NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Coleman
Argued at Richmond, Virginia
Record No. 2299-02-4
STEVEN PAUL O’CONNOR
BY JUDGE ELIZABETH A. McCLANAHAN
DECEMBER 9, 2003
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
James Ray Cottrell (Martin A. Gannon; David H. Fletcher;
Christopher W. Schinstock; Kyle F. Bartol; Gannon &
on briefs), for appellant.
Susan Massie Hicks (Susan Hicks & Associates, on brief), for
Steven Paul O’Connor (husband) appeals from a decision of the
circuit court holding that
a memorandum of understanding between husband and Lorelei O’Connor
(wife) was a binding
and enforceable agreement, requiring only the drafting of a
final formal property settlement
agreement. In his appeal from the final decree of divorce,
husband enumerates thirteen
assignments of error, which present two questions for this Court
to address: (1) whether the trial
court erred in finding that the parties intended the memorandum
of understanding to be a final
agreement not requiring the parties to fulfill certain
conditions precedent before executing a
separation and property settlement agreement; and (2) whether
the trial court abused its
discretion in awarding wife attorney’s fees and in setting a
supersedeas bond amount. For
following reasons, we affirm the trial court.
Husband and wife were married on September 6, 1986. Two children
were born of the
marriage, one in 1990 and another in 1992. On September 1, 2000,
wife filed a bill of complaint
for divorce against husband. The trial court set a pendente
lite hearing on custody, child support
and spousal support for October 26, 2000. Just prior to that
hearing, the parties negotiated a
memorandum of understanding (memorandum). The memorandum was
signed by both parties,
witnessed by both parties’ counsel, and presented to the trial
court on the morning of the hearing
as a resolution of all the issues that were to be addressed in
the hearing, including "all issues of
property, support and custody." While the memorandum
addressed all substantive issues
between the parties, it required the terms of the memorandum to
be incorporated into a "fully
integrated Separation and Property Settlement Agreement"
including "standard provisions." The
parties represented to the trial court that because the
memorandum was drafted and agreed to just
prior to the hearing, they did not have time to include all of
the usual standard paragraphs in the
agreement. At the request of the parties, the trial court
entered an agreed order incorporating the
memorandum and ordering the parties to comply with the terms of
Shortly thereafter, the parties began negotiating the separation
and property agreement
pursuant to the memorandum terms. Several draft agreements,
which included standard
provisions and language that disclosures had been made, were
proposed by both parties, but they
could not agree upon acceptable language. However, the parties
continued to abide by the terms
of the memorandum, pursuant to the agreed order. In light of the
parties’ continuing inability to
reach agreement on the standard provisions, husband requested
that wife provide disclosures to
which he claimed he was entitled pursuant to the memorandum.
When wife refused to provide
the disclosures, husband filed a motion to enforce compliance
with the memorandum.
The chancellor heard oral argument on whether the provisions of
required disclosures or other conditions precedent before the
parties could finalize the separation
and property settlement agreement. The provisions of the
memorandum at issue read, in
B. The parties desire to resolve all issues of property, support
THEREFORE, the parties are entering into this Memorandum of
Understanding to set out the essential terms of custody, support
and property division which they intend to have incorporated
fully integrated Separation and Property Settlement Agreement.
Also at issue is section 9 of the memorandum, under the title of
"Miscellaneous" which reads in
The parties agree that this Memorandum shall be incorporated
a court order which shall be submitted to the Fairfax County
Circuit Court on October 26, 2000.
The Separation and Property Settlement Agreement shall contain
standard provisions including but not limited to:
full disclosure and reliance on disclosures, releases and
reimbursement for counsel fees for enforcement.
The chancellor’s letter opinion stated:
[T]his Court does not read the Memorandum of Understanding to
provide for further disclosures involving either party’s
personal information. The only remaining issue in this case is
draft a property settlement agreement, in accordance with the
Memorandum of Understanding, including the proper standard
The court also found that the subsequent acts of the parties,
which conformed to their agreed
rights and duties in the memorandum, indicated that neither
party anticipated further disclosures
in order for the memorandum to be binding and enforceable. On
February 11, 2002, the
chancellor entered an order incorporating the findings and
rulings of the letter opinion.
On February 14, 2002, wife filed a motion to compel husband to
execute a separation and
property settlement agreement as provided in the memorandum and
requested the court to award
her attorneys’ fees. After hearing oral argument, the court
ruled from the bench ordering
execution of the separation and property settlement agreement.
On the issue of attorneys’ fees,
after considering supplemental briefs, the court issued a letter
opinion, holding that, although the
memorandum did not provide for attorneys’ fees, Code ??
20-99(5) and 20-103(A)(ii) authorized
the court to award attorneys’ fees, and granted wife $8,193.54
in fees. The court incorporated
the letter opinion in an order dated May 3, 2002. Husband filed
a motion to reconsider, which
the trial court denied. Subsequently, the parties executed a
Separation and Property Settlement
Agreement. Wife filed a motion to enforce the court’s order on
attorneys’ fees. Husband filed
for a supersedeas bond, which the court ordered set at $10,000.
The final decree of divorce was
entered on August 16, 2002.
A. Memorandum of Understanding
When reviewing a chancellor’s decision on appeal, we view the
evidence in the light
most favorable to the prevailing party, granting it the benefit
of any reasonable inferences.
Wright v. Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704
(2002); Donnell v. Donnell, 20
Va. App. 37, 39, 455 S.E.2d 256, 257 (1995). This case presents
a mixed question of fact and
law. We defer to the factual findings of the court with regard
to the acts of the parties, but
consider the language of the contract as a matter of law, which
we review de novo. Langman v.
Alumni Ass’n of the Univ. of Va., 247 Va. 491, 498, 442 S.E.2d
669, 674 (1994); Shenk v.
Shenk, 39 Va. App. 161, 571 S.E.2d 896 (2002). See also Smith v.
Smith, 3 Va. App. 510, 513,
351 S.E.2d 593, 595 (1986) ("We are not bound by the trial
court’s conclusions as to the
construction of the disputed provisions.").
Under Code ? 8.01-680, a factual determination cannot be
reversed on appeal unless
plainly wrong or without evidence to support it. See Schweider
v. Schweider, 243 Va. 245, 250,
415 S.E.2d 135, 138 (1992); Torian v. Torian, 38 Va. App. 167,
181, 562 S.E.2d 355, 362
(2002). In this case, the terms of the memorandum were
negotiated and written on the morning
of the scheduled pendente lite hearing. Both parties
signed the memorandum of understanding
and represented to the court that it was done in order to settle
all the issues that were to be heard.
The parties also represented that they intended its terms to be
integrated into a formal separation
and property settlement agreement. The parties then asked the
court to incorporate the
memorandum into an agreed order that required the parties to
comply with its terms. The
court found that the subsequent acts of the parties and their
counsel after signing the
memorandum and agreed order indicated that neither party was
awaiting further disclosures.
Draft separation agreements by both parties included language
incorporating the memorandum
and language that the agreements were based upon information the
parties had about each other,
which indicates that the disclosures already made were
acceptable to the parties for the purpose
of moving forward and drafting the separation and property
agreement. The chancellor found
that husband did not make mention of the disclosure issue until
one year after the original
agreement had been made, and after he had hired new counsel.
Therefore, the acts of the parties
support the trial court’s conclusion that the parties did not
intend to make further disclosures
before drafting the final agreement.
We turn now to a review of the language of the memorandum.
agreements are contracts; therefore, we . . . apply the same
rules of interpretation applicable to
contracts generally." Tiffany v. Tiffany, 1 Va. App. 11,
15, 332 S.E.2d 796, 799 (1985). Where
an agreement is plain and unambiguous in its terms, the court is
duty bound to give it full force
and effect. See generally Bridgestone/Firestone, Inc. v. Prince
William Sq. Assocs., 250 Va.
402, 407, 463 S.E.2d 661, 664 (1995) (citing Foods First, Inc.
v. Gables Assoc., 244 Va. 180,
182, 418 S.E.2d 888, 889 (1992)); Burns v. Eby & Walker,
Inc., 226 Va. 218, 221, 308 S.E.2d
114, 116 (1983). Where parties contract lawfully and their
contract is free from ambiguity or
doubt, their agreement furnishes the law which governs them and
"equity will refuse to give it
another by interpretation." Elam v. Ford, 145 Va. 536, 545,
134 S.E. 670, 672 (1926).
Virginia adheres to the "plain meaning" rule –
courts examine the plain language of an
agreement, going beyond the written contract only when its
meaning is ambiguous. See Pysell v.
Keck, 263 Va. 457, 460, 559 S.E.2d 677, 678-79 (2002); Douglas
v. Hammett, 28 Va. App. 517,
524, 507 S.E.2d 98, 101 (1998); Tiffany, 1 Va. App. at 15-16,
332 S.E.2d at 799. Courts shall
not include or ignore words to change the plain meaning of the
agreement. Southerland v. Estate
of Southerland, 249 Va. 584, 590, 457 S.E.2d 375, 378 (1995).
Husband urges that language in
the memorandum, such as, "desire," "intend,"
and "including, but not limited to," indicates that
the agreement is conditional, binding the parties only to a
process. However, the plain meaning
of such phrases is that the parties are evincing what they want
to or will do; the language does
not make the memorandum a conditional agreement.
In Boisseau v. Fuller, the Virginia Supreme Court stated:
If the parties are fully agreed, there is a binding contract,
notwithstanding the fact that a formal contract is to be
and signed; but the parties must be fully agreed and must intend
the agreement to be binding. If though fully agreed on the terms
their contract, they do not intend to be bound until a formal
contract is prepared, there is no contract, and the circumstance
the parties do intend a formal contract to be drawn up is strong
evidence to show that they did not intend the previous
to amount to an agreement.
96 Va. 45, 46-47, 30 S.E. 457, 458 (1898) (quoting Clark on
Contracts at 38). The memorandum
states that "[t]he parties desire to resolve all issues of
property, support and custody." There was
nothing in the memorandum to indicate that the parties were not
fully agreed. Moreover, the
parties did not just sign the memorandum, they asked the court
to incorporate it into an agreed
order, requiring them to comply with its terms, including
drafting the formal agreement. Unless
a written agreement is "subject to" the execution of a
subsequent formal agreement, a court will
enforce it as a binding contract. Golding v. Floyd, 261 Va. 190,
194, 539 S.E.2d 735, 737
(2001). In this case, the memorandum was a binding contract to
which the parties fully agreed,
and asked the court to order compliance by the parties. The
memorandum was not subject to or
dependent upon the execution of the separation and property
The only issue remaining in the case was to formalize the
memorandum into a property
settlement agreement, including "standard provisions
including but not limited to:
indemnification, full disclosure and reliance on disclosures,
releases and reimbursements for
counsel fees for enforcement." While the memorandum allowed
inclusion of standard provisions
other than those listed upon agreement of the parties, it did
not stipulate that further negotiation
over terms was required.
Husband further complains that he was due additional disclosures
before he could enter
into the separation and property agreement. The plain language
of the memorandum indicated
that the separation and property agreement would contain a
standard provision on disclosures.
The language requiring a standard provision on disclosures at
paragraph 9 of the memorandum
does not indicate nor imply that the parties were to provide
further disclosures in the future. In
fact, a promise to make future disclosures, for which the
memorandum did provide, is distinct
and separate from the standard provision. Specific provisions
for future disclosures are included
Therefore, we hold that the plain language of the memorandum
requiring a standard
disclosure provision does not contemplate further disclosures by
either party. It does not state
that preparation of the separation and property settlement
agreement is conditional upon further
disclosures. It merely states that the separation and property
settlement agreement shall contain
standard disclosure provisions. Furthermore, as found by the
trial court, the actions of the parties
are consistent with this conclusion.
And, the specific provision for future disclosures on named
issues in other paragraphs of the memorandum (paragraphs 2, 4A,
4b, 4c, and 9) support this
B. Attorneys’ Fees and Supersedeas Bond
Whether to award attorney’s fees "is a matter submitted
to the sound discretion of the
trial court and is reviewable on appeal only for an abuse of
discretion." Northcutt v. Northcutt,
39 Va. App. 192, 199-200, 571 S.E.2d 912, 916 (2002) (quoting
Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987)) (internal quotation marks
omitted). Husband complains
that because the trial court found that the memorandum was
intended to resolve all issues in the
case, and because the memorandum did not provide for attorneys’
fees, an award of attorneys’
fees to the wife was an abuse of discretion. While the
memorandum contemplated a provision
for attorneys’ fees in the subsequent separation and property
settlement, it did not prohibit the
court from awarding attorneys’ fees on a statutory basis.
The trial court predicated an award to wife upon Code ??
20-99, and 20-103, both of
which provide for an award of attorneys’ fees in a divorce
case. See Kaufman v.
Va. App. 488, 375 S.E.2d 374 (1988). Code ? 20-99(5) states:
"Costs may be awarded to either
party as equity and justice may require." Code ?
20-103(A)(ii) allows the court to make any
order in a pending suit that is proper, "to enable [a] spouse to carry on the suit." We have said
that "‘the key to a proper award of counsel fees . . .
[is] reasonableness under all of the
circumstances revealed by the record.’ Where the trial judge
finds that a fee award is justified,
evidence of time expended and services rendered is a proper
basis upon which to fix an award."
Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 S.E.2d 523, 530
(1988) (citation omitted).
Husband complains that the trial court had no evidence with
regard to the financial
circumstances and needs of the parties before it awarded
attorneys’ fees to wife. However, the
evidence shows that the chancellor held two hearings on the
matter, on February 22, 2002, and
February 28, 2002. The court also allowed the parties to submit
supplemental briefs on the issue.
In his letter opinion, the chancellor wrote, "Taking into
consideration the income and financial
circumstances of the parties, this Court finds that equity and
justice require [husband] to pay
attorneys’ fees for [wife’s] defense of the Motion to
We find no abuse of discretion. Therefore, we conclude that the
trial court did not err in
awarding the wife her attorneys’ fees incurred for defense of
Husband further complains that the trial court abused its
discretion in setting a
supersedeas bond higher than the amount of the attorneys’ fees
award. Code ? 8.01-676.1(a)
states: "If the appellant wishes suspension of execution,
the security . . . shall be in such sum as
the trial court may require." The trial court set the bond
at $10,000, even though the attorneys’
fees award was $8,193.54. Husband provides no legal basis on
which to complain of the bond
amount. The statute authorizes the trial court to set an amount,
as it requires. Therefore, we find
no abuse of discretion by the chancellor.
Wife requests this Court to award attorneys’ fees and costs
incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d
98, 100 (1996). The rationale for
the appellate court being the proper forum to determine the
propriety of an award of attorney’s
fees for efforts expended on appeal is clear. The appellate
court has the opportunity to view the
record in its entirety and determine whether the appeal is
frivolous or whether other reasons exist
for requiring additional payment.
Upon a review of this appeal, we find that the husband’s case
questions that were not supported by law or evidence. See
Gottlieb v. Gottlieb, 19 Va. App. 77,
95, 448 S.E.2d 666, 677 (1994). Therefore, we award attorneys’
fees to wife and remand this
case to the trial court for determination of attorneys’ fees
and costs incurred in responding to this
appeal, and for any costs incurred at the hearing on remand.
Accordingly, we affirm the trial court’s decision regarding
the memorandum of
understanding, award of attorneys’ fees to wife, and setting
of the supersedeas bond. We remand
the case for a determination of wife’s attorneys’ fees and
costs incident to this appeal.
Affirmed and remanded.
Code ? 17.1-413, this opinion is not designated for publication.
question presented XII (or K), contending that the trial court erred in
entering a final decree of divorce incorporating the
"Separation, Support, Custody and Property
Settlement Agreement" dated May 22, 2002, and in granting
the wife a divorce from the husband
pursuant to Code ? 20-91(9)(a) does not merit our
consideration. Husband’s brief does not
address how the trial court erred with respect to Code ? 20-91
or provide any legal authority with
regard to the question presented. Rule 5A:20(e) requires the
appellant’s brief to include, among
other things, the "principles of law, the argument, and the
authorities relating to each question
presented." Statements unsupported by "argument,
authority, or citations to the record" do not
merit appellate consideration. Thomas v. Commonwealth, 38 Va.
App. 319, 321 n.1, 563 S.E.2d
406, 407 n.1 (2002); Dickerson v. Commonwealth, 36 Va. App. 8,
15, 548 S.E.2d 230, 234
(2001); Bennett v. Commonwealth, 35 Va. App. 442, 452, 546
S.E.2d 209, 213 (2001);
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
this Court to find the memorandum unenforceable under the Uniform
Premarital Agreement Act, which applies to all property
settlement agreements between spouses.
Code ? 20-151 provides:
A. A premarital agreement is not enforceable if the person
whom enforcement is sought proves that:
1. That person did not execute the agreement voluntarily; or
2. The agreement was unconscionable when it was executed and,
before execution of the agreement, that person (i) was not
a fair and reasonable disclosure of the property or financial
obligations of the other party; and (ii) did not voluntarily and
expressly waive, in writing, any right to disclosure of the
or financial obligations of the other party beyond the
B. Any issue of unconscionability of a premarital agreement
be decided by the court as a matter of law. Recitations in the
agreement shall create a prima facie presumption that they are
Husband contends that he was ordered to sign the Separation and
Property Settlement Agreement
by the court, and therefore did not "execute the agreement
voluntarily," and that this Court
cannot decide whether the agreement is unconscionable because
there must first be "a full and
adequate disclosure by the parties with which to thereby judge
the terms of the agreement."
First, we find nothing in the record that suggests husband did
not agree to the memorandum
voluntarily as required by Code ? 20-151(A)(1). In fact,
husband asked the trial court to
incorporate the memorandum into an agreed order directing the
parties to comply with its terms.
The trial court, by ordering husband to sign the separation and
property settlement agreement
was enforcing the agreed order. To apply Code ? 20-151(A)(2), a
court must find that the
agreement was unconscionable when the parties signed it. Husband
never asked the trial court to
make such a finding, and we decline to do so. Husband had
competent legal counsel and
voluntarily signed the memorandum. Husband also suggests that
the trial court’s order forcing
him to sign the agreement now creates a false prima facie presumption
that recitations in the
agreement are correct pursuant to Code ? 20-151(B). Husband
thereby contends that his right to
procedural and substantive due process was violated. We see no
such violation. Husband
voluntarily signed the memorandum and agreed order and cannot
now complain of the
unintended consequences of that agreement.
Separation and Property Settlement Agreement shall contain standard provisions
including but not limited to: indemnification, full disclosure
and reliance on disclosures, releases
and reimbursement for counsel fees for enforcement."
Memorandum of Understanding, p. 10.
parties shall exchange full financial disclosure information in the event either
party seeks a modification of child support in the future."
Memorandum of Understanding, p. 2,
shall immediately provide Wife’s counsel with all statements regarding these
retirement accounts." Memorandum of Understanding, p. 6,
shall immediately provide Wife’s counsel with the most recent statement for
the Vanguard Account." Memorandum of Understanding, p. 7,
shall provide Wife with any and all information of any nature whatsoever that
he receives relating to the patent for any funds that he
receives therefrom." Memorandum of
Understanding, p. 7, paragraph 4c.
parties shall exchange federal and state income tax returns each year until the
youngest child is emancipated." Memorandum of
Understanding, p. 10, paragraph 9.
relies on Richardson v. Richardson, 10 Va. App. 391, 392 S.E.2d 688 (1990),
and the unpublished case of Echols v. Echols, No. 0531-85 (Va.
Ct. App. July 3, 1987).
Richardson concerned an oral agreement that the parties intended
to reduce to writing. The case
is not dispositive as the case at bar involves a written
agreement that was incorporated into an
agreed order. Echols is an unpublished case that we consider
argues that Code ? 20-109(C) prohibits the court from awarding attorneys’
fees except as provided in the memorandum. Code ? 20-109(C)
states: "[I]f a stipulation or
contract signed by the party to whom such relief might otherwise
be awarded is filed before entry
of a final decree, no decree or order directing the payment of
support and maintenance for the
spouse, suit money, or counsel fee or establishing or imposing
any other condition or
consideration, monetary or nonmonetary, shall be entered except
in accordance with that
stipulation or contract. Husband cites Sanford v. Sanford, 19
Va. App. 241, 249, 450 S.E.2d
185, 190 (1994), to support his notion. Sanford clearly says
that where a contract remains silent
on an issue, Code ? 20-109 does not prevent a court from
ordering a course of action.
Code ? 20-109 only restricts the action a trial court may take
the parties have agreed upon a matter. Code ? 20-109 does not
prohibit a trial court from ordering a course of action upon a
that the parties do not address in their property settlement
agreement, provided the court is not otherwise precluded from
doing so and the course of action is appropriate.
Sanford, 19 Va. App. at 250, 450 S.E.2d at 191. The parties in
this case clearly did not make any
agreements on the issue of attorneys’ fees, and the memorandum
was silent on this issue.