COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
JAMES D. STRICKLAND, JR.
MEMORANDUM OPINION *
v. Record No. 0865-99-1 PER CURIAM
OCTOBER 5, 1999
PAULA J. STRICKLAND
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
(Richard H. Doummar; Henry E. Howell, III;
Doummar & Howell, L.L.P., on brief), for
appellant.
(Constantine A. Spanoulis, on brief), for
appellee.
James D. Strickland, Jr., (husband) appeals the decision of
the circuit court granting the motion to show cause filed by
Paula J. Strickland (wife). Wife sought to recover spousal
support arrearages accrued since 1995. Husband raises four
arguments on appeal: (1) wife waived her right to spousal support
in the letter memorandum she signed in 1995; (2) wife was
equitably estopped from seeking accrued spousal support by
husband's reliance on the signed memorandum; (3) the letter
memorandum memorialized an oral agreement between husband and
wife; and (4) the oral contract was a binding contract enforceable
against wife. Upon reviewing the record and briefs of the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
The evidence was received during a hearing before the trial
court. "The judgment of a trial court sitting in equity, when
based upon an ore tenus hearing, will not be disturbed on appeal
unless plainly wrong or without evidence to support it." Box v.
Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).
Certain facts were uncontested. The parties were divorced by
final decree entered August 13, 1989. Under paragraph 5(h) of
the divorce decree, wife was awarded "fifty per cent (50%) of
the [husband's] disposable retirement income, which is now
vested . . . . Said sum is subject to increase or decrease in
the future, as the case may be, but percentage to be received by
the [wife] is constant at fifty." Under paragraph 6, wife was
awarded $375 in monthly spousal support. On June 29, 1995,
husband filed a motion to terminate spousal support. The
parties discussed husband's proposal that wife waive spousal
support. As found by the trial court, the parties agreed that
any agreement reached "was to be filed with the Court for entry
of an Order modifying the decree." Husband sent a signed
memorandum to wife, setting out his understanding of the agreed
upon terms. Wife modified the written memorandum by adding an
additional sentence clarifying her understanding of the
agreement, then signed the memorandum and returned it to
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husband. Husband called the trial court and indicated that the
matter was resolved. The trial court dismissed husband's
motion. The memorandum was never filed with the court, and no
order was ever issued modifying the final decree of divorce.
Husband never signed the memorandum after wife made her
handwritten modifications.
The trial court found that
the writing in controversy does not
constitute a legally binding contract. The
prospective agreement lacked mutual assent
and consideration. Based upon the
undisputed facts, the Court construes
[husband's] proposed agreement as an offer
which [wife] rejected, by interlineating a
modification and amendment, creating a
counter offer, which counter offer [husband]
rejected by not signing subsequent thereto
and by refusing to let the amended writing
be entered as an Order of the Court as both
parties understood as being required and
intended to be done.
Waiver
Husband contends that wife waived her right to spousal
support. We find no merit in this contention.
No support order may be retroactively
modified. Past due support installments
become vested as they accrue and are
thereafter immune from change. Parties
cannot contractually modify the terms of a
support order without the court's approval.
Nor does a party's passive acquiescence in
nonpayment of support operate to bar that
party from later seeking support arrearages.
Should circumstances change requiring
alteration in the amount of support, a
party's remedy is to apply to the court for
relief.
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Goodpasture v. Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845,
847 (1988) (citations omitted). "[J]ust as a party cannot by
contract or acquiescence modify the terms of a support order, a
party cannot by waiver modify the terms of a support order."
Id. at 58, 371 S.E.2d at 847. The parties never reached a
binding contractual agreement to modify the existing decree.
Wife's written modification of husband's memorandum did not
affect her rights under the existing, unmodified, support order.
Husband cites Bethell v. Bethell, 597 S.W.2d 576 (Ark.
1980), in support of his contention that wife waived spousal
support. We find Bethell neither applicable nor persuasive.
Bethell concerned a father's payment of private school tuition
in lieu of spousal support pursuant to the parties' agreement.
That case arose under significantly different facts and was
based upon the premise that spousal support may be waived by
acquiescence or inference. That is not the law in Virginia.
See Goodpasture, 7 Va. App. at 58, 371 S.E.2d at 847. We also
reject husband's reliance upon Acree v. Acree, 2 Va. App. 151,
342 S.E.2d 68 (1986). In Acree, a mother sought a child support
arrearage attributable to one child under an existing order
despite the fact that the father had assumed full custody of the
child until her majority. The father was allowed credit for a
portion of the arrearage due to his full support of the child
during the intervening years pursuant to the parties' agreement
to permanently switch custody. The Acree Court expressly
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limited its decision to the unique circumstances. See id. at
157-58, 342 S.E.2d at 71-72. Here, husband was obligated by the
final decree to pay $375 in monthly spousal support and to
ensure wife received an unreduced fifty percent of his monthly
retirement pay. The facts do not support a finding that husband
was entitled to a credit for other payments made to wife
sufficient to cover both these obligations.
Husband contends that wife received consideration through
the agreement to forego litigation. It is true that an
agreement to forego a claim can be consideration for a contract.
See Troyer v. Troyer, 231 Va. 90, 93-94, 341 S.E.2d 182, 185
(1986). Here, however, the trial court found that "the writing
only sought to grant [wife] what she was already entitled . . .
and contained no affirmative act of forbearance by [husband]
which conferred a benefit on [wife]." In light of the fact that
the parties failed to reach an agreement, we need not further
consider whether there was adequate consideration to support an
agreement.
Equitable Estoppel
Husband also argues that wife is equitably estopped from
seeking spousal support. "'The elements necessary to establish
equitable estoppel are (1) a representation, (2) reliance, (3)
change of position, and (4) detriment, and the party who relies
upon estoppel must prove each element by clear, precise, and
unequivocal evidence.'" Webb v. Webb, 16 Va. App. 486, 494-95,
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431 S.E.2d 55, 61 (1993) (citation omitted). The trial court
found that husband failed to prove the elements of equitable
estoppel. We agree. Wife did not make any representations upon
which husband relied. He did not change his position due to a
representation by wife. He resigned from his employment prior
to any discussion with wife regarding spousal support. Although
the parties recognized that any modification of their decree had
to be entered as an order to be effective, husband neither
executed the modified memorandum nor forwarded it to the court.
Instead, he merely contacted the court to dismiss his motion to
terminate spousal support. Therefore, we find no merit in
husband's assertion that wife was equitably estopped from
seeking the spousal support arrearage.
Binding Oral Agreement
Finally, husband contends that the written memorandum
memorialized the parties' oral agreement and that the oral
agreement was binding and enforceable. These contentions also
lack merit. "Mutual assent by the parties to the terms of a
contract is crucial to the contract's validity." Wells v.
Weston, 229 Va. 72, 78, 326 S.E.2d 672, 676 (1985). "To be
valid and enforceable, the terms of an oral agreement must be
reasonably certain, definite, and complete to enable the parties
and the courts to give the agreement exact meaning." Richardson
v. Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688, 690 (1990).
"The proponent of [an] oral contract has the burden of proving
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all elements" of the contract. Id. at 396, 392 S.E.2d at 690
(citation omitted). The trial court found no indication that
the parties had reached an oral agreement. Husband's written
memorandum was modified by wife, and no evidence supported a
finding that husband accepted the changes. Husband never
presented the modified agreement to the court, despite the fact
that both parties acknowledged it was necessary to have a new
order entered to modify the terms of their final decree of
divorce. The evidence supports the conclusion of the trial
court that no enforceable oral agreement was reached.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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James D. Strickland, Jr. v. Paula J. Strickland
Combined Opinion