AUGUST 26, 1997
Record No. 3208-96-4





Alfred D. Swersky, Judge
Present: Judges Benton, Coleman and Willis

(Gregory L. Murphy; Murphy, Morris & Mitchell, on briefs),
for appellant.

(Herbert R. Rubenstein; Coroneos & Rubenstein, on brief), for

Ann Began Furman (wife) appeals the decision of the circuit
court awarding her part of the attorney’s fees she incurred in a
previous appeal and remand. Wife contends that, under the terms
of the settlement agreement entered into with Harold Warren
Furman, II (husband), husband was obligated to pay all of her
attorney’s fees and costs. 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 trial court.
Rule 5A:27.

The record before us contains neither a transcript of the
hearing nor a written statement of facts. See Rule 5A:8.
Wife argues that the question presented is purely a matter of law
involving the interpretation of the parties’ agreement and may be
decided based upon the record without a transcript or statement
of facts. We review the question on appeal in that light.

"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). When the sole issue is
the meaning and effect of the terms of the contract, that issue
"is a question of law which can readily be ascertained by
this court." Id. "Because a separation agreement
is a contract and must be construed as such . . . the intent of
the parties as expressed in the contract controls. Where the
agreement is plain and unambiguous in its terms, the rights of
the parties are to be determined from the terms of the
agreement." Gayler v. Gayler, 20 Va. App. 83, 86, 455
S.E.2d 278, 280 (1995) (citations omitted).

Wife relies on paragraph 25 of the parties’ separation
agreement, which provides:


The parties agree that if one party incurs expense in the
enforcement of any of the provisions of this Agreement, the
other party shall be responsible for and shall pay
immediately upon demand any and all expenses thereby
incurred. "Expenses" shall include, but shall not
be limited to, reasonable attorney’s fees, Court costs, and
expenses of travel to a Court of competent jurisdiction.
Notwithstanding the foregoing, it is understood that if the
party initiating these proceedings is not upheld in Court,
then he or she will be liable for his or her own expenses, as
well as those of the other party.

Wife contends that this provision entitles her to recover all
her expenses, approximately $40,000 in attorney’s fees and costs,
incurred in this litigation. We disagree.

The trial court awarded wife $20,000 as a "partial
award" of attorney’s fees and costs, "based upon the
appeal of the [trial] Court’s prior rulings and the rehearing of
the issue decided in [wife’s] favor." Evidence in the record
indicates wife incurred approximately $25,000 in expenses in
connection with the appeal and rehearing. The trial court denied
wife’s claim for additional fees, finding that husband
"substantially prevailed" on the additional issue of
the amount of child support to be paid after the appeal.

The parties’ agreement is unambiguous in its provision that
attorney’s fees are recoverable if a party’s position is upheld
by a court in an action to enforce the agreement. Thus, we agree
with the trial court’s interpretation that, under the parties’
agreement, attorney’s fees may be awarded only to the prevailing
party. Because the trial court found that wife did not prevail on
the post-appeal support issues, we find no error in its denial of
additional costs to wife.

In the wife’s first appeal to this Court, see Furman
v. Furman
, Record No. 0001-94-4 (Va. Ct. App. Jan. 10, 1995),
we found no abuse of discretion in the prior award of $2,500 to
wife in attorney’s fees. Therefore, that finding was binding on
the parties on remand. Wife is not entitled to recover additional
attorney’s fees for the proceedings that occurred prior to the
first appeal.

Further, either party was entitled to seek modification of
child support under the provisions of the agreement. Paragraph 19
of the agreement provided:

It is agreed that, subsequent to the signing of this
Agreement, the Husband or Wife may petition any Court of
competent jurisdiction for an increase or decrease of support
and maintenance of the minor child, as provided for herein,
upon a showing of substantial changes in the financial
circumstances of the Husband or the Wife. The child support
set forth in paragraph 18 above is premised on the
representation that the Husband’s annual income is $120,000
and the Wife’s annual income is $80,500.

This proceeding commenced when husband exercised his right to
petition for a decrease in child support. The wife’s defense of
that action was not an "enforcement" of the agreement.
Indeed, the court did not find that husband had breached the

Therefore, we find no merit in wife’s contention that
paragraph 25 of the agreement required husband to pay all of her
attorney’s fees and costs. Accordingly, the decision of the
circuit court is summarily affirmed.





[1] Pursuant to Code ? 17-116.010 this
opinion is not designated for publication.