E. Steven Palmore v Pamela S. Palmore

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Humphreys
Argued at Richmond, Virginia
E. STEVEN PALMORE
MEMORANDUM OPINION* BY
v. 	Record No. 2033-99-2 	JUDGE ROBERT J. HUMPHREYS
JUNE 27, 2000
PAMELA S. PALMORE
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
Richard S. Blanton, Judge
Michael J. Brickhill (Michael J. Brickhill,
P.C., on brief), for appellant.
Mary Burkey Owens (Ishneila Ingalls Gubb;
Cowan & Owen, P.C., on brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
E. Steven Palmore ("husband") contends the trial court
committed reversible error when it relied upon a separation and
property settlement agreement and refused to award him a share
of the post-separation increase in value of the "marital home."
For the reasons that follow, we affirm the decision of the trial
court.
BACKGROUND
Husband and Pamela S. Palmore ("wife") were married on
December 12, 1970. 	They have two children, both of whom are
emancipated. 	In May 1988 they executed a separation and
property settlement agreement ("the agreement" or "PSA"). 	In

pertinent part, the agreement stated that wife would retain
exclusive title to the marital residence. 	In the agreement,
husband "waive[d], remis[sed] and release[d] any and all rights
to the Wife’s property and estate now and hereafter existing in
his favor." 	In addition, husband agreed to "pay the note
secured by the residential real estate." 	The parties agreed
that the agreement would
be filed with the pleadings in any divorce
suit filed by either party pursuant to
[Virginia Code] Section § 20-109 . . . and
that no decree will be entered in any
divorce suit that is in conflict with the
provisions of this agreement nor will either
party ask for a provision in any decree in
any proceeding that is in conflict with this
agreement.
Further, the agreement stipulated that any breach of a provision
of the document would not be deemed a waiver of the provisions
of the agreement. 	The parties agreed that any modification to
the agreement would be "in writing and executed with the same
formality as this agreement." 	Finally, the agreement provided
that "it is the parties' express intent that this agreement
shall continue in force even though the parties reconcile." 	The
parties separated on July 24, 1988, two months after executing
the agreement.
According to the record, neither party strictly observed
the provisions of the agreement. 	In 1988, after the separation,
husband moved back into the marital residence in Buckingham
County while wife lived in Richmond. 	Later, husband left the
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marital residence and wife returned to live there. 	In 1996, by
oral agreement, the parties agreed that husband would move back
into the marital residence, pay off the mortgage, and jointly
sign a new five-year note secured by the marital residence.
Most of the money received from the note was used "to make
improvements to the real estate." 1 The trial court noted that
husband "compiled a list of his monetary contributions to the
real estate in the total sum of $18,190.00 during the past three
years."
On December 4, 1998, wife filed a bill of complaint seeking
a divorce. 	In paragraph 7 of the bill, wife asked that "the
Property Settlement Agreement dated May, 1988, entered into
between the parties be affirmed and ratified by this Court and
incorporated as part of any Final Decree." 	On December 28,
1998, husband filed his answer to the bill of complaint. 	He
admitted all allegations set forth in the first six paragraphs;
however, regarding paragraph 7, husband answered that these
allegations are "neither admitted or denied and therefore strict
proof is required." 	Husband also asked the trial court to
"equally divide the property" in accordance with Code
§ 20-107.3.
1 The parties filed no transcript of the August 16, 1999
hearing. 	This information was taken from the "Written Statement
of the Incidents of the case" prepared by the trial court.
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On August 16, 1999, the trial court heard the matter and
entered a final decree of absolute divorce. 	Before ruling, the
trial court "permitted counsel for both parties to present brief
oral argument." 	The trial court also noted the existence of the
agreement "which both parties stipulated was a valid and
enforceable contract." 	Due to the existence of the agreement,
the trial court declined to credit husband with the alleged
improvements and ruled that husband was barred from any
equitable distribution based upon the plain language of the
agreement.
Husband contends he had a substantive right to an equitable
distribution and that the trial court was required to conduct an
equitable distribution hearing pursuant to § 20-107.3 and
classify, value and distribute separate and marital property.
Husband argues further that in such hearing the trial court was
required to classify as marital property the increased value of
the marital home. 	Because the increased value resulted from his
post-separation efforts which were based upon oral agreements
between the parties, husband contends he was entitled to an
equitable share of the increased value, notwithstanding the
plain language of the PSA. 	We disagree.
ANALYSIS
In accordance with well-established principles, we review
the facts in the light more favorable to the party prevailing
below. 	See Richardson v. Richardson, 30 Va. App. 341, 349, 516
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S.E.2d 726, 730 (1999). 	In an appeal from a divorce decree,
"[t]he burden is upon the party appealing to point out the error
in the decree and to indicate how and why it was wrong."
Kaufman v. Kaufman, 7 Va. App. 488, 499, 375 S.E.2d 374, 380
(1988). 	"Where . . . the [trial] court hears the evidence
ore tenus, its finding is entitled to great weight and will not
be disturbed on appeal unless plainly wrong or without evidence
to support it." 	Hurt v. Hurt, 16 Va. App. 792, 798, 433 S.E.2d
493, 497 (1993).
Code § 20-109(C) provides, in pertinent part, that
[i]n suits for divorce, . . . if a
stipulation or contract signed by the party
to whom such relief might otherwise be
awarded is filed before entry of a final
decree, no decree or order directing the
payment of support and maintenance for the
spouse, suit money, or counsel fee
establishing or imposing any other condition
or consideration, monetary or non-monetary,
shall be entered except in accordance with
that stipulation or contract. 	If such
stipulation or contract is filed after entry
of a final decree and if any party so moves,
the court shall modify its decree to conform
to such stipulation or contract.
"Nothing in this section shall be construed to prevent the
affirmation, ratification and incorporation in a decree of an
agreement between the parties pursuant to §§ 20-109 and
20-109.1." 	Code § 20-107.3(I).
"Agreements between divorcing spouses to settle property or
support claims are contracts; therefore the same rules generally
applicable to contracts control the issue of whether divorcing
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spouses have reached a valid agreement." 	Richardson v.
Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688, 690 (1990).
Although a divorce court is not bound to
approve in its divorce decree a settlement
agreement between divorcing parties, and is
required to exercise its discretion in
adjudicating property, support, and custody
issues as provided in Code §§ 20-107.1 and
20-107.3, a court "may affirm, ratify and
incorporate by reference in its decree
dissolving a marriage or decree of divorce
. . . any valid agreement between the
parties, or provisions thereof, concerning
the conditions of the maintenance of the
parties, or . . . , or establishing or
imposing any other condition or
consideration, monetary or non-monetary."
Id. at 399, 392 S.E.2d at 692 (quoting Code § 20-109.1).
"Marital property settlements entered into by competent
parties upon valuable consideration for lawful purposes are
favored in the law and will be enforced unless their illegality
is clear and certain." 	Cooley v. Cooley, 220 Va. 749, 752-53,
263 S.E.2d 49, 52 (1980).
[T]o the extent that the parties have
already stipulated to a particular
disposition of their property, the court may
not decree an equitable distribution award
that is inconsistent with that contract. 	To
hold otherwise would not only fail to give
full effect to the property division
statutes, but also would fail to support
Virginia’s public policy in favor of prompt
resolution of property disputes in divorce
cases through voluntary court-approved
agreements.
Parra v. Parra, 1 Va. App. 118, 128-29, 336 S.E.2d 157, 162
(1985).
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The parties entered into a valid and binding agreement.
After hearing argument, the trial court barred husband from "any
equitable distribution or marital claim in regards to the wife's
property based on the plain language of the property settlement
agreement." 	In light of the unambiguous agreement, that the
parties agreed was valid and binding, appellant has failed to
demonstrate that the trial court's decision was plainly wrong or
without evidence to support it. 	Accordingly, we affirm the
trial court's decision.
ATTORNEY'S FEES ON APPEAL
Wife requested that she be awarded attorney's fees and
costs related to defending this appeal. 	She argues that husband
failed "to demonstrate a viable appealable issue."
The decision whether attorney's fees incurred on appeal
should be awarded is a determination to be made by the appellate
court. 	See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 694-95,
479 S.E.2d 98, 100 (1996); Gottlieb v. Gottlieb, 19 Va. App. 77,
95-96, 448 S.E.2d 666, 677 (1994).
Upon consideration of the entire record in this case,
including a review of the terms and conditions of the agreement
and the basis of husband's appeal, we hold that wife is entitled
to a reasonable amount of attorney's fees for defending this
appeal. 	Accordingly, we remand this matter to the trial court
for the limited purpose of determining the amount wife should be
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awarded for attorney's fees and costs incurred in defending this
appeal.
Affirmed and remanded.
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