COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Kelsey Argued at Alexandria, Virginia

KATHLEEN D. RUTLEDGE OPINION BY v. Record No. 0777-04-4 J UDGE JAMES W. BENTON, JR. FEBRUARY 1, 2005 RONALD L. RUTLEDGE

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Marcus D. Williams, Judge Jennifer E. Mandell (Richard L. Downey; Richard L. Downey & Associates, on briefs), for appellant. Michael Kevin Murphy (Law O ffices of Michael Kevin Murphy & Associates, on brief), for appellee.

Kathleen D. Rutledge conten ds the trial judge erred in ru ling that her ma rital property settlement agreement prohi bited the trial judge from exercising discretionary authority to award attorney’s fees to her in a post divorce proceeding to modify spousal support. We ho ld that because the agreement expressly provides for attorney’s fees in some in stances but does not do so for modification proceedings, th e trial judge did not err.

I. Kathleen D. Rutledge and Rona ld L. Rutledge were divorced by a final decr ee entered on July 15, 1999. The final decr ee “affirmed, ratified, and incorporated” the parties’ property settlement agreement. Pe rtinent to this appeal, the property settlement agreement provides that “[t]he husband shall pay to the wife the su m of $1,300.00 per month for her maintenance and support” and also provides for modificati on of the spousal support as follows: Upon the petition of either party upon a material change of circumstances in a manner which is consistent with . . . Code- 2 - Section 20-107.1 . . . , a Court of competent jurisdiction shall be able to modify by increasing or decreasing or terminating or reserving the right to spousal support as th e circumstances may make proper. Four years after entry of the final decree, the wife filed a petition in the circuit court to increase spousal support, alleging a material cha nge in circumstances and requesting an award of attorney’s fees. The husband denied that a ma terial change in circ umstances had occurred, denied the wife was entitled to any relief, and requested dismissal of the petition. Following an evidentiary hearing, the trial judg e found that a material change in circumstances had occurred, and he increased spousal support to $2,000 per mont h. The trial judge also found that an award of attorney’s fees “doe s not contravene any provision of th e agreement” and awarded the wife her attorney’s fees.

The husband filed a motion to reconsider the aw ard of attorney’s fees. In his motion, the

husband asserted that the followi ng provisions of the agreement contain the only basis for an award of attorney’s fees:

11. Divorce & Associated Matters, Legal Fees:

* * * * * * * C. The husband shall pay to the wife the sum of $3,000 as and for the expenditure of attorn ey’s fees necessitated by her as a result of filing of the Bill of Complaint for Divorce. Said payment shall be made to her within ninety (90) days of the execution of this Agreement. 12. Breach of this Agreement, and Enforcement:

* * * * * * * B. In the event of a breach of this Agreement, the party committing the breach shall be obligated to pay the reasonable and necessary costs, including reas onable legal fees incurred by the non-breaching party to enforce or protect the non-breaching party’s interests or rights hereunder. Th e amount of such reasonable costs and legal fees shall be submitted to the Court having jurisdiction over the parties and subject matter hereof, and if the party alleging- 3 - breach substantially prevails in such an action then both parties will move the court that the order disposing of any such allegation of breach include a provision making an award of reasonable and necessary costs and legal fees in the favor of the substantially prevailing party, without prejudi ce to the non-prevailing party to contest the reasonableness or necessi ty of any such cost and legal fee. The husband argued that Code § 20-109(C) restri cts the trial judge’s authority to award attorney’s fees to the terms of the agreement. The wife responded that the trial judge had inherent authority, pursuant to Code § 20-109(A), to award attorney’s fees in spous al support modification pr oceedings. She also argued that, in any event, paragra phs 11(C) and 12(B) are silent re garding the issue of attorney’s fees in modification proceedings and, therefore, the “right to seek fees in this case has not been waived or limited by the terms of their agreement.” The trial judge granted the motion to reconsid er. In pertinent part, he ruled as follows: The parties specifically addres s the issue of attorney’s fees in their [agreement]. Section 11(C) . . . provides that the husband will pay the wife $3000 as and for the expenditure of attorney’s fees necessitated by her as a result of the filing of the Bill of Complaint for Divorce. Also, S ection 12(A) and 12(B) [provide] for an award of attorney’s fees in the event of a breach of the parties’ PSA. 1 Here, the parties’ [agreement] expressly provides for an award of attorney’s fees in certain situ ations, but does not provide for an award of attorney’s fees incurred as a result of either party petitioning for a modification of spou sal support. Pursuant to . . . Code . . . § 20-109(C), the Court cannot go beyond the terms of the

1 Section 12(A) of the agreement does not provi de for attorney’s fees. It addresses the matter of breach of the agreement in the following language: Each of the obligations imposed upon a party hereunder is intended to stand independently of any a nd all other obligations imposed hereunder, and a breach of any such obligation shall not be deemed to impair --- nor do the parties intend such breach to discharge --- any party from performing any other obligation imposed hereunder.- 4 - parties’ [agreement]. The [agreement] fails to provide for an award of attorney’s fees for a parties’ modification of spousal support, and the Court is without power to make such an award. The wife appeals from the order denying her request for attorney’s fees.

II. The parties agree that the resolution of this case turns upon the application of Code § 20-109. The portions of the statute pertin ent to this appeal are as follows: A. Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance . . . as the circumstances may make proper. . . . The provisions of th is subsection shall apply to all orders and decrees for spousal suppor t, regardless of the date of the suit for initial setting of support, the date of entry of any such order or decree, or the date of any pe tition for modification of support.

* * * * * * * C. In suits for divorce, . . . if a stipulation or contract signed by the party to whom such relief mi ght 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 nonmoneta ry, shall be entered except in accordance with that stipulation or contract. If such a stipulation or contract 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. Code § 20-109. The wife contends the limiting language in Code § 20-109(C) -- “no decree . . . directing the payment of . . . counsel fee . . . shall be ente red except in accordance with that . . . contract”

-- should be read to mean that th e trial judge is authorized to gr ant her attorney’s fees unless the agreement forbids it. Thus, she argues that beca use the agreement “did not address the issue of an award of attorney’s fees incurred by either pa rty as an incident to a post-divorce proceeding for modification of spousal support . . . , Code § 20-109(C) did not restrict the trial court’s power to award such attorney’s fees.” We disagree.- 5 - Subsection A and C of the statute are interre lated. In analyzing these subsections, we have held that, although “Code § 20-109(A) empowers trial courts to modify a spousal support award, . . . Code § 20-109(C) expressly limits the court’s authority . . . acc ording to the terms of a stipulation or contract signed by the parties.” Blackburn v. Michael , 30 Va. App. 95, 100, 515 S.E.2d 780, 783 (1999). Likewise, the Supreme Court has held that, when the parties’ agreement has been affirmed, ratified, and incorporated in to the final decree of divorce, “‘[Code] § 20-109 restricts the court’s jurisdicti on over awarding “alimony, suit money, or counsel fee” to the terms

of the contract.’” Thomas v. Thomas , 216 Va. 741, 743, 222 S.E.2d 557, 559 (1976) (quoting McLoughlin v. McLoughlin , 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970)). As these cases hold, the statutory language of C ode § 20-109(C) restricts the j udge to decreeing according “to the terms” of the agreement. In the context of this statute, wh ich provides that “no decree or order directing the payment of . . . counsel fee . . . shall be entered except in accordance with that contract,” the words, “except in accordance with that . . . c ontract,” are not ambiguous. The plain meaning of these words is not suscep tible to another unde rstanding. See, e.g. , In re

Coane’s Estate , 165 A. 2, 4 (Pa. 1933) (reviewing a will in which a testator directed payments to

his wife “‘in accordance with the terms of the antinuptial agreement,’” the court observed that “‘[i]n accordance with’ cannot be construed to mean ‘in place of,’ or ‘as a substitute for,’ and this is made especially clear by the fact that th e payments provided for are to be ‘in accordance with the terms’ of the antinuptia l agreement, not with some of them, but with all of them”). Although our decisions and the decisions of the Supreme Court have not always used consistent language in applying Code § 20-109, we have never intimated that subsection C permits a trial judge to grant relief in derogati on of the terms of the pa rties’ agreement. For example, in White v. White , 257 Va. 139, 509 S.E.2d 323 (1999), where the final decree of divorce incorporated a settlemen t agreement that obligated the husband to pay the monthly- 6 - mortgage payments on a residence to a bank, th e trial judge ruled that the husband was in contempt for failing to make the mortgage payments to the wife after she sold the residence several years following the divorce and after th e bank received from th e sale proceeds the balance due on the mortgage. Id. at 142-43, 509 S.E.2d at 324. Reversing that decision, the Supreme Court ruled as follows: The agreement clearly obligates Mr. White to pay the $30,000 mortgage on the house to [the] Ba nk in 120 monthly installments. It contains no provision for Mr. White to make any payments to Mrs. White. Moreover, and of par ticular significance in this case, nothing within the express terms of the agreement evinces any intent of the parties that Mr. Wh ite’s obligation would survive the satisfaction of the mortgage debt , regardless of the manner in which that debt was extinguished. Accordingly, we hold that th e agreement obligated Mr. White to make payments on the mortgage on the marital home so long as that debt existed, but did not oblig ate him to pay a fixed sum to the wife in installments with intere st, as she alleged in her bill of complaint and as the trial court subsequently found in the show cause hearing. The language of the final decree of divorce referencing the agreement as “an agreement . . . with respect to maintenance and support” could not, and did not, alter the intent of the parties as expressed in the agreement.

Id. at 145, 509 S.E.2d at 326. In reaching this de cision, the Court ruled th at “Code § 20-109[C] inhibits the power of the court to award or consider modificati on of the decree to the extent that spousal support and maintenance are provided for in the incorporated agreem ent of the parties.”

Id. at 144, 509 S.E.2d at 325. See also Owney v. Owney , 8 Va. App. 255, 260, 379 S.E.2d 745, 748 (1989) (holding that the judge’s “award contravenes the plain language of the agreement” and was “plainly inconsistent with the contract”).

As White demonstrates, the statutory proviso, th at no order “shall be entered except in accordance with the . . . contract,” requires the trial judge to exam ine the parties’ agreement to

ascertain whether the relief s ought by the moving party is encomp assed within the terms of the agreement. White , 257 Va. at 144-45, 509 S.E.2d at 326. See also Owney , 8 Va. App. at 260,- 7 - 379 S.E.2d at 748 (holding that where the agreement “specifically releases the husband and wife ‘of any claim either might have for alimony or support,’ [t]he trial court’s conclusion that the payments under paragraph six of the agreement we re ‘intended by the parties as spousal support’ and the subsequent award of ‘$182.00 per month as spousal support’ were plainly inconsistent with the contract” because Code § 20-109(C) ba rs payment of support and maintenance for the spouse except in accordan ce with the contract). The wife argues that the agreement in this ca se “was silent as to whether either party could be awarded attorney’s fees incurred incident to . . . post divorce modification proceedings.” Thus, she contends the agreement wa s not a bar to an award of attorney’s fees and the trial judge retained discretionary authority to award attorney’s fees . We disagree. We

believe it is more accurate to sa y no “terms” of the agreement provide for attorney’s fees in the instance of either party seeking a modification of spousal support. “[M]arital property settlements . . . are cont racts subject to the rules of construction applicable to contracts genera lly, including the application of the plain meaning of unambiguous contractual terms.” Pysell v. Keck , 263 Va. 457, 460, 559 S.E.2d 677, 678 (2002). According to the rules of construction, “[c]ourts cannot read in to contracts language whic h will add to or take away the meaning of words already c ontained therein.” Wilson v. Holyfield , 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984). A well-settled principle of contr act law dictates that where an agreement is complete on its face, is plain and unambiguous in its terms, the court is not at liberty to search for its meaning beyond the instrument itself. A contract is not deemed ambiguous merely because the parties disagree as to the meaning of the language they used to express their agreement.

Ross v. Craw , 231 Va. 206, 212-13, 343 S.E.2d 312, 316 ( 1986) (internal citations and quotations omitted). “In reviewing the agreement, we must gather the intent of the parties and the meaning of the language . . . from an examination of the entire instrument, giving full effect- 8 - to the words the parties actually used.” Layne v. Henderson , 232 Va. 332, 337-38, 351 S.E.2d 18, 22 (1986). A review of this contract shows the parties were cognizant of events in which attorney’s fees would be paid, and they provided for attorney ’s fees in two instances: first, $3,000 to the wife for attorney’s fees for filing the Bill of Complaint and, second, a reasonable fee to be assessed by a judge against either party who breaches the agreemen t and causes the other to incur fees in enforcing the agreement. The agreemen t does not provide for the payment of attorney’s fees in any other instance. To be more precise, nowhere in the agreement is there a provision requiring the payment of attorney ’s fees to either party who seeks a change in the support payment because of a change in circumstances. Th e parties could have provided for fees in other instances but did not. The express reference to attorney’s fees for these two particular proceedings implies the preclusion of attorney’s fees in other instances under the maxim, expressio unius est exclusio alterius . See Smith v. Pocahontas Fuel Company, Inc. , 177 Va. 267, 285, 13 S.E.2d 301, 309 (1941) (applying the principle of expressio unius est exclusio alterius to hold that a contract which specifi es a lessee’s obligation to pay for unmined coal “found in the two seams mentioned . . . excludes any obligation of the lessee to pay for coal in the other seams”). In order to find in this agreement a re quirement for attorney’s fees in other unspecified instances, we “would have to insert words into th e writing contrary to the elementary rule that

the function of the court is to c onstrue the contract made by the parties, not to make a contract for them.” Cave Hill Corporation v. Hiers , 264 Va. 640, 646, 570 S.E.2d 790, 795 (2002). In other words, “what the parties claim they might ha ve said, or should have said, cannot alter what they actually said.” Wilson , 227 Va. at 188, 313 S.E.2d at 398.

The wife cites Sanford v. Sanford , 19 Va. App. 241, 450 S.E.2d 185 (1994), as a case in which the trial judge ordered that the parties exch ange copies of their future income tax returns- 9 - despite the husband’s argument that Code § 20- 109 prohibits such an order because the statute bars the judge from “imposing any . . . condition . . . except in accord ance with . . . [the parties’] contract.” There, we held as follows: Assuredly, the parties’ property settlement agreement does not obligate the parties to exchange income tax returns. However, nothing in the agreement precludes the trial court from requiring either party to provide the other with a copy of his or her income tax returns. The agreement is silent in this regard. Code § 20-109 only restricts the action a trial court may take where the parties have agreed upon a matter. Code § 20-109 does not prohibit a trial court from ordering a course of action upon a matter that the parties do not address in their property settlement agreement, provided the court is not otherw ise precluded from doing so and the course of action is appropriate.

Id. at 250-51, 450 S.E.2d at 191. In this case, however, unlike Sanford , the parties have ag reed upon the matter of attorney’s fees. An examination of the entire agreement discloses that the parties specified the two instances in which attorney’s fees could be awarded. This proceeding for modification of spousal support is an instance th at does not fall within those pr ovisions. The mere absence of terms specifying other events that one party contends normally woul d be found in the contract is an insufficient basis, standing alone, to render th e contract ambiguous or s ubject the contract to judicial construction. Wilson , 227 Va. at 188, 313 S.E.2d at 398. Furthermore, in their agreement the parties expressly waived all claims except as provided in the agreement. In its introducto ry provisions, the agreement uses the following broad language to note the parties’ intentions to resolve all rights, claims, and obligations: WHEREAS, the parties now de sire to settle and determine their mutual obligations, all of their pr operty rights, all rights of support and maintenance of either pa rty by the other and all other miscellaneous rights, claims -- and obligations between them arising from their marriage to one another and otherwise . . . .- 10 - Among the ensuing terms of the agreement is a specific waiver clause, which includes the following provision: Each party hereby also waives, releases, and discharges the other party from any and all claims, causes of action, or demands whatsoever, in law or equity, whic h he or she might have or might claim to have against the other party by reason of any matter, cause, or thing whatsoever excep t in an action or actions for divorce or in an action or actions to enforce a provision or provisions of this Agreement. Because Code § 20-109(C) restricts the trial j udge’s jurisdiction such that he could enter “no decree or order directing the pa yment of . . . counsel fee . . . ex cept in accordance with that . . . contract,” we hold that th e trial judge did not err in refu sing to award to the wife her attorney’s fees. The judge’s order granted relief “according to the terms of [the] . . . contract signed by the parties.” Blackburn , 30 Va. App. at 100, 515 S.E.2d at 783. Accordingly, we affirm the judgment.

Affirmed.