Martha C. Twinam v Timothy W. Twinam

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
MARTHA C. TWINAM MEMORANDUM OPINION*
v. 	Record No. 0765-96-4 	PER CURIAM
NOVEMBER 12, 1996
TIMOTHY W. TWINAM
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(Brad L. Martin; Martin & Rubin, on briefs),
for appellant.
(Judith S. Landry, on brief), for appellee.
Martha C. Twinam (mother) appeals from a decision of the
circuit court concerning a 1989 amendment to the parties'
property settlement agreement. 	Mother contends that the trial
court erred in (1) holding that the modification clause of the
settlement agreement enabled the parties to modify the amount of
child support without court approval; (2) holding that the 1989
modification was valid when it was not executed with the same
formality as the settlement agreement; and (3) not granting
mother attorney's fees and costs. 	Timothy W. Twinam (father)
contends that the trial court correctly found mother was estopped
to challenge the modification. 	Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
merit. 	Accordingly, we summarily affirm the decision of the
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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trial court. 	Rule 5A:27.
Modification of the Settlement Agreement
"Property settlement and support agreements are subject to
the same rules of construction and interpretation applicable to
contracts generally." 	Fry v. Schwarting, 4 Va. App. 173, 180,
355 S.E.2d 342, 346 (1987). 	"[O]n appeal 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 by this court." 	Id.
The parties' agreement provided in part as follows:
14. 	MODIFICATION: 	At any time, the parties
may by mutual consent amend or modify the
terms of this Agreement; provided that any
such amendment or modification (or waiver of
any of the terms of this Agreement) shall be
of no effect unless in writing and executed
with the same formality as this Agreement.
Father also agreed to increase child support payments annually in
proportion to his salary increases. 	The parties executed the
agreement and their signatures were notarized. 	Subsequently, the
agreement was incorporated into the parties' final decree of
divorce. 	In February 1989, pursuant to the modification clause
of the agreement, the parties agreed to reduce father's monthly
child support payments from $500 to $400. 	Father remained liable
for annual increases.1
1While father failed to make the annual increases in child
support payments pursuant to the terms of the agreement, the
resulting arrearage was satisfied prior to the hearing in the
trial court.

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Mother contends that because no agreement may divest the
trial court of its jurisdiction over child support, the parties
lacked authority to modify their agreement as to child support
without court approval. 	It is true that
[b]oth parents owe a duty of support to their
minor children. 	A divorce court retains
continuing jurisdiction to change or modify
its decree relating to the maintenance and
support of minor children. 	Consequently,
parents cannot contract away their children's
rights to support nor can a court be
precluded by agreement from exercising its
power to decree child support.
Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994)
(citations omitted). 	Compare Code § 20-109 (court has no
authority to enter decree concerning spousal support or certain
other issues contrary to parties' contract) with Code § 20-108
(court retains authority to revise decrees concerning minor
children).
Here, however, the parties' agreement did not purport to
contract away the children's right to support or bar the court's
exercise of its jurisdiction. 	Instead, it allowed the parties
the option of resolving issues, including those related to child
support, without returning to court for approval. 	Cooperation
between divorced parents concerning the welfare and support of
their children is commendable and does not diminish in any way
the authority of the court to safeguard the children's best
interests. 	This is not an instance where one party unilaterally
reduced child support, nor was any evidence presented to indicate

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that the modification adversely affected the children's
circumstances. 	Therefore, we do not agree with mother's
contention that the agreement was void ab initio because it
allowed the parties to modify support by agreement without first
seeking court approval.
Formality of Execution
Mother also contends that the modification was ineffective
because it was not notarized and, therefore, was not "executed
with the same formality" as the agreement. 	Father contends the
trial court properly found that mother was estopped to contest
the validity of the modification.
The agreement does not expressly require notarized
signatures. 	The modification was in writing and signed by both
parties. 	The parties operated under the modification from 1989
until the present dispute. 	Father, acting on the modification,
borrowed money to pay the outstanding arrearage attributable to
his salary increases.
"The general rule of equitable estoppel, or,
as it is frequently called, estoppel in pais,
is that when one person, by his statements,
conduct, action, behavior, concealment, or
even silence, has induced another, who has a
right to rely upon those statements, etc.,
and who does rely upon them in good faith, to
believe in the existence of the state of
facts with which they are compatible, and act
upon that belief, the former will not be
allowed to assert, as against the later
[sic], the existence of a different state of
facts from that indicated by his statements
or conduct, if the latter has so far changed
position that he would be injured thereby."

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Emrich v. Emrich, 9 Va. App. 288, 294, 387 S.E.2d 274, 276-77
(1989) (citation omitted). 	Mother's conduct in signing the
modification and accepting the modified payments induced father
to believe that the modification was uncontested. 	Mother's
challenge to the modification, if successful, would result in a
substantial back debt owed by father. 	We find no error in the
trial court's determination that mother was estopped from
complaining that the modification lacked sufficient formality
because it was not notarized.
Attorney's Fees and Costs
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court 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). 	The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). 	Mother asserted that she was entitled to attorney's fees
under the settlement agreement because she incurred expenses to
enforce the terms of the agreement. 	Father asserted he was
entitled to fees because he substantially prevailed in the trial
court.
The trial court denied an award of fees or costs to either
party. 	An unspecified portion of mother's attorney's fees
related to father's failure to make the annual increases required
by the agreement. 	That arrearage was satisfied prior to the show

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cause hearing. 	Mother incurred additional fees in her attempt to
enforce terms other than those of the modified agreement. 	In
light of the issues involved, we cannot say that the trial
court's decision was unreasonable or an abuse of the court's
discretion.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.