COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Humphreys 

Argued at Richmond, Virginia 

SUSAN W. KREITER 

 MEMORANDUM OPINION* BY 

v. Record No. 1856-01-2 JUDGE ROBERT J. HUMPHREYS 

 JULY 23, 2002 

VICTOR W. KREITER, JR. 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Gary A. Hicks, Judge 

 John B. Mann (Levit, Mann & Halligan, on 

briefs), for appellant. 

 Jennifer E. Crossland (William H. Parcell, 

III; Parcell, Webb & Wallerstein, P.C., on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. Further, because this memorandum 

opinion has no precedential value, we recite only those facts 

necessary to our holding. 

 Susan W. Kreiter (wife) appeals a decision by the circuit 

court, denying her motion to set aside the property settlement 

agreement tendered by Victor W. Kreiter, Jr.(husband), pursuant to 

their divorce proceedings. Wife contends the trial court erred in 

refusing to set aside the agreement as she had withdrawn her offer 

to accept the terms of the agreement prior to its filing, and 

because she signed the agreement under duress. For the reasons 

that follow, we affirm in part and reverse and remand in part. 
 We first note that "[i]n challenging the court's decision on 

appeal, the party seeking reversal bears the burden to demonstrate 

error on the part of the trial court."1 Further, when a trial 

court hears evidence ore tenus, as in this case, its findings 

based on an evaluation of the testimony are entitled to the same 

weight as a jury's verdict.2 Thus, the trial court's decision 

will be upheld unless it appears from the evidence that the 

judgment is plainly wrong or unsupported by the evidence.3

 Here, the trial court relied upon Richardson v. Richardson, 

10 Va. App. 391, 382 S.E.2d 688 (1990), in finding that the 

parties had, at least orally, reached an agreement, prior to 

wife's attempted revocation, settling the equitable distribution 

issues, as implied by their words, acts and conduct, evincing the 

intention of the parties to contract and their meeting of the 

minds. Accordingly, the court held that the alleged revocation by 

wife was not effective, as the signing of the second property 

settlement agreement (PSA #2) by husband only served to 

memorialize the already existing contractual agreement and actions 

of the parties. Finally, the court found the evidence failed to 

"establish any scintilla of duress in [wife's] execution and 

 

1 Barker v. Barker, 27 Va. App. 519, 535, 500 S.E.2d 240, 

248 (1998) (citation omitted). 

2 RF&P Corp. v. Little, 247 Va. 309, 319, 440 S.E.2d 908, 

915 (1994). 

3 Tuomala v. Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501, 

505 (1996). 

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signing of PSA #2, on October 15, 1998," nor any unconscionability 

on the part of husband in the formation of the agreement. 

 While it is true that "[s]eparation agreements and property 

settlement agreements are contracts" and as such, "'we must apply 

the same rules of interpretation applicable to contracts 

generally,'"4 the Supreme Court of Virginia recently overruled 

Richardson, in relevant part, in Flanary v. Milton, 263 Va. 20, 

556 S.E.2d 767 (2002). In Flanary, the Supreme Court held that 

pursuant to Code § 20-155, property settlement agreements made in 

conjunction with divorce proceedings must be made in writing and 

signed by both parties in order to be valid and enforceable.5 

Code § 20-155 states as follows: 

Married persons may enter into agreements 

with each other for the purpose of settling 

the rights and obligations of either or both 

of them, to the same extent, with the same 

effect, and subject to the same conditions, 

as provided in §§ 20-147 through 20-154 for 

agreements between prospective spouses, 

except that such marital agreements shall 

become effective immediately upon their 

execution. However, a reconciliation of the 

parties after the signing of a separation or 

property settlement agreement shall abrogate 

such agreement unless otherwise expressly 

set forth in the agreement. 

 

4 Douglas v. Hammett, 28 Va. App. 517, 523, 507 S.E.2d 98, 

101 (1998) (quoting Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 

S.E.2d 796, 799 (1985)). 

5 Flanary, 263 Va. at 24, 556 S.E.2d at 769. 

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Accordingly, to be enforceable, PSA #2 must have been signed by 

both parties.6 However, PSA #2 was not signed by both parties 

until February 4, 2000. Thus, it did not become a binding 

agreement, pursuant to Code § 20-155, until that point in time. 

 Because the trial court assumed the agreement became 

enforceable before wife allegedly attempted to revoke the 

agreement, it made no factual or legal findings concerning the 

validity of wife's attempted revocation in the context of the then 

unsigned agreement. Therefore, we reverse and remand on this 

issue for further findings by the trial court, consistent with 

this opinion. 

 We next address wife's argument concerning duress as it will 

undoubtedly be raised once again should the trial court hold that 

wife's alleged revocation was insufficient as a matter of law to 

invalidate the agreement. We first note that "[w]hile 

corroboration of testimony is not a prerequisite for rescission of 

[an agreement] on the ground of duress, it is necessary that the 

testimony establishing duress be clear and convincing."7 In 

considering the issue of whether a parent had entered into a 

 

6

 The first property settlement agreement was signed only by 

wife, and undisputedly, was never acted upon by the parties. 

Further, wife's counsel altered the first agreement, creating 

PSA #2, which wife then signed and offered to husband. 

Accordingly, we do not address that agreement in this opinion. 

7 Jacobs v. Jacobs, 218 Va. 264, 267, 237 S.E.2d 124, 127 

(1977). 

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permanent entrustment agreement under the influence of duress in 

Norfolk Div. of Soc. Servs. v. Unknown Father, 2 Va. App. 420, 345 

S.E.2d 533 (1986), we described duress as follows: 

"Duress . . . means that degree of 

constraint or danger, either actually 

inflicted or threatened and impending, which 

is sufficient in severity or in apprehension 

to overcome the mind and will of a person of 

ordinary firmness . . . . 

 * * * * * * * 

Duress may exist whether or not the threat 

is sufficient to overcome the mind of a man 

of ordinary courage, it being sufficient to 

constitute duress that one party to the 

transaction is prevented from exercising his 

free will by reason of threats made by the 

other and that the contract is obtained by 

reason of such fact. Unless these elements 

are present, however, duress does not 

exist. . . . Authorities are in accord that 

the threatened act must be wrongful to 

constitute duress."8

Wife contends that PSA #2 was the product of duress and, 

therefore, is invalid and unenforceable. She argues that 

husband's conduct in threatening her and her counsel during the 

August 1997 meeting compelled her to sign PSA #2.9 She further 

contends that she was under a significant amount of anxiety during 

 

8 Norfolk Div. of Soc. Serv., 2 Va. App. at 434-35, 345 

S.E.2d at 541 (quoting 6B Michie's Jurisprudence Duress and 

Undue Influence §§ 2-3 (Repl. Vol. 1985)). 

9

 On brief, wife repeatedly uses the words "treat" or 

"treats," instead of "threat" or "threats." Upon a review of 

the record, we assume wife's use of these words on brief is the 

result of her counsel's carelessness and/or failure to proofread 

the brief prior to filing, as opposed to a facially absurd 

argument that husband caused wife duress by making "treats." 

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that time, as well as pressure, due to her impending sentencing 

for the embezzlement conviction. However, we find no merit in 

these contentions. 

 Indeed, the facts and circumstances of this case support the 

trial court's determination that duress did not contribute to 

wife's signing of PSA #2. Wife signed PSA #2 well after her 

sentencing and incarceration, and well after husband's threat. 

Further, there was no evidence that any threatening or improper 

conduct on the part of husband continued after August of 1997, or 

in any way affected her decision to sign PSA #2 in October of 

1998. Thus, the evidence supported the trial court's conclusion 

on this issue. 

 For the foregoing reasons, we affirm in part and reverse and 

remand in part. 

 Affirmed in part, and 

reversed and remanded in part. 

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