John R. Hamer v Renate M. Hamer

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Frank
JOHN R. HAMER
MEMORANDUM OPINION*
v. 	Record No. 0401-99-2 	PER CURIAM
JUNE 22, 1999
RENATE M. HAMER
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
Robert G. O'Hara, Jr., Judge
(Richmond A. Wollstein; Robert C. Elliott,
II; The Elliott Law Firm, on briefs), for
appellant.
(Jacqueline Waymack; Butterworth & Waymack,
on brief), for appellee.
John R. Hamer (husband) appeals the final decree of divorce
entered by the circuit court. 	On appeal, husband contends that
the trial court erred by (1) invalidating the property settlement
agreement (agreement) signed by husband and Renate M. Hamer (wife)
on January 2, 1996; (2) entering a final decree of divorce with
terms and conditions inconsistent with the provisions of the
parties' agreement; and (3) ruling sua sponte that the agreement
was invalid because the parties did not separate after entering
the agreement. 	Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
Issue One
"Property settlement and support agreements are subject to
the same rules of construction and interpretation applicable to
contracts generally." 	Fry v. Schwarting, 4 Va. App. 173, 180, 355
S.E.2d 342, 346 (1987). 	"[O]n appeal if all the evidence which is
necessary to construe a contract was presented to the trial court
and is before the reviewing court, the meaning and effect of the
contract is a question of law which can readily be ascertained by
this court." 	Id.
In this instance, however, the record on appeal does not
contain all the evidence that was presented to the trial court.
The evidence on the validity of the agreement was heard ore tenus
by the trial court. 	The trial court's determination that the
contract failed from its inception due to lack of mutuality was
based upon its credibility determinations after having seen and
heard the parties testify. 	However, no court reporter was
present at the hearing, and there is no record of the testimony
given at that hearing, other than the findings set out in the
trial court's order dated July 1, 1998.
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
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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). 	While husband relies upon
deposition testimony taken after the trial court issued its
order invalidating the agreement, that evidence may not be
substituted for the ore tenus testimony provided at the hearing
and upon which the trial court relied when it made its decision.
Husband also contends that the trial court erred when it
found that the parties did not separate on January 2, 1996. 	The
record is insufficient for us to review this challenge to the
trial court's factual determination. 	Moreover, when the parties
separated and the effect of any reconciliation under the terms
of the agreement are both irrelevant in light of the trial
court's finding that no binding agreement was formed due to lack
of mutuality.
Based upon the record provided to us on appeal, we cannot
say that the trial court's finding was reversible error.
Issue Two
Husband contends that the trial court erred by entering a
final decree that contained terms and conditions inconsistent
with those of the parties' agreement. 	See Code § 20-109(C).
For the reasons stated above, we find no error in the trial
court's decision that the parties' agreement was not a binding
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contract because it lacked mutuality. 	Therefore, the trial
court was not required to enter a decree conforming to the terms
of the agreement.
Issue Three
Husband contends that it was reversible error for the trial
court to invalidate the agreement based upon the fact that the
parties did not separate after entering into the agreement,
because the argument was not raised by wife. 	Because we find no
error in the trial court's decision that the agreement was not a
binding contract, we need not address this alternative ground
for invalidating the agreement.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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