COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Overton *
Argued at Norfolk, Virginia
JAMES RODNEY SAULS
MEMORANDUM OPINION** BY
v. Record No. 0947-98-1 JUDGE NELSON T. OVERTON
FEBRUARY 2, 1999
BARBARA SAULS
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Robert E. Long (Deirdre Farrington, on
brief), for appellant.
E. Thomas Cox for appellee.
James Rodney Sauls (husband) appeals a decree granting
Barbara Sauls (wife) a divorce a vinculo matrimonii. He has
presented several issues for appellate review, all of which
question the trial court's decision to incorporate the parties'
settlement agreement into the divorce decree. Because we hold
that the trial court did not err by incorporating the agreement,
we affirm.
The parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedental
value, no recitation of the facts is necessary.
*
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
**
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
"Property settlement agreements are contracts subject to the
same rules of formation, validity, and interpretation as other
contracts." Bergman v. Bergman, 25 Va. App. 204, 211, 487 S.E.2d
264, 267 (1997) (citing Smith v. Smith, 3 Va. App. 510, 513, 351
S.E.2d 593, 595 (1986)). If the agreement is valid, the trial
court may incorporate it into a final decree of divorce. See
Code § 20-109.1. On appeal, we will reverse the trial court's
decision to incorporate such an agreement only upon an abuse of
discretion. See Forrest v. Forrest, 3 Va. App. 236, 239, 349
S.E.2d 157, 159 (1986).
Husband's first contention is that the agreement was invalid
because the copy he received and signed was incomplete.
Specifically, he alleges a letter referenced in the agreement as
"exhibit B" was not included with the agreement. According to
husband, failure by wife's attorney to attach the letter resulted
in an invalid contract.
"An incomplete contract . . . is one from which one or more
material terms have been entirely omitted. . . . While a contract
to be valid and enforceable must be so certain that each party
may have an action upon it, reasonable certainty is all that is
required." Smith v. Farrell, 199 Va. 121, 128, 98 S.E.2d 3, 7
(1957). Paragraph 13 of the settlement agreement, titled "advice
of counsel," states in pertinent part:
The parties acknowledge that they are
entering into this Agreement freely and
voluntarily, that they have ascertained and
weighed all the facts and circumstances
likely to influence their judgment herein;
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that they have sought and obtained legal
advice independently of each other; that they
clearly understand and assent to all the
provisions of this Agreement. Wife is
represented by Stuart A. Saunders who has not
provided any representation or given any
legal advice to the Husband, who has sought
such legal advice as he deems appropriate.
The representation by Stuart A. Saunders is
modified by a letter to Husband and Wife
dated October 5, 1995, a copy of these
letters are attached hereto as Exhibit B.
The letter disclosed that wife's attorney had an attorney/client
relationship only with wife, that husband should seek independent
legal counsel if he had questions about the agreement and that
husband had agreed that wife's attorney was responsible for
drafting the agreement. Husband received a letter, addressed to
him, labeled "exhibit B."
According to the terms of Paragraph 13, it is clear that
wife received her own letter, addressed to her, and husband
received one addressed to him. These are the letters described
by the agreement. Because husband has failed to show that his
letter is not the "exhibit B" letter referenced in the agreement,
we hold that the agreement is not incomplete.
Husband next alleges that the trial court erred by failing
to send the issues of fraud, duress and oppression to a
commissioner in chancery. The decision to refer a case to a
commissioner in chancery is, like other administrative decisions,
entrusted to the trial court's sound discretion. See Watkins v.
Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985).
Because we cannot say the trial court abused its discretion by
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hearing the evidence and ruling on the issues itself, we affirm
its decision.
Husband also alleges that the trial court erred by excluding
certain evidence. The trial court excluded evidence of marital
discord which occurred throughout the marriage. The trial court
ruled that such animosity, even if severe, did not prove duress
or oppression at the time husband acquiesced to the agreement.
The testimony which husband offered into evidence was far
removed in place and time from the formation of the agreement by
the parties. The testimony did not concern the agreement or
husband's motivation to sign it. When testimonial evidence
relevant to the question of duress or oppression was offered, the
trial court admitted it. Indeed, husband testified at length
about his state of mind at the time he signed the agreement. The
trial court simply chose not to believe him.
Husband finally argues that the trial court erred by ruling
it had jurisdiction to amend spousal support in the future if
circumstances changed. This allegation is completely without
merit. The trial court ruled that it had jurisdiction to hear
the bill of complaint requesting divorce. See Code § 20-96. The
trial court further ruled that it had jurisdiction to decide
whether the parties' separation agreement was valid and should be
incorporated into the divorce decree. See Code § 20-109.1. The
trial court did not rule that it could later change the amount of
spousal support more than 21 days after the decree was issued.
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See Rule 1:1. 1 It was husband's perception of the trial court's
ruling that was erroneous, not the ruling itself.
Husband has presented two further questions for review:
whether a scrivener's error occurred in the agreement and whether
wife made fraudulent statements to husband which would render the
contract invalid. Because husband did not preserve these
questions by a timely objection in the trial court, we are barred
from considering them on appeal. See Rule 5A:18. See also
Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630,
631 (1991).
We hold that the trial court committed no reversible error.
Accordingly, the trial court's decree of divorce is affirmed.
Affirmed.
1
While Code § 20-109 allows a circuit court to modify
spousal support upon a change of circumstances, if a separation
agreement has been incorporated into the decree the court may
only modify spousal support in conformance with that agreement.
Because the parties' agreement did not provide for such
modification, the court cannot change the terms of spousal
support in the future.
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James Rodney Sauls v. Barbara Sauls
Combined Opinion