COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
WILLIAM L. SMITH
MEMORANDUM OPINION * BY
v. Record No. 2618-95-2 JUDGE JAMES W. BENTON, JR.
JULY 2, 1996
CHERYL H. SMITH
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Robert N. Johnson (Robert N. & Anne M.
Johnson, Inc., on brief), for appellant.
No brief or argument for appellee.
This appeal arises from a judgment enforcing the terms of a
property settlement agreement. William L. Smith, the former
husband, contends that the trial judge committed ten errors. We
affirm nine of the trial judge's rulings and reverse only his
decision concerning the life insurance policies.
The record establishes that William L. Smith and Cheryl H.
Smith, then husband and wife, separated and executed a property
settlement agreement dated December 21, 1990. They agreed upon
an addendum to the agreement on April 23, 1991. The parties
later reconciled for a time but then marital difficulties arose
again. In a final decree of divorce entered in 1993, the trial
judge declared the "agreement and addendum invalid and
unenforceable, except as to those provisions which have been
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
executed prior to the reconciliation."
The wife appealed the trial judge's refusal to enforce the
agreement. This Court reversed the trial judge's ruling and
stated that "[b]ecause the parties had not revoked their
agreement in writing, the agreement remained effective, even
though the parties unsuccessfully attempted reconciliation."
Smith v. Smith, 19 Va. App. 155, 157, 449 S.E.2d 506, 507 (1994).
On remand, the trial judge set aside the provisions of the final
decree that voided the property settlement agreement and heard
evidence concerning the property settlement agreement.
After an evidentiary hearing, the trial judge ruled, in
pertinent part, as follows:
1. husband owes wife $5,000.00 from the
1991 tax return.
2. husband must maintain a life insurance
policy, similar to the one in effect on
January 1, 1990, on his own life with the
wife as a beneficiary.
3. The husband owes the wife $1,800.00
4. The marital residence shall be placed on
the market and when sold, the proceeds
shall be divided equally between the two
parties.
5. The husband owes the wife $400 per month
until the residence is sold.
6. The husband owes the wife $750.00 in
attorney's fees.
7. The husband shall receive a credit of
$2,500.00 for items in the garage.
8. The husband shall receive a credit of
$2,500.00 for the payment of attorney's
fees to enforce the agreement.
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The husband now appeals the trial judge's rulings concerning the
property settlement agreement.
On appeal, we apply the following well established rules:
Under familiar principles, we view the
evidence and all reasonable inferences in the
light most favorable to the prevailing party
below, . . . . "The burden is on the party
who alleges reversible error to show by the
record that reversal is the remedy to which
he is entitled." We are not the fact-finders
and an appeal should not be resolved on the
basis of our supposition that one set of
facts is more probable than another.
Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859
(1992)(citations omitted).
1. Income tax refund.
Under paragraph 11(g) of the separation agreement, the
parties agreed to file joint tax returns for 1991 and agreed that
the wife would receive $5,000 or one-half of the refund,
whichever sum was greater. The parties received the refund
during the attempted reconciliation and placed it in a joint
account. The husband argues that upon deposit of the money into
the joint account, he complied with paragraph 11(g) of the
property settlement because the wife had access to the money.
The wife testified that she did not receive the $5,000.
Furthermore, the evidence failed to prove the amount of the
refund, the amount in the joint account at the time of the refund
deposit and the number and amount of withdrawals from the
account. On this evidence, the trial judge ruled the evidence
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failed to prove that the wife received the amount she was owed.
We agree.
That the wife later took the account balance of $2,900, did
not prove that she received the $5,000 that the husband owed her.
The evidence did not prove that the remaining balance was a
portion of the refund. Without proof of the account transactions
we cannot say the trial judge should have credited the husband
for the $2,900 withdrawn by the wife. The wife testified that
she did not receive $5,000. The evidence does not disprove the
hypothesis that the husband removed from the account the refund
amount and other sums. Thus, the ruling is not plainly wrong or
without evidence to support it. Box v. Talley, 1 Va. App. 289,
293, 338 S.E.2d 349, 351 (1986).
2. Life insurance policy.
Paragraph 11(h) of the initial agreement stated that the
parties "shall be or remain the beneficiary of all life insurance
policies on each other's life in effect as of January 1, 1990."
During the marriage two different life insurance policies insured
the husband and named the wife as the beneficiary. In the final
decree the trial judge ordered the husband to "maintain a life
insurance policy, similar to the policy or policies in effect on
his life as of January 1, 1990, with [the wife] as the
beneficiary." The husband claims that he fulfilled the terms of
the agreement and that the wife should be estopped from enforcing
this provision of the agreement.
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The husband testified that he and the wife jointly decided
during the reconciliation to let one policy lapse because of its
exorbitant cost. The wife testified that the policy lapsed but
did not explain why. Thus, the husband's testimony was
uncontradicted. "'Elements necessary to establish equitable
estoppel, absent a showing of fraud and deception, are a
representation, reliance, a change of position, and detriment.'"
Lataif v. Commercial Indust. Constr., Inc., 223 Va. 59, 63, 286
S.E.2d 159, 161 (1982)(citation omitted). See also Emrich v.
Emrich, 9 Va. App. 288, 294, 387 S.E.2d 274, 276-77 (1989). The
husband's testimony that they allowed the policy to lapse because
both he and the wife agreed that the policy cost too much
establishes that the husband acted out of reliance upon the
wife's statements. See Khoury v. Memorial Hospital, 203 Va. 236,
243, 123 S.E.2d 533, 538 (1962). Because he changed his position
to his detriment, we hold that the trial judge erred in not
estopping the wife from enforcing this portion of the agreement.
The evidence also proved that the husband's employer
terminated his other life insurance benefit for which the wife
was named a beneficiary. The agreement only required that the
wife remain a beneficiary of this policy. Thus, the husband
complied with the agreement even though the employer terminated
the benefit. Furthermore, the parties did not reasonably foresee
the cancellation of the policy at the time of the agreement.
Consequently, we hold that the trial judge erred in requiring the
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husband to obtain replacement policies.
3. $1,800 payment.
Under paragraph 11(i) of the agreement, the husband agreed
to pay the wife $1,800 on January 1, 1992. The wife testified
that she did not receive the money. The husband testified that
she refused the sum when he offered it to her.
The husband argues that the wife should be estopped from
collecting because she refused his tender. He also argues that
he should be credited for the $2,900 she withdrew from their
joint bank account. Based on the ruling on this issue, the trial
judge obviously chose to believe the wife's testimony over that
of the husband's. Nothing in the record suggests that this
finding of fact was plainly wrong. Bailes v. Sours, 231 Va. 96,
100, 340 S.E.2d 824, 827 (1986). As we previously stated, the
proof regarding the amount and use of funds in the account is
lacking. Accordingly, we find no error.
4. Sale of the marital residence.
Paragraph 12 of the agreement required the jointly-owned
marital residence to be sold unless the husband purchased the
wife's interest by June 1, 1992. The uncontradicted evidence
proved that the husband had not purchased the wife's interest by
that date. Accordingly, we hold that the trial judge did not err
in ordering the sale.
5. Husband's payment of $400 per month to the
wife until the sale of the marital residence.
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The parties waived spousal support and other rights in
paragraph 14 of the agreement except as follows:
"[I]f the home of the parties is not sold by
January 1, 1993 and the proceeds divided by
the parties, Husband shall pay to the Wife
the sum [of] $400.00 per month until such
time as Wife receives her share of the
proceeds from the sale of the home . . .
unless the receipt of the proceeds is delayed
due to Wife's unreasonable refusal to
cooperate in the sale of the home."
The husband testified that he "stopped [paying $400 monthly]
when the Appeals Court passed its ruling on the validity of the
Agreement." He claimed that the wife "unreasonabl[y] refus[ed]
to cooperate in the sale of the home." However, the wife
testified that they received offers to sell the residence and the
husband refused the offers. Upon this evidence the trial judge
found that the wife did not unreasonably refuse to cooperate in
the sale of the home. The trial judge has the duty to resolve
witnesses' credibility and such "findings will not be reversed on
appeal unless plainly wrong or without evidence to support them."
Wyatt v. Virginia Dep't of Social Servs., 11 Va. App. 225, 230,
397 S.E.2d 412, 415 (1990). We hold that the trial judge
committed no error in resolving this issue.
6. The wife's attorney's fees.
The husband agreed to pay one-half of the wife's attorney's
fees and costs in connection with any suit for divorce or
involving the property agreement. On this appeal, he claims that
her contest of the validity of the agreement bars her recovery of
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attorney's fees.
The decision to award attorney's fees is within the
discretion of the trial judge and will only be reversed for an
abuse of discretion. Ingram v. Ingram, 217 Va. 27, 29, 225
S.E.2d 362, 364 (1976). "[T]he key to a proper award of
[attorney's] fees [is] reasonableness under all of the
circumstances revealed by the record." McGinnis v. McGinnis, 1
Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). After hearing the
evidence in this case, the trial judge did not abuse his
discretion in awarding the wife $750 in attorney's fees for the
preparation of the settlement agreement and representation in the
divorce proceeding.
7. Credit of $2,500 for the items in the garage.
The husband received ownership of the contents of the garage
under paragraph 11(b) of the agreement. The husband testified
that he never obtained possession of the items in the garage
because they were removed during the time he was locked out of
the house. Based upon the husband's testimony as to the value of
the property in the garage, the trial judge did not err in
allowing a $2,500 credit for the items.
8. The husband's attorney's fees.
In Paragraph 10 of the agreement, the parties agreed that
the defaulting party should be responsible for any costs incurred
by a party successfully enforcing the agreement. The husband's
exhibits showed that during two different time periods he paid
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legal fees of $3,905 and $4,630.52. The same trial judge heard
all of the evidence and issued all of the decrees in this case.
Based upon his familiarity with the proceedings, we do not find
that he abused his discretion in reducing the husband's recovery
to $2,500. Ingram, 217 Va. at 29, 225 S.E.2d at 364.
9. The husband's costs.
The husband argued that he incurred costs of $57,671.61
because the wife refused to honor the agreement. The husband
prepared an exhibit of those costs. However, the evidence failed
to establish that those costs had an actual nexus to any loss
that he suffered because of the wife's conduct. The husband
offered no explanation of most of the costs. Without further
evidence of why he incurred such costs, we will not reverse the
trial judge's ruling.
10. Personal property.
The husband contended that the evidence proved he acquired
separate tangible personal property with a value of $7,323 during
the parties' separation and reconciliation. He also alleged that
the wife took this property. The wife denied taking the
property. The trial judge's decision based upon a resolution of
conflicting oral testimony is not plainly wrong or without
evidence to support it. Wyatt, 11 Va. App. at 226, 397 S.E.2d at
412.
For these reasons, the judgment is affirmed except as to the
provisions for the life insurance policies.
Affirmed, in part,
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and reversed, in part.
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