Opinion
Record No. 0007-93-4
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY, H. Selwyn Smith, Judge
Affirmed in part, Reversed in part and remanded.
Norborne P. Beville, Jr., for appellant.
Robert J. O'Neill, for appellee.
Present: Judges Coleman, Fitzpatrick and Retired Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this domestic relations appeal, we uphold the trial court's ruling that the property settlement agreement was neither unconscionable nor procured by fraud. However, we hold that the trial court erred in terminating the wife's "alimony" based on the finding that she cohabited with a boyfriend. The separation agreement incorporated into the divorce decree provided that the husband would pay the wife "alimony," but that it would terminate "should the Wife remarry." The wife did not remarry. Therefore, the court erred in finding the termination provision applicable. Accordingly, we affirm in part and reverse and remand with directions that the trial court determine and enter judgment for the alimony arrearage and reinstate the decree for alimony.
I. UNCONSCIONABILITY AND FRAUD
The husband contends that the parties' property settlement agreement is unconscionable and was procured by his wife's fraud. "[M]arital property settlements entered into by competent parties upon valid consideration for lawful purposes are favored in the law and such will be enforced unless their illegality is clear and certain." Cooley v. Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980). "Generally, when spouses separate with the intention to divorce and propose to divide or settle their property interests, they have assumed adversarial roles and no longer occupy a position of trust." Drewry v. Drewry, 8 Va. App. 460, 470, 383 S.E.2d 12, 17 (1989).
The Montoneys' property settlement agreement does not reflect a "gross disparity in the value exchanged." Derby v. Derby, 8 Va. App. 19, 28, 378 S.E.2d 74, 79 (1989). The husband received a car, a motorcycle, tools, guns, clothing, and a radio in exchange for giving the wife a truck, the mobile home, some furniture, and two checking accounts. The wife also received $600 a month in alimony. At the time the agreement was entered into by the parties, the husband was earning $41,000 a year, and the wife had no marketable job skills. Given these facts, the agreement was not unconscionable, and the trial court did not err in refusing to set it aside.
The evidence is likewise insufficient to prove fraud in the inducement. The husband contends that he agreed to the provision terminating alimony upon remarriage only because his wife promised to marry her boyfriend when the divorce became final.
The general rule is that fraud must relate to a present or pre-existing fact, and cannot ordinarily be predicated on unfulfilled promises or statements as to future events. . . . The very nature of a promise to do something in the future is such that its truth or falsity, as a general rule, cannot be determined at the time it is made.
Soble v. Herman, 175 Va. 489, 500, 9 S.E.2d 459, 464 (1940) (citations omitted).
II. TERMINATION OF ALIMONY
The parties entered into a property settlement agreement that required the husband "to pay alimony to the Wife in the sum of Six Hundred Dollars ($600.00) per month which sum shall be non-amendable but which shall terminate should the Wife remarry." The agreement was incorporated into the divorce decree. The husband subsequently petitioned the court to terminate alimony because his ex-wife was cohabiting with a man.
The trial court entered a judgement for $2,200 for the "alimony" arrearage and terminated the wife's alimony on the basis that "the [wife] resided with one Ron 'Roe' for a period of approximately three (3) years under conditions which would be considered a marital relationship in that both [wife] and her male friend were on the lease and they shared expenses as well as their bed."
"[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." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987). An appellate court is not bound by the trial court's construction of the legal effect of a contract provision. Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986).
The term in the parties' property settlement agreement that the trial court construed is the word "remarry." The trial court determined that remarriage includes cohabitation. However, the meaning of "remarry" is clear and unambiguous. Marriage is defined as a "[l]egal union of one man and one woman as husband and wife." Black's Law Dictionary 972 (6th ed. 1990). To remarry means "to marry again." Webster's New International Dictionary 1919 (3rd ed. 1981). The definition of marriage does not include cohabitation. Virginia does not recognize common law marriage where the relationship is created in Virginia. Offield v. Davis, 100 Va. 250, 253, 40 S.E. 910, 914 (1902).
The trial court relied on Frey v. Frey, 14 Va. App. 270, 416 S.E.2d 40 (1992), and Schweider v. Schweider, 243 Va. 245, 415 S.E.2d 135 (1992), in support of its ruling to terminate the wife's alimony. In both Frey and Schweider, the wife's spousal support was terminated upon her cohabitation with another man; however, the trial court's reliance on Frey and Schweider is misplaced. In both cases, the contracts provided for termination of support in the event of cohabitation, not remarriage.
In Frey, the separation agreement provided for termination of spousal support upon the wife's "cohabitation, analogous to a marriage." 14 Va. App. at 273, 416 S.E.2d at 42. In Schweider, "[t]he property settlement agreement provide[d] that the husband's payments to the wife 'shall terminate upon . . . [the] wife's . . . remarriage;' " however, the contract expressly defined " 'remarriage' to include 'the wife's permanent cohabitation with a male as if to all appearances they were otherwise married.' " 243 Va. at 248, 415 S.E.2d at 137. In this case, the Montoneys' property settlement agreement provides that "alimony . . . shall terminate should the Wife remarry." The agreement contains no contractual definition of "remarry" independent of its usual and unambiguous meaning.
Had the parties intended to terminate "alimony" upon cohabitation, they could have included the term "cohabitation" within their agreement. The trial court must construe the terms of the parties' contract according to its clear and simple meaning and may go outside the contract to determine their intention only when the agreement is ambiguous. See McLoughlin v. McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970). Here, there is no ambiguity in the terms of the property settlement agreement; the parties' intent was to terminate alimony only upon remarriage. Accordingly, the trial court's decision to terminate alimony upon cohabitation is reversed.
For the foregoing reasons, we affirm the trial court's decision upholding the property settlement agreement; however, we reverse the ruling that the termination provision was applicable. Accordingly, we remand the case with directions that the trial court enter such decrees as are necessary to implement this holding.
Affirmed in part, Reversed in part and remanded.