Robinette v. Robinette, 0967-85

• Citation: 354 S.E.2d 808,4 Va.App. 123
• Decision Date: 07 April 1987
• Docket Number: No. 0967-85,0967-85
• Parties: Doris Kathryn Kellner ROBINETTE v. Jefferson M. ROBINETTE, Jr. Record
• Court: Virginia Court of Appeals

Page 808

354 S.E.2d 808

4 Va.App. 123

Doris Kathryn Kellner ROBINETTE v. Jefferson M. ROBINETTE, Jr.

Record No. 0967-85.

Court of Appeals of Virginia.

April 7, 1987.

Carr L. Kinder, Jr. (Bird, Kinder & Huffman, Roanoke, on brief), for appellant.

Charles B. Phillips (Phillips, Doherty & Swanson, Salem, on brief), for appellee.

Present: KOONTZ, C.J., and BARROW and COLEMAN, JJ.

COLEMAN, Judge.

Doris Kathryn Kellner Robinette presents three issues in this appeal of a divorce decree: (1) whether the court erred in refusing to consider parol evidence to establish the existence of a trust on real property; (2) whether the court erred in the classification and evaluation of marital and separate property and in the equitable distribution award; and (3) whether the spousal support award was sufficient. We find that the trial court did not err in refusing to declare the existence of a trust on the real property. We further find that the trial court necessarily classified and evaluated the marital and separate property, but in making the monetary award failed to consider the equities of the parties in certain marital real estate. Accordingly, we reverse and remand the question of equitable distribution. Finally, because the court erred in the equitable distribution determination, the spousal support award must necessarily be reconsidered upon remand.

The Robinettes separated after more than thirty-seven years of marriage. The court granted a final divorce on the ground of a one year separation. The parties agreed upon a division of their tangible personal property but left to the court the issue of equitable distribution of the real and intangible personal property and the issue of permanent spousal support. The property to be considered in making any monetary award consisted of a lot in Florida; two burial plots; a farm in Giles County, Virginia; and a profit sharing, pension, and stock program.

The Florida lot was valued at between $6,000 and $7,000. No value was stated for the burial plots. The major real asset and center of controversy was a farm in Giles County which had been in Mrs. Robinette's family since 1793. Mrs. Robinette's mother, Mrs. Kellner, conveyed the farm to her in 1960, at which time Mrs. Kellner purportedly expressed orally a desire that one-half of the farm be held for the benefit of Mrs. Robinette's brother. About fifteen years later, to build a house on the farm Mrs. Robinette and her brother contributed $10,000 each from money they inherited from their mother. The remaining $35,000 construction cost was provided jointly by Mr. and Mrs. Robinette. After Mr. Robinette made this monetary contribution, Mrs. Robinette conveyed to him by deed a one-half interest in the farm. At the time of the divorce hearing the appraised value of the farm was $251,000.

The only additional marital asset was the present value of Mr. Robinette's profit sharing, pension and stock benefit plans from his employment with Burlington Industries. Mr. Robinette worked at Burlington throughout the marriage and relocated with the company several times. Mrs. Robinette accompanied him on each move. On the occasion of one transfer from Arkansas to North Carolina, had Mrs. Robinette stayed in Arkansas six more months she would have had ten years employment with the University of Arkansas and would have received a pension. When Mr. Robinette retired, he received the following benefits which were classified as marital property: $42,000 as a lump-sum payment from his retirement plan (consisting of vested retirement benefits of $58,544 less approximately $16,000 balance on a loan procured to help build the farm house); 5,226 shares of stock and $48,505.01 from the profit sharing plan; and 79 shares of stock and $45.71 from an employee stock ownership plan. At trial, Mr. Robinette offered evidence that the present value of his combined retirement benefits was approximately $231,000; Mrs. Robinette's evidence of valuation was $290,000.

The court granted a monetary award to Mrs. Robinette of $116,925 from Mr. Robinette's "profit-sharing, pension and stock programs, paid to him upon retirement." The court further provided that Mr. Robinette could satisfy the entire award by conveying all of his interest in the Giles County real estate to Mrs. Robinette. The court ordered that the Robinettes would continue to own as tenants in common the farm in Giles County, the lot in Florida, and their burial plots. Mr. Robinette was ordered to pay $2,000 in attorney's fees for his wife's attorney and $650 per month as spousal support.

I. ESTABLISHMENT OF TRUST

At trial, Mrs. Robinette sought to introduce parol evidence to establish that the farm in Giles County was subject to a trust in favor of her brother, William Kellner. Mr. Robinette objected on the ground that parol evidence could not be admitted to change the meaning of a deed which was clear and unambiguous on its face. The trial judge sustained the objection but allowed Mrs. Robinette to proffer her evidence for the record. The proffered evidence consisted of testimony from Mrs. Robinette, her two sons, and the attorney who handled the original conveyance from Mrs. Kellner to Mrs. Robinette and the subsequent conveyance from Mrs. Robinette to Mr. Robinette. All testified that Mrs. Kellner expressed a desire that Mrs. Robinette hold one-half of the property for the benefit of her brother. The evidence also proved that the brother made a monetary contribution to the home construction improvement on the property. Mrs. Robinette contends that the trial court erroneously ruled that parol evidence could not establish a trust in realty and that her proffered evidence, if believed, was sufficient to sustain a trust.

It is an established principle in Virginia that as to real estate, parol evidence may be used to establish both express trusts, Peal v. Luther, 199 Va. 35, 37, 97 S.E.2d 668, 669-70 (1957), and resulting trusts. Salyer v. Salyer, 216 Va. 521, 525, 219 S.E.2d 889, 893 (1975). It is equally well settled that " '[i]n controversies between two parties to a contract, parol evidence of prior or contemporaneous oral negotiations or stipulations is inadmissible to vary, contradict, add to, or explain the terms of a complete, unambiguous, unconditional, written instrument.' " Amos v. Coffey, 228 Va. 88, 91-92, 320 S.E.2d 335, 337 (1984) (quoting Godwin v. Kerns, 178 Va. 447, 451, 17 S.E.2d 410, 412 (1941)).

Even if we conclude that Mrs. Robinette originally held one-half of the property in trust for her brother, an issue which we do not decide, she subsequently conveyed a one-half interest in the property to her husband. Mrs. Robinette would have us hold that she did not have the ability to convey good title to her husband and that the conveyance should be set aside in light of the fact that she was really holding one-half of the property in trust for her brother. "The rule is well established that where the deed recites or affirms, expressly or impliedly, that the grantor is seised of a particular estate which the deed purports to convey, and upon the faith of which the bargain was made, [s]he will be thereafter estopped to deny that such an estate was passed to this vendee...." Marshall v. Jameson, 145 Va. 605, 610-11, 134 S.E. 573, 574-75 (1926) (quoting Reynolds v. Cook, 83 Va. 817, 821, 3 S.E. 710, 713 (1887)). Mrs. Robinette cannot avoid the consequences of her voluntary written conveyance to Mr. Robinette by introducing parol evidence to defeat it. A parol trust cannot be established in favor of a grantor when its effect will be to defeat or contradict by the parol...