COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
W. DOUGLAS DRUMHELLER
MEMORANDUM OPINION * BY
v. Record No. 0163-02-3 JUDGE ROBERT P. FRANK
OCTOBER 1, 2002
SANDRA JEAN BLAIR DRUMHELLER
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Annie Lee Jacobs (Tracey C. Hopper; Parker,
McElwain & Jacobs, on briefs), for appellant.
Thomas G. Bell, Jr. (Timberlake, Smith,
Thomas & Moses, on brief), for appellee.
W. Douglas Drumheller (husband) appeals the trial court's
ruling on the division of assets pursuant to a premarital
agreement entered into by husband and Sandra Jean Blair Drumheller
(wife). Husband argues the trial court erred in considering parol
evidence and misinterpreted the parties' agreement. We agree the
court misinterpreted the agreement, and we reverse the decision.
I. BACKGROUND
Husband and wife negotiated and executed a premarital
agreement. Husband's counsel initially drafted the agreement.
Wife then requested "[t]hat there be a provision in there where
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
we would build a residence in Augusta County . . . [and] [t]hat
it would be jointly titled and considered marital property."
According to wife, this provision concerning the marital
dwelling "was very important." She explained, "[T]hat's why I
signed the agreement. . . . Because it assured me that I would
have a home and some financial security, because I was basically
signing away everything else that I might be entitled to,
whether we were married for two years or twenty." Wife
testified she would not have signed the agreement without the
requested provision. 1
Husband agreed to include such a provision, and the
agreement was re-drafted. The parties signed the agreement on
March 17, 1994, after consulting with their individual
attorneys. They married on April 9, 1994.
The agreement contained waivers of spousal support and of
any interest in each other's separate property. It provided, in
part:
[Article I, 2.] It is the parties'
intention, after they have married, to build
a residence on approximately four acres of
real estate located in Augusta County,
Virginia; it is agreed that said real estate
and residence shall be jointly titled to
them and shall constitute marital property,
any other provisions of this Agreement to
the contrary notwithstanding.
* * * * * * *
1
Husband made no objection to this testimony.
- 2 -
[Article VI, 2.] In the event of a divorce,
annulment, or other event triggering the
right of either party to seek a division or
distribution of marital property, . . . the
parties agree that their ownership interest
in their marital property shall be divided
equally between them.
* * * * * * *
[Article VII] 1. This Agreement contains
the entire understanding of the parties, and
there are no representations, warranties,
promises, covenants or undertakings, oral or
otherwise, other than those expressly set
forth herein.
[Article VII] 2. This Agreement shall not
be modified or annulled by the parties
hereto except by written instrument executed
by both of the parties in the same manner
and with the same formalities as this
Agreement expressly modifying or revoking
the provisions hereof by specific reference.
Prior to the execution of the agreement, husband owned
eight acres in New Hope, Augusta County. 2 Within the acreage,
adjacent to a parcel with husband's existing home, was "a
potential building lot, but not a developed lot, for another
house" (hereinafter the New Hope property). The parties both
testified this adjoining parcel was the four acres referenced in
the agreement. Husband and wife had "walked the property and
picked a spot on the property that [they] both liked as a
2
Husband entered a continuing objection to wife's testimony
regarding the New Hope and Fishersville properties, on the
ground that the trial court could not consider parol evidence to
determine "whether this intention [in the agreement] constitutes
an enforceable contract to build a home."
- 3 -
potential house site." However, the undeveloped, four-acre
parcel had no "road access."
Around the time the parties married, husband began making
attempts "to get road access," but each of those efforts failed.
Husband then told wife, without any detail, that he was "running
into problems" with the new house and, according to wife,
"eventually it just sort of went by the wayside." The testimony
conflicts on whether husband discussed with wife the
practicality of acquiring access. In any event, no house was
built on the four-acre parcel in New Hope.
The parties first separated on April 16, 1995. In December
1995, husband and wife resumed their relationship by dating.
Wife testified, "It was on-again/off-again until we finally
reconciled and moved in together in May of 1998."
During the negotiations for reconciliation, wife indicated
she would reconcile with husband if they purchased a jointly
titled home and "that it would be considered marital property."
Husband testified he had promised that the new property would be
titled jointly and considered marital property, to be "divided
up as marital property" if the parties divorced. However, the
parties did not amend the premarital agreement or memorialize
their negotiations.
Husband and wife found a "house under construction" in
Fishersville, Augusta County (hereinafter the Fishersville
property). The parties signed a contract to purchase this
- 4 -
property, listing the purchasers as "Warren Douglas and Sandra
Jean Drumheller."
Shortly thereafter, husband unilaterally decided not to
title the property jointly. Sometime in December 1995, husband
informed wife he had changed his mind, and he would not title
the property jointly. Wife was never informed of the closing
date nor did she sign any documents waiving or assigning her
rights under the purchase contract. The deed, dated December
14, 1995 and recorded January 2, 1996, conveyed the Fishersville
property solely to husband.
Wife reconciled with husband and moved into the
Fishersville property in May 1998. In September 1999, husband
and wife moved to a farm in Augusta County. The parties finally
separated on January 8, 2000. Husband sold the Fishersville
property on January 14, 2000, for $210,000.
On February 8, 2000, husband filed a bill of complaint,
asking for a one year, "no fault" divorce. Wife filed an
answer, requesting "that the Pre-Marital Agreement be enforced
to provide her with property sufficient to satisfy [husband's]
obligations under the Pre-Marital Agreement or, in the
alternative[,] be declared unenforceable because of the breach
of this provision." Neither party asked for an equitable
distribution of marital assets.
- 5 -
A hearing was conducted to determine whether the divorce
should be granted and if the agreement had been breached. Over
husband's objection, the trial court allowed parol evidence to
ascertain the parties' intent when entering the agreement. The
trial court ultimately ruled husband had breached the premarital
agreement by not titling the Fishersville property jointly and
assessed wife's damages at $105,000, half of the gross sales
price of that property. The court explained from the bench:
[W]hat's in this agreement supports the
testimony of Ms. Drumheller as to how and
what and everything that they agreed to, and
I guess the short, simple answer to this is
that they agreed to build a residence on
approximately four acres of real estate in
Augusta County, the one that they preferred
to build on turned out to be impractical,
although only two of the three routes were
really impractical . . . . But that's
beside the point, the fact is, they did
construct a house [in Fishersville], that is
-- says it's a contract for purchase, it is
a contract to purchase, it's also a contract
to construct.
* * * * * * *
And so it isn't any question in my mind of
what [wife] was promised and there isn't any
question in my mind that [husband] just
simply changed his mind, and I just don't
think he can do that, I think this contract
is definite enough, when it's got some
ambiguity in it, but the evidence supplies
what the Court needs, I believe there was an
enforceable contract, and I think [husband]
breached the contract, and we've got a good
- 6 -
measure of damages right here, and it's half
the value of that Fishersville property. 3
II. ANALYSIS 4
On brief, appellant contends he did not violate the
premarital agreement because the agreement did not contractually
obligate him to title the New Hope property jointly. He
maintains the word, "intention," as used in the agreement, did
not create an enforceable provision, but simply expressed a
desire to construct a home and title the land and improvements
jointly. In the alternative, he contends the trial court erred
by reforming the premarital agreement to create a promise to
jointly title the Fishersville property, as opposed to the New
3
The final order further explained the trial court's
determination:
After considering the evidence and the
arguments, the Court finds that
[husband]breached the Pre-Marital Agreement
with respect to the provisions in Article I,
paragraph 2, concerning the marital
residence and that [wife] is entitled to
payment of the sum of $105,000.00 as a
result of that breach, for the reasons set
forth on the record in open court.
4
We do not address husband's contention that the trial
court erred in admitting evidence of the circumstances
contributing to the dissolution of the marriage because he did
not specifically object to this evidence at trial. Rule 5A:18
requires that objections be made with specificity at the time of
the error in order to allow the trial court to correct the
problem. See, e.g., Campbell v. Commonwealth, 12 Va. App. 476,
480, 405 S.E.2d 1, 2 (1991) (en banc); Lee v. Lee, 12 Va. App.
512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
Additionally, resolution of this issue would not affect the
outcome of this appeal.
- 7 -
Hope property, and then assessing damages based on the sale
price of the Fishersville property. Appellant further contends
the trial court erred in allowing parol evidence to ascertain
the intent of the parties.
"Antenuptial agreements, like marital property settlements,
are contracts subject to the rules of construction applicable to
contracts generally, including the application of the plain
meaning of unambiguous contractual terms." Pysell v. Keck, 263
Va. 457, 460, 559 S.E.2d 677, 678 (2002). Therefore, we first
determine whether "the parties set out the terms of their
agreement in a clear and explicit writing . . . [such that the
writing] is the sole evidence of the agreement." Durham v.
Nat'l Pool Equip. Co., 205 Va. 441, 446, 138 S.E.2d 55, 59
(1964). As this determination addresses a legal issue, we
conduct this review de novo. See Tuomala v. Regent Univ., 252
Va. 368, 374, 477 S.E.2d 501, 505 (1996).
Assuming, without deciding, that the parties formed a
binding contract, 5 the premarital agreement still contains
ambiguity regarding the terms of the contract. "'An ambiguity
5
Husband argues the agreement on its face is not ambiguous
and does not create an enforceable contract. He also argues the
trial court improperly heard parol evidence concerning the
intention of the parties to make a binding contract. Given the
finding of this case, infra, we assume, without deciding, the
premarital agreement created a contract. Our conclusion in this
case would be the same with or without the parol evidence on
this issue.
- 8 -
exists when language admits of being understood in more than one
way or refers to two or more things at the same time.' Renner
Plumbing v. Renner, 225 Va. 508, 515, 303 S.E.2d 894, 898 (1983)
(citing Berry v. Klinger, 225 Va. 201, 207, 300 S.E.2d 792, 796
(1983))." Amos v. Coffey, 228 Va. 88, 92, 320 S.E.2d 335, 337
(1984).
Article I of the premarital agreement states the parties
will "build a residence on approximately four acres of real
estate located in Augusta County, Virginia." No reference to
the exact parcel intended by the parties is included, yet the
language of the agreement suggests a particular piece of
property was intended. We find the language of the agreement
ambiguous on this point. Nothing within the four corners of the
document indicates which particular parcel within Augusta County
is intended. We must go outside the agreement to determine
which particular parcel is in fact referenced.
While parol evidence generally is inadmissible, this rule
"does not apply if the language of the written instrument is
ambiguous." Id.
When the language of a contract is
ambiguous, parol evidence is admissible, not
to contradict or vary contract terms, but to
establish the real contract between the
parties. The construction of an ambiguous
contract is a matter submitted to the trier
of fact, who must examine the extrinsic
evidence to determine the intention of the
parties.
Tuomala, 252 Va. at 374, 477 S.E.2d at 505 (citation omitted).
- 9 -
"It is the duty of the court to construe the
contract made between the parties, not to
make a contract for them . . . . The facts
and circumstances surrounding the parties
when they made the contract, and the
purposes for which it was made, may be taken
into consideration as an aid to the
interpretation of the words used, but not to
put a construction on the words the parties
have used which they do not properly bear."
Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 64, 547 S.E.2d
216, 226 (2001) (quoting Seaboard Air Line R.R. Co. v.
Richmond-Petersburg Turnpike Auth., 202 Va. 1029, 1033, 121
S.E.2d 499, 503 (1961)).
Wife argues husband failed to title the Fishersville
property jointly, thereby breaching the contract. The
uncontested facts prove husband and wife reconciled based upon
an unwritten agreement that he would purchase and title the
Fishersville property jointly and that the property would become
a marital asset. Both husband and wife were contract purchasers
for the Fishersville property. Husband conceded he then changed
his mind and purchased the property solely in his name.
Husband later sold the Fishersville property for $210,000.
The trial court used this sum to calculate wife's damages for
husband's breach of the premarital agreement. We agree with
husband that the trial court erred.
The uncontroverted evidence proves the premarital agreement
referred only to the New Hope property. Neither party
considered any other site prior to or at the time they
- 10 -
negotiated and signed the premarital agreement. Joint ownership
of the Fisherville property was considered only as a condition
of the reconciliation, not as an amendment to the original
premarital agreement. Parol evidence is permitted only to
clarify the parties' intentions at the time of negotiations and
contract formation, not after the contract is signed. See
Seaboard Air Line R.R. Co., 202 Va. at 1033, 121 S.E.2d at 503
(noting courts can consider the "facts and circumstances
surrounding the parties when they made the contract" (emphasis
added)). Even if the parties intended to amend their original
contract, wife did not have the premarital agreement amended in
writing, as required by its provisions, when she agreed to
return to husband.
The language of the contract, although vague, does not
suggest that any real estate in the county will be jointly
titled. The reference to "four acres," especially considering
the parol evidence that the parties had chosen the four acres in
New Hope prior to signing the agreement, indicates the
premarital agreement referred to a specific parcel.
Each party was represented by counsel. If wife wanted any
real estate in the county jointly titled, she could have made
that demand. She did not do so. Instead, she asks this Court
to expand the original intention of the parties. As we cannot
use parol evidence to vary or contradict the original terms of
the agreement, we cannot interpret the contract as wife
- 11 -
suggests. See Tuomala, 252 Va. at 374, 477 S.E.2d at 505. See
also Lansdowne Dev. Co. v. Xerox Realty Corp., 257 Va. 392, 400,
514 S.E.2d 157, 161 (1999) ("[W]e will not insert by
construction, for the benefit of a party, a term not express in
the contract.").
The trial court erred in holding husband breached the
premarital agreement by failing to jointly title the
Fishersville property. That parcel is not included in the
premarital agreement. 6 The trial court effectively reformed the
agreement to include a broader provision encompassing any home,
wherever located, when only the New Hope property was the object
of the agreement. No evidence of mutual mistake,
misrepresentation, or fraud exists which would allow such a
reformation of the agreement. 7 See Ward v. Ward, 239 Va. 1, 5,
387 S.E.2d 460, 462 (1990).
Since the seller, husband, and wife agreed the Fishersville
property would be conveyed to both husband and wife, wife may
6
Wife makes no argument based on the New Hope property's
value, and no evidence on its value, with or without a house,
was presented at trial. The only theory of breach, and the only
evidence for possible damages, presented by wife was the failure
of husband to jointly title the Fishersville property.
7
Wife does not contend fraud or unconscionability. She
does not argue husband deliberately or fraudulently failed to
build a residence on the New Hope parcel. In fact, wife does
not dispute husband's testimony that he could not secure access
to that parcel. At trial, she agreed with husband's proffer
"that there was no practical roadway through that property to
give access to the four acres."
- 12 -
have some recourse for the violation of that sales contract.
Here, however, wife seeks relief under the premarital agreement,
not the Fishersville property contract. As the premarital
agreement referred only to the New Hope property, the trial
court erred in awarding her the requested relief of one-half of
the Fishersville property's sale price.
CONCLUSION
We conclude the trial court erred in concluding husband
breached the premarital agreement when he failed to jointly
title the Fishersville property and in awarding damages based on
that sale. We vacate the $105,000 judgment against husband and
enter final judgment in favor of husband.
Reversed and final judgment.
- 13 -
Bumgardner, J., dissenting.
I respectfully dissent and would affirm the trial court.
The contract was ambiguous. The trial court properly
considered the extrinsic evidence when construing the agreement
between the parties, when determining the true intention of the
parties at the time they entered the contract. It heard the
parties and assessed their credibility firsthand.
The trial court found that the parties intended the wife to
have an interest in the marital residence they would build after
the marriage. That was the true intention at the time they
entered the contract being construed. The parties did not
intend to limit the wife's interest to a residence they
contemplated building behind the house where the husband lived
at that time. The finding comports with the supporting evidence
of the situation of the parties, the subject matter of their
agreement, and the object they intended to accomplish. Reid v.
Boyle, 259 Va. 356, 367, 527 S.E.2d 137, 143 (2000) (citing High
Knob, Inc. v. Allen, 205 Va. 503, 507-08, 138 S.E.2d 49, 53
(1964)). The finding further comports with portions of the
husband's own testimony and with his conduct in subsequently
executing a joint contract to purchase the residence they
actually acquired.
The record supports the trial court's findings. I would
hold the trial court granted appropriate equitable relief by
decreeing the relief that it did.
- 14 -