- 4 - are entitled to great weig ht and will not be disturbed on app eal unless “plainly wrong or without evidence to support it.” Pommerenke v. Pommerenke , 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). “The determination whether a spouse is en titled to [a reduction or increase in spousal] support, and if so how much, is a matter within th e discretion of the [trial ] court and will not be disturbed on appeal unless it is clear that some in justice has been done.” Dukelow v. Dukelow , 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986).
II. Husband contends that the trial court erred in considering the provisions of the PSA and the parties’ pre-PSA negotiations related to spousal support in modifying the spousal support award. He argues that the trial court erred b ecause this evidence rela tes to past financial circumstances of the parties rather than their current financial circumstances. Code § 20-109(B) provides in pertinent part that: Upon consideration of the factor s set forth in subsection E of § 20-107.1, the court may increase, decrease or terminate the amount or duration of the award upon finding that (i) there has been a material change in the ci rcumstances of the parties, not reasonably in the contemplation of the parties when the award was made . . . . “The moving party in a petition for modifi cation of support is required to prove both a material change in circumstances and that th is change warrants a modification of support.” Schoenwetter v. Schoenwetter , 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989). “The material change in circumstances must have occurred afte r the most recent judicial review of the award, and ‘must bear upon the financial needs of the de pendent spouse or the ability of the supporting spouse to pay.’” Moreno v. Moreno , 24 Va. App. 190, 195, 480 S.E.2d 792, 795 (1997) (quoting Hollowell v. Hollowell , 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988)). “In [modifying] spousal support, the [trial court] . . . is guided by the . . . factors that are set forth in Code § 20-107.1. When the [trial court] has given due consideration to these factors, [its]- 5 - determination will not be disturbed on appeal except for clear abuse of discretion.” Collier v. Collier , 2 Va. App. 125, 129, 341 S.E.2d 827, 829 (1986). The trial court concluded that husband’s loss of employment resulting from his employer’s financial difficulties was a material change in circumstances not reasonably anticipated by the parties when th ey entered into the PSA setting spousal support. It noted that both the PSA and the parties’ pre-PSA negotiations demonstrated the parties’ expectations that husband would continue to be employed at a subs tantial annual income. Husband conceded in his reply brief that a proper consideration of C ode § 20-109(B) requires the trial court to consider this evidence in determining whether a material change in circumstances not contemplated by the parties had occurred. Once a material change in circumstances wa rranting modification has been established, Code § 20-109(B) requires the tria l court to consider the factor s set forth in Code § 20-107.1(E) to determine the amount of the award. In reducing the amount of husband’s monthly spousal support obligation, the trial court stated that it based its decision on the evidence presented, including the property and support provisions co ntained in the PSA, the argument of counsel, and all the factors enumerated in Code §§ 20-107.1(E) and 20-109. Husband argues that the trial court erred in considering the PSA property and support provisions, as well as the part ies’ pre-PSA negotiations regarding support, in determining the amount of the modified support payments, because those matters related to the parties’ past financial circumstances rather then their current financial circumstances. The trial court ruled that Code § 20-107.1(E)(7) and (13) permitted it to “consider the agreement that the parties made and the property interests that resulted from that.” Code § 20-107.1(E)(7) requires the court to consider “the property interests of the parties, both real and pers onal, tangible and intangible.”- 6 - Code § 20-107.1(E)(13), the “catch-all” provision , requires it to consider “[s]uch other factors, . . . as are necessary to cons ider the equities between the parties.” The PSA contained the agreed distribution of the parties’ personal property, retirement accounts, marital home, provisions for life and hea lth insurance, as well as their agreement on spousal support. The trial court considered the provisions of the PSA rele vant to the original division of the parties’ property in determining whether, and to what degree, modification of the existing spousal support award might be appropr iate. It ruled that Code § 20-107.1(E)(13) permitted it to consider other financial factors esta blished by the PSA. We conclude that the trial court did not err in considering the PSA, as its provisions established financial factors the court was required to consider under Code § 20-107.1(E)(7) and (13). The PSA established the lifestyle the parties e xpected husband to financially maintain for wife following the dissolution of the marriage, namely the lifestyle which she was accustomed to during the marriage. Stubblebine v. Stubblebine , 22 Va. App. 703, 710, 473 S.E.2d 72, 75 (1996) ( en banc ) (citations omitted). Moreover, the trial court explicitly stated th at it based its modifi cation decision not only upon the financial factors in the PSA, but also on the current financial and other circumstances of the parties as required by Code § 20-107.1. The trial court noted that it considered all of the factors in Code § 20-107.1( E). It specifically foun d both parties were employable. It found that husband had a college degree, and a long histor y of well-paid employmen t in the information technology industry. It found that he had a wide range of ex perience in sales, marketing, and executive positions. It concluded that husba nd “could and shou ld be working at a job that pays $100,000” annually, an d it imputed that income to him. It also found that, whil e wife essentially was not employed outside the home during the twelve-year marria ge, she was currently employed, earning approximately $46,0 00 annually. This Court has previously said that in determining a- 7 - modification in spousal support, a trial court must consider the stat utory factors of Code § 20-107.1, but that it is not “req uired to quantify or elaborat e exactly what weight or consideration it has given to each of the statutory factors.” Woolley v. Woolley , 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). We find from the record before us that the trial court properly cons idered the required statutory factors in its decision to modify husband’s spousal s upport payments. We also find that the trial court did not abuse its discretion in c onsidering the property a nd support provisions of the PSA in its determinations. Because the trial court based its modification of support decision on credible evidence in the record, we conclude th at the trial court did not err in its modification of husband’s spousal support obligations. See id.
III. Husband contends that the trial court erre d in imputing an annual income of $100,000 to him. He argues that the evidence failed to show that he was voluntarily foregoing gainful employment. “In setting or modifying spous al support or child support, a court may impute income to a party voluntarily unemployed or underemployed.” Blackburn v. Michael , 30 Va. App. 95, 102, 515 S.E.2d 780, 783 (1999); see Stubblebine , 22 Va. App. at 708, 473 S.E.2d at 74. The party seeking imputation of income has the burden of proving that the other party is voluntarily underemployed or is voluntarily foregoing gainful employment. Blackburn , 30 Va. App. at 102, 515 S.E.2d at 784. Whether to impute income lies w ithin the sound discretion of the trial court, and its decision will not be reversed unless plai nly wrong or without evidence to support it. See Blackburn , 30 Va. App. at 102, 515 S.E.2d at 784 (citing Saleem v. Saleem , 26 Va. App. 384, 393, 494 S.E.2d 883, 887 (1998)).- 8 - The record contains credible evidence from which the trial court could reasonably conclude husband was voluntarily foregoing gainful employment and that hi s education, training and experience warranted imputing to him an annual income of $100,000. See id. The record shows that husb and possessed a college degree, had twenty years of work experience in sales and marketing, and had been employed by various technology companies as an executive. Moreover, wife presented expe rt testimony from a vocational rehabilitation consultant that husband was in fact empl oyable at an annual salary between $100,000 and $175,000, and there were jobs availa ble within the area for which husband was qualified and for which he had not applied. Husband presented ev idence of his efforts to locate employment from the time he lost his job, includi ng providing logs of his employercontacts and records of his job search. He presented evidence that positions compar able to that he held at the time the PSA was entered were scarce as a result of the downtur n in the technology industry. Wife’s expert testified that husband’s efforts were inadequate based on the number of contacts that he had made, many of which were esse ntially networking contacts fro m his previous employment, and few of which were for actual available positions. Wife’s expert also testified that husband’s job search since March 2003 had not been aggressive and required “more volume.” Wife’s expert also testified that there were executive positi ons available in the area that were similar to husband’s past experience in business development, marketing, and sales with annual salaries between $125,000 and $175,000. The expert opined that husband should lower his expectations and seek positions earning $100,000 annually; and that there were positions available as sales executive, account manager, and marketing direct or paying salaries of “$100,000 plus per year.” Based on the evidence before it, the tria l court concluded, “that [husband] could and should be working in a job that pays at le ast $100,000,” and imputed an annual income of $100,000 to husband in determining the modified spousal support award. We affirm the- 9 - judgment of the trial court imputing an annua l income of $100,000 to husband based on the
record before us.
IV. Husband also asserts that the trial court erred in ordering th at the modified spousal support payments be made retroac tive to April 1, 2003. He argues that the trial court’s prev ious grant of his pendente lite motion on January 10, 2 003, suspending his spousal support payments until the modification determination had been ma de, barred the retroactive support. Husband argues that Code § 20-103 grants the court au thority to “make any order proper . . . to enable a pa rty to carry on a suit . . .” including petitions to modify spousal support. He asserts that the pendente lite order suspending his support obliga tion temporarily wa s to enable him to engage in proceedings to modify his sup port obligation to meet his changed financial circumstances. He argues that the court was without authority to order the modified support to be made retroactively to a period when it had su spended the support payments, arguing that any modification must be prospective from the final order disposing of the petition to modify. We disagree. Code § 20-112 provides that a spousal support award “ may be [retroactively] modified with respect to any period during which there is a pending petition for modification, but only from the date that notice of such petition has been given to the respondi ng party.” (Emphasis added.); see Reid v. Reid , 245 Va. 409, 414, 429 S.E.2d 208, 211 (1993) (holding that the trial court has authority to award spousal support retroactively to the period when the suit was pending). The trial court’s order suspending support paym ents temporarily, wit hout prejudice, was not an order eliminating husband’s obligation to ma ke those payments altogether. It was simply an order suspending his requirement to make those payments until his petition for modification- 10 - had been heard, and a decision re garding modification was made. 1 On July 23, 2003, the trial court reduced the amount of spousal support husband was required to pay wife from $4,000 monthly to $2,500 monthly, and made the modified payments retroactive to April 1, 2003, a date within the period the modification proceedings were pending. The effect of the trial court’s order temporarily suspending husband’s obligation to pay spousal support did not limit the trial court’s ability to order the modified suppor t payments to be effective retroactively. [W]hether to make modification of a support order effective during a period when a petition is pending is entirely within the discretion of the trial court. Its decision in this regard will not be disturbed on appeal absent an abuse of discretion. O’Brien v. Rose , 14 Va. App. 960, 965, 420 S.E.2d 246, 249 (1992). Because the trial court had the authority to suspend husband’s payments during the period pending its ruling on modifi cation, as well as to require him to make these payments pending its decision, we find it did not abuse its discretion in or dering the modification reducing the amount of support to be effective April 1, 2003. Accordingly, we conclude that the trial c ourt did not err in ordering husband to pay the modified spousal support obligati on retroactive to April 1, 2003.
V. Husband further contends that the trial court erred when it concluded that the provisions of the PSA did not permit it to modify the dura tion of the spousal support award. He argues that because the PSA reserves the right to the partie s to seek support modification pursuant to the provisions of Code § 20-109, the tr ial court had authority to modi fy not only the amount of the support payments, but their duration as well. See Code § 20-109(B).

1 The status of the support payments payabl e under the PSA from the date of the order suspending the payments to the retroactive effectiv e date of the modified payments is not before us, and we express no opinion concerning them.- 11 - The PSA provides in pertinent part that: It is specifically agreed . . . that either party may hereafter petition any court of competent jurisdiction for an increase or decrease of the spousal support and maintenan ce, pursuant to § 20-109 of the 1950 Code of Virginia, as amended. The power, jurisdiction and authority of the court to entertai n and adjudicate such a petition, pursuant to § 20-109, are expressl y reserved and retained. (Emphasis added.) The parties do not contest that the PSA pr ovides for a defined duration spousal support award. Code § 20-109(B) provides that “a court may consider a modification of an award of spousal support for a defined duration upon a peti tion of either party filed within the time covered by the duration of the awar d” and that after considering the appropriate factors, “the court may increase, decrease, or terminate the amount or duration of the award” on a finding that there has been a material change of ci rcumstances not contemplated by the parties. (Emphasis added.) Code § 20-109(C) provides that where the pa rties have entered into a stipulation or contract regarding payment of spousal support made part of the final decree, “no decree or order directing the payment of support and maintenance fo r the spouse . . . shall be entered except in accordance with that stipulation or contract.” Thus, for husband to prevail on his argument, he must establish that the trial court had authority under the PSA to alter th e duration of the spousal support award. “Support agreements that are voluntarily made by the parties are subject to the same rules of construction applicable to contracts generally.” Goldin v. Goldin , 34 Va. App. 95, 107, 538 S.E.2d 326, 332 (2000) (citing Tiffany v. Tiffany , 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985)). “‘The guiding light in th e construction of a cont ract is the intention of the parties as expressed by them in the words they have us ed, and courts are bound to say that the parties- 12 - intended what the written inst rument plainly declares.’” Wilson v. Holyfield , 227 Va. 184, 187, 313 S.E.2d 396, 398 (1994) (quoting Magann Corp. v. Electrical Works , 203 Va. 259, 264, 123 S.E.2d 377, 381 (1962)). Where an agreement is plain and unambiguous in its terms, we will not substitute, include or ignore words to change the plain meaning of the agreement. See Southerland v. Estate of Southerland , 249 Va. 584, 590, 457 S.E.2d 375, 378 (1995). We find no ambiguity in the plain language th e parties used in the PSA establishing the right of either party to seek judicial modification of the suppor t award. While the PSA provided each the right to “petition any cour t of competent jurisdiction for an increase or decrease of spousal support and maintenance, pursuant to § 20-109,” the plain language of the PSA does not authorize the trial court to either terminate the spousal suppor t award or to change the term of duration of the support payments. (Emphasis added.) The PSA specifically provides that payments of spousal support terminate “after 155 consecutive payments have been made, . . . if not earlier terminated as a result of one or more of the occurrences specified” in the agreement. None of the specified occurrences, namely: the death of either party, wife’s remarriage or habitual cohabitation with another person in a relationship analogous to marriage, were alleged to have occurred or occurred in fact. The trial court lacked authority to award s pousal support contrary to the terms of the parties’ agreement. See Pendleton v. Pendleton , 22 Va. App. 503, 507, 471 S.E.2d 783, 784 (1996). Accordingly, we find no error in the tria l court’s decision that it lacked authority under the terms of the PSA to modify the dur ation of wife’s spousal support award.
VI. Both parties seek an award of attorney’s fees on appeal. The rationale for the appellate court being the proper forum to determine the propriety of an awar d of attorney’s fees for efforts expended on appeal is clear. The appellate court has the opportunity to view the record in its entirety and determine- 13 - whether the appeal is frivolous or whether other reasons exist for requiring additional payment. O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Reviewing the record of the proceedings as a whole, we conclude that each party should be responsible for their respective at torney’s fees incurred on appeal.
CONCLUSION For the above reasons, we conc lude that the trial court did not err in modifying the spousal support award by considering the parties’ PSA an d pre-PSA negotiations or in imputing $100,000
annual income to husband. We also conclude that the trial court did not er r in making the modified spousal support award retr oactive to April 1, 2003, or in co ncluding that it was barred from modifying the duration of the aw ard. Accordingly, we affirm the judgment of the trial court. Affirmed.