Martin C. Davidson, Jr. v. Rhonda O. Davidson ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MARTIN C. DAVIDSON, JR.
v. Record No. 1588-95-2 MEMORANDUM OPINION *
PER CURIAM
RHONDA O. DAVIDSON FEBRUARY 20, 1996
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
(Gail H. Miller; Smith & Miller, P.C., on
brief), for appellant.
No brief for appellee.
Martin C. Davidson, Jr. (husband) appeals the decision of
the circuit court awarding Rhonda O. Davidson (wife) a divorce on
the grounds of adultery. Husband argues that, under the terms of
the parties' Agreement and Stipulation (Agreement), wife waived
her right to seek a divorce on the ground of adultery. Husband
also argues that the trial court erred in relying on an affidavit
executed by husband in which he admitted committing adultery.
Finally, husband contends that there was insufficient evidence to
establish that he committed adultery. Upon reviewing the record
and opening brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial
court. Rule 5A:27.
The evidence in this matter was presented solely by
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
deposition.
"The rule is firmly established in Virginia
that a divorce decree based solely on
depositions is not as conclusive on appellate
review as one based upon evidence heard ore
tenus, but such a decree is presumed correct
and will not be overturned if supported by
substantial, competent and credible
evidence."
Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828
(1986) (citation omitted).
Interpretation of the Agreement
"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). "[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." Id.
Paragraph four of the parties' Agreement stated in part as
follows:
Subsequent Divorce: Husband and Wife
anticipate subsequent divorce. Upon
presentation to the Court of a sketch for
either a bed and board decree of divorce or a
final decree of divorce, Husband and Wife
agree to request the Court to affirm, ratify
and incorporate, but not merge this Agreement
and Stipulation into said decree.
Thus, by the express terms of the Agreement, the parties
anticipated filing a suit for divorce. The parties placed no
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limitations or representations anywhere in the Agreement
concerning the grounds upon which a divorce would be sought.
Husband relies upon Paragraph 16, entitled "Mutual Release
and Discharge of General Claims," to support his claim that wife
waived her right to seek a divorce on the grounds of adultery.
That paragraph stated that
[s]ubject to the provisions of this
Agreement, Husband and Wife hereby mutually
release and forever discharge, and by these
presents does for himself or herself, and his
or her heirs, legal representatives,
executors, administrators and assigns,
release and forever discharge the other of
any and all causes of action, claims, rights,
or demands whatsoever in law or equity, which
either Husband or Wife hereto ever had, or
now has, against the other excepting only
every right that is given or created by this
Agreement.
Paragraph 16 does not, by its express terms nor by implication,
amount to a waiver by either party of any potential grounds for a
divorce. Therefore, we conclude that the Agreement did not bar
wife from seeking a divorce on the ground of adultery.
We also reject husband's contention that wife was estopped
from seeking a divorce on the basis of adultery. In executing
the Agreement, the parties acknowledged in Paragraph 1 that the
Agreement was entered into
upon mature consideration; that consent to
the execution of this Agreement . . . has not
been obtained by duress, fraud, or undue
influence of any person; that no
representations of fact or otherwise have
been made by either party; . . . and that
this Agreement . . . is FAIR and EQUITABLE
and entered into VOLUNTARILY for valuable
CONSIDERATION.
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Husband's allegations that wife induced him to execute the
Agreement are unsupported by the record. The Agreement expressly
contemplated the parties' subsequent filing for divorce and, as
provided under its terms, the Agreement was affirmed and
incorporated into the parties' final decree of divorce. The
terms of the property settlement agreed to by the parties
remained unchanged. Therefore, wife was not estopped from
seeking a divorce on the ground of adultery.
Admissibility of Husband's Affidavit
Husband alleges that the trial court erred by allowing into
evidence his sworn affidavit in which he admitted "under oath
that he has committed adultery with one DONA FOGG during the last
12 months from the date of this Affidavit and without the consent
or knowledge of his wife." Husband repudiated the contents of
the affidavit, alleging that he signed the affidavit solely to
keep his alleged paramour from being called to testify.
The circumstances surrounding husband's execution of the
affidavit go to its weight, not its admissibility.
Generally, evidence that has rational
probative value and adds force and effect to
other evidence is competent and admissible.
A trial court, in the exercise of its
discretion, determines whether evidence is
competent. Of course, the weight to be given
to such evidence is a decision for [the fact
finder].
Williams v. Garraghty, 249 Va. 224, 233, 455 S.E.2d 209, 215
(1995). Husband admitted he knew what he was doing when he
executed the affidavit, and that he wanted to sign the affidavit
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in order to keep from involving Fogg in the divorce proceeding.
Husband was aware that his interests were adverse to those of his
wife and that he was not represented by wife's counsel.
Therefore, we cannot say the trial court abused its discretion by
allowing into evidence husband's affidavit.
Sufficiency of the Evidence
The trial court reviewed the depositions of the witnesses
and parties and found sufficient evidence to support wife's
ground for divorce on the basis of husband's adultery with Donna
Fogg. This finding was not plainly wrong or without evidence to
support it.
Husband's credibility was undercut by his deposition
testimony, which was fraught with qualifications. Husband
admitted that he had "intercourse" with Fogg, but denied having
sexual intercourse with her. Husband admitted signing the
affidavit in which he swore that he committed adultery with Fogg,
but stated that the affidavit was "not exactly the truth."
Husband knowingly executed the affidavit admitting that he
committed adultery with Fogg. Wife testified that husband
admitted to her that he had sexual intercourse with Fogg.
Husband and Fogg admitted that husband regularly visited Fogg's
apartment in the morning, as observed by the private investigator
hired by wife. Therefore, clear and convincing evidence
supported the trial court's decision to award wife a divorce on
the ground of husband's adultery.
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Accordingly, the decision of the circuit court is
summarily affirmed.
Affirmed.
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