COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MARTIN C. DAVIDSON, JR. 

v. Record No. 1588-95-2 MEMORANDUM OPINION*

 PER CURIAM 

RHONDA O. DAVIDSON FEBRUARY 20, 1996 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 (Gail H. Miller; Smith & Miller, P.C., on 

brief), for appellant. 

 No brief for appellee. 

 Martin C. Davidson, Jr. (husband) appeals the decision of 

the circuit court awarding Rhonda O. Davidson (wife) a divorce on 

the grounds of adultery. Husband argues that, under the terms of 

the parties' Agreement and Stipulation (Agreement), wife waived 

her right to seek a divorce on the ground of adultery. Husband 

also argues that the trial court erred in relying on an affidavit 

executed by husband in which he admitted committing adultery. 

Finally, husband contends that there was insufficient evidence to 

establish that he committed adultery. Upon reviewing the record 

and opening brief, we conclude that this appeal is without merit. 

 Accordingly, we summarily affirm the decision of the trial 

court. Rule 5A:27. 

 The evidence in this matter was presented solely by 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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deposition. 

 "The rule is firmly established in Virginia 

that a divorce decree based solely on 

depositions is not as conclusive on appellate 

review as one based upon evidence heard ore

tenus, but such a decree is presumed correct 

and will not be overturned if supported by 

substantial, competent and credible 

evidence." 

Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828 

(1986) (citation omitted). 

Interpretation of the Agreement

 "Property settlement and support agreements are subject to 

the same rules of construction and interpretation applicable to 

contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180, 

355 S.E.2d 342, 346 (1987). "[O]n appeal if all the evidence 

which is necessary to construe a contract was presented to the 

trial court and is before the reviewing court, the meaning and 

effect of the contract is a question of law which can readily be 

ascertained by this court." Id. 

 Paragraph four of the parties' Agreement stated in part as 

follows: 

 Subsequent Divorce: Husband and Wife 

anticipate subsequent divorce. Upon 

presentation to the Court of a sketch for 

either a bed and board decree of divorce or a 

final decree of divorce, Husband and Wife 

agree to request the Court to affirm, ratify 

and incorporate, but not merge this Agreement 

and Stipulation into said decree. 

Thus, by the express terms of the Agreement, the parties 

anticipated filing a suit for divorce. The parties placed no 
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limitations or representations anywhere in the Agreement 

concerning the grounds upon which a divorce would be sought. 

 Husband relies upon Paragraph 16, entitled "Mutual Release 

and Discharge of General Claims," to support his claim that wife 

waived her right to seek a divorce on the grounds of adultery. 

That paragraph stated that 

 [s]ubject to the provisions of this 

Agreement, Husband and Wife hereby mutually 

release and forever discharge, and by these 

presents does for himself or herself, and his 

or her heirs, legal representatives, 

executors, administrators and assigns, 

release and forever discharge the other of 

any and all causes of action, claims, rights, 

or demands whatsoever in law or equity, which 

either Husband or Wife hereto ever had, or 

now has, against the other excepting only 

every right that is given or created by this 

Agreement. 

Paragraph 16 does not, by its express terms nor by implication, 

amount to a waiver by either party of any potential grounds for a 

divorce. Therefore, we conclude that the Agreement did not bar 

wife from seeking a divorce on the ground of adultery. 

 We also reject husband's contention that wife was estopped 

from seeking a divorce on the basis of adultery. In executing 

the Agreement, the parties acknowledged in Paragraph 1 that the 

Agreement was entered into 

 upon mature consideration; that consent to 

the execution of this Agreement . . . has not 

been obtained by duress, fraud, or undue 

influence of any person; that no 

representations of fact or otherwise have 

been made by either party; . . . and that 

this Agreement . . . is FAIR and EQUITABLE 

and entered into VOLUNTARILY for valuable 

CONSIDERATION. 
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Husband's allegations that wife induced him to execute the 

Agreement are unsupported by the record. The Agreement expressly 

contemplated the parties' subsequent filing for divorce and, as 

provided under its terms, the Agreement was affirmed and 

incorporated into the parties' final decree of divorce. The 

terms of the property settlement agreed to by the parties 

remained unchanged. Therefore, wife was not estopped from 

seeking a divorce on the ground of adultery. 

Admissibility of Husband's Affidavit

 Husband alleges that the trial court erred by allowing into 

evidence his sworn affidavit in which he admitted "under oath 

that he has committed adultery with one DONA FOGG during the last 

12 months from the date of this Affidavit and without the consent 

or knowledge of his wife." Husband repudiated the contents of 

the affidavit, alleging that he signed the affidavit solely to 

keep his alleged paramour from being called to testify. 

 The circumstances surrounding husband's execution of the 

affidavit go to its weight, not its admissibility. 

 Generally, evidence that has rational 

probative value and adds force and effect to 

other evidence is competent and admissible. 

A trial court, in the exercise of its 

discretion, determines whether evidence is 

competent. Of course, the weight to be given 

to such evidence is a decision for [the fact 

finder]. 

Williams v. Garraghty, 249 Va. 224, 233, 455 S.E.2d 209, 215 

(1995). Husband admitted he knew what he was doing when he 

executed the affidavit, and that he wanted to sign the affidavit 
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in order to keep from involving Fogg in the divorce proceeding. 

Husband was aware that his interests were adverse to those of his 

wife and that he was not represented by wife's counsel. 

Therefore, we cannot say the trial court abused its discretion by 

allowing into evidence husband's affidavit. 

Sufficiency of the Evidence

 The trial court reviewed the depositions of the witnesses 

and parties and found sufficient evidence to support wife's 

ground for divorce on the basis of husband's adultery with Donna 

Fogg. This finding was not plainly wrong or without evidence to 

support it. 

 Husband's credibility was undercut by his deposition 

testimony, which was fraught with qualifications. Husband 

admitted that he had "intercourse" with Fogg, but denied having 

sexual intercourse with her. Husband admitted signing the 

affidavit in which he swore that he committed adultery with Fogg, 

but stated that the affidavit was "not exactly the truth." 

 Husband knowingly executed the affidavit admitting that he 

committed adultery with Fogg. Wife testified that husband 

admitted to her that he had sexual intercourse with Fogg. 

Husband and Fogg admitted that husband regularly visited Fogg's 

apartment in the morning, as observed by the private investigator 

hired by wife. Therefore, clear and convincing evidence 

supported the trial court's decision to award wife a divorce on 

the ground of husband's adultery. 
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 Accordingly, the decision of the circuit court is 

summarily affirmed. 

 Affirmed.