FEE AWARDS – SUPPORT MODIFICATION – SEPARATION AGREEMENTS: Rutledge v. Rutledge

When does a judge have a general equitable common-law discretion to award attorneys' fees in post-divorce support modification litigation?  Well one time he surely does not have it is when the ex-wife seeks an alimony increase and there is a separation agreement which lets her do that, but it specifically provides for attorneys fees in two named instances: in the divorce, and in the event of a breach.  The Court of Appeals acknowledges that earlier decisions interpreting §20-109 have not been consistent in their wording, but the Court says in Rutledge v. Rutledge, 45 Va. App.56, 608 S.E.2d 504, 19 VLW 919 (2/1/05), that it has never even hinted that Subsection C gives a judge any kind of discretionary power to deviate from the express terms of the agreement and assume a discretionary fee-award authority.  Fees in the event of breach is one thing, but the Court sees no term in this agreement that allows fee awards when either party seeks to modify support.  It was the wording of the separation agreement that gave this woman the right to be in court at all, and the wording of the agreement controls.