COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

LEROY CLINTON WEST

v. Record No. 0036-95-4 MEMORANDUM OPINION
PER CURIAM
BETSY E. WEST JULY 18, 1995

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gerald Bruce Lee, Judge

(Elaine H. Cassel, on brief), for appellant.

(David H. Fletcher; Gannon, Cottrell & Ward, on
brief), for appellee.

Leroy Clinton West (husband) appeals the decision of the
circuit court requiring him to pay Betsy E. West (wife)
$135,046.27 in spousal support arrearage, interest, and
attorney's fees. Husband raises the following issues on appeal:
(1) whether the trial court erred in finding
insufficient evidence to support his defenses
of equitable estoppel or waiver;

(2) whether the trial court erred in
awarding pre-judgment interest from the date
each support payment was due;

(3) whether the trial court erred in
awarding attorney's fees; and

(4) whether the trial court erred in
granting wife's motion to compel compliance
when the final decree of divorce did not
state when payments were to begin or when
payments were due.
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.
On appeal, we view the evidence in the light most favorable
to wife as the prevailing party below and we grant to the wife
all reasonable inferences fairly deducible therefrom. McGuire v.
McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). "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).
I. Defense of Equitable Estoppel
Husband argues that wife is barred from recovering any
spousal support arrearage under the doctrine of equitable
estoppel. "'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,
431 S.E.2d 55, 61 (1993) (citation omitted).
The record demonstrates that after the husband informed wife
that he was unemployed, wife wrote to husband stating, in part:
Though you said you would send $100 of your
unemployment benefits, I realized it would be
a difficult time for you and I said nothing
when that was not sent. However, I am
puzzled that I have heard nothing further
from you and I am sure by now you are
working.
* * * * * * *
I realize your note indicated you will cover
the back payments and I do not question that
intention. However, I would appreciate your
putting at least partial payment of the
amount high in the priorities in your own
budget.
* * * * * * *
Please notify me soon about your payment
plans.
The trial court determined that husband failed to prove wife made
any representations concerning discontinuing spousal support.
That determination is not plainly wrong.
II. Defense of Waiver
Husband also argues that wife waived her rights to support
and support arrearages. "Waiver is the voluntary, intentional
abandonment of a known legal right, advantage, or privilege.
'[B]oth knowledge of the facts basic to the exercise of the right
and the intent to relinquish that right are essential elements.'"
Fox v. Deese, 234 Va. 412, 425, 362 S.E.2d 699, 707 (1987)
(citations omitted).
Husband concedes wife made no express waiver of her right to
the payments. He asserts that wife's failure to seek relief
earlier amounted to an intentional abandonment of her right to
relief. However, "a party's passive acquiescence in nonpayment
of support [does not] operate to bar that party from later
seeking support arrearages." Goodpasture v. Goodpasture, 7 Va.
App. 55, 58, 371 S.E.2d 845, 847 (1988). The last correspondence
between the parties indicated wife was not waiving her right to
either spousal support or the support arrearage. The trial court
found that wife's explanations for why she did not assert her
rights earlier were credible. Thus, credible evidence supports
the trial court's findings that wife made no representations to
husband suggesting that she no longer expected spousal support or
payment of the accruing arrearage and that wife did not
intentionally waive her rights to either the support or
arrearage.
III. Interest
The principle is "well established . . . that court-ordered
support becomes vested when it accrues and the courts are without
authority to make any change with regard to arrearages." Smith
v. Smith, 4 Va. App. 148, 152, 354 S.E.2d 816, 818-19 (1987).
However, "'[t]he general rule is that in the absence of factors
making it inequitable, interest should be assessed on unpaid
installments of alimony from the date they mature or become due
until the date they are paid.'" Pledger v. Pledger, 6 Va. App.
627, 630, 371 S.E.2d 43, 44 (1988) (citation omitted, emphasis
deleted). "[T]he right to interest for the . . . forbearance of
money, when not expressly waived, is implied and begins when the
debt is due and payable." Id.
The statutory scheme authorizes a court to "include an
amount for interest on the [support] arrearage . . . if the
person to whom such arrearage is payable requests that interest
be charged." Code 20-78.2. Moreover, "a court may grant
appropriate relief even though it is not specifically requested."
Taylor v. Taylor, 14 Va. App. 642, 649, 418 S.E.2d 900, 904
(1992). The record establishes that the wife requested interest
at the hearing.
The parties' agreement is silent as to interest on
arrearages, and husband points to no other evidence to
demonstrate wife expressly waived her implied right to interest
on past due amounts. While Code 20-109 directs a court to
enter orders complying with the terms of a pre-existing
stipulation or contract signed by the parties, the statute does
not bar the award of interest on past due payments where the
parties' agreement is silent. Therefore, we find no error in the
trial court's award of pre-judgment interest on the spousal
support arrearage.
IV. Attorney's Fees
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). Based on the number of issues involved and the
respective abilities of the parties to pay, we cannot say that
the award was unreasonable or that the trial judge abused his
discretion in making the award.
While the parties' agreement contains a provision entitled
"Attorney's Fees," that paragraph deals only with the payment of
fees attributable to the entry of the divorce decree and does not
address the payment of any other fees. The agreement does not
bar an award of attorney's fees under the present circumstances.
V. Motion to Compel
Husband asserts that, as the parties' agreement did not
state when the spousal support payments were to begin, the order
was unenforceable. We disagree. The agreement states that the
husband was to pay the amount "per month." Moreover, husband
made regular monthly payments from 1971 until the beginning of
1979. "Generally, the interpretation placed upon an agreement by
the parties themselves is entitled to the greatest weight."
Smith v. Smith, 3 Va. App. 510, 518, 351 S.E.2d 593, 598 (1986).
We find no error in the trial court's determination that the
agreement was enforceable. Therefore, as the trial court's
decision was not plainly wrong or without evidence to support it,
we affirm the court's decision.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.

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