COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Senior Judge Overton 

JOY WALKER WESNER 

 MEMORANDUM OPINION*

v. Record No. 2433-04-1 PER CURIAM 

 APRIL 5, 2005 

WILLIAM HENRY WESNER 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

H. Thomas Padrick, Judge 

 (G. Michael Price; Connor & Price, P.C., on brief), for appellant. 

 (Cheshire I’Anson Eveleigh; Wolcott Rivers Gates, on brief), for 

appellee. 

 On appeal, Joy Walker Wesner (wife) contends the trial court erred in: (1) “denying her 

show cause petition that [William Henry Wesner (husband)] be ordered to pay her for ‘room and 

board’ for their daughter . . . while she lived with [wife] and attended Tidewater Community 

College full time”; and (2) “ordering [her] to pay one-half of [her daughter’s] expenses to attend 

Virginia Tech.” Upon reviewing the record and briefs of the parties, we conclude that this appeal is 

without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27. 

BACKGROUND

 Husband and wife were divorced by final decree entered by a family court in Hawaii on 

March 19, 1999. The parties moved to Virginia and petitioned the circuit court to enforce the 

terms of the Hawaii decree. By order dated July 14, 2000, the trial court noted “the parties have 

reached an agreement in this matter,” and the court amended portions of the Hawaii decree so as 

to comply with the agreement and Virginia law. In pertinent part, the trial court ordered: 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
 - 2 - 

3. [Husband]’s obligation for child support which extended to age 

23 under the terms of the Hawaii Decree is hereby modified to 

comply with Virginia law. Therefore, child support will terminate 

upon the occurrence of one or more of the following events: 1) 

death of the child; or 2) the attainment of the child’s eighteenth 

birthday or completion of the twelfth year of high school, 

whichever shall last occur, so long as the child is actively enrolled 

in a high school educational program not to extend past the 

nineteenth birthday. 

* * * * * * * 

4. Each party will pay one half of the costs for tuition, room and 

board, activity fees, and books for each child for so long as the 

child continues his or her education post high school on a full-time 

basis at an accredited college or university, or in a vocational or 

trade school, remains a student in good standing and until the child 

attains the age of 23 years. The costs to each party shall not 

exceed one half of the costs for the child to attend a Virginia 

institution of higher learning as an in-state student. Additionally, 

any amounts received by the children for scholarships or grants or 

any payments made by the children shall first be deducted before 

calculating each party’s obligation. Each party may request from 

the children or the school documentation regarding costs and 

credits for scholarships, etc. prior to paying his or her portion of 

such costs. 

 On July 8, 2004, husband filed a petition in the trial court alleging that wife “has failed 

and refused to pay the appropriate college expenses both past and future for [their daughter,] 

Leah Erin Wesner.” In response, wife filed a petition alleging that husband “has failed and 

refused to pay his half of said room and board expenses” provided by wife in her home while 

Leah attended Tidewater Community College. 

 At an ore tenus hearing on the parties’ petitions, the evidence showed that the daughter 

lived with the wife and attended the community college from fall 2001 until spring 2003, when 

she completed her two-year program of study. She testified that wife told her “as long as [she] 

was attending college, . . . money was not an issue; that [she] would not owe her any rent as long 

as [she] was still in school.” Wife testified that she made the daughter aware “that once she was 

out of college and working full time she would help me with rent or whatever.” However, she 
 - 3 - 

moved out of wife’s home in July 2003 and applied for admission at Virginia Tech. Virginia 

Tech informed her she needed to take three courses in order to be eligible for admission as a 

junior. The daughter enrolled in no courses during the fall of 2003 but enrolled at the 

community college during the spring of 2004. She was admitted into Virginia Tech as a junior 

for the 2004-2005 academic year and lives in an apartment while attending Virginia Tech 

full-time. 

 Husband and the daughter each paid half the costs of the additional required courses at 

the community college. Neither husband nor the daughter sought reimbursement for any costs 

incurred while the daughter was not enrolled as a full-time student. 

 The trial court reviewed the terms of the July 14, 2000 order memorializing the parties’ 

agreement. The trial court explained: 

What the parties agreed to in their order - - and this is their order, 

and they are agreeing to something that Virginia law would not 

order them to do so unless they obviously had agreed. That’s why 

I was asking was there a contract. And what they agreed to when 

they moved here - - and again, I’m not applying Hawaiian law. 

Apparently there is something else going on in Hawaii. Maybe the 

law is different. I don’t have any knowldge of Hawaiian law. 

Nobody has quoted it; so I’m not going to consider it. 

The trial court refused to “rewrite the contract.” Noting that the agreement did not 

contain a provision allowing a parent to be reimbursed for room and board provided by the other 

parent while the child attended school full-time, the court “disallow[ed] [wife’s] request for room 

and board while [the daughter] was living in the mother’s home, attending Tidewater 

Community College.” The trial court also rejected wife’s argument that the daughter’s failure to 

attend school full-time after completing community college and before she began her full-time 

studies at Virginia Tech ended her obligation to pay for college tuition and costs. The trial court 

reasoned “that the fact that she graduated from [community college] and had the interim time is 

of no moment, is not really important because the parties felt the cutoff was 23 [years of age].” 
 - 4 - 

ROOM AND BOARD

“Where [an] agreement is plain and unambiguous in its terms, the rights of the parties are 

to be determined from the terms of the agreement and the court may not impose an obligation not 

found in the agreement itself.” Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764 

(1994). “‘Courts cannot relieve one of the consequences of a contract merely because it was 

unwise’ . . . [or] ‘rewrite a contract simply because the contract may appear to reach an unfair 

result.’” Rogers v. Yourshaw, 18 Va. App. 816, 823, 448 S.E.2d 884, 888 (1994) (citations 

omitted). 

The parties did not agree to make either parent responsible for repaying half of the room 

and board to the other parent if the other parent allowed the daughter to live with him or her. 

Wife conceded that the agreement did not contain such a provision. Furthermore, the daughter 

testified that wife told her she did not have to pay room or board as long as she attended 

community college. To now obligate husband for the “room and board,” which wife offered to 

the daughter and which the agreement never contemplated, would be to rewrite the agreement. 

See Jones, 19 Va. App. at 268-69, 450 S.E.2d at 764. Accordingly, the trial court did not err in 

refusing to order husband to pay that amount. 

VIRGINIA TECH TUITION

Wife contends her obligation ended as soon as the daughter stopped attending college on 

a full-time basis. The trial judge properly rejected this argument. 

“It is the function of the court to construe the contract made by the 

parties, not to make a contract for them. The question for the court 

is what did the parties agree to as evidenced by their contract. 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 

courts are bound to say that the parties intended what the written 

instrument plainly declares.” 
 - 5 - 

Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984) (quoting Meade v. Wallen, 

226 Va. 465, 467, 311 S.E.2d 103, 104 (1984)). 

The parties agreed to pay the daughter’s tuition and expenses “until [she] attains the age 

of 23 years.” She will be twenty-three years old on October 5, 2005. They further limited their 

financial obligations to periods when the daughter “continues . . . her education post high 

school,” at an accredited college or university “on a full-time basis” and remains “a student in 

good standing.” Nothing in the agreement required her to attend college continuously during the 

expressed limitation period. The word “continue” was used as a verb, meaning to pursue, not to 

describe or require continuous, uninterrupted attendance. Had the parties intended to so 

terminate their obligation, they could have included a provision that the daughter must attend 

school full-time on a continuous basis, without interruption. 

To interpret the occurrence of one provision, namely, lack of full-time status, as barring 

any future obligations would improperly over-emphasize one provision of the agreement. 

Merely because the daughter did not immediately enroll in Virginia Tech after finishing 

community college did not mean she could no longer “continue” her post high school education 

under the agreement. She complied with all of the terms and provisions of the agreement. We 

conclude, therefore, that the trial court correctly interpreted the provisions in the order. 

For these reasons, the decision of the trial court is summarily affirmed. 

Affirmed.