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O?CONNOR v. O?CONNOR




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O’CONNOR

v.

O’CONNOR


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

v.

LORELEI O’CONNOR

 

MEMORANDUM OPINION[1]
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 &
Cottrell,

on briefs), for appellant.

Susan Massie Hicks (Susan Hicks & Associates, on brief), for
appellee.

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.[2] For
the

following reasons, we affirm the trial court.

I. Background

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
the memorandum.

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
the memorandum

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

pertinent part:

B. The parties desire to resolve all issues of property, support
and

custody.

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
into a

fully integrated Separation and Property Settlement Agreement.

Also at issue is section 9 of the memorandum, under the title of
"Miscellaneous" which reads in

pertinent part:

The parties agree that this Memorandum shall be incorporated
into

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:
indemnification,

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
finances or

personal information. The only remaining issue in this case is
to

draft a property settlement agreement, in accordance with the

Memorandum of Understanding, including the proper standard

provisions.

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.

I. Analysis

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.[3] The
trial

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.
"Property settlement

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
prepared

and signed; but the parties must be fully agreed and must intend

the agreement to be binding. If though fully agreed on the terms
of

their contract, they do not intend to be bound until a formal

contract is prepared, there is no contract, and the circumstance
that

the parties do intend a formal contract to be drawn up is strong

evidence to show that they did not intend the previous
negotiations

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
settlement agreement.

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.[4]

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

in the memorandum under the paragraphs for child support,[5]
retirement accounts,[6] Vanguard

account,[7]
patent,[8]and taxes.[9]

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.[10]
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

interpretation.

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.[11] See Kaufman v.
Kaufman, 7

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
Enforce Compliance."

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
the motion.

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
presented numerous

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.

III. Conclusion

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.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]Husband’s
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
(1992).

 

[3]Husband urges
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
against

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
provided

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
property

or financial obligations of the other party beyond the
disclosure

provided.

B. Any issue of unconscionability of a premarital agreement
shall

be decided by the court as a matter of law. Recitations in the

agreement shall create a prima facie presumption that they are

factually correct.

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.

 

[4]"The
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.

 

[5]"The
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,

paragraph 2.

 

[6]"Husband
shall immediately provide Wife’s counsel with all statements regarding these

retirement accounts." Memorandum of Understanding, p. 6,
paragraph 4A.

 

[7]"Husband
shall immediately provide Wife’s counsel with the most recent statement for

the Vanguard Account." Memorandum of Understanding, p. 7,
paragraph 4b.

 

[8]"Husband
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.

 

[9]"The
parties shall exchange federal and state income tax returns each year until the

youngest child is emancipated." Memorandum of
Understanding, p. 10, paragraph 9.

 

[10]Husband
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
non-precedential.

 

[11]Husband
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
where

the parties have agreed upon a matter. Code ? 20-109 does not

prohibit a trial court from ordering a course of action upon a
matter

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.


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