COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MARTHA C. TWINAM 

 MEMORANDUM OPINION*

v. Record No. 0765-96-4 PER CURIAM 

 NOVEMBER 12, 1996 

TIMOTHY W. TWINAM 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 (Brad L. Martin; Martin & Rubin, on briefs), 

for appellant. 

 (Judith S. Landry, on brief), for appellee. 

 Martha C. Twinam (mother) appeals from a decision of the 

circuit court concerning a 1989 amendment to the parties' 

property settlement agreement. Mother contends that the trial 

court erred in (1) holding that the modification clause of the 

settlement agreement enabled the parties to modify the amount of 

child support without court approval; (2) holding that the 1989 

modification was valid when it was not executed with the same 

formality as the settlement agreement; and (3) not granting 

mother attorney's fees and costs. Timothy W. Twinam (father) 

contends that the trial court correctly found mother was estopped 

to challenge the modification. 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 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

trial court. Rule 5A:27. 

Modification of the Settlement Agreement

 "Property settlement and support agreements are subject to 

the same rules of construction and interpretation applicable to 

contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180, 

355 S.E.2d 342, 346 (1987). "[O]n appeal if all the evidence 

which is necessary to construe a contract was presented to the 

trial court and is before the reviewing court, the meaning and 

effect of the contract is a question of law which can readily be 

ascertained by this court." Id.

 The parties' agreement provided in part as follows: 

 14. MODIFICATION: At any time, the parties 

may by mutual consent amend or modify the 

terms of this Agreement; provided that any 

such amendment or modification (or waiver of 

any of the terms of this Agreement) shall be 

of no effect unless in writing and executed 

with the same formality as this Agreement. 

Father also agreed to increase child support payments annually in 

proportion to his salary increases. The parties executed the 

agreement and their signatures were notarized. Subsequently, the 

agreement was incorporated into the parties' final decree of 

divorce. In February 1989, pursuant to the modification clause 

of the agreement, the parties agreed to reduce father's monthly 

child support payments from $500 to $400. Father remained liable 

for annual increases.1

 

 1While father failed to make the annual increases in child 

support payments pursuant to the terms of the agreement, the 

resulting arrearage was satisfied prior to the hearing in the 

trial court. 
 3 

 Mother contends that because no agreement may divest the 

trial court of its jurisdiction over child support, the parties 

lacked authority to modify their agreement as to child support 

without court approval. It is true that 

 [b]oth parents owe a duty of support to their 

minor children. A divorce court retains 

continuing jurisdiction to change or modify 

its decree relating to the maintenance and 

support of minor children. Consequently, 

parents cannot contract away their children's 

rights to support nor can a court be 

precluded by agreement from exercising its 

power to decree child support. 

Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994) 

(citations omitted). Compare Code § 20-109 (court has no 

authority to enter decree concerning spousal support or certain 

other issues contrary to parties' contract) with Code § 20-108 

(court retains authority to revise decrees concerning minor 

children). 

 Here, however, the parties' agreement did not purport to 

contract away the children's right to support or bar the court's 

exercise of its jurisdiction. Instead, it allowed the parties 

the option of resolving issues, including those related to child 

support, without returning to court for approval. Cooperation 

between divorced parents concerning the welfare and support of 

their children is commendable and does not diminish in any way 

the authority of the court to safeguard the children's best 

interests. This is not an instance where one party unilaterally 

reduced child support, nor was any evidence presented to indicate 
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that the modification adversely affected the children's 

circumstances. Therefore, we do not agree with mother's 

contention that the agreement was void ab initio because it 

allowed the parties to modify support by agreement without first 

seeking court approval. 

Formality of Execution

 Mother also contends that the modification was ineffective 

because it was not notarized and, therefore, was not "executed 

with the same formality" as the agreement. Father contends the 

trial court properly found that mother was estopped to contest 

the validity of the modification. 

 The agreement does not expressly require notarized 

signatures. The modification was in writing and signed by both 

parties. The parties operated under the modification from 1989 

until the present dispute. Father, acting on the modification, 

borrowed money to pay the outstanding arrearage attributable to 

his salary increases. 

 "The general rule of equitable estoppel, or, 

as it is frequently called, estoppel in pais, 

is that when one person, by his statements, 

conduct, action, behavior, concealment, or 

even silence, has induced another, who has a 

right to rely upon those statements, etc., 

and who does rely upon them in good faith, to 

believe in the existence of the state of 

facts with which they are compatible, and act 

upon that belief, the former will not be 

allowed to assert, as against the later 

[sic], the existence of a different state of 

facts from that indicated by his statements 

or conduct, if the latter has so far changed 

position that he would be injured thereby." 
 5 

Emrich v. Emrich, 9 Va. App. 288, 294, 387 S.E.2d 274, 276-77 

(1989) (citation omitted). Mother's conduct in signing the 

modification and accepting the modified payments induced father 

to believe that the modification was uncontested. Mother's 

challenge to the modification, if successful, would result in a 

substantial back debt owed by father. We find no error in the 

trial court's determination that mother was estopped from 

complaining that the modification lacked sufficient formality 

because it was not notarized. 

 Attorney's Fees and Costs

 An award of attorney's fees is a matter submitted to the 

sound discretion of the trial court and is reviewable on appeal 

only for an abuse of discretion. Graves v. Graves, 4 Va. App. 

326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award 

of counsel fees is reasonableness under all the circumstances. 

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 

(1985). Mother asserted that she was entitled to attorney's fees 

under the settlement agreement because she incurred expenses to 

enforce the terms of the agreement. Father asserted he was 

entitled to fees because he substantially prevailed in the trial 

court. 

 The trial court denied an award of fees or costs to either 

party. An unspecified portion of mother's attorney's fees 

related to father's failure to make the annual increases required 

by the agreement. That arrearage was satisfied prior to the show 
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cause hearing. Mother incurred additional fees in her attempt to 

enforce terms other than those of the modified agreement. In 

light of the issues involved, we cannot say that the trial 

court's decision was unreasonable or an abuse of the court's 

discretion. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.