COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia
SUSAN W. KREITER
MEMORANDUM OPINION * BY
v. Record No. 1856-01-2 JUDGE ROBERT J. HUMPHREYS
JULY 23, 2002
VICTOR W. KREITER, JR.
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
John B. Mann (Levit, Mann & Halligan, on
briefs), for appellant.
Jennifer E. Crossland (William H. Parcell,
III; Parcell, Webb & Wallerstein, P.C., on
brief), for appellee.
Susan W. Kreiter (wife) appeals a decision by the circuit
court, denying her motion to set aside the property settlement
agreement tendered by Victor W. Kreiter, Jr.(husband), pursuant to
their divorce proceedings. Wife contends the trial court erred in
refusing to set aside the agreement as she had withdrawn her offer
to accept the terms of the agreement prior to its filing, and
because she signed the agreement under duress. For the reasons
that follow, we affirm in part and reverse and remand in part.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this memorandum
opinion has no precedential value, we recite only those facts
necessary to our holding.
We first note that "[i]n challenging the court's decision on
appeal, the party seeking reversal bears the burden to demonstrate
error on the part of the trial court." 1 Further, when a trial
court hears evidence ore tenus, as in this case, its findings
based on an evaluation of the testimony are entitled to the same
weight as a jury's verdict. 2 Thus, the trial court's decision
will be upheld unless it appears from the evidence that the
judgment is plainly wrong or unsupported by the evidence. 3
Here, the trial court relied upon Richardson v. Richardson,
10 Va. App. 391, 382 S.E.2d 688 (1990), in finding that the
parties had, at least orally, reached an agreement, prior to
wife's attempted revocation, settling the equitable distribution
issues, as implied by their words, acts and conduct, evincing the
intention of the parties to contract and their meeting of the
minds. Accordingly, the court held that the alleged revocation by
wife was not effective, as the signing of the second property
settlement agreement (PSA #2) by husband only served to
memorialize the already existing contractual agreement and actions
of the parties. Finally, the court found the evidence failed to
"establish any scintilla of duress in [wife's] execution and
1
Barker v. Barker, 27 Va. App. 519, 535, 500 S.E.2d 240,
248 (1998) (citation omitted).
2
RF&P Corp. v. Little, 247 Va. 309, 319, 440 S.E.2d 908,
915 (1994).
3
Tuomala v. Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501,
505 (1996).
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signing of PSA #2, on October 15, 1998," nor any unconscionability
on the part of husband in the formation of the agreement.
While it is true that "[s]eparation agreements and property
settlement agreements are contracts" and as such, "'we must apply
the same rules of interpretation applicable to contracts
generally,'" 4 the Supreme Court of Virginia recently overruled
Richardson, in relevant part, in Flanary v. Milton, 263 Va. 20,
556 S.E.2d 767 (2002). In Flanary, the Supreme Court held that
pursuant to Code § 20-155, property settlement agreements made in
conjunction with divorce proceedings must be made in writing and
signed by both parties in order to be valid and enforceable. 5
Code § 20-155 states as follows:
Married persons may enter into agreements
with each other for the purpose of settling
the rights and obligations of either or both
of them, to the same extent, with the same
effect, and subject to the same conditions,
as provided in §§ 20-147 through 20-154 for
agreements between prospective spouses,
except that such marital agreements shall
become effective immediately upon their
execution. However, a reconciliation of the
parties after the signing of a separation or
property settlement agreement shall abrogate
such agreement unless otherwise expressly
set forth in the agreement.
4
Douglas v. Hammett, 28 Va. App. 517, 523, 507 S.E.2d 98,
101 (1998) (quoting Tiffany v. Tiffany, 1 Va. App. 11, 15, 332
S.E.2d 796, 799 (1985)).
5
Flanary, 263 Va. at 24, 556 S.E.2d at 769.
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Accordingly, to be enforceable, PSA #2 must have been signed by
both parties. 6 However, PSA #2 was not signed by both parties
until February 4, 2000. Thus, it did not become a binding
agreement, pursuant to Code § 20-155, until that point in time.
Because the trial court assumed the agreement became
enforceable before wife allegedly attempted to revoke the
agreement, it made no factual or legal findings concerning the
validity of wife's attempted revocation in the context of the then
unsigned agreement. Therefore, we reverse and remand on this
issue for further findings by the trial court, consistent with
this opinion.
We next address wife's argument concerning duress as it will
undoubtedly be raised once again should the trial court hold that
wife's alleged revocation was insufficient as a matter of law to
invalidate the agreement. We first note that "[w]hile
corroboration of testimony is not a prerequisite for rescission of
[an agreement] on the ground of duress, it is necessary that the
testimony establishing duress be clear and convincing."7 In
considering the issue of whether a parent had entered into a
6
The first property settlement agreement was signed only by
wife, and undisputedly, was never acted upon by the parties.
Further, wife's counsel altered the first agreement, creating
PSA #2, which wife then signed and offered to husband.
Accordingly, we do not address that agreement in this opinion.
7
Jacobs v. Jacobs, 218 Va. 264, 267, 237 S.E.2d 124, 127
(1977).
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permanent entrustment agreement under the influence of duress in
Norfolk Div. of Soc. Servs. v. Unknown Father, 2 Va. App. 420, 345
S.E.2d 533 (1986), we described duress as follows:
"Duress . . . means that degree of
constraint or danger, either actually
inflicted or threatened and impending, which
is sufficient in severity or in apprehension
to overcome the mind and will of a person of
ordinary firmness . . . .
* * * * * * *
Duress may exist whether or not the threat
is sufficient to overcome the mind of a man
of ordinary courage, it being sufficient to
constitute duress that one party to the
transaction is prevented from exercising his
free will by reason of threats made by the
other and that the contract is obtained by
reason of such fact. Unless these elements
are present, however, duress does not
exist. . . . Authorities are in accord that
the threatened act must be wrongful to
constitute duress." 8
Wife contends that PSA #2 was the product of duress and,
therefore, is invalid and unenforceable. She argues that
husband's conduct in threatening her and her counsel during the
August 1997 meeting compelled her to sign PSA #2. 9 She further
contends that she was under a significant amount of anxiety during
8
Norfolk Div. of Soc. Serv., 2 Va. App. at 434-35, 345
S.E.2d at 541 (quoting 6B Michie's Jurisprudence Duress and
Undue Influence §§ 2-3 (Repl. Vol. 1985)).
9
On brief, wife repeatedly uses the words "treat" or
"treats," instead of "threat" or "threats." Upon a review of
the record, we assume wife's use of these words on brief is the
result of her counsel's carelessness and/or failure to proofread
the brief prior to filing, as opposed to a facially absurd
argument that husband caused wife duress by making "treats."
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that time, as well as pressure, due to her impending sentencing
for the embezzlement conviction. However, we find no merit in
these contentions.
Indeed, the facts and circumstances of this case support the
trial court's determination that duress did not contribute to
wife's signing of PSA #2. Wife signed PSA #2 well after her
sentencing and incarceration, and well after husband's threat.
Further, there was no evidence that any threatening or improper
conduct on the part of husband continued after August of 1997, or
in any way affected her decision to sign PSA #2 in October of
1998. Thus, the evidence supported the trial court's conclusion
on this issue.
For the foregoing reasons, we affirm in part and reverse and
remand in part.
Affirmed in part, and
reversed and remanded in part.
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Susan W Kreiter v. Victor W Kreiter Jr
Combined Opinion