COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Lemons 

Argued at Richmond, Virginia 

SUSAN K. SMITH 

 MEMORANDUM OPINION* BY 

v. Record No. 0488-98-2 JUDGE DONALD W. LEMONS 

 MARCH 30, 1999 

WILLIAM S. SMITH 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Mary-Leslie Duty (Duty, Duty & Gay, on 

brief), for appellant. 

 Deanna D. Cook (Bremner, Janus & Cook, on 

brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Susan K. Smith appeals the trial court's dismissal of her 

motion for an increase in spousal support. The trial court held 

that the provisions of Code § 20-109 and the terms of the 

parties' separation agreement precluded the court from modifying 

spousal support. Although we hold that the parties' separation 

agreement was ambiguous as to whether the court could modify the 

amount of spousal support, we affirm the decision of the trial 

court. 

I. BACKGROUND 

 Susan K. Smith (wife) and William Scott Smith (husband) 

were married on June 21, 1975. The parties separated on 

November 26, 1989. On May 2, 1991, both parties entered into a 
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property settlement agreement which resolved all issues of 

spousal support, equitable distribution, child custody and 

support. On June 13, 1991, the final decree of divorce 

affirmed, ratified and incorporated by reference the property 

settlement agreement. All matters regarding the support and 

custody of the children were remanded to the Chesterfield 

Juvenile and Domestic Relations District Court ("J & DR court"). 

 On July 3, 1996, the husband filed a petition in the J & DR 

court seeking to have his child support payments reduced, based 

upon the eldest child graduating from high school and having 

reached the age of eighteen. The wife filed a motion in the 

circuit court to remand the issue of spousal support to the 

J & DR court, which was done by court order. The wife filed a 

response to the husband's request to decrease child support and 

filed a separate motion to increase spousal support. The 

husband objected to the court hearing the wife's motion, arguing 

that the court lacked jurisdiction to increase the amount of 

spousal support based upon the parties' property settlement 

agreement of May 2, 1991 and Code § 20-109.1. 

 On November 1, 1996, a hearing was held in the J & DR 

court. By order entered on December 10, 1996, the J & DR court 

found that Code § 20-109.1 and the parties' written property 

settlement agreement precluded the court's jurisdiction to 

modify spousal support. The wife appealed the order of the 
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J & DR court to the circuit court and on March 13, 1997, a 

hearing was held by the circuit court on the issue of whether 

the court had jurisdiction to increase spousal support. By 

letter dated May 19, 1997, and order entered February 9, 1998, 

the circuit court denied the wife's petition to increase spousal 

support, stating that the court lacked jurisdiction to modify 

spousal support. 

II. JURISDICTION TO MODIFY SPOUSAL SUPPORT 

 Pursuant to Code § 20-109, a trial court may modify the 

existing terms of spousal support and maintenance upon the 

petition of either party. However, "where the parties contract 

or stipulate to the amount of spousal support and that agreement 

is filed without objection prior to the entry of the final 

divorce decree, no decree or order directing the payment of 

support and maintenance for the spouse . . . shall be entered 

except in accordance with that stipulation or contract." 

Pendleton v. Pendleton, 22 Va. App. 503, 506, 471 S.E.2d 783, 

789 (1996) (citations omitted); see Code § 20-109(C). Section 

20-109(C) "inhibits the power of the court to award or consider 

modification of the decree to the extent that spousal support 

and maintenance are provided for in the incorporated agreement 

of the parties." White v. White, 257 Va. 139, 144, 509 S.E.2d 

323, 325 (1999) (citations omitted). 
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 The property settlement agreement signed by the parties on 

May 2, 1991 contained the following pertinent provisions in 

paragraph sixteen, 

 [b]eginning August 1, 1991, the Husband 

shall pay to the Wife the sum of Five 

Hundred dollars ($500.00) per month as 

spousal support. Spousal support payment 

[sic] shall be due and payable on the first 

day of each month and continue thereafter 

until further Court Order or remarriage of 

the Wife. 

 

 It is understood that these provisions 

for the payment of child support and spousal 

support are based upon an income of the 

Husband being $100,000.00. Should Wife 

remarry or for any reason not be entitled to 

spousal support, the child support payments 

would automatically increase by the same 

amount ($500.00) and continue until further 

Court Order. 

 

 Paragraph eighteen of the agreement contained the following 

waiver provision, 

 [t]he Wife acknowledges that the 

foregoing provisions for her, together with 

her anticipated income from other sources 

will provide for her support and maintenance 

and that the foregoing, considering all of 

the Wife's circumstances, is fair, adequate 

and satisfactory to her and is in the 

keeping [sic] with her accustomed standard 

of living and her reasonable requirements, 

giving consideration to her own ability to 

provide for her own support. 

THE WIFE, THEREFORE, WAIVES ANY AND ALL 

CLAIM TO SUPPORT AND MAINTENANCE FOR HERSELF 

OTHER THAN THOSE TERMS AND CONDITIONS 

HEREIN, AND HEREBY RELEASES AND DISCHARGES 

ABSOLUTELY AND FOREVER FOR THE REST OF HER 

LIFE, FROM ANY AND ALL CLAIMS AND DEMANDS, 
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PAST, PRESENT OR FUTURE, FOR SUPPORT, 

MAINTENANCE OR LUMP SUM SETTLEMENT. 

 The final decree of divorce order entered on June 13, 1991 

contained the following provisions, 

 And it appearing to the Court that the 

parties to this cause have entered into an 

Agreement and Stipulation in accordance with 

Virginia Code Section 20-109 and 20-109.1, 

Code of Virginia, 1950, as amended, it is 

ADJUDGED, ORDERED and DECREED that said 

Agreement and Stipulation be, and the same 

is hereby affirmed, ratified, and 

incorporated by the Court, and that the 

parties fully comply with the terms of same, 

and that a copy thereof is on file with the 

papers in this cause. 

 * * * * * * * 

 It is hereby ORDERED that the defendant 

shall pay to the plaintiff the sum of Five 

Hundred Dollars ($500.00) per month as 

spousal support. Said spousal support shall 

be due and payable on the first day of each 

month and shall continue thereafter until 

further Court Order or remarriage of the 

plaintiff. 

 * * * * * * * 

 It is further ORDERED that, pursuant to 

Section 20.79(c) of the Code of Virginia, 

1950, as amended, all matters pertaining to 

the care, custody, visitation and support of 

the minor children of this marriage are 

transferred to the appropriate Juvenile and 

Domestic Relations District Court, having 

jurisdiction, for the enforcement of the 

decrees of this Court, or for the 

modification or revision thereof as the 

circumstances may require. 
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 At the trial court, the parties agreed to orally argue the 

issue of the court's jurisdiction to modify the amount of 

spousal support, considering only the property settlement 

agreement and the final decree of divorce and not considering 

any other evidence. Both parties argued that the terms of the 

property settlement agreement were clear and unambiguous. 

However, each party asserted that the language "until further 

Court Order" contained in the agreement supported a meaning 

contrary to the meaning asserted by the other party. 

 On appeal, the wife argues that the trial court erred in 

finding that it did not have jurisdiction to modify the spousal 

support order. She states that Code § 20-109 grants the court 

authority to "increase, decrease or terminate the amount or 

duration of any spousal support and maintenance . . . whether 

previously or hereafter awarded, as the circumstances may make 

proper." She maintains that the language in the property 

settlement agreement and the divorce decree "until further Court 

Order" was a clear and proper reservation of the right of either 

party to request a modification of both the amount and the 

duration of spousal support award. The wife asserts further 

that the agreement was based upon the husband's then-current 

income of $100,000 per year and that the parties intended to 

make the support award modifiable upon a change in his income. 

In addition, the wife suggests that if the court does find that 
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the agreement is ambiguous, it must consider extrinsic evidence 

to determine the intentions of the parties. 

 Conversely, the husband argues on appeal that the court's 

jurisdiction is limited to the modification of the duration of 

spousal support and that the amount of support is non-modifiable 

based upon the terms of the property settlement agreement. The 

husband contends that the language "until further Court Order or 

remarriage of the Wife" allows the court to terminate support, 

but not modify the amount. The husband argues that the 

agreement contains no explicit language reserving authority for 

the court to increase or decrease the amount of spousal support 

and that the court may not modify an award in the absence of 

such a provision. The husband argues further that paragraph 

eighteen of the agreement constitutes a waiver of any right of 

either party to seek any type of support from the other party in 

the future. The husband maintains that the court must read 

paragraph eighteen, the waiver provision, in conjunction with 

paragraph sixteen which sets the dollar amount of support, or 

the waiver will be rendered meaningless. 

 The husband also contends that the wife may not argue for 

the first time on appeal that the agreement is ambiguous and 

that the case should be remanded to the trial court for 

consideration of parol evidence. The husband asserts that if 

the wife believed that the introduction of parol evidence was 
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necessary to determine the intent of the parties, she should not 

have agreed to submit the issue of the trial court's 

jurisdiction to modify the amount of spousal support without the 

benefit of a full evidentiary hearing. 

 An appellate court is not bound by the conclusions of the 

trial court with respect to the construction of the terms of a 

property settlement agreement. See Bergman v. Bergman, 25 Va. 

App. 204, 211-12, 487 S.E.2d 264, 267-68 (1997) (citations 

omitted). "[I]f 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 be readily ascertained by this court." 

Id. at 212, 487 S.E.2d at 268 (citation omitted). 

 At the hearing held in the circuit court, the parties 

agreed to argue orally whether the court had jurisdiction to 

modify the amount of spousal support without introducing 

extrinsic evidence of the parties' intentions. Based upon the 

arguments made by counsel, the court determined that it did not 

have jurisdiction to modify the spousal support award. 

 On the face of the document, it is unclear whether the 

agreement of the parties preserves continuing jurisdiction over 

modification of the amount of spousal support or the duration of 

spousal support or both. If the only language in question was 

the meaning of the phrase "and continue thereafter until further 
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court Order," we would find that the court had jurisdiction to 

modify the amount of spousal support. See Losyk v. Losyk, 212 

Va. 220, 183 S.E.2d 135 (1971); Duke v. Duke, 239 Va. 501, 391 

S.E.2d 77 (1990). But in the same numbered paragraph of the 

agreement the parties state that if spousal support terminates, 

the sum certain of $500 would be added to child support. This 

additional provision of the agreement provides further support 

for husband's argument that the amount was never to vary and 

consequently could not be subject to modification by the court. 

 We find the language of the agreement to be ambiguous on 

the question of spousal support modification; however, neither 

party submitted parol evidence to the trial court. "The Court 

of Appeals will not consider an argument on appeal which was not 

presented to the trial court." Ohree v. Commonwealth, 26 Va. 

App. 299, 308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18. 

Neither party argued to the trial court that the agreement was 

ambiguous, and the court had no parol evidence before it; 

consequently, we have no evidence in the record sufficient to 

resolve the ambiguity. Even if we invoked the good cause or 

ends of justice exceptions to Rule 5A:18, we have an 

insufficient record to consider the issue. See Smith v. 

Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993). 

 In this case, the wife bears the burden of demonstrating 

that the trial judge's ruling was plainly wrong or without 
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evidence to support it. Although we find the language of the 

agreement to be ambiguous, remand for the wife to have a "second 

bite at the apple" is inappropriate. Having chosen to submit 

the issue to the trial court with each party insisting that the 

language is unambiguous, the wife places limitations upon the 

trial court and the appellate court. With these limitations, 

the wife fails in her burden on appeal. Accordingly, the 

decision of the trial court is affirmed. 

III. ATTORNEY'S FEES 

 On appeal, the husband argues that he is entitled to 

attorney's fees and costs incurred in defending the instant 

appeal, and requests that we remand the case to the trial court 

for its calculation of attorney's fees incurred by him in this 

case. 

The rationale for the appellate court being 

the proper forum to determine the propriety 

of an award 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 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). 

 Although we find the agreement to be ambiguous on the issue 

presented, we do not believe that the wife's assertion that it 
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was ambiguous was frivolous. The husband's request for 

attorney's fees is denied. 

Affirmed.