Thomas F. Fricke v. Rosanne Fricke

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia

THOMAS F. FRICKE
MEMORANDUM OPINION * BY
v. Record No. 1184-96-4 JUDGE JOHANNA L. FITZPATRICK
JANUARY 7, 1997
ROSANNE FRICKE

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
Sharon K. Lieblich (Sharon K. Lieblich, P.C.,
on briefs), for appellant.

Philip F. Hudock for appellee.

On appeal, Thomas F. Fricke contends that the trial court

erred (1) in failing to interpret and modify the parties'

settlement agreements in light of his changed economic

circumstances and (2) in awarding Rosanne Fricke attorney's

fees. 1 We find no error and affirm the judgment of the trial

court.

*
Pursuant to Code § 17-116.101 this opinion is not
designated for publication.
1
The husband also argues that "[t]he trial court erred in
adjudicating a conditional contempt in advance of an event that
might constitute contempt and thereby depriving [husband] of an
opportunity to raise any defenses if unable to comply with the
Court's order." At the hearing on the Rule to Show Cause filed
by the wife, the court granted the husband's request for time to
pay the expenses due, and ruled that failure to make timely
payment would constitute contempt. However, the husband paid the
arrearage and attorney's fees as ordered and no contempt
proceedings were brought. Thus, we find this issue to be without
merit.
 BACKGROUND

Thomas F. Fricke (husband) and Rosanne Fricke (wife) were

married in 1976 and two children were born of the marriage. At

the time of this appeal, their daughter, Katherine, was a

sophomore at The Tisch School of Arts at NYU and their son,

Thomas, was in the tenth grade at a private school in Fairfax

County.

In 1990, the parties separated and entered into a property

settlement agreement (PSA) dated March 19, 1990. Pursuant to the

PSA, the husband agreed to pay the children's private school

expenses, basic monthly child support, and to share in proportion

to his gross income the total cost of each child's four-year

college education.
The parties were divorced in 1992. The final decree of

divorce incorporated the PSA. Shortly after the final decree was

entered, the husband filed a motion to modify support. The trial

court denied the husband's motion, and found that it was in the

children's best interests to remain in private school. On

appeal, we affirmed the trial court's decision. See Fricke v.

Fricke, Record No. 1679-92-4, slip op. at 4 (Va. July 6, 1993).

In 1994, the husband's failure to make the private school

tuition payments prompted further litigation between the parties,

which was resolved by a second settlement agreement dated April

1994. The agreement resulted in the withdrawal of the pending

litigation between the parties and in the compromise of various

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claims of the parties. In this agreement, the husband again

agreed to pay the children's private school expenses, and

specifically "waive[d] any challenge to his obligations to make

those payments." Additionally, the agreement set basic child

support and provided for an adjustment of support upon the

husband's change of income. This agreement was incorporated into

the final decree on May 13, 1994.

After a change in the husband's employment status, he filed

a motion to modify his child support obligations. In response to

his failure to pay the children's private school and college

expenses, the wife filed a motion to recover the arrearage due

and a petition for a rule to show cause. In the evidentiary

hearing held on April 18, 1996, the trial court affirmed the

husband's obligation to pay private school and college expenses,

decreased his basic child support payment, and awarded the wife

the arrearage and attorney's fees.
I. COLLEGE EXPENSES

The husband contends that he entered into the PSA with the

intent that it would "impose on him a reasonable burden of

education expenses" and that the PSA mandates a consultation

between the parties regarding the children's education. He

argues that the trial court erred in concluding that it did not

have the discretion to establish the proper cost of college and

in failing to adopt a "reasonable" interpretation of the

agreement.

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 "On appeal, we construe the evidence in the light most

favorable to wife, the prevailing party below, granting to her

evidence all reasonable inferences fairly deducible therefrom."

Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257

(1995) (quoting McGuire v. McGuire, 10 Va. App. 248, 250, 391

S.E.2d 344, 346 (1990)).

Separation agreements and property settlement agreements are

contracts. See Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d

796, 799 (1985), and Jones v. Jones, 19 Va. App. 265, 269, 450
S.E.2d 762, 763 (1994). "[T]herefore, we must apply the same

rules of interpretation applicable to contracts generally."

Tiffany, 1 Va. App. at 15, 332 S.E.2d at 799. Where a settlement

agreement is unambiguous, its meaning and effect are questions of

law to be determined by the court. Id. Moreover, "[w]here 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, 19 Va. App. at 268-69, 450 S.E.2d at

764.

The evidence established, and the husband admits, that the

final decree incorporated the PSA and specifically required the

husband to pay his "proportional" share of his children's college

expenses. The husband's intention to pay for these costs is

firmly and unequivocally stated in Paragraph 6 of the PSA:
COLLEGE EDUCATION: The parties hereto agree
to share the cost of a four year college
education for each child with each party

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 contributing a percentage of the total cost
of said four year college education for each
child including tuition, books, room and
board, which contribution shall be in
proportion to each party's gross income at
the time such expenses are due and payable.

Although the second agreement modified certain provisions of the

PSA, it did not address the parents' obligation to pay the

children's college expenses. However, as shown by the following

language, the second agreement expressly affirmed the husband's

"understanding" of the "consequences" of the agreement:
This Settlement Agreement shall not
modify any provision of the PSA, except to
the extent expressly set forth in this
Settlement Agreement. All provisions of the
PSA not expressly modified by this Settlement
Agreement shall remain in force and effect,
as originally written and agreed to by the
parties.

* * * * * * *

Each party acknowledges that he or she
has retained counsel to discuss this
Settlement Agreement and all matters related
thereto, and that they execute the Agreement
with full understanding of its consequences,
and not as the result of any duress or undue
influence from any source.

(Emphasis added).

"No law requires a parent to provide the expenses of an

adult child to attend college. Such is true whether the parents

are married or divorced. Thus, where parents seek to include

such an obligation in their separation contract, the plain and

unambiguous terms of their contract establish the rights and

obligations of the parties." Jones, 19 Va. App. at 270, 450

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S.E.2d at 764. Such is the case here.

Finally, the husband argues that the contract required, as a

condition precedent to his paying the college expenses, the

parties to "confer" with each other and arrive at a "harmonious

policy." However, the clear language of the agreements refutes

this claim. 2 "Whatever his intentions may have been and no
2
The husband attempts to distinguish Tiffany, 1 Va. App. 11,
332 S.E.2d 796 and to analogize his position to Jones, 19 Va.
App. 265, 450 S.E.2d 762. However, we disagree with his
interpretation of these cases. The rationale of both cases
applies to the instant case. In Tiffany, unlike the case at bar,
the contract contained certain provisions that conditioned the
husband's support obligation, including a provision that
specified "as an express condition of the Husband's obligation,
the Husband shall be entitled to participate in the decision
making process as to the college to be attended by the said
children." Tiffany, 1 Va. App. at 16-17, 332 S.E.2d at 800. We
overruled the trial court's finding that this language required
the parties to reach a mutual agreement and held:

While we acknowledge that the parties
may have expected that a mutual agreement
would result from their joint participation
in the college selection process, they did
not express this expectation as a condition
precedent to [husband's] obligation to pay
college support. The parties simply did not
provide for what would happen if the son's
initial selection of a college was
unacceptable to either of the parents.

The plain language of the agreement does
not require [the wife] or the son to select a
college acceptable to [the husband]. The
agreement does not confer upon [the husband]
the right to reject a school . . . . We are
not at liberty to find a veto power where the
language used by the parties does not confer
one.

Id. The same reasoning applies to the instant case. Here, the
plain language ("confer") does not give the husband the right to
"veto" his daughter's choice of colleges.

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matter how reasonable those intentions may appear now, the

contract language demonstrates that he bargained only for the

right" to confer with his ex-wife on all important matters

pertaining to the children's health, welfare, education, and

upbringing. Tiffany, 1 Va. App. at 18, 332 S.E.2d at 801.

Accordingly, we hold that the trial court did not err in refusing

to modify these agreements to include the term "reasonable" as

advocated by the husband.
II. PRIVATE SCHOOL TUITION

Husband next argues that the trial court erred in declining

to modify his obligation to pay for his son's private school

tuition. "The decree of the [c]hancellor determining questions

of fact on conflicting evidence ore tenus has the weight of a

jury verdict, and will be permitted to stand unless plainly wrong

or without evidence to support it." Featherstone v. Brooks, 220

Va. 443, 448, 258 S.E.2d 513, 516 (1979) (citing Mundy v. Hesson,

215 Va. 386, 392, 209 S.E.2d 917, 921 (1974)). We find no error

in the trial court's decision.

Code § 20-108 provides, in pertinent part:
The court may, from time to time after
In Jones, the agreement at issue provided the husband with
the express right to "veto" the selection of a particular
college, and by exercising that right, to eliminate any
obligation to pay his parental share of the expenses incurred at
a college he rejected. See Jones, 19 Va. App. at 270, 450 S.E.2d
at 764. No such express language is present in the instant case.
Here, the husband admits that he "did not argue for a veto," but
he argues that he sought "a reasonable interpretation of his
contract." However, the record shows that he could not point to
any contractual provision that contained this directive.

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 decreeing as provided in § 20-107.2, . . .
revise and alter such decree concerning the
care, custody, and maintenance of the
children and make a new decree concerning the
same, as the circumstances of the parents and
the benefit of the children may require.

A trial court "retains continuing jurisdiction to change or

modify its decree relating to the maintenance and support of

minor children." Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d

55, 56 (1994) (citing Code § 20-108 and Featherstone, 220 Va. at

446, 258 S.E.2d at 515). Although Code § 20-108.2 establishes a

"rebuttable presumption that the amount of the award shall be the

sum resulting from applying the guidelines," it may be error for

a trial court not to consider whether the presumptive amount is

"'unjust or inappropriate' by taking into account the child

support provisions of the consent decree or amount agreed upon

between the parties." See Watkinson v. Henley, 13 Va. App. 151,

154, 409 S.E.2d 470, 471 (1991).

Additionally, the husband must demonstrate by a

preponderance of the evidence a material change in circumstance

for the trial court to consider whether that change justifies a

modification of support award. Only then will the court consider

the "'present circumstances of both parties and the children.'"
Kaplan v. Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111, 113

(1996) (quoting Watkinson, 13 Va. App. at 156, 409 S.E.2d at

473); see also Crabtree v. Crabtree, 17 Va. App. 81, 88, 435

S.E.2d 883, 888 (1993).
Where . . . the [husband] seeks a reduction
in the amount of payments for the support and

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 maintenance of his minor children because of
a change in his financial condition, he must
make a full and clear disclosure relating to
his ability to pay. He must also show that
his lack of ability is not due to his own
voluntary act or because of his neglect.

Hammers v. Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975).

In the case at bar, the final decree included a provision

regarding the parents' payment responsibility for the children's

primary and secondary school education:
In accordance with Paragraph 6.B. of the
Agreement, the Defendant shall pay the
Complainant private school tuition, as set
forth below:
Commencing June 1, 1990, and thereafter
so long as either child attends elementary or
secondary school and is enrolled in an
independent school which charges tuition for
such enrollment, Husband agrees to pay one
hundred percent (100%) of the total cost and
related expenses, as and when the same may
become due and payable. At his option,
Husband may remit such amount or amounts as
may from time to time be due for such tuition
either directly to the institution charging
the same or to the wife.

(Emphasis added). The parties' second agreement, made in April

1994 and incorporated by reference into the parties' final decree

of divorce, reaffirms this obligation:
Thomas agrees to pay the tuition and
related expenses for the attendance of his
son, Thomas, at private school for academic
year beginning September, 1994, and
continuing until his son, Thomas, completes
the 12th Grade, in accordance with Paragraph
6(B) of the PSA, and waives any challenge to
his obligation to make those payments.

(Emphasis added). In 1992, the trial court determined that it

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was in the best interests of the children to remain in private

school. We affirmed this decision and held that,
Contrary to the husband's contentions, the
trial court's determination that it was in
the children's best interest to remain in
private school does not demonstrate an abuse
of discretion. In balancing the equities,
the trial court properly considered the
evidence presented by both sides regarding
the effect that a change in schools might
have upon the children.

See Fricke v. Fricke, Record No. 1679-92-4, slip op. at 3-4 (Va.

July 6, 1993). At the hearing on April 18, 1996, the trial court

found as follows:
In regard to the private school
obligation, the Court recognizes this being a
signed agreement which was, again in '94, it
was expressed to as a 100 percent obligation
of the father to pay the private schooling of
the son, and further that he would not
challenge it.

The evidence would indicate that [sic]
is an agreement of the parties, and the Court
finds no basis to modify that agreement.

In accordance with this finding, the court ordered that "[t]he

[husband's] obligation to pay private school expenses is a matter

of the 1994 Settlement Agreement between the parties under which

the [husband] agreed to pay 100% and not challenge these

payments."

Clearly, the trial court did not find that it was without

jurisdiction to modify the husband's obligation to pay the

private school tuition. Rather, the court evaluated the evidence

presented and declined to make the modification sought by the

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husband. The court considered that, in previous litigation, it

determined that private school was in the children's best

interest, and also that the parties had consistently contracted

for the husband to provide the tuition costs. The husband made

no showing that private school is not still in the son's best

interest. Therefore, we affirm the decision of the trial court.
III. MODIFICATION OF BASIC SUPPORT

The husband's next contention is that the trial court erred

by "inadequately failing to take into account [his] rapidly

increasing private school and college indebtedness and rapidly

decreasing income when adjusting the amount of child support

payable by him." Contrary to this argument, the evidence shows

that the trial court considered the husband's present financial

circumstance.
At the April 18, 1996 hearing, the trial court ordered a

downward adjustment of the husband's basic child support

obligation:
The basic child support shall be modified
with the March 1, 1996 payment. The Court
accepts the Complainant's guideline
calculation for the presumptive amounts:
Mother's gross: $1818/month; Father's gross:
$5,293/month. Father's presumptive
guideline payment: $715/month. Because of
other obligations of the father for his
children, the guideline is reduced by
$140/month to $575/month.

The court explained:
For the purposes of this proceeding, having
considered the evidence and looking at the
circumstances of the parties with regard to
their income earnings, I make the following

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 findings:

I find that the '95 income for the
father is the appropriate income and that it
becomes $5,293 on a monthly basis. I will
use the mother's income as presented by the
mother, the $1,818. I don't believe the
husband has supported his contention that
there should be imputation of income. The
evidence does not support that.

With regard to the guideline worksheet,
for the purposes of determining the level of
presumptive level of guideline support, I
find that the father's obligation . . . is
$715 . . . less the amount of direct payment
of medical insurance.
* * * * * * *

I will make a further adjustment -- I
will deviate from the guidelines . . . in
your favor given your other obligations
. . . . I will allow a further deviation of
$140, which basically represents the payments
you will be making on the loan for college.

Moreover, the husband failed to present sufficient proof to

establish either his 1996 income or the fact that it is "rapidly

decreasing." See Hammers, 216 Va. at 32, 216 S.E.2d at 21-22.

The husband's child support guideline worksheet reflected his

calculation that his obligation, before deduction, totalled

$727.50 per month. Accordingly, we find that the evidence

supports the trial court's decision, and we affirm its

determination of the husband's basic child support obligation.
See Featherstone, 220 Va. at 448, 258 S.E.2d at 516.
IV. ATTORNEY'S FEES

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

trial court's sound discretion and is reviewable on appeal only

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for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,

333, 357 S.E.2d 554, 558 (1987). The trial court must have

evidence justifying or explaining the amount of attorney's fees

awarded. See Westbrook v. Westbrook, 5 Va. App. 446, 458, 364

S.E.2d 523, 530 (1988).

In this case, the PSA provided that "in the event of any

default on the part of either party hereto, the costs and

expenses of any litigation or other action of any nature

necessary to compel compliance herewith, including attorney's

fees shall be borne by the defaulting party." (Emphasis added).

The evidence supported the judge's award of fees for the trial.
See Featherstone, 220 Va. at 448, 258 S.E.2d at 516.

For the foregoing reasons, we affirm the trial court and

remand for an award of attorney's fees incurred by the wife in

this appeal.

Affirmed.

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