Donald Louis Davidson v. Kathy L. Normile Davidson

• Court: Court of Appeals of Virginia
• Decided: September 26, 1995
• Docket: 0662953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

DONALD LOUIS DAVIDSON

v. Record No. 0662-95-3 MEMORANDUM OPINION * PER CURIAM KATHY L. NORMILE DAVIDSON SEPTEMBER 26, 1995

FROM THE CIRCUIT COURT OF ROANOKE COUNTY Kenneth E. Trabue, Judge Designate

(Sam Garrison; Richard Lee Lawrence & Associates, on briefs), for appellant. (Ellen S. Weinman, on brief), for appellee.

Donald Louis Davidson (husband) appeals the decision of the

circuit court. Husband argues the circuit court erred when it

ruled an agreement signed by husband and Kathy L. Normile

Davidson (wife) was an enforceable property settlement agreement.

Upon reviewing the record and briefs of the parties, we conclude

that this appeal is without merit. Accordingly, we summarily

affirm the decision of the trial court. Rule 5A:27.

Evidence in this matter was heard by the trial court ore tenus. "Property settlement and support agreements are subject

to the same rules of construction and interpretation applicable

to contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180,

355 S.E.2d 342, 346 (1987). "[O]n appeal if all the evidence

which is necessary to construe a contract was presented to the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. trial court and is before the reviewing court, the meaning and

effect of the contract is a question of law which can readily be

ascertained by this court." Id.

The trial court ruled that the agreement was unambiguous and

enforceable. We agree. "The fact that the parties attribute to

the same terms variant meanings does not necessarily imply the

existence of ambiguity where there otherwise is none." Smith v.

Smith, 3 Va. App. 510, 513-14, 351 S.E.2d 593, 595 (1986).

"Where there is no ambiguity in the terms of a contract, we must

construe it as written, and we are not at liberty to search for

the meaning of the provisions beyond the pertinent instrument

itself." Id. at 514, 351 S.E.2d at 596.

The terms of a property settlement agreement are presumed to

be independent and, absent evidence to the contrary, will be

construed as such. See Eschner v. Eschner, 146 Va. 417, 422-23,

131 S.E. 800, 802 (1926); Gloth v. Gloth, 154 Va. 511, 549, 153

S.E. 879, 891 (1930); Lindley and Parley, Lindley on Separation Agreements and Anti-Nuptial Agreements, Vol. 2 § 25.02 at 25-7 to

25-8. A reading of the agreement in this case, confined to its

four corners, fails to support the husband's contention that it

is void under Kelley v. Kelley, 248 Va. 295, 449 S.E.2d 55

(1994). Unlike the agreement in question in Kelley, the parties

here did not attempt to limit the court's "continuing

jurisdiction to change or modify its decree relating to the

maintenance and support of minor children." Id. at 298, 449

2 S.E.2d at 56.

Moreover, the parties have acted in accordance with the

agreement since it was signed in 1991, and husband admitted that

he had received benefits under its terms. "[T]he interpretation

placed upon an agreement by the parties themselves is entitled to

the greatest weight." Id. at 518, 351 S.E.2d at 598.

Accordingly, the decision of the circuit court is summarily

affirmed. Affirmed.