COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner Argued at Richmond, Virginia
MICHAEL CHARLES FRIES MEMORANDUM OPINION * BY v. Record No. 2803-99-3 JUDGE LARRY G. ELDER MAY 2, 2000 PATRICIA ANN FRIES
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY George E. Honts, III, Judge
Frank K. Friedman (Nicholas C. Conte; Woods, Rogers & Hazlegrove, P.L.C., on briefs), for appellant.
J. Emmette Pilgreen, IV (Jonathan S. Kurtin; Harvey S. Lutins & Associates; Shapiro & Kurtin, on brief), for appellee.
Michael Charles Fries (husband) appeals from an equitable
distribution proceeding following his divorce from Patricia Ann
Kelly Fries Carroll (wife). On appeal, he contends the trial
court erroneously (1) set aside the parties' 1978 separation
agreement and distributed their property pursuant to Virginia's
equitable distribution law; (2) assessed his ownership interest
in a particular piece of property at a level greater than that
supported by the evidence; and (3) awarded wife $25,000 in
attorney's fees. We hold the trial court, in applying New York
law as required by the separation agreement, erred in concluding
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the parties' sixteen-year reconciliation abrogated the
agreement, where the agreement provided revocation had to be in
writing and would not be effected by reconciliation alone and
the court specifically found the parties did not execute such a
writing. Therefore, we remand to the trial court for further
proceedings without reaching husband's second assignment of
error. Because it is unclear whether the trial court's award of
attorney's fees to wife was predicated in part on the fact that
she prevailed in the dispute over the validity of the settlement
agreement, we vacate the award of attorney's fees and remand to
the trial court for reconsideration of that issue, as well.
New York law applicable to the 1978 separation agreement
provided that, with only a few exceptions not applicable here,
the rules governing contracts generally are applicable to
separation agreements. See 16 N.Y. Jurisp., Domestic Relations
§ 662 (1972) (hereinafter N.Y. Jurisp.). Although New York law
previously provided that a husband and wife could not contract
to alter or dissolve their marriage, subsequent amendment of the
law "provides that an[] agreement . . . shall not be considered
'a contract to alter or dissolve the marriage . . . unless it
contains an express provision requiring the dissolution of the
marriage or provides for the procurement of grounds for
divorce.'" Collins v. Johnson, 341 N.Y.S.2d 214, 216 (N.Y. Civ.
Ct. 1973) (quoting N.Y. Gen. Oblig. Law § 5-311); see Taft v.
Taft, 548 N.Y.S.2d 726, 727 (N.Y. App. Div. 1989) (holding that
- 2 - agreement otherwise void on this basis is valid if agreement
contains severability clause). Pursuant to that amendment, "a
separation agreement which contains neither of such provisions
is not void as a contract to dissolve the marriage." N.Y.
Jurisp., supra, § 663.
Where the terms of a separation agreement "are clear and
unambiguous, the intent of the parties must be found therein."
Nichols v. Nichols, 119 N.E.2d 351, 353 (N.Y. 1954); see also
N.Y. Jurisp., supra, § 678. General principles provide that
reconciliation and resumption of cohabitation following
execution of a separation agreement show an intent to abrogate
the agreement. See, e.g., Markowitz v. Markowitz, 381 N.Y.S.2d
678, 679 (N.Y. App. Div. 1976); see also N.Y. Jurisp., supra,
§ 688. However, to hold that reconciliation and a resumption of
cohabitation, standing alone, are sufficient to abrogate an
agreement which provides expressly that the agreement shall
remain effective following a reconciliation absent written
revocation is to ignore the intention of the parties expressed
in the agreement.
We are aware of no New York appellate decision which has
expressly addressed this issue. In Zambito v. Zambito, 566
N.Y.S.2d 789 (N.Y. App. Div. 1991), relied upon by wife, the
court considered the continuing validity of a separation
agreement which "required that any reconciliation should be
reduced to writing." Id. at 791. The court gave no indication
- 3 - that the separation agreement at issue provided a different
standard for determining abrogation, and it applied the general
standard that resumption of cohabitation with an intent to
reconcile results in abrogation. See id. In assessing the
factual question whether a reconciliation occurred, the court
noted that the parties shared the marital residence occasionally
but did not cohabit, that husband maintained a separate
residence with his sister and that he continued to make child
support payments. See id. It also noted that "the terms of the
separation agreement required that any reconciliation should be
reduced to writing." Id. Based upon all of those factors, it
concluded the trial court's "factual determination that there
had not been any mutual understanding of both parties to
effectuate an abrogation of the agreement through reconciliation
should not be disturbed." Id. The issue in Zambito was whether
a reconciliation occurred, not whether any such reconciliation
would abrogate the agreement. See id. The contractual
provision in Zambito that a reconciliation "should" be reduced
to writing is distinguishable from the contractual provision at
issue here that the agreement "shall not be invalidated . . . by
a reconciliation" unless documented by a writing both
acknowledging the reconciliation and canceling the agreement.
The only New York case cited to this Court which is
precisely on point is Brown v. Brown, 1998 N.Y. Misc. LEXIS 419
(N.Y. Sup. Ct. 1988), issued by a New York trial court. Based
- 4 - on Brown, we agree with husband's contention that a resumption
of cohabitation coupled with an intent to reconcile is
insufficient to establish a mutual intent to abrogate the
separation agreement where the agreement specifically requires
written revocation.
Brown involved a separation agreement containing a
revocation provision almost identical to the one at issue in
this case. See id. at *3-*4. The court noted that "whether the
parties' acts of reconciliation rescind a separation agreement
where that agreement contained a provision that it could not be
invalidated or rescinded except in writing" is "a novel issue
which has yet to be specifically addressed" by a New York court.
See id. at *1. In Brown, following execution of the separation
agreement, the parties resumed cohabiting in the marital
residence, despite a provision in the agreement granting wife
exclusive possession of the residence, and they resided there as
a "typical . . . married couple[]" for an additional
one-and-one-half years. See id. at *2-*3.
The court recognized the general principle that "'absent
any indication to the contrary,'" spouses who reconcile are
assumed to "'intend[] that all vestiges of the agreement that
. . . memorialize[d] their separation also [will] fall.'" Id.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner Argued at Richmond, Virginia
MICHAEL CHARLES FRIES MEMORANDUM OPINION * BY v. Record No. 2803-99-3 JUDGE LARRY G. ELDER MAY 2, 2000 PATRICIA ANN FRIES
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY George E. Honts, III, Judge
Frank K. Friedman (Nicholas C. Conte; Woods, Rogers & Hazlegrove, P.L.C., on briefs), for appellant.
J. Emmette Pilgreen, IV (Jonathan S. Kurtin; Harvey S. Lutins & Associates; Shapiro & Kurtin, on brief), for appellee.
Michael Charles Fries (husband) appeals from an equitable
distribution proceeding following his divorce from Patricia Ann
Kelly Fries Carroll (wife). On appeal, he contends the trial
court erroneously (1) set aside the parties' 1978 separation
agreement and distributed their property pursuant to Virginia's
equitable distribution law; (2) assessed his ownership interest
in a particular piece of property at a level greater than that
supported by the evidence; and (3) awarded wife $25,000 in
attorney's fees. We hold the trial court, in applying New York
law as required by the separation agreement, erred in concluding
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the parties' sixteen-year reconciliation abrogated the
agreement, where the agreement provided revocation had to be in
writing and would not be effected by reconciliation alone and
the court specifically found the parties did not execute such a
writing. Therefore, we remand to the trial court for further
proceedings without reaching husband's second assignment of
error. Because it is unclear whether the trial court's award of
attorney's fees to wife was predicated in part on the fact that
she prevailed in the dispute over the validity of the settlement
agreement, we vacate the award of attorney's fees and remand to
the trial court for reconsideration of that issue, as well.
New York law applicable to the 1978 separation agreement
provided that, with only a few exceptions not applicable here,
the rules governing contracts generally are applicable to
separation agreements. See 16 N.Y. Jurisp., Domestic Relations
§ 662 (1972) (hereinafter N.Y. Jurisp.). Although New York law
previously provided that a husband and wife could not contract
to alter or dissolve their marriage, subsequent amendment of the
law "provides that an[] agreement . . . shall not be considered
'a contract to alter or dissolve the marriage . . . unless it
contains an express provision requiring the dissolution of the
marriage or provides for the procurement of grounds for
divorce.'" Collins v. Johnson, 341 N.Y.S.2d 214, 216 (N.Y. Civ.
Ct. 1973) (quoting N.Y. Gen. Oblig. Law § 5-311); see Taft v.
Taft, 548 N.Y.S.2d 726, 727 (N.Y. App. Div. 1989) (holding that
- 2 - agreement otherwise void on this basis is valid if agreement
contains severability clause). Pursuant to that amendment, "a
separation agreement which contains neither of such provisions
is not void as a contract to dissolve the marriage." N.Y.
Jurisp., supra, § 663.
Where the terms of a separation agreement "are clear and
unambiguous, the intent of the parties must be found therein."
Nichols v. Nichols, 119 N.E.2d 351, 353 (N.Y. 1954); see also
N.Y. Jurisp., supra, § 678. General principles provide that
reconciliation and resumption of cohabitation following
execution of a separation agreement show an intent to abrogate
the agreement. See, e.g., Markowitz v. Markowitz, 381 N.Y.S.2d
678, 679 (N.Y. App. Div. 1976); see also N.Y. Jurisp., supra,
§ 688. However, to hold that reconciliation and a resumption of
cohabitation, standing alone, are sufficient to abrogate an
agreement which provides expressly that the agreement shall
remain effective following a reconciliation absent written
revocation is to ignore the intention of the parties expressed
in the agreement.
We are aware of no New York appellate decision which has
expressly addressed this issue. In Zambito v. Zambito, 566
N.Y.S.2d 789 (N.Y. App. Div. 1991), relied upon by wife, the
court considered the continuing validity of a separation
agreement which "required that any reconciliation should be
reduced to writing." Id. at 791. The court gave no indication
- 3 - that the separation agreement at issue provided a different
standard for determining abrogation, and it applied the general
standard that resumption of cohabitation with an intent to
reconcile results in abrogation. See id. In assessing the
factual question whether a reconciliation occurred, the court
noted that the parties shared the marital residence occasionally
but did not cohabit, that husband maintained a separate
residence with his sister and that he continued to make child
support payments. See id. It also noted that "the terms of the
separation agreement required that any reconciliation should be
reduced to writing." Id. Based upon all of those factors, it
concluded the trial court's "factual determination that there
had not been any mutual understanding of both parties to
effectuate an abrogation of the agreement through reconciliation
should not be disturbed." Id. The issue in Zambito was whether
a reconciliation occurred, not whether any such reconciliation
would abrogate the agreement. See id. The contractual
provision in Zambito that a reconciliation "should" be reduced
to writing is distinguishable from the contractual provision at
issue here that the agreement "shall not be invalidated . . . by
a reconciliation" unless documented by a writing both
acknowledging the reconciliation and canceling the agreement.
The only New York case cited to this Court which is
precisely on point is Brown v. Brown, 1998 N.Y. Misc. LEXIS 419
(N.Y. Sup. Ct. 1988), issued by a New York trial court. Based
- 4 - on Brown, we agree with husband's contention that a resumption
of cohabitation coupled with an intent to reconcile is
insufficient to establish a mutual intent to abrogate the
separation agreement where the agreement specifically requires
written revocation.
Brown involved a separation agreement containing a
revocation provision almost identical to the one at issue in
this case. See id. at *3-*4. The court noted that "whether the
parties' acts of reconciliation rescind a separation agreement
where that agreement contained a provision that it could not be
invalidated or rescinded except in writing" is "a novel issue
which has yet to be specifically addressed" by a New York court.
See id. at *1. In Brown, following execution of the separation
agreement, the parties resumed cohabiting in the marital
residence, despite a provision in the agreement granting wife
exclusive possession of the residence, and they resided there as
a "typical . . . married couple[]" for an additional
one-and-one-half years. See id. at *2-*3.
The court recognized the general principle that "'absent
any indication to the contrary,'" spouses who reconcile are
assumed to "'intend[] that all vestiges of the agreement that
. . . memorialize[d] their separation also [will] fall.'" Id.
at *4-*5 (quoting In re Wilson, 427 N.Y.S.2d 977, 980 (N.Y.
1980)). "'While generally cohabitation accompanied by intent to
reconcile will result in the repudiation of a separation
- 5 - agreement, this rule is grounded upon the presumed intent of the
parties, and should not be applied when a contrary intent is
clear.'" Id. at *5 (quoting Breen v. Breen, 495 N.Y.S.2d 195,
195-96 (N.Y. App. Div. 1985) (citations omitted)). Recognizing
that the intent of the parties is a question of fact to be
proven by their acts and expressions, see id. at *4, the court
held that "a contrary intent to the parties' actions has been
clearly expressed in . . . the Separation Agreement," id. at *5.
As a result, it held "the Court need not look to the acts and
expressions of the parties as the Court in Markowitz[, 381
N.Y.S.2d 678,] was forced to do." Id. at *6. Indeed, under
Nichols, where the terms of the separation agreement "are clear
and unambiguous, the intent of the parties must be found
therein." 119 N.E.2d at 353 (emphasis added). To look
elsewhere to ascertain the parties' intent under such
circumstances is error. Cf. Coccaro v. Coccaro, 130 N.Y.S.2d
609, 610 (N.Y. App. Div.) (holding that where real property is
conveyed by one spouse to another in conjunction with a
separation agreement, a reconciliation of the parties, without
more, does not void that conveyance), aff'd, 124 N.E.2d 330
(N.Y. 1954); N.Y. Jurisp., supra, § 689.
We hold the same rationale applies in this case. Although
this case involved a reconciliation of sixteen years, this time
differential is not dispositive. Because the parties' agreement
specifically provided that revocation could only be effected in
- 6 - writing, the agreement remained binding, and the trial court
erred in finding otherwise.
Therefore, we vacate the trial court's decision
invalidating the separation agreement, vacate its equitable
distribution of the parties' property pursuant to Virginia law,
and remand for further proceedings consistent with this opinion. 1
Because of our ruling, we do not reach husband's second
assignment of error. Finally, because it is unclear whether the
trial court's award of attorney's fees to wife was predicated in
part on the fact that she prevailed in the dispute over the
validity of the settlement agreement, we vacate the award of
attorney's fees and remand to the trial court for
reconsideration of that issue, as well.
Reversed, vacated and remanded.
1 We do not consider whether the parties may have repudiated the agreement. The trial court did not reach that issue, and it is not before us on appeal. We also note that the agreement, if valid, does not prevent one spouse from gifting his or her real or personal property to the other spouse individually or from gifting a portion of that spouse's ownership interest therein. Therefore, husband may or may not be entitled to a retracing of property he owned at the time of execution of the separation agreement.
- 7 -