Opinion
Record No. 1400-94-3
Decided: February 28, 1995
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY, Thomas H. Wood, Judge
(Frank A. Mika, on brief), for appellant.
(Victor M. Santos; Katherine Carruth Link; Nelson, McPherson, Summers Santos, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Timothy L. Spears appeals the decision of the circuit court denying his motion to correct an alleged clerical error in the Property Settlement Agreement he entered into with his wife, Alice F. W. Spears. He contends that the evidence proved that the Agreement, which was incorporated into the parties' final decree of divorce, contained a mutual mistake of fact that should be corrected as a clerical error. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.
Section VI of the Agreement required the husband to convey the former marital residence to the wife. The wife assumed payment of the note secured by a deed of trust on the property, which required her to pay $200 monthly. She also agreed to rent the property to husband. The dispute centers upon the following provision of Section VI:
During the time HUSBAND occupies the marital residence, HUSBAND shall, on a timely basis, pay the present mortgage payment, the real estate taxes, the homeowner's insurance premium and all maintenance and repair expenses with the exception of roof replacement or structural problems, which cost shall be divided equally between the parties. In addition, HUSBAND shall pay rent in the amount of $200.00 per month beginning on September 1, 1992 and continuing on the first day of each month thereafter.
The husband does not allege that the provision is ambiguous. Therefore, we are not called upon to interpret the terms of an agreement. Cf. Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987). Instead, the husband argues that the parties made a mutual mistake of fact when they included the disputed paragraph in the Agreement and that he was only required to pay the mortgage payment of $200 per month.
"A contract may be reformed or rescinded in equity on the ground of mutual mistake." Langonan v. Alumni Assoc. of the Univ. of Virginia, 247 Va. 491, 503, 442 S.E.2d 669, ___ (1994). To prevail on a claim of mutual mistake, husband had the burden to present proof which was "clear, convincing, satisfactory, and such as to leave no reasonable doubt on 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).
The trial judge found from the evidence that the husband reviewed the Agreement before signing it, required certain clarifying language, and apparently overlooked the provision in the negotiating process. The wife testified that she was aware of the provision requiring the additional $200 per month "rent" payment. She merely forgot it was there after the Agreement was signed and did not complain when husband paid only $200 per month. The wife denied the provision was included by mistake and testified that the rental value of the marital residence was in the range of $500 to $600 per month.
The record supports the trial judge's finding that the husband failed to establish by clear and convincing evidence that the provision was included as the result of a mutual mistake of fact by the parties. Accordingly, we affirm the decision of the trial judge. In light of our decision, we further hold that the trial judge did not err in concluding that the evidence failed to prove a clerical error pursuant to Code Sec. 8.01-428(B).
Affirmed.