David Bryan Frantz v. Leona Carol Phillips Frantz ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
DAVID BRYAN FRANTZ
MEMORANDUM OPINION *
v. Record No. 2074-01-2 PER CURIAM
MARCH 12, 2002
LEONA CAROL PHILLIPS FRANTZ
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Leslie M. Osborn, Judge
(William H. Sooy, on brief), for appellant.
(Nancy L. Quinn; Kanady & Quinn, P.C., on
brief), for appellee.
David Bryan Frantz (husband) appeals the trial court's
decision requiring him to transfer certain property to Leona Carol
Phillips Frantz (wife). Husband contends the trial court erred
in: (1) ordering the real estate which was the subject of the
Separation and Property Settlement Agreement to be partitioned
rather than sold; and (2) accepting and approving wife's plat
which included another structure. Upon reviewing the record and
the parties' briefs, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
The parties were married in October 1995. On September 8,
1997, they executed a property settlement agreement (the
agreement). On October 30, 1997, the trial court entered a
divorce decree which ratified, affirmed, and incorporated by
reference the Agreement. Paragraph 2 in the Agreement contained
the following provision:
REAL PROPERTY: (1) The parties agree to sell
the 65 acre tract which is in the Husband's
name and the mobile home which is titled in
both names. From the proceeds of the sale,
the parties agree to pay the debts owed
Central Fidelity Bank for the land, Bank of
America for the mobile home, VISA
account(s), Sears account(s), American Car
loan, Gordon's, and any other debts owed by
either party arising during this marriage at
the time of the execution of this agreement.
If all of the real estate is sold and there
are any improvements placed on the property
by the Wife, the Wife will be reimbursed for
said improvements. The Wife will provide
the Husband with verification of any such
improvements to the property. After paying
the above debts, the balance of the net
proceeds will be divided as follows:
one-third to the Wife and two-thirds to the
Husband
OR (2) The husband agrees to transfer
all of his right, title and interest in the
mobile home and five acres surrounding said
home to the Wife. The Wife agrees to assume
the indebtedness owed Bank of America for
the mobile home. The Husband also agrees to
convey to the Wife a right of ingress and
egress over and along the property being
retained by the Husband to the property
being retained by the Wife.
The Wife agrees to transfer all of her
right, title and interest in the remaining
60 acres to the Husband. The Husband will
assume the balance owed Central Fidelity
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Bank for the land. If the Husband decides
to sell the 60-acre tract, he will pay off
the lien at Central Fidelity Bank and the
net proceeds shall remain the property of
the Husband free and clear from any claim of
the Wife.
On March 1, 2000, wife filed a bill of complaint moving the
trial court to order husband to "transfer to her the mobile home
. . . and the five acres shown on the plat survey" attached to
the pleading. In an ore tenus hearing, wife admitted the
"little framed dwelling" on her survey was not listed in the
separation agreement, but she explained that the "drain field
for [the mobile home's] septic tank is" ten feet behind the
structure and argued that eliminating the structure would remove
the septic field necessary for the mobile home's septic tank.
Husband objected to wife's right to elect the mobile home
and surrounding land and alleged "there appears no meeting of
the minds with regard to paragraph two" of the agreement.
Husband also alleged that wife "has refused to sell the land
after numerous requests." Finally, husband argued that the
five-acre parcel depicted by wife's survey "is not a reasonable
parcel" because its location in the "middle of the property"
would adversely affect his ability to sell the remaining sixty
acres.
After hearing evidence and argument from both parties, the
trial court ruled the agreement was valid but that paragraph 2
was ambiguous. It further found the parties intended that both
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options would be available. Because husband "did not undertake
to" act on option 1 "for all this period of time," the trial
court ruled that the parties "have to go forward with option No.
2." The court added:
Now, the 5 acres takes in the well and the
septic tank. It's not on the edge of the
property, but I don't know there is any way
or there was any evidence before the Court
that you could move it to the edge of the
property. It's surrounding the home.
That's the language in the agreement, it
says surrounding the home. It may not be
perfect, but I think that's good enough with
regard to that.
"[H]aving no alternative presented today before the Court, no
other drawing or diagram or anything else," the trial court
ordered "that it will be that five acres."
Husband subsequently submitted an alternative five-acre
tract, which excluded the frame dwelling and required wife to
obtain "an easement for use and maintenance of a well and septic
field." After hearing additional evidence, the trial court noted
that husband's earlier appraisal showed the frame structure had
"no value" and that the tax assessment for the structure was not
based on fair market value. Moreover, it held, absent a well
and septic tank, the structure has no value "even under the tax
appraiser's theory." The trial court finally made the following
ruling:
Well, we've got something that has no
value. It doesn't seem like it makes a
whole lot of sense to start cutting off the
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well and part of the septic system and then
have to give easements to put them back.
If this dwelling had significant value,
it would be a different situation. But I
think your own evidence and this other
appraisal indicates that it doesn't.
And based on that evidence, based on
that evidence and the fact that I don't
think there's any evidence to change the
previous ruling of the Court with regard to
it.
Partitioning the Five-Acre Tract
Husband claims the trial court erred in accepting option 2,
partitioning five acres for wife, rather than option 1, allowing
for the sale of the entire parcel. Before addressing that claim,
we must first review the law regarding property settlement
agreements.
"Property settlement agreements are contracts subject to
the same rules of formation, validity, and interpretation as
other contracts." Bergman v. Bergman, 25 Va. App. 204, 211, 487
S.E.2d 264, 267 (1997). The question of whether a writing is
ambiguous is a matter of law, not of fact. Langman v. Alumni
Ass'n of the Univ. of Va., 247 Va. 491, 498, 442 S.E.2d 669, 674
(1994). "Thus, we are not bound by the trial court's conclusions
on this issue, and we are permitted the same opportunity as the
trial court to consider the contract provisions." Tuomala v.
Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996).
"'An ambiguity exists when language admits of being
understood in more than one way,'" Doswell Ltd. P'ship v. Va.
Elec. & Power Co., 251 Va. 215, 222, 468 S.E.2d 84, 88 (1996)
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(quoting Renner Plumbing, Heating & Air Conditioning, Inc. v.
Renner, 225 Va. 508, 515, 303 S.E.2d 894, 898 (1983)), or when
"'language is of doubtful import,'" Galloway Corp. v. S.B.
Ballard Constr. Co., 250 Va. 493, 502, 464 S.E.2d 349, 355
(1995) (quoting Allen v. Green, 229 Va. 588, 592, 331 S.E.2d
472, 475 (1985)). When the language of a contract is ambiguous,
parol evidence is admissible, not to contradict or vary contract
terms, but to establish the real contract between the parties.
Reed v. Dent, 194 Va. 156, 163, 72 S.E.2d 255, 259 (1952).
Paragraph 2 of the Agreement provided two alternatives
regarding the sixty-five acre parcel of land. However, it
failed to prioritize either option; set forth which party, if
either, had authority to elect an option; or set any events,
timetables or contingencies that would trigger one option and/or
foreclose the other. The options, as written, were connected
with the conjunction "or" which is defined as "[a] disjunctive
particle used to express an alternative or to give a choice of
one among two or more things." Black's Law Dictionary 1095 (6th
ed. 1990). Absent any direction as to which of the two
alternatives took priority and who had authority to elect an
alternative, the trial court did not err in finding the
paragraph ambiguous and considering parol evidence regarding the
parties' intent.
We now look to whether the trial court erred in finding that
option 2 applied, thereby resolving the ambiguity in wife's favor.
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In doing so, "[w]e review the evidence in the light most
favorable to [wife], the prevailing party at trial." Tuomala,
252 Va. at 374, 477 S.E.2d at 505. The construction of an
ambiguous contract is a matter submitted to the trier of fact,
who must examine the extrinsic evidence to determine the
intention of the parties. Cascades North Venture Ltd. P'ship v.
PRC Inc., 249 Va. 574, 579, 457 S.E.2d 370, 373 (1995). When a
trial court hears evidence ore tenus, its findings based on an
evaluation of the testimony are entitled to the same weight as a
jury's verdict. RF&P Corp. v. Little, 247 Va. 309, 319, 440
S.E.2d 908, 915 (1994). When a sharp divergence exists in the
parol evidence submitted by opposing parties, the conflict is
for the fact finder to resolve. See Vega v. Chattan Assocs.,
246 Va. 196, 435 S.E.2d 142 (1993). Thus, the trial court's
decision will be upheld unless it appears from the evidence that
the judgment is plainly wrong or unsupported by the evidence.
Tuomala, 252 Va. at 375, 477 S.E.2d at 505-06.
Husband first testified that he wanted the right to sell
everything. Later, he testified that he thought about planting
pine trees on the property, letting them grow for twenty to
thirty years and harvesting the mature trees. However, he
indicated that if wife obtained the five-acre tract, he would be
unable to do that. He offered no explanation as to why the
second option was included. Moreover, he provided no evidence
that he ever attempted to sell the entire parcel. Other
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evidence showed that wife had been making tax and bank payments
for the mobile home for years. In fact, in a 1998 letter
advising wife of her share of the tax burden, husband wrote,
"You [are] responsible for anything & everything associated with
the house and surrounding five acres. My part is the remaining
60 acres."
After hearing evidence from both parties and reviewing the
language of the paragraph, the trial court determined that the
option now belonged to wife. We cannot say that decision was
plainly wrong or unsupported by the evidence. Husband had over
two years to exercise option 1 and sell the property, but he
failed to do so or put forth any evidence of actual efforts made
to try to sell it. Moreover, he put forth two objectives with
regard to the land. He said he wanted to sell all of the
property, but he also indicated an interest in growing timber on
it for twenty to thirty years. If husband intended to use the
land for growing timber, he would not sell it; therefore,
including the two options in the Agreement would have been
meaningless. The trial court accepted the wife's testimony,
including her explanation of the parties' intentions, and it
rejected husband's contrary explanations. The evidence supports
the trial court's decision.
Accepting Wife's Survey/Plat
Husband contends the trial court further erred in awarding
wife the five acres containing the additional structure per wife's
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plat/survey rather than awarding her the five-acre tract in his
proposed plat that excluded the structure.
Wife has lived in the mobile home continuously for several
years, making payments for taxes, insurance and the bank note.
She testified that the contested structure was in disrepair and
had no value. She presented photographs for the trial court to
view its present condition. Husband retained Wayne Stevens, a
licensed real estate appraiser, who visited the parcel and
appraised it as of December 2000, two months before the first
evidentiary hearing, and found it worthless. Later, husband
presented evidence from Harold Throckmorton, Deputy Commissioner
of Revenue and town tax assessor, indicating the structure was
assessed in 1998 with a nominal value of $2,500 for tax purposes.
Throckmorton conceded that absent a structure and an established
septic system and well, the property had little or no value.
The trial court accepted Stevens' recent appraisal of the
contested structure assessing no value to the structure and
rejected Throckmorton's older tax appraisal indicating a value for
tax purposes. That conflict between husband's experts was a
matter for the fact finder to resolve. Opanowich v. Commonwealth,
196 Va. 342, 354, 83 S.E.2d 432, 440 (1954). Moreover, the trial
court was further permitted to consider the fact that husband's
proposed plat was drawn so as to eliminate the well and the septic
system's drain field, thereby requiring wife to obtain an easement
from husband to use them.
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Based on the evidence and arguments presented, we cannot say
the trial court committed reversible error in relying on Stevens'
appraisal that the structure had minimal value, if any, and in
accepting wife's plat.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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