Frank Benjamin Edwards v. Lesney D. Edwards ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
FRANK BENJAMIN EDWARDS
MEMORANDUM OPINION * BY
v. Record No. 1095-96-2 JUDGE MARVIN F. COLE
MARCH 11, 1997
LESNEY D. EDWARDS
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
Robert L. Isaacs for appellant.
No brief or argument for appellee.
Frank Benjamin Edwards (husband) appeals the equitable
distribution decision of the circuit court awarding Lesney D.
Edwards (wife) $50,266.45 from the sale of the marital residence.
The circuit court affirmed the commissioner's report and
supplemental report which (i) ruled that an agreement signed by
the parties in 1989 was an interim agreement which did not
resolve the parties' equitable distribution interests in the
marital residence and (ii) effected an equitable distribution of
the parties' property. We affirm.
I.
The commissioner's hearing on equitable distribution issues
was held in March 1993, and the commissioner filed a report on
September 17, 1993. A supplemental hearing was held in March
1994, and the commissioner filed a supplemental report on June
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
22, 1995. At issue was the effect of an agreement signed by the
parties on the day wife left the marital residence. The one page
agreement provided that wife was to move out of the marital
residence until further negotiations between the parties took
place. Wife testified that she signed the agreement because she
wanted to leave some indication that she was not abandoning her
interest in the property, but did not intend to give a gift of
half-ownership to husband. Husband testified he understood the
agreement to mean that the proceeds from the sale of the home
would be split "half-and-half."
The commissioner's report, which was upheld by the trial
judge, stated as follows, in relevant part:
Under Virginia Code section 20-155, as
amended, married persons may enter into
agreements with each other to settle their
rights and obligations. The interpretation
of such agreements is governed by regular
contract law. In my judgment the August 19,
1989, agreement is a binding contract. I do
not, however, believe that the contract
mandates that the proceeds of the sale from
the Lee's Landing Property be divided equally
between the parties. The key clause in the
contracts reads, "BOTH PARTIES RETAIN EQUAL
OWNERSHIP IN ABOVE PROPERTY IT'S [sic]
IMPROVEMENTS AND PERSONAL PROPERTY UNLESS
FURTHER ACTION DEEMS THIS CONTRACT VOID."
. . . In my judgment the phrase "retain
equal ownership in above property" refers to
continuance of the preexisting ownership of
the property. In other words, Mr. and Mrs.
Edwards agreed that they would each retain
whatever interest they had in the property at
the time the contract was signed. The
contract does not say anything about selling
the property or how the proceeds of a sale
would be divided. If the parties had
intended for the property to be sold, or for
the proceeds of the sale to be divided in any
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particular fashion, it would have been easy
for them to say so. I conclude, therefore,
that the August 19, 1989, contract was an
interim agreement designed to protect Mrs.
Edwards' preexisting ownership interest in
the property, and that it does not require
that the proceeds of the sale of the property
be divided equally between the parties.
The initial question posed by this appeal is the meaning and
effect of the agreement -- a legal issue.
[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.
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) (citations omitted).
The commissioner's conclusion was based upon a construction
of the terms in the agreement. Because the construction of the
agreement "can readily be ascertained by this court," id., we are
not bound by the commissioner's legal conclusions. Upon our
review, however, we hold that the plain language of the agreement
supports the commissioner's finding that the agreement was never
intended by the parties as their final property settlement
agreement. Indeed, the agreement expressly refers to "future
negotiations" between the parties and states that the parties
"retain equal ownership." Those provisions clearly reflect the
intention to retain the status quo until completion of a final
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agreement. A plain reading of the agreement leads to the legal
conclusion that its effect was the creation of an interim
agreement designed to preserve the status quo. Therefore, we
affirm the trial judge's decision to uphold the commissioner's
interpretation of the contract.
II.
Husband also contends that the commissioner erred in not
allowing him leave to change an answer to an interrogatory
relating to the value of a life insurance policy. At the
commissioner's hearing, husband testified that the value given in
the answer was erroneous, yet husband did not know the correct
value. The commissioner, determining that the case needed to be
resolved, utilized the value listed in the answer.
A "'commissioner is a quasi judicial officer.'" Brown v.
Brown, 11 Va. App. 231, 234, 397 S.E.2d 545, 547 (1990) (citation
omitted). The conduct of the commissioner's hearing, like the
conduct of a trial, is committed to the sound discretion of the
presiding judicial officer. See Cunningham v. Commonwealth, 2
Va. App. 358, 365, 344 S.E.2d 389, 393 (1986).
Here, husband signed the interrogatory answers and asserted
that the value of the life insurance policy was $2,358.91. At
the March 25, 1993 commissioner's hearing, he claimed this figure
was incorrect, yet did not know the correct figure. As of the
filing of the commissioner's report on September 17, 1993,
husband had not provided any additional evidence of the value of
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the policy. Under these circumstances, we cannot say that the
commissioner abused his discretion in not granting husband leave
to change his interrogatory answer.
III.
Husband contends that the commissioner erred in determining
the monetary value of husband's pre- and post-marital
contributions to the marital residence. On appeal, the circuit
court's decision affirming the commissioner's report is presumed
correct.
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). "This rule applies with particular force to
a commissioner's findings of fact based upon evidence taken in
his presence, but is not applicable to pure conclusions of law
contained in the report." Hill v. Hill, 227 Va. 569, 577, 318
S.E.2d 292, 296 (1984) (citation omitted). This Court must
affirm the trial court's decision unless it is plainly wrong or
without evidence to support it. McLaughlin v. McLaughlin, 2 Va.
App. 463, 466-67, 346 S.E.2d 535, 536 (1986).
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In making a division under Code § 20-107.3, the commissioner
found that, while the proceeds from the sale of the wife's
previous home were transmuted into marital property, husband
failed to present evidence quantifying the value of his
post-marital monetary and nonmonetary contributions to that
property. In reaching his decision as to the contributions of
the parties, the commissioner considered the substantive monetary
interest wife had in the property, husband's supervision of the
construction of the marital residence, and the financial
contributions which husband was able to prove. Based on the
evidence which husband did produce, the commissioner credited him
$13,500 for his service as general contractor on the marital
residence and $3,276 for his documented expenditures. In sum,
the commissioner recommended an award of $16,776 to husband and
$50,266.45 to wife from the sale of the marital residence, with
any remaining sale proceeds to be divided equally.
The circuit court found the commissioner's findings to be
"reasoned," "measured" and "supported by credible evidence."
Credible evidence supports the commissioner's factual findings
and we cannot say that the commissioner or trial judge erred in
valuing husband's contributions.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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