COURT OF APPEALS OF VIRGINIA
Present: Judge Benton, Senior Judges Cole and Hodges
Argued at Richmond, Virginia
PAMELA HUNTER CLAYTOR, f/k/a
PAMELA HUNTER SUTER
MEMORANDUM OPINION * BY
v. Record No. 1198-94-2 JUDGE JAMES W. BENTON, JR.
JUNE 13, 1995
MARK FRANKLIN SUTER
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
Charles E. Powers (Edward D. Barnes; Edward D.
Barnes & Associates, P.C., on briefs), for
appellant.
Matthew N. Ott for appellee.
This appeal arises from the trial judge's interpretation of
a property settlement agreement which, at an earlier proceeding,
was affirmed, ratified, and incorporated into the parties' final
divorce decree. Pamela Hunter Claytor contends that the trial
judge erred by failing to order an increase in the father's child
support payments, by not requiring the father to provide
verification of his life insurance policy, and by failing to
award her attorney's fees. We affirm the order.
I.
The parties' property settlement agreement, which provided
for spousal and child support, child custody, property division,
and other matters relating to the marriage, was affirmed,
ratified, and incorporated into the parties' final divorce decree
on May 14, 1988. In 1993, the mother filed a petition alleging
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that she was entitled to an increase in the amount of child
support pursuant to the agreement.
Section Nine of the agreement provides for the following
child support obligation:
[Father] agrees to pay to [mother] child
support for the benefit of [the child], in
the amount of Six Hundred Dollars ($600.00)
per month, until changed by agreement of the
parties, or a Court of appropriate
jurisdiction.
* * * * * * *
The parties further agree that the child
support payments shall be adjusted at least
as often as [father] receives a raise. Such
child support shall automatically be
increased in the same percentage as the
percentage increase of [father's] gross
income. Such child support increase shall
begin at the time of [father's] next raise
after execution of this agreement, but this
is in no way a limitation of [mother's] right
to seek a greater increase based on the
circumstances, but the parties agree that the
Court, at no time, shall set the amount less
than the current Six Hundred Dollars
($600.00) per month.
The parties agree that the following chart represents the
father's gross income, annual percentage increases in father's
income, and the father's monthly child support payments as agreed
by the parties:
Year Income % Increase Support Paid
1985 $65,819 --- $600
1986 $75,730 15.1 $700
1987 $83,445 10.2 $800
1988 $84,745 1.6 $900
1989 $95,473 12.7 $1,200
1990 $105,440 10.4 $1,200
1991 $118,611 12.5 $1,200
1992 $128,561 8.4 $1,200
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II.
The mother contends that although the trial judge correctly
looked to the terms of the agreement to determine the father's
child support obligation, the trial judge erred in using $600 as
the base amount from which to calculate increases. She argues
instead that the base figure to be used is $1,200 because each
time the support amount is increased "by agreement of the
parties," that amount is the base figure from which to calculate
the increase.
The father, on the other hand, argues that the agreement is
not controlling because Code § 20-108 provides the trial judge
with continuing jurisdiction to modify child support. He argues,
alternatively, that if the agreement is controlling, the trial
judge correctly used 1985 as the starting point for calculating
the amount of support.
Code § 20-109.1 provides that "[w]here the court affirms,
ratifies and incorporates by reference in its decree such
agreement or provision thereof, it shall be deemed for all
purposes to be a term of the decree, and enforceable in the same
manner as any provision of such decree." Thus, the trial judge
did not err in looking to the terms of the agreement as
incorporated in the decree to calculate the child support
obligation. Simply put, the issue to be resolved is whether the
trial judge correctly applied the terms of the agreement.
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The agreement that was incorporated into the decree provided
a formula to increase child support. That formula is not complex
and can be plainly understood. "'[W]here an agreement is
complete on its face, is plain and unambiguous in its terms, the
court is not at liberty to search for its meaning beyond the
instrument itself." Henderlite v. Henderlite, 3 Va. App. 539,
541, 351 S.E.2d 913, 913-14 (1987) (citation omitted).
Furthermore, it is elementary that when an agreement is complete
on its face, "'courts cannot read into [its'] language which will
add to or take away from the meaning of the words already
contained therein.'" Id. at 542, 351 S.E.2d at 914 (citation
omitted).
The agreement contains the starting point for the
calculation because it provides that the "increase shall begin at
the time of Husband's next raise after execution of this
agreement." The trial judge reasoned that this phrase
establishes that the increases should be calculated from the
initial support amount of $600.00. We agree. The only logical
way to compute the obligation is to begin at the base amount and
compute each succeeding adjustment. Nothing in the agreement
provides that the parties' agreement on the amount to be paid in
any year changes the base calculation or the formula. To hold
"otherwise would require this court to alter the plain language
of the agreement." Dean v. Dean, 8 Va. App. 143, 148, 379 S.E.2d
742, 745 (1989).
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III.
Section Twelve of the Agreement requires the father to
maintain life insurance on his life and to pay the policy
premiums for the benefit of the mother and their child. The
mother petitioned the trial judge to order the father to "confirm
on an annual basis in writing by notification from each insurance
company that the policies of insurance remain in effect." The
trial judge found that the agreement did not require annual
notifications and denied the relief. The mother contends that
she and the child would have no remedy should the father fail to
maintain and pay the life insurance premiums. Thus, she argues
that the trial judge abused his discretion and denied her
equitable relief by refusing to order the father to verify his
payments.
We agree with the trial judge that the agreement did not
require the father to confirm the existence of the policies by
providing by annual written verification from the insurance
company. The trial judge "remind[ed] [the father] of his
obligation . . . to maintain such [insurance] policies . . . [and
suggested that] counsel could establish an informal procedure for
confirming the existence of these policies." We find no error.
IV.
The mother also appeals the trial judge's decision regarding
attorney's fees. The trial judge awarded fees to the father and
denied the mother's request for attorney's fees. An award of
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attorney's fees is within the trial judge's discretion. Stratton
v. Stratton, 16 Va. App. 878, 884, 433 S.E.2d 920, 923 (1993).
"We have said that 'the key to a proper award of counsel
fees . . . [is] reasonableness under all of the circumstances
revealed by the record.'" Poliquin v. Poliquin, 12 Va. App. 676,
682, 406 S.E.2d 401, 405 (1991) (citation omitted). No evidence
has established that the trial judge abused his discretion in
awarding attorney's fees to the father.
For the reasons stated above, we affirm the order.
Affirmed.
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