Deborah A. Grow v. David P. Grow ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia
DEBORAH A. GROW
MEMORANDUM OPINION * BY
v. Record No. 2755-98-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 27, 2000
DAVID P. GROW
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
Mary Elliott for appellant.
Rebecca R. Masri (Law Offices of Earl E.
Shaffer, on brief), for appellee.
Deborah A. Grow ("wife") appeals from an order of the
Circuit Court of Fairfax County, decreeing that her Property
Settlement Agreement ("PSA") with her former husband, David P.
Grow ("husband") is legally valid and enforceable. Wife asserts
that the PSA 1) is invalid because of fraudulent inducement by
husband; 2) is unconscionable; 3) is invalid because she
consented to it under duress; and 4) has been repudiated by
husband. Wife also contends the trial court erred by refusing
to admit into evidence the de bene esse deposition of Sandra
Browning. We find no error and affirm the decision of the trial
court.
*Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
BACKGROUND
In accordance with well established principles, this Court
views the facts in the light most favorable to the party
prevailing below. See Richardson v. Richardson, 30 Va. App.
341, 349, 516 S.E.2d 726, 730 (1999). "'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) (quoting
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,
631 (1988) (citations omitted)).
The parties to this appeal were married on March 9, 1985,
and during the course of their marriage gave birth to two
daughters. For all but the first three months of the
twelve-year marriage, wife was a full-time homemaker. By the
spring of 1997, wife had become severely depressed, and she
underwent treatment that included counseling and medication.
She continued her treatment with anti-depressant drugs through
the fall of 1997. In August, 1997, husband claimed the parties'
children told him that wife had become verbally and physically
abusive toward them, and had on at least one occasion struck
them with a wooden spoon. By September, 1997, husband suspected
wife was suffering from severe mental illness. At that time, he
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began to compile documentary evidence he believed would show
that she was abusing the children.
At some time prior to September 25, husband hired an
attorney to draft a separation agreement. Upon learning of
husband's intention to remove her from the marital home and to
seek a legal separation, wife hired an attorney and withdrew
half the funds from the parties' joint checking account. That
evening she confronted husband concerning his intentions, which
he admitted. He also accused wife of abusing the parties'
children. Husband then produced a draft property settlement
agreement. Because wife was too emotionally distressed to read
the document, husband read portions of it to her. No agreement
was reached at that time, however.
I.
WIFE'S CLAIM OF FRAUDULENT INDUCEMENT
Wife contends that husband obtained her consent to the PSA
by assuring her that, if she agreed to it, he would permit her
continued visitation with the children. Wife argues that
husband's representation constituted constructive fraud, because
he subsequently petitioned the court to limit her visitation
rights. We find wife's claim to be without merit.
"'"[T]he elements of a cause of action for constructive
fraud are a showing by clear and convincing evidence that a
false representation of a material fact was made innocently or
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negligently, and the injured party was damaged as a result of
his reliance upon the misrepresentation."'" Prospect
Development Co., Inc. v. Bershader, 258 Va. 75, 86, 515 S.E.2d
291, 297 (1999) (quoting Blair Constr., Inc. v. Weatherford, 253
Va. 343, 346-47, 485 S.E.2d 137, 138-39 (1997) (citations
omitted)). See Webb v. Webb, 16 Va. App. 486, 491, 431 S.E.2d
55, 59 (1993).
Additionally, "[t]he duty by which conduct is measured to
determine fraud is established by the relationship and
circumstances which exist between parties." Webb, 16 Va. App.
at 491, 431 S.E.2d at 59 (citing Drewry v. Drewry, 8 Va. App.
460, 469, 383 S.E.2d 12, 16 (1989)). "Marriage is a
confidential relationship of trust imposing the highest
fiduciary duty upon the spouses in their intermarital dealings."
Derby v. Derby, 8 Va. App. 19, 27, 378 S.E.2d 74, 78 (1989).
However, "[i]f a husband and wife separate and employ attorneys
to negotiate an agreement in settlement of their property
rights, they become adversaries and their former fiduciary or
confidential relationship ends." Barnes v. Barnes, 231 Va. 39,
42, 340 S.E.2d 803, 804 (1986) (quoted in Derby, 8 Va. App. at
27, 378 S.E.2d at 78 (citations omitted)).
Wife presented in her testimony the only evidence in
support for her claim that she was fraudulently induced by
husband to enter the PSA. Wife testified that husband made
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statements leading her to believe that if she would sign the
PSA, she would be able to see her children, and that if she
withheld her consent to the agreement her visitation with them
would be curtailed. In fact, the record fails to reflect that
husband made any such representations.
Wife also contends that husband held out the hope of
reconciliation, and on that ground she entered the PSA.
However, under this Court's decision in Derby, evidence of
harbored hopes of reconciliation is insufficient to establish
fraud. Furthermore, the record reflects that wife was well
aware of her husband's intention to separate from her and that
he was proceeding with the divorce action. As such, husband's
action lacked the "tendency to deceive [wife] or violate [her]
confidence." Derby, 8 Va. App. at 26, 378 S.E.2d at 78.
Finally, wife premises her claim of constructive fraud on
husband's purported representation that he did not intend to
seek child support from her, contending that his fraudulent
intent was made evident when he ultimately petitioned the court
for child support in his cross-bill of complaint. However, the
PSA expressly reserves husband's right to seek child support,
knowledge with which wife is chargeable since the term was
included in the PSA when she signed it. She thus cannot claim
to have been misled as to any material aspect of the agreement's
provisions regarding child support, because no claim of fraud
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lies when the party claiming fraud had knowledge of the true
state of affairs. Compare Chesapeake & Ohio Ry. Co. v. Walker,
et al., 100 Va. 69, 93, 40 S.E. 633, 641 (1902) (party alleging
fraud must "be destitute of knowledge of the [true] state of
facts" fraudulently misrepresented).
In sum, the evidence presented does not rise to the level
of clear and convincing proof that husband misrepresented a
material fact which induced wife to enter the PSA. Accordingly,
we find no error in the trial court's findings on this issue.
II.
WIFE'S CLAIM THAT PSA IS UNCONSCIONABLE
Wife's claim that the PSA should be set aside on the ground
of unconscionability is without merit. Under the terms of the
PSA the parties agreed that funds in the amount of $3,000 that
wife withdrew from the parties' joint bank account were to be
considered a lump sum payment to her. Husband agreed to pay
wife $300 per month in spousal support, subject to incremental
reductions should her income increase above levels set forth in
the agreement. Husband also agreed to maintain health insurance
coverage of wife by his health insurance provider until the
parties were divorced, and to pay one-half of the premiums on
wife's life insurance policy benefiting the children. The
parties agreed that their jointly owned house would become the
sole property of the husband, who would assume all financial
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obligations connected with it. They also divided their personal
property, with wife being provided with household items having
an agreed value of $14,495, in addition to one of the two family
cars. Finally, the parties agreed to an equal division of
husband's vested federal government retirement plan. Husband
also agreed to assume as his sole obligation any of the parties'
jointly assumed debts not otherwise provided for in the PSA.
The trial court found that, although the PSA may have
favored husband and may have constituted "a bad bargain" for
wife, it nevertheless was not "so inadequate" that "the
necessary clear and convincing evidence to set aside [the]
agreement is there." The evidence supports the trial court's
decision on this issue.
The party challenging a property settlement agreement must
prove unconscionability by clear and convincing evidence. See
Derby, 8 Va. App. at 26, 378 S.E.2d at 77 (citing Winn v. Aleda
Constr. Co., 227 Va. 304, 308, 315 S.E.2d 193, 195 (1984); Gill
v. Gill, 219 Va. 1101, 1106, 254 S.E.2d 122, 125 (1979)). When
asked to determine whether such a gross disparity in exchanged
value exists to rescind a settlement agreement on grounds of
unconscionability, a court should consider "'whether oppressive
influences affected the agreement to the extent that the process
was unfair and the terms of the resulting agreement
unconscionable.'" Drewry, 8 Va. App. at 472-73, 383 S.E.2d at
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18 (quoting Derby, 8 Va. App. at 28, 378 S.E.2d at 79). In some
instances, "'[a] party may be free of fraud but guilty of
overreaching or oppressive conduct in securing the agreement
which is so patently unfair that courts of equity may refuse to
enforce it.'" Id. at 472, 383 S.E.2d at 18 (quoting Derby, 8
Va. App. at 28, 378 S.E.2d at 78). However, absent evidence of
a gross disparity in the value exchanged, the court need not
consider whether one of the parties was guilty of such
overreaching conduct. See id. at 473, 383 S.E.2d at 18. As we
have observed previously, "'"[c]ourts cannot relieve . . . the
consequences of a contract merely because it was unwise" . . .
[or] "rewrite a contract simply because the contract may appear
to reach an unfair result."'" Pelfrey v. Pelfrey, 25 Va. App.
239, 245, 487 S.E.2d 281, 284 (1997) (quoting Rogers v.
Yourshaw, 18 Va. App. 816, 823, 448 S.E.2d 884, 888 (1994)).
Although the PSA arguably leaves husband in a better
position than wife, it clearly evidences an exchange of value
that is not grossly disparate: Husband assumed responsibility
for all indebtedness remaining on the home mortgage; he provided
wife with health insurance coverage until the divorce; he
provided wife with spousal support, however small a percentage
of his gross income it may have been; wife took possession of
personalty valued at over $14,000; and she was awarded at least
a portion of the funds in the parties' joint bank account. As
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wife's proof falls well below the clear and convincing
evidentiary burden which is required by law, her claim must
fail. 1
III.
WIFE'S CLAIM OF DURESS
Wife's claim she consented to the provisions of the PSA
under duress is without merit. Wife focuses her argument upon
the two weeks from September 26, 1997 to October 15, 1997, when
she finally signed the PSA. She claims that during this period
husband forced her, almost without surcease, to contemplate the
terms of the agreement. She claims, inter alia, that husband
stated that if she did not cooperate with him, the terms of
separation would have to be settled in court, in which case his
allegations of wife's child abuse would be aired, likely to her
detriment. She claims husband told her that such allegations
"would follow [her] for the rest of [her] life." In sum, wife
argues that this approximately two-week period of "intense
discussion" regarding the allegations of child abuse, her mental
stability, and the possible results of settling the conditions
of separation in court rather than by agreement, constituted a
"long continued and deliberate course of mental intimidation,"
1
Because we resolve the claim of unconscionability against
wife, we need not reach her contention that she consented to the
PSA as a result of undue influence exercised over her by
husband. Compare Banner v. Rosser, 96 Va. 238, 246-48, 31 S.E.
67, 69-70 (1898).
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"which resulted in the [PSA] being signed by [her] under
duress."
Because "'[d]uress is not readily accepted as an excuse,'
and must be proven by clear and convincing evidence," Pelfrey,
25 Va. App. at 246, 487 S.E.2d at 284, wife must meet a high
evidentiary burden to prove her claim. She has not met this
burden. The trial court concluded that wife had not been
subject to any threats. Determinations of credibility and
weight of the evidence fall within the discretion of the trier
of fact. See Anderson v. Anderson, 29 Va. App. 673, 687, 514
S.E.2d 369, 376 (1999) ("the trier of fact determines the
credibility and weight of the evidence"); Parish v. Spaulding,
26 Va. App. 566, 575, 496 S.E.2d 91, 95 (1998) ("it is well
settled that issues of credibility and the weight of the
evidence are within the unique province of the trier of fact").
"This Court will not substitute its judgment for the trial
court's determination . . . ." Parish, 26 Va. App. at 575, 496
S.E.2d at 95. We therefore affirm its finding that wife did not
enter the PSA as a result of duress.
IV.
REPUDIATION CLAIM
Wife further claims that because the PSA granted her
regular, unsupervised visitation with her children, husband's
subsequent petition in the Juvenile and Domestic Relations
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District Court of Fairfax County seeking to restrict her access
to them to supervised visitation only, filed within a month of
executing the PSA, constitutes evidence of repudiation
sufficient to prevent husband from enforcing the contract.
However, because wife's right of unsupervised visitation
with the children was restored by consent decree entered June
15, 1998, we find her claim that husband repudiated the PSA to
be without merit. See Hurt, 16 Va. App. at 798, 433 S.E.2d at
497 ("It is firmly established that for a repudiation of a
contract to constitute a breach, the repudiation must be clear,
absolute, unequivocal, and must cover the entire performance of
the contract." (quoting Vahabzadeh v. Mooney, 241 Va. 47, 51,
399 S.E.2d 803, 805 (1991))); see also Allocca v. Allocca 23
Va. App. 571, 578-79, 478 S.E.2d 702, 705-06 (1996); Carter v.
Carter, 18 Va. App. 787, 789, 447 S.E.2d 522, 523 (1994).
Wife's claim that husband repudiated the PSA by seeking
child support is also without merit as it is belied by the PSA
itself. The PSA states specifically that husband "reserve[d]
the right to request child support in the future." husband did
not repudiate the contract by exercising a right it expressly
provided him. In short, the evidence fails to support wife's
claim that husband repudiated the PSA.
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V.
EXCLUSION OF DE BENE ESSE DEPOSITION OF SANDRA BROWNING
Wife claims the trial court erred by excluding the de bene
esse deposition of Sandra Browning, a licensed social worker in
the employ of Fairfax County Child Protective Services. Wife
contends that Browning falls squarely within Rule 4:7(a)(4)(E)'s
provisions allowing into evidence de bene esse depositions from
"public officers" whose duties prevent them from appearing in
court. Without deciding whether Browning falls within the ambit
of Rule 4:7(a)(4)(E), we find no error in the exclusion of the
deposition.
Browning is a Senior Social Worker with Fairfax County
Child Protective Services. At the time of her deposition, she
had been employed in child abuse investigation for sixteen
years. She began her investigation of wife on November 19,
1997, pursuant to a report of suspected abuse made to social
services by husband on November 7, 1997. In the course of her
investigation, Browning concluded that the allegations of abuse
were unfounded and that husband may have concocted them in an
effort to alienate the children from wife.
Wife sought to have the deposition admitted to show that
husband brought his allegations of child abuse against wife in
bad faith, for the sole purpose of preventing her from having
unsupervised visitation, and that husband repudiated the PSA and
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misrepresented his intentions regarding visitation. The court
declined to admit the deposition on the ground that it was
irrelevant to the issues under consideration. "Absent an abuse
of discretion, we will not reverse a trial court's decision in
admitting or excluding evidence of prior occurrences." A. H. v.
Rockingham Pub. Co., Inc., 255 Va. 216, 224, 495 S.E.2d 482, 487
(1998) (citing Roll 'R' Way Rinks, Inc. v. Smith, 218 Va. 321,
327, 237 S.E.2d 157, 161 (1977)). We find the court did not
abuse its discretion in excluding the proffered evidence.
Whether husband attempted to alienate the children from wife has
no bearing upon whether her visitation with the children should
have been suspended. It further had no bearing on wife's claim
that husband repudiated the agreement. Finally, as we concluded
supra, wife's allegation of fraud is without merit.
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
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