COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia
WILLIAM CARL SMITH
MEMORANDUM OPINION * BY
v. Record No. 2991-02-4 JUDGE LARRY G. ELDER
JUNE 24, 2003
NINA E. ROSEN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gaylord L. Finch, Jr., Judge
Betty A. Thompson (Kenneth N. Hodge; Betty A.
Thompson, Ltd., on briefs), for appellant.
Richard M. Wexell (Douglas E. Milman; Richard
M. Wexell & Associates, on brief), for
appellee.
William Carl Smith (husband) appeals from a decision
entered at the request of his former wife, Nina E. Rosen (wife),
holding him responsible for certain educational expenses for the
parties' daughter (daughter). On appeal, husband contends the
court erroneously (1) interpreted the provision of the parties'
property settlement agreement (the agreement) regarding
husband's liability for daughter's educational expenses, (2)
failed to conclude that wife was not entitled to recover the
claimed educational expenses because she breached her duty to
husband under the agreement to seek his approval before
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
enrolling their daughter in school, and (3) ruled that husband
remained unconditionally liable for the future costs of "any
other appropriate college or university," without regard to the
agreement's provision that his duty to pay was subject to his
approval of the school. Wife contends the court erroneously
failed to award her attorney's fees under the term of the
agreement providing for fees and costs "in the successful
enforcement of" the agreement.
We hold the trial court's interpretation of the agreement
was erroneous because the agreement expressly conditioned
husband's obligation to pay on his approval of the school
selected as long as such approval was not unreasonably withheld.
However, because the agreement did not require approval prior to
enrollment, any failure of wife to secure husband's approval
prior to enrollment was not a breach excusing husband's
performance. Further, because husband did not claim that his
disapproval of either school choice was an alternative reason
for finding he was not liable under the agreement, we hold he
has waived the right to assert such a claim as a defense to
payment. Thus, we affirm the decision that husband is liable
for the challenged educational expenses.
However, based on wife's concession of error, we vacate the
portion of the trial court's ruling that implies husband might
be liable for future educational expenses at other unnamed
schools. We also hold the trial court erred in failing to award
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attorney's fees and costs for wife's successful enforcement of
husband's child support and educational expense obligations
under the agreement. Thus, we affirm in part, reverse in part,
vacate in part, and remand for additional proceedings consistent
with this opinion.
I.
"[P]roperty settlement agreements are contracts . . .
subject to the same rules of formation, validity, and
interpretation as other contracts." Smith v. Smith, 3 Va. App.
510, 513, 351 S.E.2d 593, 595 (1986). "Where the 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). The trial court ruled, and the parties agree,
that the contract is unambiguous.
"In construing the terms of a property settlement
agreement, just as in construing the terms of any contract, we
are not bound by the trial court's conclusions as to the
construction of the disputed provisions." Smith, 3 Va. App. at
513, 351 S.E.2d at 595. "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
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by this court." Fry v. Schwarting, 4 Va. App. 173, 180, 355
S.E.2d 342, 346 (1987).
A.
CONDITIONS PRECEDENT TO PAYMENT
Here, husband contends wife forfeited her right to obtain
reimbursement from him under the agreement for daughter's
tuition and other expenses at the Bullis School and the College
of Charleston because she failed to obtain his approval of
either school prior to daughter's enrollment. The trial court
rejected husband's claim, ruling that husband had, at most, a
right to participate in discussions regarding the choice of
schools and had a contractual obligation to pay tuition and
expenses regardless of whether he approved of the schools
ultimately selected. We hold the correct interpretation of the
parties' agreement lies between these two positions and is
governed by our prior decision in Harris v. Woodrum, 3 Va. App.
428, 350 S.E.2d 667 (1986).
Harris involved a property settlement agreement containing
language similar but not identical to the language at issue
here. Id. at 429, 350 S.E.2d at 668. In Harris, the father
agreed to pay educational expenses "'subject to [his] approval
of the particular school or schools prior to the child's being
enrolled therein, which approval the [father] agrees not to
unreasonably withhold.'" Id. (emphasis added). Although the
agreement in Harris conditioned the father's duty to pay on his
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approval "'prior to the child's . . . enroll[ment],'" the mother
apparently sought that approval prior to the enrollment because
the only issue in dispute was the meaning of the remaining
portion of that provision, "'subject to the [father's] approval
. . . , which approval the [father] agrees not to unreasonably
withhold.'" Id.
The mother in Harris noted that "[the father] agreed to pay
'room and board.' She asserts that this is proof that the
parties anticipated that attendance in a boarding school was a
possibility and, therefore, for [the father] to now withhold
approval of daughter's entrance into Foxcroft is . . . in breach
of the contract." Id. at 432-33, 350 S.E.2d at 669. We
disagreed, holding that "[s]uch construction of the contract
[would] . . . render[] nugatory the words, 'subject to [the
father's] approval,'" and "[w]e decline[d] to give the contract
that construction." Id. at 433, 350 S.E.2d at 669-70.
Here, the parties' agreement expressly provides that
husband's obligation to pay daughter's educational expenses as
outlined in the agreement is "subject to husband's approval of
such school (which approval shall not be unreasonably
withheld)." (Emphasis added). In contrast to Harris, the
agreement does not require that husband's approval be obtained
prior to enrollment. As such, we reject husband's claim that he
is not liable under the agreement merely because wife did not
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obtain his approval of the Bullis School or the College of
Charleston prior to daughter's enrollment in those schools.
Nevertheless, our holding in Harris controls to the extent
it provides that husband's approval of the school selected is a
condition to his obligation to pay tuition and other expenses as
outlined in the agreement, as long as husband does not withhold
that approval unreasonably. The trial court's ruling that the
parties' agreement does not provide husband with "'veto' power"
over his duty to pay for the school of daughter's or wife's
choice "renders nugatory the words, 'subject to [h]usband's
approval.'" Harris, 3 Va. App. at 432-33, 350 at 669-70; see
also Jones, 19 Va. App. at 270, 450 S.E.2d at 764 ("These
terms[,] linked together one sentence after another in the same
paragraph, can only be read to condition Mr. Jones's obligation
to pay on his agreement to the college his child attends. To
read those terms otherwise deprives either one or the other of
any significance.").
In sum, we hold that husband's approval prior to enrollment
was not required by the agreement and, thus, that any failure by
wife to obtain his approval prior to enrollment was not a breach
excusing husband's performance. The agreement does expressly
provide that husband's approval, or a judicial finding that he
unreasonably withheld such approval, is a condition precedent to
his duty to pay. However, husband did not specifically assert
in the trial court and does not argue on appeal that his
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disapproval of either school choice was an alternative reason
for finding he was not liable under the agreement. His entire
argument hinged on his claim that wife's failure to obtain his
approval prior to daughter's enrollment was a breach excusing
his duty to pay. Thus, we hold husband has waived his right to
object to wife's and daughter's choices or to have a court
determine whether such an objection would have been reasonable.
See Rule 5A:18. Accordingly, husband is obligated to pay,
pursuant to the agreement, for daughter's tuition and related
educational expenses covered by the agreement for the Bullis
School and the College of Charleston.
Husband also objects to the trial court's ruling that
"[husband] is obligated to pay the remaining tuition and
expenses for the College of Charleston, or any other appropriate
College or University as set forth in the [agreement]." Wife
concedes on appeal that this portion of the ruling was error to
the extent that it may be interpreted to conflict with the
parties' agreement. Thus, we vacate this portion of the trial
court's ruling.
B.
ATTORNEY'S FEES UNDER THE AGREEMENT
Wife challenges the trial court's ruling denying her
request for attorney's fees pursuant to the provision in the
agreement that fees and costs for "the successful enforcement"
of the agreement "shall be borne by the defaulting party."
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Although the court awarded wife the contested educational
expenses, it ruled wife was not entitled to attorney's fees
based on husband's nonpayment of those educational expenses
because "the agreement was litigated not for mere enforcement
but for interpretation" and because "there was no default that
would deem the unsuccessful litigant a defaulting party." It
made no mention of wife's request for fees associated with her
successful efforts to obtain payment of child support
arrearages.
We hold the trial court's ruling was erroneous insofar as
it failed to award wife fees for resolving the issue of the
child support arrearage. Wife included the arrearage issue in
her petition originating this action. Husband conceded prior to
trial that he owed wife support arrearages in excess of $20,000
and executed an income deduction order. Wife represented to the
trial court that she incurred attorney's fees in resolving this
issue. Paragraph 35 of the parties' agreement expressly
provides that fees and costs "incurred . . . in the successful
enforcement of any of the . . . provisions of this agreement,
whether through litigation or other action necessary to compel
compliance herewith shall be borne by the defaulting party."
(Emphasis added). Husband's concession regarding the arrearage
and voluntary execution of the income deduction order
established that wife successfully enforced the agreement
against husband, the defaulting party. Thus, wife was entitled
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to an award of fees and costs associated with enforcement of
this portion of the agreement.
The court also erred in failing to award wife's fees and
costs related to the contested educational expenses. As we held
above, husband is obligated under the agreement to pay those
educational expenses. Further, the parties' agreement makes no
distinction between fees related to interpretation of the
agreement and those related to its enforcement. Although the
parties' dispute centered around their differing interpretations
of the agreement, the litigation regarding the educational
expenses involved wife's effort to enforce the agreement and was
"necessary to compel [husband's] compliance" with the agreement
as wife interpreted it.
Our holding in Allsbury v. Allsbury, 33 Va. App. 385, 533
S.E.2d 639 (2000), relied on by husband at trial, is
distinguishable based on the language of the agreement at issue
in that case. Although paragraph 25(C) of the agreement in
Allsbury entitled a party seeking "to enforce th[e] agreement"
to obtain an award of attorney's fees against the party who
"breach[ed] . . . th[e] agreement," that paragraph was not the
only language in the agreement that addressed the recovery of
fees and costs. Id. at 392, 533 S.E.2d at 643. Paragraph 25(D)
provided that "where the parties cannot agree on disputed
matters, the trial court has the power to award counsel fees and
costs against a party who the court finds acted unreasonably."
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Id. We held, based on the express language of paragraph 25(D)
of the Allsburys' agreement, language not contained in the
agreement at issue here, that the trial court made a finding
that Mr. Allsbury's position on the interpretation of a disputed
provision, although incorrect, was reasonable. Id. Thus, the
ruling in Allsbury turned on the specific language of the
agreement and does not constitute a general ruling that an
action to enforce an agreement does not encompass a dispute over
interpretation of the agreement's terms.
For these reasons, we reverse the trial court's ruling
denying wife's request for attorney's fees and costs and remand
for entry of an appropriate award for fees and costs.
II.
In sum, we hold the trial court's interpretation of the
agreement was erroneous because the agreement expressly
conditioned husband's obligation to pay on his approval of the
school selected as long as such approval was not unreasonably
withheld. However, because the agreement did not require
approval prior to enrollment, any failure of wife to secure
husband's approval prior to enrollment was not a breach excusing
husband's performance. Further, because husband did not claim
that his disapproval of either school choice was an alternative
reason for finding he was not liable under the agreement, we
hold he has waived the right to assert such a claim as a defense
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to payment. Thus, we affirm the decision that husband is liable
for the challenged educational expenses.
However, based on wife's concession of error, we vacate the
portion of the trial court's ruling that implies husband might
be liable for future educational expenses at other unnamed
schools. We also hold the trial court erred in failing to award
attorney's fees and costs for wife's successful enforcement of
husband's child support and educational expense obligations
under the agreement. Thus, we affirm in part, reverse in part,
vacate in part, and remand for additional proceedings consistent
with this opinion.
Affirmed in part, reversed in part,
vacated in part, and remanded.
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William Carl Smith v. Nina E. Rosen
Combined Opinion