William M. Dragas v. Linda R. Dragas ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Haley
Argued at Chesapeake, Virginia
WILLIAM M. DRAGAS
MEMORANDUM OPINION* BY
v. Record No.0919-05-1 JUDGE LARRY G. ELDER
NOVEMBER 29, 2005
LINDA R. DRAGAS
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
Louis G. Paulson (Elias William Paulson; John I. Paulson; Paulson &
Paulson, P.L.C., on brief), for appellant.
Debra C. Albiston (Cynthia A. King; Kaufman & Canoles, P.C., on
brief), for appellee.
William M. Dragas (husband) appeals from a decision finding that he failed to comply
with numerous terms of a decree that granted him a divorce from Linda R. Dragas (wife) and
incorporated the parties’ settlement agreement, which included spousal and child support
provisions. On appeal, husband contends that his child support obligation was automatically
reduced as each child became emancipated and that he was entitled to significant credit for
various payments he made for wife and the children above the amounts required by the
agreement. We hold the provision of the settlement agreement regarding terminating child
support for each child who reached the age of majority was not a self-executing provision and
that husband was not entitled to reduce his support payments without seeking entry of a proper
order. We hold further that husband was not entitled to credit for overpayments made under the
settlement agreement and other gratuitous payments to wife for the benefit of her and the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
children. Next, we conclude the trial court did not err in holding husband responsible pursuant to
the agreement for certain maintenance expenses for the marital residence and in requiring
husband to return to wife inheritance money she invested in a business owned by him and his
family. Further, we hold the evidence established husband was in breach of a provision
requiring him to deposit certain sums into an educational account for the parties’ youngest child.
Finally, we hold the evidence supported a finding that wife was entitled to an award of attorney’s
fees under the terms of the parties’ agreement. Thus, we affirm the trial court’s ruling. We also
grant wife’s request for an award of attorney’s fees and costs incurred in this appeal and remand
to the trial court for a determination of the amount of those fees and costs.1
I. BACKGROUND
The parties were married in 1976 and separated in 1992. Four children were born of the
marriage, and the parties agreed to be financially responsible for a fifth child. Husband had a
successful construction business, and the parties “had a nice lifestyle” during their marriage.
On October 30, 1992, the parties executed a separation agreement covering custody, child
and spousal support, and property settlement. Wife then hired an attorney who used the
agreement as a base to draft a more comprehensive agreement, which the parties executed on
December 1, 1992. The agreement was affirmed, ratified, and incorporated into decrees of
January 19 and September 30, 1993.
From 1992 through 1997, husband paid in accordance with the agreement, except that he
failed to fund educational accounts for the children as required by the agreement. It was also
1
Wife also objects to husband’s inclusion of her deposition in the record on appeal. Wife
seeks an order excluding the deposition from the record and requiring husband to bear the costs
of including the deposition in the appendix. The record confirms that wife’s deposition was
never admitted into evidence in the trial court and is not properly part of the record on appeal.
See Rules 4.7(f), 5A:7(a). Thus, we grant wife’s motion to exclude the deposition from the
record and order husband to bear the costs of producing the 63-page deposition as part of the
appendix on appeal. See Rule 5A:25.
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undisputed that he made substantial additional payments not required by the agreement. In 1998,
however, husband unilaterally reduced his child support obligation. Wife testified that she did
not agree to that reduction and that she was against it.
In December 2000, husband asked wife to sign a consent decree that provided for a
reduction in child support. Wife refused to sign the decree unless it was revised to include the
arrearage that accrued following husband’s unilateral reduction in support in 1998. The decree
was never signed or entered.
In 2001, husband stopped all payments due pursuant to the agreement, including the
mortgage, home maintenance, utility, and child and spousal support payments. He also had cut
off those utilities that were still in his name. He told wife he would not resume payments until
she gave him a letter acknowledging his right to a reduction in child support. In May 2001, wife
wrote husband a letter acknowledging his legal right to reduce support with approval of the
court. Husband resumed payment of support in the reduced amount but never filed a petition to
modify his obligation and never obtained a court order permitting that modification. He also
refused to pay various other obligations due under the agreement, claiming a credit for earlier
overpayments.
In September 2001, wife filed a petition for a rule to show cause against husband,
alleging arrearages in support and various other payments due pursuant to the parties’ agreement,
including the mortgage, maintenance costs, utilities, and the children’s educational funds. She
also contended she was entitled pursuant to the agreement to have husband return to her certain
inheritance money she received during the marriage. Finally, she sought an award of attorney’s
fees. The matter was referred to a commissioner in chancery. The commissioner recommended
a ruling in wife’s favor on all contested issues except part of the maintenance for the marital
home, finding that the agreement for maintenance did not include the pool and yard.
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Husband filed detailed exceptions. Wife excepted on the ground that the commissioner
erred in concluding husband was not responsible for yard and pool expenses as part of his duty to
maintain the marital residence. After hearing argument on the exceptions, the chancellor
sustained wife’s exception, overruled husband’s exceptions, and except as required by wife’s
exception, confirmed the commissioner’s recommendations. The commissioner also awarded
wife interest on the unpaid sums.
Husband noted this appeal.
II. ANALYSIS
A. CHILD SUPPORT ARREARAGE
Husband contends his obligation to provide support for each child terminated
automatically under the divorce decree incorporating the settlement agreement as each of the
parties’ five children reached the age of majority. He cites Shoup v. Shoup, 37 Va. App. 240,
556 S.E.2d 783 (2001) (en banc), Riggins v. O’Brien, 263 Va. 444, 559 S.E.2d 673 (2002), and
the 2003 amendments to Code § 20-109.1, see 2003 Va. Acts, ch. 260, in support of this
contention. Under the existing law and the language of the parties’ agreement as incorporated
into the divorce decree, we disagree and affirm the trial court’s ruling.
As amended by the General Assembly in 2003, Code § 20-109.1 provides as follows:
Any court may affirm, ratify and incorporate by reference in its
decree dissolving a marriage or decree of divorce whether from the
bond of matrimony or from bed and board, or by a separate decree
prior to or subsequent to such decree, or in a decree entered in a
suit for annulment or separate maintenance, and in a proceeding
arising under subsection A 3 or L of § 16.1-241, any valid
agreement between the parties, or provisions thereof, concerning
the conditions of the maintenance of the parties, or either of them
and the care, custody and maintenance of their minor children, or
establishing or imposing any other condition or consideration,
monetary or nonmonetary. Provisions in such agreements for the
modification of child support shall be valid and enforceable.
Unless otherwise provided for in such agreement or decree
incorporating such agreement, such future modifications shall not
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require a subsequent court decree. This section shall be subject to
the provisions of § 20-108. Where 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. The provisions of this section shall apply to any
decree hereinbefore or hereinafter entered affirming, ratifying and
incorporating an agreement as provided herein.
2003 Va. Acts, ch. 260 (codified at Code § 20-109.1 (___ Repl. Vol.)) (emphasis added to show
language added to statute in 2003). Thus, the legislative change made clear that, despite the
implication to the contrary in Riggins, the presumption is that modification of child support
based on a settlement agreement incorporated into a decree does not require court approval
“[u]nless otherwise provided for in such agreement.” See Shoup, 37 Va. App. at 244 n.1,
253-54, 556 S.E.2d at 785 n.1, 789-90 (finding to be self-executing language in agreement that
set child support according to statutory guidelines and provided that if any of several enumerated
changes in circumstances occurred, “the parties shall follow the child support guidelines . . . for
determination of child support” (emphasis added)). Assuming without deciding that the 2003
amendments to Code § 20-109.1 would apply to a pre-existing decree incorporating a
pre-existing settlement agreement, we hold court approval was required for modification of the
amount of child support required to be paid by husband in this case because the parties’
agreement itself provided that court approval was required.
“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). “Where the agreement is unambiguous, its meaning and effect are
questions of law to be determined by the court and the same rules of interpretation applicable to
contracts generally apply to these agreements.” Henderlite v. Henderlite, 3 Va. App. 539, 541,
351 S.E.2d 913, 913 (1987).
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“The court must give effect to all of the language of a contract if its
parts can be read together without conflict. Where possible,
meaning must be given to every clause. The contract must be read
as a single document. Its meaning is to be gathered from all its
associated parts assembled as the unitary expression of the
agreement of the parties.”
Tiffany v. Tiffany, 1 Va. App. 11, 16, 332 S.E.2d 796, 799 (1985) (quoting Berry v. Klinger, 225
Va. 201, 208, 300 S.E.2d 792, 796 (1983)).
Here, the agreement provides that “Husband shall pay to Wife by deposit to her bank
account, as and for periodic child support for the children, the periodic sum of $1,000 weekly on
each Friday hereafter, . . . subject to termination and revision as provided by Virginia law.” The
agreement then refers to “the foregoing terminating contingency of a child’s attaining age 18,” a
terminating contingency “provided by Virginia law,” as referenced previously. However,
contrary to husband’s assertions on brief, the agreement does not provide that the amount of
support attributable to each child is equal or that support shall be reduced proportionately when a
child reaches the age of majority. The child support award is unitary because it does not indicate
what portion of the award is for each child, and the agreement provides no mechanism for use by
the parties to determine how much support is due upon the occurrence of “the terminating
contingency of a child’s attaining age 18.” To the contrary, the agreement clearly states that
“when either party seeks a modification”--which necessarily includes a “termination” or
“revision”--“the court is required to presume that the support payments dictated by Code
[§ 20-108.2] are the correct amounts to be awarded.” (Emphasis added). Finally, the agreement
provides that the termination of spousal support shall be “automatic” upon the occurrence of
either of two “terminating contingenc[ies].” In contrast, the agreement does not refer to the
“terminating contingency of a child’s attaining age 18” as an “automatic” one. Construing these
contractual provisions in harmony compels the conclusion that the agreement requires court
approval for modifications of child support.
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Because husband did not obtain court approval before terminating support, the trial court
did not err in holding husband was in violation of the agreement.
B. SUPPORT ARREARAGES AND NON-CONFORMING PAYMENTS
Husband contends that even if a court order was required to reduce the child support, he
nevertheless is entitled to credit as against his child and spousal support arrearages for sums he
paid to and on behalf of wife and the children beyond those required by the agreement.
Alternatively, he contends wife has “unclean hands” because she agreed to the reduction of
support in 1998 and accepted payment of significant non-support sums after that time. He also
contends that awarding the arrearages wife seeks will unjustly enrich her and that any sums
awarded should be distributed instead to the emancipated children. Under settled principles
applied to the facts of this case, we affirm the trial court’s decision refusing husband’s request
for credit for these non-conforming payments.
Unless an agreement incorporated into a decree involves a child or spousal support
modification provision that is self-executing, see Code § 20-109.1,
“it is the obligation of the divorced husband to pay the specified
amounts according to the terms of the decree[,] and . . . he should
not be permitted to vary these terms to suit his convenience. . . .
[When circumstances change, to] warrant a change in the terms of
the decree . . . [, in the absence of a self-executing provision, the
husband’s] remedy is to apply to the court for such relief. To
permit him to increase the amount of the specified payments at one
time, reduce them at another, and require an adjustment of the
differences in the future, would lead to continuous trouble and
turmoil. . . . To allow the husband credit for these overpayments
would be to deprive the [recipient] of the future benefit of the
amount of support money which the lower court has found was
proper and has ordered to be paid.”
Sanford v. Sanford, 19 Va. App. 241, 246, 450 S.E.2d 185, 188 (1994) (quoting Newton v.
Newton, 202 Va. 515, 519, 118 S.E.2d 656, 659 (1961)). This rule prohibiting credit for
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non-conforming support payments applies to awards of child support and awards of spousal
support. Id.
“‘Typically, two conditions must exist before credits will be given for non-conforming
payments: (1) an agreement by the parties which modifies the terms or method of payment; and
(2) no adverse affect on the support award.’” Gallagher v. Gallagher, 35 Va. App. 470, 476, 546
S.E.2d 222, 225 (2001) (en banc) (quoting Wilderman v. Wilderman, 25 Va. App. 500, 506, 489
S.E.2d 701, 705 (1997)). If these conditions are not met, “‘support payments made by an
obligated spouse over and above court-ordered monthly support are considered gifts or
gratuities.’” Buxbaum v. Buxbaum, 20 Va. App. 181, 186, 455 S.E.2d 752, 755 (1995) (quoting
Sanford, 19 Va. App. at 248, 450 S.E.2d at 190). Similarly, in the absence of an express
agreement approved by a court, payments to “‘third-party vendors’ for things such as ‘day care,
doctor visits [and] food’” may not constitute non-conforming child support payments for which
the payor spouse is entitled to receive credit. Gallagher, 35 Va. App. at 479 & n.1, 546 S.E.2d at
226 & n.1.
Here, no evidence establishes that the parties entered into an agreement to “modify the
terms or method of payment.” Husband testified, for example, that, “In 1994, these are all the
checks that I wrote to [wife] Linda. Linda needed money, she asked for money, I gave her
money, assuming that I would get credit on something at a later date.” (Emphases added). Wife
confirmed that husband never “talk[ed] to [her] at any time with regard to any type of credit or
loan to [her] with regard to any of those payments.”
Husband nevertheless contends that this case presents “unique facts” like those in Acree
v. Acree, 2 Va. App. 151, 342 S.E.2d 68 (1986), in which we created a narrow exception to the
general rule denying credit for non-conforming payments. In Acree, by agreement between the
parties, one of three children subject to a child support award payable to the mother went to live
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permanently with the father and resided with him and was fully supported by him until she was
emancipated. Id. at 153, 342 S.E.2d at 69. Also by undisputed agreement of the parties, the
father suspended payment to the mother of support for the child whose permanent custody he
had assumed. Id. After the child was emancipated, mother sought payment of support
arrearages for the child. Id.
We reversed the trial court’s order granting that request, reasoning as follows:
Where . . . the custodial parent has by his or her own
volition entered into an agreement to relinquish custody on a
permanent basis and has further agreed to the elimination of
support payments and such agreement has been fully performed,
we hold that the purpose to be served by application of an
inflexible rule denying credit for nonconforming payments is
outweighed by the equities involved. . . .
. . . In assuming physical custody and total responsibility
for the support of the child, the husband fulfilled his obligation
under the decree. He did not stop support payments unilaterally to
suit his convenience.
Id. at 157-58, 342 S.E.2d at 71-72 (citations omitted) (second emphasis added).
In appellant’s case, by contrast, husband did not fulfill his obligation under the decree by
“assuming physical custody and total responsibility for the child” or children. Each of the
children continued to live with wife until his or her emancipation. Although husband continued
to pay some of the unemancipated children’s expenses and wife admitted the children “were well
taken care of,” wife denied that husband paid for “lots of things” after he reduced his child
support payments in 1998. When wife was asked if “the children ever want[ed] for anything”
after husband unilaterally reduced child support in 1998, she testified, “Well, we just went to him
if there was a problem” and “[i]f he thought that it was . . . a good reason, he would pay for it.”
The evidence showed that Louis and Cristin had chiropractic treatment following husband’s
1998 reduction in child support, and wife testified that she paid every chiropractic bill for them
“because [husband] is against [it].” She testified that she also paid “every single one of the
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children’s therapy bills and all of [their] family counseling bills,” although the record does not
make clear when these costs were incurred. Finally wife testified that she purchased an interest
in a vacation property using her spousal support money and gifts from her parents so that she
could “provide the kids with vacations.” Because husband did not “assum[e] physical custody
and total responsibility for the support of the [unemancipated] child[ren],” as did the father in
Acree, 2 Va. App. at 158, 342 S.E.2d at 72, he did not fulfill his obligation under the decree and
he was not entitled to credit for non-conforming payments under Acree.
Finally, we reject husband’s contention that wife was barred by the equitable doctrine of
unclean hands or unjust enrichment from recovering the child and spousal support arrearages.
Husband claims wife has unclean hands because she agreed orally in 1998 that husband was
entitled to reduce child support based on the emancipation of three of the five children and
because she accepted the excessive payments of other sums of money during that time. Wife
testified, however, that she “was against” the 1998 reduction in support, and it is uncontroverted
that husband did not seek judicial modification of the child support award at that time. Further,
the agreement specifically provides that “[n]either laches nor unwritten acquiescence shall be a
defense so as to reduce or bar recovery of any arrearages of spousal or child support.” Although
wife agreed in a letter in 2001 that husband was entitled to a reduction in child support effective
June 1, 2001, her letter clearly indicated her belief that an order was required to reduce
husband’s child support obligation, and it is uncontroverted that husband never sought such an
order. Finally, husband does not contend that wife ever agreed to accept these other payments in
satisfaction of the child or spousal support obligation. Thus, the evidence, viewed in the light
most favorable to wife, supports a finding that wife did not have unclean hands.
Similarly, we reject husband’s claim that unjust enrichment should bar wife’s recovery.
We held in Gallagher, a case arguably involving more egregious facts than those here, that the
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“[m]other’s unjust enrichment [was] an unfortunate by-product of our decision but that, standing
alone, [it did] not compel a different result.” 35 Va. App. at 478, 546 S.E.2d at 226. In
Gallagher, although the wife agreed in writing to the change in support and the husband fulfilled
his obligations under the amended agreement, we held the wife was still entitled to the child
support arrearages due under the original agreement and that husband was not entitled to credit
under the original agreement for non-conforming payments he made pursuant to the amended
agreement. Id. at 474-75, 478-79, 546 S.E.2d at 224, 226. We held that the mother’s unjust
enrichment on those facts did not compel a different result. Id. at 478, 546 S.E.2d at 226. Here,
unlike in Gallagher, wife did not agree to the reduction in child support and did not agree to
accept non-conforming payments in lieu of the child support obligation. Further, the evidence
established that wife expended some of her own funds, obtained either from spousal support
monies or gifts from her parents, to pay sums for the children that included chiropractic
treatment and vacation expenses. To the extent mother is unjustly enriched by the award of child
support arrearages following the emancipation of her children, we hold, as we did in Gallagher,
that this fact may be “an unfortunate by-product of our decision but, standing alone, does not
compel a different result.” Id.
C. UTILITY PAYMENTS
The parties’ agreement provided as follows with respect to the utilities for the marital
residence: “Until the marital home is conveyed to Wife on the earlier of [two dates set forth in
the agreement], Husband shall pay for . . . (iii) all monthly utilities, such as electricity, telephone,
cable t.v., and water, up to $610 per month for such utilities.” The evidence established that
most of the utilities remained in husband’s name until 2001. The bills for all listed utilities were
sent directly to husband’s business, and the business’ comptroller paid them in full, even when
they exceeded the monthly sum of $610. Wife testified that, until husband had those utilities cut
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off in 2001, she was unaware that the bills exceeded the contractual obligation of $610 per
month.
Husband contends the provision of the parties’ agreement regarding the payment of
utilities is ambiguous and that he is entitled to credit for all sums he paid toward utilities for the
marital residence in excess of the amount of $610 per month. We disagree. The clear language
of the agreement provides that husband is to pay the listed “monthly utilities” on a monthly
basis. Thus, any utility payments husband made in excess of $610 per month were not payments
made pursuant to the agreement, and they are non-conforming payments for which he is not
entitled to credit.
D. MONIES FOR REPAIRS AND MAINTENANCE OF MARITAL RESIDENCE
The agreement provided as follows with respect to repairs and maintenance for the
marital residence:
The parties jointly own the marital home known generally
as 1009 Windsor Road, Virginia Beach, VA 23241.
The marital home shall be conveyed by the parties, by deed
of general warranty and English covenants of title, to Wife on
December 25, 2010, or 7 years after Wife’s remarriage, whichever
first occurs. Husband shall assume all mortgages, including
principal and interest and other liens thereon and timely pay the
same as they mature and indemnify and hold Wife harmless from
all loss on account thereof. Until the marital home is conveyed to
Wife on the earlier of those two dates, husband shall pay for all
(i) hazard insurance, real estate taxes on the marital home, and
(ii) all repairs, maintenance, renovation and replacements on the
marital home unless caused by Wife’s wilful act, omission or
neglect, and (iii) all monthly utilities, such as electricity, telephone,
cable t.v., and water, up to $610 per month for such utilities.
In addition to claiming an entitlement to credit for other payments as against monies due
for maintenance and repairs, husband contends the provision requiring him to pay for all repairs,
maintenance, and renovations to the marital home does not include the yard and pool. We hold
the plain language of the agreement provides to the contrary.
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“Where [an] agreement is unambiguous, its meaning and effect are questions of law to be
determined by the court and the same rules of interpretation applicable to contracts generally
apply to these agreements.” Henderlite, 3 Va. App. at 541, 351 S.E.2d at 913.
“The court must give effect to all of the language of a contract if its
parts can be read together without conflict. Where possible,
meaning must be given to every clause. The contract must be read
as a single document. Its meaning is to be gathered from all its
associated parts assembled as the unitary expression of the
agreement of the parties.”
Tiffany, 1 Va. App. at 16, 332 S.E.2d at 799 (quoting Berry, 225 Va. at 208, 300 S.E.2d at 796).
The clause requiring husband to pay for maintenance on “the marital home” is contained
in the paragraph providing for the eventual transfer to wife of “the marital home known
generally as 1009 Windsor Road.” The agreement clearly contemplates that the building, pool,
and surrounding grounds comprising 1009 Windsor Road constitute “the marital home” that will
be conveyed to wife. The agreement uses the same language, “the marital home,” to set out the
premises upon which husband is obligated for “all repairs, maintenance, renovation and
replacement.” Thus, the language unambiguously requires husband to pay for maintenance and
repairs to the yard and pool located at 1009 Windsor Road.
Husband also contends the agreement does not obligate him to pay in the absence of
“direct evidence that these repairs were necessary to maintain the house.” We hold the record
contained direct evidence, in the form of wife’s testimony, supporting a finding that the repairs
were, in fact, necessary to maintain the house.
Finally, husband contends the agreement did not obligate him to pay unless wife proved
“that [the need for these repairs was] not caused by the negligence of [wife].” The agreement
expressly provides that “husband shall pay for . . . all repairs, maintenance, renovation and
replacements on the marital home unless caused by Wife’s wilful act, omission or neglect.”
(Emphasis added). Under the express language of the agreement, we hold that if husband
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contended the need for such repairs was “caused by Wife’s wilful act, omission or neglect,”
husband, rather than wife, bore the burden of proving that act, omission or neglect.
Even if wife bore this burden, the record contains evidence from which the chancellor
could have concluded she satisfied that burden. As outlined above, wife testified about each
expense to which husband objected. Her testimony indicated she sought to maintain the property
to preserve the parties’ investment and gave no indication that the need for any of the challenged
work resulted from her willful act, omission or neglect. This evidence would have supported a
finding that the repairs were not necessitated by any act or omission of wife’s.
E. WIFE’S INHERITANCE
The parties’ agreement provides that each shall retain monies they inherited during the
marriage. Wife contended that she inherited $5,656.82 from her grandmother in 1983 and that
she gave the money to husband to invest, and the court ruled wife was entitled to the return of
that money. Husband contends the trial court erred in ruling that he was obligated to return the
alleged funds to wife and that her remedy, if any, was against the corporation in which she
alleged husband invested those funds. We disagree and affirm the trial court’s ruling.
The evidence, although disputed, permitted a finding that wife received said sum in 1983
and that she gave it to husband, who added enough of his own money to invest the total sum of
$8,000. Wife offered into evidence a letter from husband claiming that he invested his own
money in the company for her and indicating that he would repay her for the inheritance if she
could provide “some documentation that this money came from [her].” Wife testified about her
receipt of the gift and offered into evidence a letter from her father confirming her receipt of
such a gift. Wife also produced a copy of an entry in the ledger for the parties’ joint bank
account showing a deposit of “Linda’s gift” of $5,656.82 and the immediately subsequent entry
showing a check for $8,000 was written to Naxos, Inc., the corporation at issue. Wife received a
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1099 form from Naxos Inc. for the year 1983 indicating her receipt of $265.42 in interest.
Additional evidence permitted a finding that husband, along with other members of his family,
owned the company and that he was its president. This evidence supported the trial court’s
ruling requiring husband to reimburse wife for the $5,656.82 inheritance he invested for her.
F. EDUCATION FUND FOR YOUNGEST CHILD
The agreement required husband to place $100 in a fund for each of the five children on a
weekly basis until each child graduated from high school, each fund to be used “only for that
child primarily for education.” It is undisputed that husband did not fully fund such accounts for
any of the parties’ children. At the time of these proceedings, four of the parties’ children had
graduated from high school and those who so desired had obtained college educations funded by
husband’s parents. At the time of these proceedings, however, the parties’ youngest child,
Cristin, had just graduated from high school. Husband alleged that an educational account
existed for Cristin, but he conceded that the account did not contain the amount of money it
would have contained if he had paid into it in accordance with the terms of the parties’
agreement. However, he contended that he would pay for Cristin’s education. The trial court
concluded husband violated the agreement, and the undisputed evidence supports that finding.
G. ATTORNEY’S FEES AND COSTS
The parties’ agreement provides that “If a party shall seek to modify or abrogate any of
the terms of this agreement and shall be unsuccessful, that party shall be responsible for the
payment of the reasonable attorney’s fees and costs of the other party.”
Here, husband sought to abrogate the terms of the parties’ agreement by unilaterally
(1) reducing and then terminating his child and spousal support obligations and other payments
due under the agreement and (2) failing to maintain an educational account for the parties’ child,
Cristin. The court’s decisions holding husband responsible for the support arrearages and
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various other amounts due under the agreement and holding him in contempt for failing to
maintain the educational account, which we affirm on appeal, constitute a finding that husband’s
attempt to abrogate the terms of the agreement was unsuccessful. Thus, wife is entitled to an
award of attorney’s fees and costs under the express terms of the parties’ agreement, and we
affirm the trial court’s award. For the same reason, we grant wife’s request for an award of fees
and costs incurred on appeal and remand to the trial court for a determination of the amount of
those fees and costs.
III.
In summary, we hold the provision of the settlement agreement regarding terminating
child support for each child who reached the age of majority was not a self-executing provision
and that husband was not entitled to reduce his support payments without seeking entry of a
proper order. We hold further that husband was not entitled to credit for overpayments made
under the settlement agreement and other gratuitous payments to wife for the benefit of her and
the children. Next, we conclude the trial court did not err in holding husband responsible
pursuant to the agreement for certain maintenance expenses for the marital residence and in
requiring husband to return to wife the inheritance money he invested for her in a business
owned by him and his family. Further, we hold the evidence established husband was in breach
of a provision requiring him to deposit certain sums into an educational account for the parties’
youngest child. Finally, we hold the evidence supported a finding that wife was entitled to an
award of attorney’s fees under the terms of the parties’ agreement. Thus, we affirm the trial
court’s ruling. We also grant wife’s request for an award of attorney’s fees and costs incurred in
this appeal and remand to the trial court for a determination of the amount of those fees and
costs.
Affirmed and remanded with instructions.
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