Saundra N. Burka v. Elliott L. Burka ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Duff
Argued at Alexandria, Virginia
SAUNDRA N. BURKA
v. Record No. 2131-94-4 MEMORANDUM OPINION *
PER CURIAM
ELLIOTT L. BURKA MAY 2, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
Laurence A. Elgin (Vail W. Pischke, on briefs), for
appellant.
Karen C. Davis (Stefan C. Long; Grenadier, Davis & Simpson,
on brief), for appellee.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Saundra N. Burka (wife) appeals the decision of the circuit
court ordering wife to return items of personal property to
Elliott L. Burka (husband) or to pay husband the value of those
items. Wife raises eighteen issues on appeal. However, the
controlling issues in this case involve the trial court's
interpretation of a property settlement agreement. 1 Finding no
error, we affirm the decision of the trial court.
The parties entered into a property settlement agreement
(PSA) on February 24, 1993 as part of their divorce. The PSA
provides in relevant part as follows:
12. Except as set out herein, all items of
personal effects, such as, clothing, jewelry,
and memorabilia, shall become the absolute
property of the individual parties hereto
. . . .
12a. Tangible personal property of the
parties shall be the sole and separate estate
of the husband, except that wife shall be
granted sole and separate estate of . . .
[the items in section 12(a)(1)]. The wife
shall make certain that all items except
those aforestated 12(a)(1) are in the marital
home when she leaves, that they are in good
condition, and she shall hold the husband
harmless and indemnify him against any loss
of the tangible personal property or any
damage occurring through the 25th day of May,
1993 or until such time as the wife vacates
the home . . . .
1
In addition to the property settlement agreement issues,
wife raises several pleadings issues. Leave to file late
pleadings and consolidation of cases are matters within the sound
discretion of the trial court. See Emrich v. Emrich, 9 Va. App.
288, 292, 387 S.E.2d 274, 275 (1989) (late pleadings); Clark v.
Kimnach, 198 Va. 737, 744, 96 S.E.2d 780, 786 (1957)
(consolidation). No abuse of discretion occurred because wife
had the opportunity to fully and fairly litigate all relevant
issues.
2
In addition, section 8 of the PSA makes a defaulting party liable
for attorney's fees in a suit seeking enforcement of the PSA.
On May 24, 1993, the parties conducted a walk-through of the
marital residence and prepared a handwritten list of nineteen
items noticed missing by husband. After wife left, husband
walked through again and compared the items in the house to the
items appearing on a videotape inventory made by wife. On May
Wife also argues that the trial court erred in awarding
husband attorney's fees. The award of attorney's fees is also
discretionary with the trial court. See Davis v. Davis, 8 Va.
App. 12, 17, 377 S.E.2d 640, 643 (1989). The trial court did not
abuse its discretion because the property settlement agreement
provided for fees against a defaulting party.
We summarily affirm the other issues raised by wife because
they are patently without merit.
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25, 1993, husband filed a motion to enforce the PSA, and on June
1, 1993, husband submitted a typed list of fifty-two items of
personal property missing from the house. In response to
husband's request for admissions, wife admitted taking certain
items of personal property from the home.
On July 7, 1994, the trial court ordered wife to return all
but four of the fifty-two items on the June 1, 1993 list, or to
pay husband the value of the missing items. The trial judge
found that most of the items taken by wife were not her personal
effects or memorabilia and thus belonged to husband under the
PSA. Wife argued that she only took items that were
"memorabilia," and husband asserted that, under the language of
the PSA, "memorabilia" was limited to items that could also be
considered "personal effects."
Additionally, the court determined that wife's duty under
the PSA was an absolute contractual obligation:
Her obligation with regard to these
items in the house doesn't have to do with
whether she took them or knows who took them
or knows why they're not there. It's a
contractual obligation here in the agreement
in which she agreed that they would all be
there and that she would indemnify him from
any damage if they were not there. So she
had an absolute guarantee in that agreement
that is not subject to any proof that she
took them or what happened to them. If
they're not there, she owes him for them.
Wife argues that: (1) wife's guarantee to husband expired
on May 24, 1993, after the walk-through, and husband's claim is
limited to the nineteen items on the handwritten list; (2)
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husband failed to prove that the claimed items were in the
marital residence when the PSA was signed; and (3) the court
erred in interpreting the terms "personal effects" and
"memorabilia" in section 12(a)(1) of the PSA.
"On appeal, we construe the evidence in the light most
favorable to husband, the prevailing party below, granting to him
all reasonable inferences fairly deducible therefrom." Rogers v.
Yourshaw, 18 Va. App. 816, 818, 448 S.E.2d 884, 885 (1994).
"Where, as here, the 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."
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,
631 (1988) (quoting Martin v. Pittsylvania County Dep't of Social
Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)).
Property settlement agreements entered into
pursuant to a divorce proceeding are
contracts; "therefore, we must apply the same
rules of interpretation applicable to
contracts generally." "In reviewing the
agreement, we must gather the intent of the
parties and the meaning of the language, if
we can, from an examination of the entire
instrument, giving full effect to the words
the parties actually used."
Smith v. Smith, 15 Va. App. 371, 374, 423 S.E.2d 851, 853 (1992)
(citations omitted).
The trial court's findings regarding the PSA are supported
by the evidence and are not plainly wrong. The trial judge
properly interpreted wife's obligation under section 12a of the
PSA as a guarantee that the personal property of the parties
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would be in the marital residence when she left. The mandate of
the PSA is clear and has no time limit: "[W]ife shall make
certain that all items except those aforestated 12(a)(1) are in
the marital home when she leaves . . . ." As fact finder, the
trial judge resolved the issues of which items were in the house
at the time of the PSA and which items were missing at the time
of the walk-through in favor of husband, and credible evidence
supports his findings. Not only did wife admit taking certain
items from the house when she left, but she also relied on the
videotape as an inventory of their personal property. Husband
used that videotape in compiling his list of missing items, and
he submitted the fifty-two item list on June 1, 1993, within a
reasonable time after the walk-through. The trial judge did not
act unreasonably in using the June 1, 1993 list as evidence of
which items were missing from the marital residence.
Additionally, the trial judge's interpretation of the terms
"personal effects" and "memorabilia" is supported by the
evidence. Section 12 of the PSA allows wife to keep "personal
effects" and lists "memorabilia" as an example of "personal
effects." The trial judge's acceptance of husband's argument
that "memorabilia" was limited to items of "personal effects" is
a proper construction of the PSA's language.
Accordingly, we affirm the decision of the trial court and
remand for the trial court to consider additional attorney's fees
incurred by husband in this appeal.
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Affirmed.
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