Raymond James Nigh v. Helen P. Nigh ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
RAYMOND JAMES NIGH
v. Record No. 0409-95-4 MEMORANDUM OPINION *
PER CURIAM
HELEN P. NIGH NOVEMBER 14, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
(Raymond J. Nigh, pro se, on briefs).
(Cheryl M. New; Sandground, Barondess & West, on
brief), for appellee.
Raymond James Nigh (husband) appeals the circuit court's
equitable distribution award to Helen P. Nigh (wife). Husband
raises three arguments on appeal: (1) that the trial court
lacked authority under Code § 20-107.3 to order him to transfer
his interest in the marital residence; (2) that the trial court
erred in awarding spousal support contrary to the terms of an
agreement signed by the parties; and (3) that the trial court
erred in its equitable distribution award. Upon reviewing the
record and briefs of the parties, we find that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Authority to Transfer Interest
At the time husband filed his bill of complaint, Code
§ 20-107.3(C) (1990) provided, in pertinent part, that "[t]he
court may, based upon the factors listed in subsection E, order
the division or transfer, or both, of jointly owned marital
property, or any part thereof." The marital residence was
jointly owned. Therefore, the court had authority to order the
transfer of the jointly owned marital property.
Prior Written Document
During the divorce proceeding, husband presented a
handwritten document which contained the following language above
the wife's signature:
I agree that if [the husband] will pay my
full . . . tuition & cost of books as well as
any other school related expenses . . . of
$2,000 per semester for a total of 5
semesters & gasoline not to exceed [$]1,200
per semester . . . , then I agree to waive my
right to alimony.
Beside the husband's signature on the document is the sentence,
"I agree to these terms."
Wife testified that husband paid her college tuition for two
semesters and paid additional expenses for her but did not
fulfill the terms written on the document. Husband testified
that he did not pay tuition for wife as called for under the
written document, but testified that the parties had orally
modified the terms. Husband claimed he honored the terms as
orally modified.
The trial court found the evidence insufficient to prove
that the parties had orally modified the written document. "To
be valid and enforceable, the terms of an oral agreement must be
reasonably certain, definite, and complete to enable the parties
and the courts to give the agreement exact meaning." Richardson
v. Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688, 690 (1990).
While there was evidence that the parties had conducted
additional settlement negotiations, the evidence supports the
trial court's finding that the parties had not entered into an
enforceable oral modification. Thus, we rely only on the terms
within the handwritten document.
"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). In a unilateral contract, one party
makes an offer in the form of a promise to do an act upon the
fulfillment of certain conditions by the other party. Nicely v.
Bank of Virginia Trust Co., 221 Va. 1084, 1089, 277 S.E.2d 209,
211-12 (1981); Pitts v. City of Richmond, 235 Va. 16, 19-20, 366
S.E.2d 56, 58 (1988). If the conditions precedent are not
satisfied, the contract offer becomes void. Id. See also Smith
v. McGregor, 327 Va. 66, 75, 376 S.E.2d 60, 65 (1989).
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The signed document required the husband to make certain
payments in exchange for the wife's waiver of alimony. The
husband's failure to satisfy the conditions contained in the
document voided the offer in the unilateral contract. Thus, the
trial court did not err in refusing to incorporate the document
into the decree by reference, see Code § 20-109.1, and did not
err in awarding spousal support to the wife without regard to the
terms of the document. See Code § 20-109.
Equitable Distribution Award
"Fashioning an equitable distribution award lies within the
sound discretion of the trial judge and that award will not be
set aside unless it is plainly wrong or without evidence to
support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396
S.E.2d 675, 678 (1990). If the trial court has considered the
factors set out in Code § 20-107.3(E) and the evidence supports
the trial court's conclusions, we will not disturb the trial
court's equitable distribution award merely because it is
unequal. Artis v. Artis, 10 Va. App. 356, 362, 392 S.E.2d 504,
508 (1990).
Husband asserts that the trial court failed to consider the
statutory factors. The record does not support that assertion.
The trial court found that husband had made the majority of the
monetary contributions, but had exposed the family to risk by
borrowing heavily against the equity in the family homes:
[T]hat constant borrowing drained a huge
amount of equity out of the family and
basically required the family to give up the
house on West Boulevard Drive and has yielded
an enormous capital gain problem for them
that may be worse than that . . . . There
have also been some imprudent investments
resulting in the Tweed loan . . . and then he
also failed to pay employment taxes for his
corporation for three years back in the early
1980s at a time that he was driving a
Mercedes automobile at $900 a month. I think
those negative monetary contributions need to
be taken into account.
The trial court found that wife had made most of the nonmonetary
contributions. The trial court expressly addressed the parties'
respective debt situations and the tax consequences, noting the
large capital gains tax facing wife.
Thus, the record shows that the trial court considered the
statutory factors in making the equitable distribution award.
We cannot say the trial court's decision was plainly wrong or
unsupported by the evidence.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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