JUNE 22, 1999

Record No. 2937-98-4






J. Howe Brown, Jr., Judge

Present: Judges Bray, Annunziata and Frank


(Hunter C. Harrison, Jr., on briefs), for

(Carolyn M. Grimes; Sharon K. Lieblich, P.C.,
on brief), for appellee.

D. Ramesh Chander (husband) appeals the
decision of the circuit court dismissing his Bill of Complaint
for Annulment and awarding a divorce to Darlene Ann (Jones)
Chander (wife). Husband contends that the trial court erred by
affirming the commissioner’s report because the commissioner
allowed into evidence testimony and documents that should have
been excluded under the parol evidence rule. 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. See Rule 5A:27.

The evidence was heard by the commissioner in
chancery, whose report was affirmed without modification by the
trial court.

The commissioner’s report is
deemed to be prima facie correct. The
commissioner has the authority to resolve
conflicts in the evidence and to make factual
findings. When the commissioner’s findings are
based upon ore tenus evidence,
"due regard [must be given] to the
commissioner’s ability . . . to see, hear and
evaluate the witness at first hand." Because
of the presumption of correctness, the trial
judge ordinarily must sustain the commissioner’s
report unless the trial judge concludes that it
is not supported by the evidence.

Brown v. Brown, 11 Va. App. 231, 236,
397 S.E.2d 545, 548 (1990) (citations omitted).

Husband filed a Bill of Complaint for Annulment
of his marriage to wife, alleging that the marriage and the
marriage contract was "induced by fraud" because wife
secretly intended never to consummate the marriage. He denied any
knowledge that wife did not intend to consummate the marriage or
cohabit with him. Wife filed a Bill of Complaint seeking a
divorce on the basis of living separate for six months and sought
ratification and incorporation of the parties’ antenuptial
agreement. Husband’s appeal is based upon the contention that the
parol evidence rule barred wife from introducing evidence
concerning the circumstances surrounding the execution of the
parties’ antenuptial agreement.

Antenuptial agreements are subject to the same
rules of construction and interpretation applicable to contracts
generally. See Davis v. Davis, 239 Va. 657, 661-62,
391 S.E.2d 255, 257 (1990) (Compton, J., dissenting).

The general rule in Virginia is
that parol evidence of prior stipulations or oral
agreements is inadmissible to vary, contradict,
or explain the terms of a complete, unambiguous,
unconditional written contract. When a claim is
made under an unambiguous written instrument,
however, a signatory to the instrument may
introduce parol evidence to establish a defense
based on such doctrines as partial integration,
collateral contract, fraudulent procurement,
mutual mistake, or condition precedent.

Price v. Taylor, 251 Va. 82, 86-87, 466
S.E.2d 87, 89 (1996) (citation omitted). One exception to the
parol evidence rule, the doctrine of partial integration,

recognizes that the final form
of a contract between parties may not reflect the
complete agreement of the parties or accurately
reflect the course of dealing between parties
based on their complete agreement. In such
circumstances, "where the entire agreement
has not been reduced to writing, parol evidence
is admissible, not to contradict or vary its
terms but to show additional independent facts
contemporaneously agreed upon, in order to
establish the entire contract between the

Jim Carpenter Co. v. Potts, 255 Va. 147,
155-56, 495 S.E.2d 828, 833 (1998) (citation omitted).

Husband’s initial pleading raised the issue of
fraudulent procurement of the marriage contract. Wife’s evidence
addressed husband’s allegation that she agreed to marry him while
secretly having no intention to live with him or to consummate
the marriage. Nothing in the challenged evidence contradicted any
provision in the parties’ agreement or was an attempt to vary its
terms. Nothing in the antenuptial agreement related to the
parties’ intention to consummate their marriage or to live

Husband relies heavily upon the provision
contained in paragraph eleven that "[t]his Agreement
contains the entire understanding of [husband] and [wife], and no
representation or promise has been made except as contained
herein." However, that provision cannot be expanded beyond
the subject matter of the agreement to bar "’proof of a
prior or contemporaneous oral agreement that is independent or,
collateral to and not inconsistent with the written contract, and
which would not ordinarily be expected to be embodied in the
writing.’" Jim Carpenter Co., 255 Va. at 156, 495
S.E.2d at 833 (citation omitted). The agreement addressed solely
property matters, repeatedly emphasizing the parties’ desire to
maintain separate financial property. One notable exception was
the parties’ agreement that wife would receive retirement
benefits as a surviving spouse through husband’s employment with
the World Bank.

The commissioner allowed wife to introduce
evidence concerning the circumstances surrounding the parties’
antenuptial agreement and marriage. Wife’s evidence demonstrated
that she and husband met and dated briefly in 1990, but that she
indicated to him that she was not romantically attracted to him.
At husband’s request, they remained friends. In 1994, husband
asked wife to marry him so that his World Bank pension would not
be "wasted," but she declined. Husband continued to
discuss marriage, indicating to wife that they would lead
separate lives and would remain only friends. Wife agreed to
marry husband on these conditions. While husband denied any
knowledge of wife’s intention not to consummate the marriage or
live together, the commissioner noted that husband admitted that
he and wife made no plans concerning the wedding night or where
they would live following the marriage.

Husband also alleges that the trial court
applied an incorrect standard of review to the commissioner’s
report. The trial court properly deferred to the witness
credibility determinations made by the commissioner, and found
that the evidence supported the commissioner’s findings. See
Brown, 11 Va. App. at 236, 397 S.E.2d at 548. Therefore,
husband’s contention is without merit.

Accordingly, the decision of the circuit court
is summarily affirmed.


*Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.



[1] Wife has filed
motions to increase bond and for an award of attorney’s fees
related to this appeal. We deny both motions.