Westbrook v. Westbrook

• Court: Virginia Court of Appeals
• Writing for the Court: COLE
• Citation: Westbrook v. Westbrook, 364 S.E.2d 523, 5 Va.App. 446 (Va. App. 1988)
• Decision Date: 19 January 1988
• Docket Number: 1039-86-2,Nos. 1019-86-2,s. 1019-86-2
• Parties: Linda Rothwell WESTBROOK v. William E. WESTBROOK, Jr. William E. WESTBROOK, Jr. v. Linda Rothwell WESTBROOK. Record

Page 523

364 S.E.2d 523

5 Va.App. 446

Linda Rothwell WESTBROOK v. William E. WESTBROOK, Jr.

William E. WESTBROOK, Jr. v. Linda Rothwell WESTBROOK.

Record Nos. 1019-86-2, 1039-86-2.

Court of Appeals of Virginia.

Jan. 19, 1988.

Terrence R. Batzli (Mays & Valentine, Richmond, on brief), for Linda Rothwell Westbrook.

Edward D. Barnes, Chesterfield, for William E. Westbrook, Jr.

Present: BAKER, COLE and DUFF, JJ.

COLE, Judge.

Linda Rothwell Westbrook filed a bill of complaint in the Circuit Court of Hanover County on March 16, 1984, alleging that William E. Westbrook, Jr. deserted her on January 1, 1984. She sought a divorce on the ground of desertion. She also sought temporary and permanent spousal support, a monetary award under Code § 20-107.3, and an award of attorney's fees and costs. William filed an answer on March 22, 1984, asking that the bill of complaint be dismissed. On February 4, 1985, an amended bill of complaint was filed alleging William's adultery.

On April 19, 1985, the cause was referred to a commissioner in chancery, who, after an ore tenus hearing, filed his report on January 22, 1986. He found that a five acre parcel of real estate upon which was built a home known as the "Tavern" was the separate property of William; he also recommended a monetary award to Linda in the amount of $54,000, which included an attorney's fee in the amount of $7,500, the payment to be made by William in thirty-six equal monthly installments. Upon exceptions filed by both parties, the trial judge in the final divorce decree entered on July 29, 1986, affirmed the commissioner's report, except that he reduced the monetary award to $20,000, ordered William to pay counsel fees in the amount of $7,500, and to pay the commissioner's fee and all other costs incurred by Linda in the proceeding. Finally, he granted to Linda a divorce from the bond of matrimony upon the ground of willful desertion.

On appeal, Linda alleges that she is aggrieved by the final decree of divorce entered on July 29, 1986, and asks us to decide: (1) whether a writing dated November 9, 1983, was sufficient to convey legal and/or equitable joint ownership of the five acre parcel known as the "Tavern" to her; (2) whether she is a joint owner of the "Tavern" on the basis of an implied trust; and (3) whether the trial court arbitrarily reduced the monetary award to her as recommended by the commissioner in chancery. William also contends that he is aggrieved by the decree, claiming that: (1) the court erred in not striking Linda's case because she committed perjury; (2) the court erred in awarding attorney's fees to Linda; and (3) the court erred in making a monetary award. We find that the trial court erred in determining the five acre parcel was the separate property of William, but properly refused to dismiss Linda's suit because she committed perjury. We reverse and remand.

Prior to their marriage on October 16, 1982, Linda, age 34, was a senior art director for a major advertising firm in Atlanta, Georgia. Her gross annual salary was approximately $44,000 and she earned additional sums doing "free lance" work. William was the sole stockholder in a successful advertising agency in Richmond, Virginia. They began dating in the spring of 1982 and by late summer decided to marry. Since William's two children by a previous marriage lived in the Richmond area, they decided that as soon as Linda's home in Atlanta was sold, they would marry and reside in Hanover County.

In 1981, prior to their marriage, William purchased, in his own name, a five acre parcel of land in Hanover County upon which was located a rustic three room cabin. They planned to erect a reproduction of a colonial tavern on the parcel and to use the tavern as their home. Pursuant to these plans, Linda sold her home in Atlanta and moved into the three room cabin with William.

After eleven months of marriage, in September, 1983, William advised Linda that he desired her to go with him to counseling in order that he might "find himself." At that time, one of William's friends had died and his sister had attempted suicide, and Linda perceived these events as the primary reasons behind the request for counseling. About a month later, William admitted to her that he had been seeing his former paramour who had caused the breakup of his first marriage, but reassured her that there was nothing to worry about. However, he suggested at that time that they see individual counselors. In late October, 1983, he told her that he wanted a separation.

In June, 1983, before most of their marital problems commenced, both parties signed an application for a construction loan in the amount of $150,000. The loan application contained a statement that the five acre parcel would be held in the names of William E. and Linda R. Westbrook as tenants by the entireties. In October, 1983, the parties were requested to fulfill the legal requirements of the loan to be used to construct the Tavern. Since William was married, the lending institution required Linda to sign the construction money note and deed of trust securing the note. Under the circumstances, Linda would not sign the note until an agreement was made concerning ownership of the real estate. The parties discussed such an agreement, each contributing to its development, and the final draft, in William's handwriting, reads as follows:

11/9/83

Linda and I are building the tavern in Ashland together. She has agreed to obligate herself for the loan with me. So I agree we own the house together. In the event of my death before I can draw up a will to reflect the following, I hereby state it now. My intent is that Linda would get the tavern.

Bill Westbrook

After this agreement was signed by William, Linda signed the construction money note and deed of trust upon the real estate in the amount of $150,000 and the loan was secured. Construction was commenced upon the home. The commissioner reported that the fair market value of the Tavern was $275,000, with an outstanding mortgage in the amount of $112,000.

Linda claims that the writing dated November 9, 1983, conveyed to her legal and/or equitable joint ownership of the real estate, or made her a joint owner on the basis of an implied trust. Therefore, she submits that the real estate constituted marital property, not separate property of William. William maintains that the commissioner and the trial court properly decided that the real estate is his separate property.

Under our property law, "[n]o estate of inheritance or freehold or for a term of more than five years in lands shall be conveyed unless by deed or will." Code § 55-2. Since the writing dated November 9, 1983, is neither a deed nor a will, it did not convey legal title or joint ownership of any kind to the real estate. We hold that under the terms of the agreement, Linda did not acquire any legal title or joint ownership of the five acre parcel.

Linda also asserts that the agreement made her a joint owner of the five acre parcel on the basis of an implied trust. She did not make this argument before the trial court. Therefore, we will not consider it on appeal. Rule 5A:18.

Our Equitable Distribution Act (EDA) requires that property be classified according to when it was acquired. This places great importance upon the concept of acquisition since the acquisition date is not always clear. It is uncontested that William owned and paid for the five acre tract prior to the marriage. Therefore, we have no acquisition issue presented in this case.

Code § 20-107.3(H) provides that the EDA shall not be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties pursuant to Code §§ 20-109 and 20-109.1. Code § 20-109 provides that where the parties have entered into a valid contract, "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." (emphasis added).

In Parra v. Parra, 1 Va.App. 118, 336 S.E.2d 157 (1985), the parties entered into a settlement agreement providing for the sale of the marital home and disposition of the proceeds. The wife failed to acquiesce in the sale of the home, asserting that the agreement could not be enforced because it was not incorporated into the divorce decree. We held that Code §§ 20-107.3(H) and 20-109 must be read together and, where the parties reach an agreement, the trial court may not decree a monetary award that is inconsistent with it. Id. at 128, 336 S.E.2d at 162-63.

Upon dissolution of a marriage, public policy favors a prompt resolution of the property rights between the parties. Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 867 (1975). "Voluntary, court-approved agreements promote that policy and should be encouraged." Id. The beneficial purpose of such agreements would be diminished if the parties to the agreement knew that they could breach the agreement with impunity, anticipating that they might get more favorable treatment from the courts. Parra, 1 Va.App. at 129, 336 S.E.2d at 163.

In the case before us, the parties voluntarily agreed upon the writing dated November 9, 1983. All of the essential elements of a valid contract are present in the writing: competent parties, legal subject matter, valuable consideration and mutual consent. 4B Michie's Jurisprudence Contracts § 24 (1986). The terms of the agreement are clear. Linda agreed to obligate herself by signing a promissory note in the amount of $150,000 to be used as construction money to build the Tavern. She fulfilled her part of the bargain. William agreed that they were to own the house together. When William was questioned about the statement "I agree we own the house together," his response was "It's my understanding that in Virginia...