COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Felton and McClanahan Argued at Alexandria, Virginia

KIMBERLY M. MATTINGLY MEMORANDUM OPINION * BY v. Record No. 0424-03-4 JUDGE ROSEMARIE ANNUNZIATA APRIL 13, 2004 DANIEL T. McCRYSTAL

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Jane M. Roush, Judge Kimberly M. Mattingly, pro se. No brief or argument for appellee.

Kimberly M. Mattingly (wife) appeals an awar d of attorney’s fees to Daniel T. McCrystal (husband). The trial court ente red the award after wife nonsuite d a motion to modify custody. She argues two grounds in support of her claim that the award must be reversed. First, she

contends that the award violated her statutory right to take a first nonsuit without penalty. Second, she argues that the imposition of attorn ey’s fees violated the parties’ voluntary settlement agreement which provided that each pa rty “shall be responsible for his or her counsel fees.” Mattingly also contends that the trial court exceeded its authority by entering the Written Statement of Facts filed by husband in response to her proffered Written Statement of Facts to which he had noted objections. For th e reasons that follow, we reverse. I. Background The parties were married on January 5, 1991, and they divorced on May 18, 2001. One child was born of the marriage. In accordance wi th the parties’ “Marital Settlement Agreement,”

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - the divorce affirmed, ratified, and incorporated, but did not me rge, the Agreement into the

decree. Under the Agreement, husband had primary physical custody of the child, except for certain stipulated periods of “custodial time” granted to the mother. The Agreement also provided that [e]ach of the parties shall be res ponsible for his or her counsel fees incurred in connection with the negotiation and drafting of this Agreement, as well as any othe r legal matters heretofore or hereafter pending between the pa rties; provided, however, that either party shall be entitled to r easonable counsel fees incurred in securing the adherence of the othe r party to the terms of this agreement. Wife filed a motion to modify custody on September 4, 2002, in which she claimed a “significant change in circumstan ces” based on husband’s “persistent de nial of access to . . . their son and persistent refusal to coordinate custody ex changes at times which are in the best interests of the child.” Wife subsequently requested a non suit. The trial court en tered an order of nonsuit on December 11, 2002. Husband thereafter filed a motion for attorney’s fees on December 11, 2002, based on claims that wife “had an insufficien t basis to file such a serious motion, nonsuited the motion on the day before the hearing, and has filed several such insufficient motions since

the Final Decree of Divorce.” The motion wa s heard on January 16, 2003, and attorney’s fees

were awarded. 1 This appeal followed. II. The Award of Attorney’s Fees Absent an agreement between the parties, the decision to award attorney’s fees is left to the sound discretion of the trial court, and an awar d will be overturned on a ppeal only if the trial court abused its discretion. Kane v. Szymczak , 41 Va. App. 365, 375, 589 S.E.2d 349, 354

1 The trial court did not expr essly identify the grounds upon wh ich it relied in awarding attorney’s fees.- 3 - (2003). However, the trial court ha s no authority or discretion to award attorney’s fees where the parties have agreed by contract to be responsible for their own fees. The courts “are not at liberty to ignore a contractual provision specific ally included by the parties.” Hering v. Hering , 33 Va. App. 368, 372, 533 S.E.2d 631, 633 (2000). We review the terms of the contract de novo

. See Eure v. Norfolk Shipbuilding & Drydock Corp. , 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002). Wife argues that the trial court had no aut hority to award attorney’s fees because the parties’ marital settlement agreement provides that each party “shall be re sponsible for his or her

counsel fees.” 2 We agree. The agreement between the pa rties clearly states that “ea ch of the parties shall be responsible for his or her counsel fees incurred in . . . any . . . legal matters heretofore or hereafter pending between the part ies.” The only exception to this rule provides that “either party shall be entitled to reasonable counsel fees incurre d in securing the adherence of the other party to the terms of this agreement.” (Empha sis added). We conclude the exception does not apply for three reasons. First, there is no evidence in this case from which the court could conclude that husband incurred attorney’s fees in order to secure wife’s adherence to the terms of the marital settlement agreement. By filing a motion to modify custody, wife was not violating or failing to adhere to the parties’ agreement. She was merely exercisi ng her statutory right to seek a modification of the present custody arrangement. See Code § 20-108.

2 Husband argues in his statement of facts that wife did not preserve this argument for appeal because she did not raise th e issue at the hearing. However, wife raised the argument in her motion for reconsideration filed within twen ty-one days of the trial court’s final award decree. Wife’s argument relying on the marital settlement agreement is therefore not barred by Rule 5A:18. Lee v. Lee , 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991).- 4 - Second, we note that husband’s motion for attorn ey’s fees was not based on wife’s failure to adhere to the terms of the agreement. Rather, husband based his request upon wife’s “insufficient motions,” the “insubs tantial content” of wife’s mo tion to modify custody, and the

fact that she nonsuited her motion to m odify custody one day before the hearing. 3 In relevant part, husband’s motion requesting attorney’s fees stated that wife “f iled a Motion to Modify Custody, had an insufficient basis to file such a serious motion, non-suited the motion on the day before the hearing, and has filed several such insufficient motions.” Because husband’s request for attorney’s fees before the trial court was not based on an argument that wife failed to adhere to the terms of the agreement, and because he ha s presented no such argument to this Court, we

will not affirm the trial c ourt’s award on this ground. Third, we decline to read the exception in the parties’ settlement agreement as encompassing the circumstances of this case, in which wife petitioned for a modification of the custody arrangement. Under such an interpretation, the excep tion would swallow the general rule. Therefore, we find that the exception in the parties’ agreemen t allowing recovery of counsel fees does not ap ply to this dispute. Applying the terms of the part ies’ agreement to this case, we find that husband is responsible for his own attorney ’s fees. Virginia favors mar ital settlement agreements as a means of ending litigation between th e parties. Richardson v. Richardson , 10 Va. App. 391, 399, 392 S.E.2d 688, 692 (1990), overruled on other grounds by Flanary v. Milton , 263 Va. 20, 556 S.E.2d 767 (2002). So long as the agreement has been “‘entered into by competent parties upon valid consideration for lawful purposes,’” it “‘will be enforced unless [its] illegality is clear and

certain.’” Parra v. Parra , 1 Va. App. 118, 128, 336 S.E.2d 157, 162 (1985) (quoting Cooley v.

3 Although husband attempted to invoke the sa nctions provisions of Code § 8.01-271, the court declined to hear this argument. Husba nd failed to note an objection to the court’s ruling, making any claim based on the statute pr ocedurally defaulted. Rule 5A:18.- 5 - Cooley , 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980)); see also Code § 20-109. Because the trial court entered an award of attorney ’s fees contrary to the parties’ binding contractual agreement, we find that the court erred in awarding attorney’s fees and reverse on that ground. 4

Reversed.

4 Because we agree that the aw ard of attorney’s fees violat ed the parties’ settlement agreement, we need not address wife’s alternate argument that an award of attorney’s fees, made in conjunction with a first nonsuit, is improper. We further decline to address wife’s final argument that the court erroneously adopted husband’s proffered Written Statement of Facts because the case on appeal may be decided without consideration of husband’s Written Statement of Facts. The following are part of th e record and constitute a sufficient basis for our review: (1) wife’s pleadings, sp ecifically her motion for reconsid eration in which she argues that the parties’ marital settlement agreement contro ls this dispute; (2) th e parties’ settlement agreement; (3) the court’s decree awarding atto rney’s fees; (4) and al l motions made by each party. Accordingly, wife’s challe nge on appeal to the trial court’ s consideration and adoption of husband’s Written Statement of Facts need not be addressed.