D. Ramesh Chander v Darlene Ann (Jones) Chander

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COURT OF APPEALS OF VIRGIN A
Present: Judges Bray, Annunziata and Frank

D, RAMESH CHANDER
MEMORANDUM OPI Ni ON’
Vv. Record No. 2937- 98- 4 PER CURI AM
JUNE 22, 1999
DARLENE ANN (J ONES) CHANDER

FROM THE CI RCU'T COURT OF FAI RFAX COUNTY
J. Howe Brow, Jr., Judge

(Hunter C. Harrison, Jr., on briefs), for
appellant.

(Carolyn M Grines; Sharon K Lieblich, P.C,
on brief), for appellee.

D. Ranesh Chander (husband) appeals the decision of the
circuit court dismssing his Bill of Conplaint for Annul nent and
awarding a divorce to Darlene Ann (Jones) Chander (Wfe). Husband
contends that the trial court erred by affirmng the
comm ssioner's report because the conmssioner allowed into
evidence testinony and docunents that should have been excl uded
under the parol evidence rule. Upon reviewng the record and
briefs of the parties, we conclude that this appeal is wthout
nerit. Accordingly, we summarily affirmthe decision of the trial

court. See Rule 5A:27.!

*Pursuant to Code § 17. 1-413, recodifying Code § 17-116. 010,
this opinion is not designated for publication.

‘Wfe has filed notions to increase bond and for an award of
attorney's fees related to this appeal. Wé deny both notions.

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The evidence was heard by the commissioner in chancery, whose
report was affirmed without modification by the trial court.
The commissioner's report is deemed to be
prima facie correct. 	The commissioner has
the authority to resolve conflicts in the
evidence and to make factual findings. 	When
the commissioner's findings are based upon
ore tenus evidence, "due regard [must be
given] to the commissioner's ability . . .
to see, hear and evaluate the witness at
first hand." 	Because of the presumption of
correctness, the trial judge ordinarily must
sustain the commissioner's report unless the
trial judge concludes that it is not
supported by the evidence.
Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)
(citations omitted).
Husband filed a Bill of Complaint for Annulment of his
marriage to wife, alleging that the marriage and the marriage
contract was "induced by fraud" because wife secretly intended
never to consummate the marriage. 	He denied any knowledge that
wife did not intend to consummate the marriage or cohabit with
him. 	Wife filed a Bill of Complaint seeking a divorce on the
basis of living separate for six months and sought ratification
and incorporation of the parties' antenuptial agreement.
Husband's appeal is based upon the contention that the parol
evidence rule barred wife from introducing evidence concerning the
circumstances surrounding the execution of the parties'
antenuptial agreement.

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Antenuptial agreements are subject to the same rules of
construction and interpretation applicable to contracts generally.
See Davis v. Davis, 239 Va. 657, 661-62, 391 S.E.2d 255, 257
(1990) (Compton, J., dissenting).
The general rule in Virginia is that parol
evidence of prior stipulations or oral
agreements is inadmissible to vary,
contradict, or explain the terms of a
complete, unambiguous, unconditional written
contract. 	When a claim is made under an
unambiguous written instrument, however, a
signatory to the instrument may introduce
parol evidence to establish a defense based
on such doctrines as partial integration,
collateral contract, fraudulent procurement,
mutual mistake, or condition precedent.
Price v. Taylor, 251 Va. 82, 86-87, 466 S.E.2d 87, 89 (1996)
(citation omitted). 	One exception to the parol evidence rule,
the doctrine of partial integration,
recognizes that the final form of a contract
between parties may not reflect the complete
agreement of the parties or accurately
reflect the course of dealing between
parties based on their complete agreement.
In such circumstances, "where the entire
agreement has not been reduced to writing,
parol evidence is admissible, not to
contradict or vary its terms but to show
additional independent facts
contemporaneously agreed upon, in order to
establish the entire contract between the
parties."
Jim Carpenter Co. v. Potts, 255 Va. 147, 155-56, 495 S.E.2d 828,
833 (1998) (citation omitted).
Husband's initial pleading raised the issue of fraudulent
procurement of the marriage contract. 	Wife's evidence addressed

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husband's allegation that she agreed to marry him while secretly
having no intention to live with him or to consummate the
marriage. 	Nothing in the challenged evidence contradicted any
provision in the parties' agreement or was an attempt to vary
its terms. 	Nothing in the antenuptial agreement related to the
parties' intention to consummate their marriage or to live
together.
Husband relies heavily upon the provision contained in
paragraph eleven that "[t]his Agreement contains the entire
understanding of [husband] and [wife], and no representation or
promise has been made except as contained herein." 	However,
that provision cannot be expanded beyond the subject matter of
the agreement to bar "'proof of a prior or contemporaneous oral
agreement that is independent or, collateral to and not
inconsistent with the written contract, and which would not
ordinarily be expected to be embodied in the writing.'" 	Jim
Carpenter Co., 255 Va. at 156, 495 S.E.2d at 833 (citation
omitted). 	The agreement addressed solely property matters,
repeatedly emphasizing the parties' desire to maintain separate
financial property. 	One notable exception was the parties'
agreement that wife would receive retirement benefits as a
surviving spouse through husband's employment with the World
Bank.

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The commissioner allowed wife to introduce evidence
concerning the circumstances surrounding the parties'
antenuptial agreement and marriage. 	Wife's evidence
demonstrated that she and husband met and dated briefly in 1990,
but that she indicated to him that she was not romantically
attracted to him. 	At husband's request, they remained friends.
In 1994, husband asked wife to marry him so that his World Bank
pension would not be "wasted," but she declined. 	Husband
continued to discuss marriage, indicating to wife that they
would lead separate lives and would remain only friends. 	Wife
agreed to marry husband on these conditions. 	While husband
denied any knowledge of wife's intention not to consummate the
marriage or live together, the commissioner noted that husband
admitted that he and wife made no plans concerning the wedding
night or where they would live following the marriage.
Husband also alleges that the trial court applied an
incorrect standard of review to the commissioner's report. 	The
trial court properly deferred to the witness credibility
determinations made by the commissioner, and found that the
evidence supported the commissioner's findings. 	See Brown, 11
Va. App. at 236, 397 S.E.2d at 548. 	Therefore, husband's
contention is without merit.

Accordingly, the decision of the circuit court is sunnarily
affirmed.

Af firned.