Spagnolo v. Spagnolo

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia

JOSEPH A. SPAGNOLO, JR.
OPINION BY
v. Record No. 2172-94-2 JUDGE JAMES W. BENTON, JR.
AUGUST 29, 1995
SUSAN D'ALUISIO SPAGNOLO (MURPHY)

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge

Dana L. Gay (Duty, Duty & Gay, on brief),
for appellant.
Shirley L. Hennessy (Scott D. Landry; Shirley
L. Hennessy & Associates, P.C., on brief), for
appellee.

Joseph A. Spagnolo appeals from a final order accompanying

the decree of divorce from his wife, Susan D'Aluisio Spagnolo

Murphy. He contends that the trial judge erred in (1) affirming,

ratifying, and incorporating by reference the property settlement

agreement into the final order; (2) ordering him to pay child

support consistent with the statutory guidelines and inconsistent

with the terms of the agreement; (3) finding that he had an

outstanding contractual obligation for spousal support in the

amount of $16,800; and (4) awarding attorney's fees to his wife.

We affirm the order in part, reverse in part, and remand for

reconsideration.

I.

Following mediation and prior to the filing of the divorce

suit, the parties entered into a property settlement agreement on

January 20, 1993. The agreement, which was drafted by an
independent mediator and was to be reviewed by the parties with

their attorneys, sought to resolve all issues concerning property

rights, spousal support, and support for a minor child. The

agreement required the husband to make the following child

support payments: (1) $200 per month until the earliest

occurrence of three months after the child's graduation from high

school or the child's nineteenth birthday; (2) one-half of the

first $300 of any extraordinary expenses and seventy-five percent

of extraordinary expenses that exceeded $300; (3) all the costs

of health insurance for the child until the child reached age

nineteen or graduated from college, whichever occurred later; and

(4) tuition, room, board, books and other college expenses at a

state supported college, reserving to the father the right to

require the child to earn a reasonable portion of his college

expenses. The agreement also contained the following clause

regarding child support:
RATIONALE FOR CHILD SUPPORT FIGURE

Husband and Wife agree that Husband's child
support payment shall be $200 a month rather
than the amount set forth in the child
support guidelines because Husband has agreed
to assume full responsibility for [the
child's] college expenses and has agreed to
pay for health insurance for [the child]
until [the child] graduates from college.

The child was sixteen years of age when these divorce proceedings

commenced.

Further sections of the agreement provided that (1) the

husband would pay $2,800 per month spousal support; (2) each

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party would pay his or her own attorney's fees, except that a

defaulting party would be liable to pay reasonable expenses

incurred by the other to enforce the agreement; (3) the agreement

could not be modified by the parties, except by written

instrument executed in the same manner as the agreement; and (4)

the parties would request the judge "to affirm, ratify and

incorporate by reference but not merge the provisions of this

agreement and any qualified modification into any final decree of

divorce."
The wife filed a bill of complaint for divorce on January

20, 1994, in which she requested that the agreement be affirmed,

ratified, and incorporated into the final decree of divorce. The

husband objected. The trial judge entered a decree of divorce on

June 8, 1994, and reserved for later consideration matters of

spousal support, child custody and support, equitable

distribution, attorney's fees, and incorporation of the

agreement. After hearing evidence ore tenus, the trial judge

affirmed, ratified, and incorporated by reference the agreement

into the final decree of divorce. The trial judge also

determined, however, that "circumstances would justify

application of the presumptive statutory guidelines" and ordered

the husband to pay, contrary to the agreement, child support in

the amount of $973.93 per month, which included a credit for

health insurance paid by husband on the child's behalf. The

trial judge also awarded the wife $16,800 in accrued spousal

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support and $1,000 in attorney's fees.

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 II.

"The language of Code § 20-109.1 gives the trial [judge]

discretion in determining whether a property settlement agreement

should be [affirmed, ratified, and] incorporated by reference

into a final decree of divorce." Forrest v. Forrest, 3 Va. App.

236, 239, 349 S.E.2d 157, 159 (1986). Ordinarily, absent an

abuse of discretion, the trial judge's decision will be upheld on

appeal. Id. However, we have stated that "[w]here parties to a

pending case enter into a definite, certain and unambiguous . . .

settlement agreement, in the absence of good cause not to do so,

the [trial judge] should [affirm, ratify, and] incorporate [by

reference] the agreement in the judgment of the court and thereby

terminate the litigation." Richardson v. Richardson, 10 Va. App.

391, 399, 392 S.E.2d 688, 692 (1990). In addition, Code § 20-109

provides that "in suits for divorce, . . . if a stipulation or

contract signed by the party to whom such relief might 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 nonmonetary,

shall be entered except in accordance with that stipulation or

contract."

During the divorce proceedings, the wife requested the trial

judge to affirm, ratify, and incorporate by reference the

agreement into the divorce decree. The trial judge asked: "Is

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it [the wife's] position that, if this agreement is found to be

enforceable, she is wanting, also, a departure from the child

support guidelines and to have [the husband] responsible for the

college education of the parties' minor son?" The wife's counsel

responded affirmatively.

At the conclusion of the evidence, the trial judge entered a

final decree which recited "that the Agreement entered into

between the parties dated January 20, 1993 is a valid enforceable

contract, it is therefore ADJUDGED, ORDERED AND DECREED that the

terms and provisions of the Agreement between the parties are

hereby affirmed, ratified and incorporated herein as fully and as

amply as if set forth herein verbatim." Despite the language in

the final decree incorporating all of the provisions of the

agreement, the trial judge ordered in the final decree, contrary

to the agreement, that the father pay an increased amount of

monthly child support as follows:
After consideration of all the factors
under Sections 20-108.1 and 20-108.2 of the
Code of Virginia, 1950, as amended, the court
does hereby find that circumstances . . .
would justify application of the presumptive
guidelines set forth in Section 20-108.2 of
the Code of Virginia, 1950, as amended. . . .
Accordingly, it is hereby ORDERED that the
defendant shall pay to the plaintiff the sum
of NINE HUNDRED SEVENTY-THREE DOLLARS AND
93/100 ($973.93) per month for the support
and maintenance of [the child], commencing on
July 5, 1994 and payable on the fifth day of
each month thereafter until said child shall
reach the age of eighteen or, if the said
child is still in high school at the time of
reaching his eighteenth birthday, said
support shall be payable until he shall reach
the age of nineteen or graduate from high

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 school, whichever shall first occur. It is
further ORDERED that the defendant shall
continue to maintain the minor child as a
beneficiary on his health and dental
insurance coverage through his employment.

We hold that the trial judge erred by affirming, ratifying,

and incorporating in the final decree the child support provision

of the agreement, which included the husband's obligation to pay

college expenses and insurance for the child after the child's

minority, when the trial judge at the same time also increased

the monthly amount that the husband was required to pay as child

support. The agreement that the parties negotiated and executed

expressly provided that the monthly amount of the child support

was determined and fixed in consideration for the husband's

agreement to pay the child's future college expenses and health

insurance benefits beyond the child's minority. Those support

payments and obligations were mutually dependent and the balance

struck between those arrangements was integral to the agreement

that the parties reached regarding the child's support.
The trial judge gave no reason for failing to give effect to

the part of the agreement that contained the rationale for the

reduced child support. Thus, the trial judge's decision, without

explanation, effectively ordered the husband to abide by the

portions of the agreement that the judge could not have otherwise

ordered, i.e., to pay for the child's college expenses and post-

minority health insurance. It is beyond dispute that the

husband's agreement to pay post-minority benefits for the child

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could not have been lawfully ordered by the trial judge, except

by enforcement of the parties' own validly negotiated agreement.

See Code § 20-107.2. See also Eaton v. Eaton, 215 Va. 824, 827,

213 S.E.2d 789, 792 (1975); Fry v. Schwarting, 4 Va. App. 173,

180, 355 S.E.2d 342, 346 (1987). When the trial judge severed

the child support provision as if it was one of a series of

separate and independent parts of the agreement, he both violated

the parties' express agreement and adopted a remedy that exceeded

the statutory limitation on his power. See Code § 20-107.2.

We have held that a trial judge is not required to accept or

adopt an agreement made by parents regarding child support if the

amount of child support is in dispute. Alexander v. Alexander,

12 Va. App. 691, 695, 406 S.E.2d 666, 668 (1991). Implicitly, we

recognized that nothing in Code § 20-109 encompasses matters of

child support.
[I]f the amount of child support is in
dispute, in spite of a prior agreement, the
trial court must address "the issue of
determining child support." Code § 20-108.1.
Consequently, it must do so in accord with
Code §§ 20-108.1 and 20-108.2 and must,
therefore, first determine the presumptive
amount of child support in accordance with
Code § 20-108.2.

Once the presumptive amount is determined,
the trial court may deviate from the
presumptive amount if such deviation is
justified by factors recognized in Code
§§ 20-108.1 and 20-107.2. These factors
may be reflected in provisions in the
separation agreement which may, therefore, be
the basis for deviating from the guidelines.

Id. at 695-96, 404 S.E.2d at 668.

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 When the trial judge was faced with the dispute in this case

concerning child support, the trial judge ruled that the

presumptive statutory amount of child support should be awarded.

In so deciding, the trial judge implicitly declined to follow

the agreement that the parties reached regarding child support.

However, the final decree affirmed, ratified, and incorporated by

reference the entirety of the parties' agreement, which included

the provision regarding child support. Those actions were

inconsistent and erroneous.
If a property settlement agreement contains the parties'

agreement regarding child support and the trial judge determines

to exercise his or her statutory authority to set child support,

the trial judge may ratify, affirm, and incorporate the

agreement, except for the provisions concerning child support, if

that result is consistent with the terms of the agreement. See

Code §§ 20-109 and 20-109.1. See also Watkinson v. Henley, 13

Va. App. 151, 159, 409 S.E.2d 470, 474 (1991); Scott v. Scott, 12

Va. App. 1245, 1248, 408 S.E.2d 579, 581 (1991). If the trial

judge had not affirmed, ratified, and incorporated by reference

the child support provision of the agreement in this case, the

husband would have retained the right to assert his defenses to

the obligations to pay the child's college expenses and the

health benefits beyond age eighteen. He could have asserted

those defenses whenever the wife or child may have brought a

separate suit to enforce those obligations. See Buchanan v.

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Buchanan, 174 Va. 255, 273, 6 S.E.2d 612, 619 (1940) (a suit for

specific performance may be brought to enforce child support

obligations contained in a property settlement agreement). See

also Chattin v. Chattin, 245 Va. 302, 307, 427 S.E.2d 347, 350

(1993) (As a defense to a suit for specific performance, a party

may plead "enforcement would be inequitable[,] . . . fraud,

misapprehension, or mistake"); Andrews v. Sams, 233 Va. 55, 59,

353 S.E.2d 735, 738 (1987) (a substantial failure of

consideration could give rise to a contract defense); Wells v.
Weston, 229 Va. 72, 77-78, 326 S.E.2d 672, 675-76 (1985) (In a

suit for specific performance of a property settlement agreement,

the parties to the contract may assert defenses of fraud and

voidness for lack of mutuality). In light of the alternative

available to the trial judge and the clear intent of the parties,

the trial judge's decision to affirm, ratify, and incorporate by

reference a portion of the child support provision of the

agreement was plainly wrong.

The trial judge's own findings reflect his concerns about

the agreement. In view of his express reservation regarding the

agreement, the decision to incorporate by reference a portion of

the child support provisions of the agreement was unreasonable

and an abuse of discretion. See Conway v. Conway, 10 Va. App.

653, 659, 395 S.E.2d 464, 467 (1990). 1 Where, as in this case,
1
Although the final decree is silent as to the effect of
affirming, ratifying, and incorporating this particular agreement,
we note that the precise language of the parties' agreement states
that "[t]he parties agree to file this agreement with the

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the parties negotiate benefits for the child that exceed the

benefits a trial judge may statutorily award and expressly state

that the benefits are conferred in consideration for a reduction

in the monthly support payment, if the trial judge decides to

disregard the agreement and proceed under the judge's statutory

authority to make an award for child support, the child support

provision of the agreement may not be incorporated by reference

into the final decree. The trial judge is required to follow the

agreement or the statutes, but not both.
III.

The trial judge made no findings concerning the need to

disregard the parties' agreement regarding child support. No

evidence proved that the child's current circumstances were such

that he needed greater support than provided in the agreement or

pleadings in the case and request the court, pursuant to Section
20-109.1 of the Code of Virginia, 1950, as amended, to affirm,
ratify and incorporate by reference but not merge the provisions
of this agreement and any qualified modification into any final
decree of divorce which may be entered by the court."

Code § 20-109 prohibits the trial judge from entering a
decree in a divorce suit except in accordance with a property
settlement agreement signed by the parties. Since the agreement
provides that if it is affirmed, ratified, and incorporated in the
final decree it shall not be merged in the final decree, the final
order must be read to give effect to that agreement. "'Where the
circumstances are such that the agreement, although incorporated
or approved in the decree, is not merged therein, the parties may
enforce it by suing on the agreement rather than on the
judgment.'" Doherty v. Doherty, 9 Va. App. 97, 99-100, 383 S.E.2d
759, 760 (1989) (quoting 24 Am. Jur. 2d Divorce and Separation §
858 (1983)). See also McNelis v. Bruce, 367 P.2d 625, 631-32
(Ariz. 1961) (property settlement agreement which provided that
the agreement be incorporated by reference but not be merged in
the decree did not merge in the final decree).

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that the child's current circumstances outweighed the advantages

of the future benefits that were available to the child under the

agreement. In Watkinson, this Court held as follows:
We hold that where parents have agreed upon
an amount, or agreed upon other provisions,
for the support and maintenance of a child,
the trial [judge] must consider the
provisions of the agreement, that relate to
the factors in Code §§ 20-107.2 and 20-108.1,
in deciding whether the presumptive amount
would be unjust or inappropriate in a
particular case. In so doing, the trial
[judge] must consider whether the agreed
provisions for the child would better serve
the interest or "equities" for the parents
and children. Code § 20-107.2(2)(h). The
best interest of the child or children is the
paramount and guiding principle in setting
child support, whether it be adopting the
presumptive amount, calculating an alternate
sum after the presumptive amount has been
rebutted, ordering the amount agreed upon
between the parents, or approving, ratifying
and incorporating, in whole or in part, the
child support provisions of a contract.
Furthermore, we hold that if the trial
[judge] finds that the presumptive amount is
unjust or inappropriate because the
provisions in a separation agreement serve
the best interest of the child, the [judge]
may vary from the guidelines by ordering
support be paid in an amount equal to the
benefits provided for in the contract.
Alternately, the [judge] may, rather than
judicially set support, elect to affirm,
ratify and incorporate by reference the
agreement between the parties, or any
provisions thereof, concerning the
maintenance and support of the minor
children, or establish or impose any other
condition or consideration, monetary or
nonmonetary.

13 Va. App. at 158-59, 409 S.E.2d at 474 (citations omitted).

The record contains no indication that the trial judge

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addressed the entire package of benefits in the agreement

available to the child or compared the two situations to decide

which was in the best interest of the child. As this Court

observed in discussing this precise issue:
[T]he greater amount of periodic support will
[not] necessarily be in the child's best
interest. For example, the agreement may
provide for a lesser amount of support than
presumptively payable under Code § 20-107.2,
but the contract may provide for support
beyond the age of the child's majority or
contain provisions for education which would
render the agreement more beneficial to the
children. Under these circumstances, the
trial [judge] may well be justified in
approving, ratifying, affirming and
incorporating the contract and child support
provision without entering an order for the
presumptive amount under Code § 20-108.2 as
long as written reasons are given for the
deviation.

Scott, 12 Va. App. at 1250, 408 S.E.2d at 582. Accordingly, we

reverse the decision and remand for reconsideration.

IV.

The record supports the trial judge's order that the husband

pay to the wife $16,800 to satisfy an outstanding spousal support

obligation. The evidence proved that this amount represented the

husband's unpaid obligation under the agreement. The parties'

agreement imposed on husband the obligation to pay wife $2,800

per month in spousal support. Because the evidence proved that

the husband failed to make these payments from January through

June 1994, the trial judge's order regarding spousal support was

not plainly wrong or without evidence to support it. Lyle v.

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Eskridge, 14 Va. App. 874, 876, 419 S.E.2d 863, 864 (1992).

V.

"An award of attorney fees is a matter submitted to the

trial [judge's] sound discretion 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) (citing Ingram v. Ingram, 217 Va.

27, 29, 225 S.E.2d 362, 364 (1976)). In pertinent part,

provision eight of the agreement states:
Husband and Wife shall each pay his or
her own attorney's fees incurred in the
review of this agreement and for any suit for
divorce that may be filed between them. The
parties further agree that in the event
either party defaults under the provisions of
this agreement, the defaulting party shall be
liable for all reasonable expenses incurred
by the non-defaulting party in connection
with the enforcement of this agreement,
including but not limited to legal fees and
costs.

(Emphasis added). "[T]aking into account what the [trial judge]

believe[d] to be the portion of that fee that is properly related

to two hearings," the trial judge ordered husband to pay to the

wife $1,000 for her attorney's fees. This award was not

unreasonable. The evidence established that the husband failed

to make the spousal support payments pursuant to the schedule

stated in the agreement. When the wife sought payment, the

husband attempted to invalidate the agreement on the ground of

unconscionability. Moreover, the trial judge heard evidence

concerning the amount of fees the wife would have expended had

the agreement not been contested. Therefore, we hold that the

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$1,000 attorney fee award at which the trial judge arrived was

not an abuse of discretion under the circumstances.

For the foregoing reasons, we affirm, in part, and reverse,

in part, the final order accompanying the decree of divorce, and

we remand for proceedings consistent with our holding.
Affirmed, in part, reversed,
in part, and remanded.

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Elder, J., concurring in part, dissenting in part.

I concur in Sections IV and V of the majority opinion

regarding outstanding spousal support and attorney fees.

However, I believe that the trial court did not abuse its

discretion by incorporating the entire property settlement into

the final order; for this reason, I respectfully dissent from

Sections II and III of the majority opinion.

The majority fails to give proper deference to the familiar

principle of appellate review, which dictates that "we review the

evidence in the light most favorable to . . . the prevailing

party below. . . . The judgment of a trial court sitting in

equity, when based on evidence heard ore tenus, will not be

disturbed on appeal unless plainly wrong or without evidence to

support it." Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d

232, 237 (1988) (citations omitted). "The language of Code

§ 20-109.1 gives the trial court discretion in determining

whether a property settlement agreement should be incorporated by

reference into a final decree of divorce. Absent an abuse of

discretion, the trial court's decision must be upheld on appeal."
Forrest v. Forrest, 3 Va. App. 236, 239, 349 S.E.2d 157, 159

(1986).

As an initial matter, I address husband's contention that

the agreement was unenforceable due to its oral modification,

changed circumstances, or unconscionability. I conclude that the

trial court did not err in finding that the agreement was

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enforceable. The applicable law states:

"[M]arital property settlements entered into by
competent parties upon valid consideration for lawful
purposes are favored in the law and such will be
enforced unless their illegality is clear and certain."
Cooley v. Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52
(1980) (citation omitted); Derby v. Derby, 8 Va. App.
19, 25, 378 S.E.2d 74, 77 (1989). Therefore, in this
case, [husband] "had the burden at trial to prove by
clear and convincing evidence the grounds alleged to
void or rescind the agreement." Drewry v. Drewry, 8
Va. App. 460, 463, 383 S.E.2d 12, 12 (1989).

Webb v. Webb, 16 Va. App. 486, 491, 431 S.E.2d 55, 59 (1993).
According to the agreement's terms, neither party could

modify the agreement unless in writing, even in the event of

changed circumstances. In this case, there was no written

modification. Additionally, there is no evidence to support

husband's allegation that the agreement was unconscionable.

Instead, ample evidence supports the trial court's finding that

the agreement was fair and equitable at the time it was entered

into by the parties. Finally, husband did not allege any of the

other grounds necessary for a recision or modification of the
2
agreement.
Next, addressing the central issue in this case, I would

hold that the trial court did not err in incorporating every

provision of the agreement, even after ordering husband to pay

child support pursuant to the presumptive statutory guidelines.
2
See Derby, 8 Va. App. at 26, 378 S.E.2d at 77 (examining
agreement for unconscionability, fraud, or duress); Frey v. Frey,
14 Va. App. 270, 273, 416 S.E.2d 40, 42 (1992) (examining
agreement for potential ambiguity).

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I commence this "analysis with the general principle that the

jurisdiction of a divorce court to provide for child support is

statutory. Code § 20-107.2. . . . Divorcing parents cannot by

agreement divest a divorce court of its jurisdiction to award

child support." Scott v. Scott, 12 Va. App. 1245, 1247, 408

S.E.2d 579, 581 (1991).

[W]here parents have agreed upon an amount . . . for
the support and maintenance of a child, the trial court
must consider the provisions of the agreement, that
relate to the factors in Code §§ 20-107.2 and 20-108.1,
in deciding whether the presumptive amount would be
unjust or inappropriate in a particular case. In so
doing, the trial court must consider whether the agreed
provisions for the child would better serve the
interest or "equities" for the parents and children.
Code § 20-107.2(2)(h).

Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 474

(1991). See also Scott, 12 Va. App. at 1248, 408 S.E.2d at 581.

In this case, the trial court followed Scott's principles.

The trial court (1) determined the presumptive amount of child

support in accordance with the terms of Code § 20-108.2; and (2)

decided not to deviate from the presumptive amount in light of
3
the pertinent facts and circumstances. Contrary to the

majority's assertion, the record does contain an indication that

the trial court compared the package of benefits the minor child

would receive under the agreement with what he would receive
3
The trial court specifically stated in its order that
it considered "all of the factors under Sections 20-108.1
and 20-108.2" and found that "circumstances would justify
application of the presumptive guidelines set forth in
Section 20-108.2 . . . ."

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under the statutory guidelines. The trial court heard evidence

regarding changes in the parties' financial circumstances after

the agreement's execution and their current respective abilities

to provide for the minor child's current needs. First, evidence

showed that husband had discontinued his monthly spousal support

payments to wife in January 1994, which significantly decreased

her ability to support the minor child. See Turner v. Turner,

213 Va. 42, 43, 189 S.E.2d 361, 363 (1972) (discussing the legal

duty of a spouse to support children according to "the station in

life to which he has accustomed them"). Second, husband had been

relieved of his obligation to pay for one-half of the mortgage on

the marital home, which represented a savings of approximately

$700 per month. Third, husband's salary had increased to

approximately $117,000 per year, a greater income than when he

entered into the agreement. Furthermore, while husband was

ordered to pay $773.93 more per month in child support than the

agreement stated, this obligation presumably would have lasted
4
for only twenty-four months. Under the facts of this case, it

was within the trial court's discretion to decline to eliminate

the college and insurance provisions.

Considering all of these factors, among others, the trial

4
The minor child was born on May 3, 1978, and will turn
eighteen on May 3, 1996. The child will presumably graduate from
high school in June 1996, one month after his eighteenth birthday.
Thus, the court's order obligated husband to pay $773.93 more per
month from July 5, 1994 until approximately June 1996, for a total
of twenty-four months.

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court arrived at a support amount that satisfied the child's

current needs and that was in the child's best interests--

considerations that the presumptive statutory guidelines are

meant to reflect. See Williams v. Williams, 4 Va. App. 19, 25,

354 S.E.2d 64, 67 (1987); Lee v. Lee, 3 Va. App. 631, 634, 352

S.E.2d 534, 535-36 (1987). This support amount was not plainly

wrong.

As the majority recognizes, a trial court may incorporate,

"in whole or in part, the child support provisions of a

contract," and it may incorporate "any provisions thereof."
Watkinson, 13 Va. App. at 158-59, 409 S.E.2d at 474 (emphasis

added). I believe that in this case, Section 2 of the agreement

contained five provisions (sub-A through E), each one outlining a

distinct element of the child support package (such as monthly

payments, health insurance, and college expenses). See id. at

159, 409 S.E.2d at 474 (stating that trial courts may incorporate

an agreement or "provide specific support provisions, such as

educational, insurance, and health care benefits . . . .")

(emphasis added). Because the trial court had authority to

incorporate any or all of the provisions of the agreement, it was

not obliged to strike all of Section 2 merely because it did not

follow provision sub-A (monthly support payments), nor was it

error to have declined to view provision sub-A and provisions

sub-C and D as mutually dependent. 5 Therefore, I do not agree
5
If husband wished for the insurance and college tuition
provisions (sub-C and D) to be invalidated if and when he was

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with the majority that the trial court adopted a remedy that

exceeded its statutory authority, nor do I agree that the trial

court "was required to follow the agreement or the statutes, but

not both."

For the foregoing reasons I concur in part and dissent in

part.

ordered to pay a greater amount of monthly child support, the
agreement itself should have been drafted to specifically provide
for this scenario.

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