Karen A. Pierangelino v William A. Pierangelino

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bumgardner and Lemons
KAREN A. PIERANGELINO
MEMORANDUM OPINION*
v. 	Record No. 1992-99-1 	PER CURIAM
FEBRUARY 8, 2000
WILLIAM A. PIERANGELINO
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
(Douglas Fredericks, on brief), for
appellant.
(Barry Dorans; W. Brantley Basnight, III;
Wolcott, Rivers, Wheary, Basnight & Kelly,
P.C., on brief), for appellee.
Karen A. Pierangelino (mother) appeals the decision of the
circuit court denying her Motion to Set Aside Agreement and
Commissioner's Recommendation Based Upon the Agreement Concerning
the Custody of the Children. 	The circuit court found that the
agreement between mother and William A. Pierangelino (father),
which was read into the record at the commissioner's hearing, was
"valid (not just facially valid)," and ratified, affirmed and
incorporated the agreement into the final decree of divorce
entered July 26, 1999. 	On appeal, mother contends that the trial
court erred by (1) failing to find that the agreement was a
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

contract which could be set aside on the basis of fraud; (2)
failing to find that her motion set forth a claim; and (3) failing
to hear evidence on mother's motion. 	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. 	See Rule 5A:27.
Mother and father, both represented by counsel, entered
into a separation agreement which was read into the record
during the April 21, 1999 hearing before the commissioner in
chancery. 	The parties agreed that no written contract would be
produced and that the agreement resolved all issues between
them. 	In pertinent part, the agreement provided that the
parties would share legal custody and father would have physical
custody of the children, with liberal visitation to mother; that
neither party would relocate without notice to the court; and
that therapy would continue for the older child. 	Neither party
filed any exceptions to the report of the commissioner filed on
May 21, 1999. 	By motion filed July 16, 1999, mother moved to
set aside the agreement and sought joint legal and shared
physical custody, alleging that the agreement was procured by
fraud and was contrary to the best interests of the children.
The trial court denied mother's motion, finding that mother's
allegations concerning father's denial of visitation and other
actions raised issues of enforcement of the agreement, not fraud
in the inducement. 	Mother appealed.
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Discussion
Mother's motion to set aside the agreement entered into by
the parties was based upon her allegations of fraud in the
inducement. 	The trial court ruled that, at best, mother's
contentions demonstrated that father was not complying with the
terms of the agreement. 	We find no error in the trial court's
decision to deny mother's motion.
To prove actual fraud, mother bore the burden to prove by
clear and convincing evidence "(1) a false representation, (2)
of a material fact, (3) made intentionally and knowingly, (4)
with intent to mislead, (5) reliance by the party misled, and
(6) resulting damage to the party misled." 	Bryant v.
Peckinpaugh, 241 Va. 172, 175, 400 S.E.2d 201, 203 (1993)). 	See
Richmond Metro. Auth. v. McDevitt St. Bovis, Inc., 256 Va. 553,
557-58, 507 S.E.2d 344, 346 (1998).
The general rule is that fraud must relate
to a present or pre-existing fact, and
cannot ordinarily be predicated on
unfulfilled promises or statements as to
future events. 	The reasons supporting this
general rule are that a mere promise to
perform an act in the future is not, in a
legal sense, a representation, and a failure
to perform it does not change its character.
The very nature of a promise to do something
in the future is such that its truth or
falsity, as a general rule, cannot be
determined at the time it is made.
Soble v. Herman, 175 Va. 489, 500, 9 S.E.2d 459, 464 (1940)
(citations omitted). 	See also Motarino v. Consultant Eng'g
Servs., 251 Va. 289, 293, 467 S.E.2d 778, 781 (1996). 	Not every
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instance of a party's failure to perform as anticipated under an
agreement gives rise to a cause of action for fraud. 	See
Richmond Metro. Auth., 256 Va. at 560, 507 S.E.2d at 348.
We agree with mother's proposition, as an abstract
statement of law, that an agreement ratified by a trial court
pursuant to Code § 20-109.1 may be set aside on the basis of
fraud. 	However, under the circumstances of this case, that
proposition is irrelevant.
At the July 23, 1999 hearing before the trial court, the
court ruled that, regardless of the merits of mother's case, it
would not conduct an extensive evidentiary hearing on mother's
motion that day. 	After hearing mother's argument, however, the
trial court found that mother's allegations raised questions of
enforcement, and did not affect the validity of the agreement.
We agree. 	Even the brief summary of expected testimony
presented at the hearing indicated that the testimony would
relate to incidents occurring after the agreement was finalized.
There was no evidence proffered relating to a material fact
existing at the time the agreement was entered. 	Moreover,
representations made at the hearing on mother's motion indicated
that father had partially performed his obligations under the
agreement by paying mother $40,000 in equitable distribution and
attorney's fees. 	Based upon the proffered testimony, we find no
error in the trial court's decision not to conduct an additional
evidentiary hearing on mother's motion.
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The trial court ruled that the parties' agreement was valid
and that mother's allegations were insufficient to support her
claim that father fraudulently induced her to enter into the
agreement. 	The record supports that finding. 	Accordingly, the
decision of the circuit court is summarily affirmed.
Affirmed.
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