William L. Smith v. Cheryl H. Smith

• Court: Court of Appeals of Virginia
• Decided: July 2, 1996
• Docket: 2618952
• Status: Unpublished

Opinion

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.

- 2 - 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

- 3 - 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.

- 4 - 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

- 5 - 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.

- 6 - 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

- 7 - 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

- 8 - 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,

- 9 - and reversed, in part.

- 10 -