Opinion
Record Nos. 0576-92-4 and 0642-92-4
May 25, 1993
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA ALFRED D. SWERSKY, JUDGE.
James Ray Cottrell (David H. Fletcher; Gannon, Cottrell Ward, P.C., on briefs), for appellant.
Sharon K. Lieblich, for appellee.
Present: Judges Benton, Bray and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Richard Larkin Sinnott (husband) appeals from an order of the trial court that sustained the motion of Mary Ann Ryan Sinnott (wife) to strike his evidence offered to prove a mutual mistake in the "drafting" of the parties' "property settlement agreement" (agreement), previously incorporated into a decree of the trial court pursuant to Code § 20-109.1. Husband further complains that the trial court erred in (1) refusing to admit certain "documentary evidence," (2) refusing to "set a protocol" for a "renegotiation" of his "support obligation," and (3) ordering that he pay certain college tuition and attorney's fees. For the reasons set forth below, we affirm the judgment of the trial court.
The parties are fully conversant with the record and this memorandum opinion recites only those facts necessary to a disposition of the issues before the Court.
The record discloses that the parties entered into a written stipulation agreement dated January 25, 1988. The agreement provided, inter alia, that:
9. [I]n the event of a material change in the circumstances of either [party] . . . the payments and other benefits provided for throughout this agreement may be renegotiated in light of these changed circumstances. It is specifically agreed by the parties that it is their desire to provide for renegotiations based upon the same standards and burdens of proof as if the support and other benefits provided hereunder had been the result of an adjudication by the court.
On April 11, 1990, husband requested the trial court to decrease the spousal support fixed by the agreement, alleging a material change in circumstances. The trial court, however, declined, ruling that it lacked jurisdiction to modify spousal support because "paragraph 9 . . . [of the agreement was] not sufficient to constitute a reservation of the Court's power."See Code § 20-109. Husband appealed, and, in Sinnott v. Sinnott, No. 1231-90-4 (Va.Ct.App. June 11, 1991), this Court agreed that "paragraph nine . . . was not a clear and explicit reservation of the power of the court to modify spousal support." However, we remanded the case for consideration of the "mutual drafting error" alleged by husband.
Acting in accordance with this mandate, the trial court conducted a hearing on February 4, 1992. During that proceeding, the court refused to admit into evidence certain "notes" and "correspondence" prepared by James L. Rider (Rider), husband's counsel, and offered by husband to corroborate his testimony that the parties intended spousal support to be subject to court review. At the conclusion of husband's evidence, the trial court granted wife's motion to strike, finding "no evidence" of mutual mistake with respect to the agreement.
Thereafter, wife moved for judgment against husband for unpaid tuition payments due "on behalf of the parties' son" and "an award" of court costs and counsel fees. Several days later, husband requested the trial court to establish a "protocol to be observed by the parties" for "renegotiation" of spousal support pursuant to paragraph 9 of the agreement. These motions were followed by yet another hearing, after which the court denied husband's prayer but awarded wife $2,856.50 attributable to the college tuition and $9,000 in attorney's fees.
We turn first to husband's claim that the trial court erred in granting wife's motion to strike. While striking the evidence is a "drastic measure," the motion should, nevertheless, be granted if "it is conclusively apparent that plaintiff has not proven any cause of action against the defendant." Higgins v. Bowdoin, 238 Va. 134, 141, 380 S.E.2d 904, 908 (1989); see Chantilly Constr. Corp. v. Department of Highways Transp., 6 Va. App. 282, 290-91, 369 S.E.2d 438, 443 (1988). In its consideration of the motion, "a trial court must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the plaintiff. Any reasonable doubt as to the sufficiency of the evidence must be resolved in the plaintiff's favor." Artrip v. E.E. Berry Equip. Co., 240 Va. 354, 357, 397 S.E.2d 821, 823 (1990); see Chantilly, 6 Va. App. at 284, 369 S.E.2d at 439.
Evidence of a mutual mistake in a written instrument "must be clear, convincing, satisfactory, and such as to leave no reasonable doubt upon the mind that the writing does not correctly embody the intention of the parties." Dickenson County Bank v. Royal Exch. Assurance, 157 Va. 94, 104, 160 S.E. 13, 16 (1931). After assessing husband's evidence, and all reasonable inferences therefrom, in the proper perspective, the trial court concluded that it could not "find by clear and convincing evidence that there was a mutual mistake" in the agreement. This determination is supported by the record and will not be disturbed on appeal.
Husband next complains that the trial court erred in refusing to consider Rider's notes and correspondence. The court concluded that the evidence "constitute[d] prior consistent statements in an attempt to show that he has consistently all along said . . . that he thought the agreement contemplated Court review." Generally, prior consistent statements by a witness are inadmissible. Faison v. Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992); Manetta v. Commonwealth, 231 Va. 123, 128 n. 3, 340 S.E.2d 828, 831 n. 3 (1986); Scott v. Moon, 143 Va. 425, 433-35, 130 S.E. 241, 243 (1925). While a few narrowly circumscribed exceptions to this prohibition have been recognized, none accommodate the evidence in issue here. See Faison, 243 Va. at 404-05, 417 S.E.2d at 309-10; Manetta, 231 Va. at 128 n. 3, 340 S.E.2d at 831 n. 3.
Husband also contends that the trial court erred in declining to "set a protocol" for "renegotiation" of the spousal support obligation. However, as the trial judge astutely observed, "that was exactly the kind of relief [previously] barred in this case." The court correctly determined earlier that it was without jurisdiction to modify spousal support and its denial of husband's motion was consistent with this ruling and subsequent opinion of this Court.
Lastly, husband argues that the trial court erred in its award to wife of the college tuition and attorney's fees. The court concluded that the agreement "provides for a maximum amount [of $40,000] over the college education of both of the children," "in increments of not more than $10,000," "for which [husband] could be held liable." This was a fair and reasonable construction of the agreement and we will not disturb the award on appeal. See Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985). "An award of attorney's fees is a matter submitted to the trial court's sound discretion, . . . reviewable on appeal only for an abuse of discretion,"Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987), and this record reveals no such abuse.
Accordingly, the decision of the trial court is affirmed.
Affirmed.