COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, Bray and Humphreys Argued at Rich mond, Virginia

SUSAN W. KREITER MEMORANDUM OPINION * BY v. Record No. 1856-01-2 JUDGE ROBERT J. HUMPHREYS JULY 23, 2002 VICTOR W. KR EITER, JR.

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Gary A. Hi cks, Judge John B. Mann (Levit , Mann & Halligan, on briefs), for appellant. Jennifer E. Crosslan d (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) appe als a decision by the circuit court, denying her moti on to set aside the property settlement agreement tender ed by Victor W. Kreiter, Jr.(husban d), pursuant to their divorce proc eedings. Wife contends the trial court erred in refusing to set aside the agreemen t as she had with drawn her offer to accept the terms of the agreement prio r 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 challengin g the court's decision on appeal, the party seeking revers al 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 ca se, its findings based on an evaluation of the te stimony are entitl ed to the same weight as a ju ry's verdict. 2 Thus, the trial court's decision will be upheld unless it appears from th e evidence that the judgment is pl ainly wrong or unsuppor ted by the evidence. 3 Here, the trial co urt relied upon Richardson v. Richardson , 10 Va. App. 391, 38 2 S.E.2d 688 (1990), in finding that the parties had, at least orally, re ached an agreem ent, prior to wife's attempted revoca tion, settling the eq uitable dist ribution issues, as implied by their words, ac ts and conduct, evincing the intention of the part ies to contract and their meetin g of the minds. Accord ingly, the court held that the alleged re vocation by wife was not effective, as the signing of the second property settlement agreement (PSA #2) by husband only served to memorialize the al ready existing contractua l agreement and actions of the parties. Finally, the court found the evidence failed to "establish any scinti lla of duress in [w ife'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). - 2 -signing of PSA #2, on October 15, 1998 ," nor any unco nscionability on the part of husb and in the formation of the agreement. While it is true th at "[s]eparatio n agreements and property settlement agreements are contracts" and as such, "'we must apply the same rules of in terpretation applic able to contracts generally,'" 4 the Supreme Cour t of Virginia re cently overruled Richardson , in relevant part, in Flanary v. Milton , 263 Va. 20, 556 S.E.2d 767 (2002). In Flanary , the Supreme Co urt held that pursuant to Code § 20-1 55, property settlement agreements made in conjunction wi th divorce proceedi ngs must be made in writing and signed by both part ies in order to be valid and en forceable. 5 Code § 20-155 stat es 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.

- 3 -Accordingly, to be enforceable, PS A #2 must have been signed by both parties. 6 However, PSA #2 was no t signed by both parties until February 4, 2000. Thus, it di d not become a binding agreement, pursuant to Code § 20-155, until that point in time. Because the trial court assumed the agreement became enforceable befo re wife allege dly attempted to revoke the agreement, it ma de no factual or legal findings concerning the validity of wife's attempted revoca tion in the cont ext of the then unsigned agreement. Therefore, we reverse and rema nd on this issue for further findings by the trial court, co nsistent 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 revocati on was insuffic ient as a matt er of law to invalidate the agreem ent. We first no te that "[w]hile corroboration of testimony is not a prereq uisite for rescission of [an agreement] on the ground of duress, it is ne cessary that the testimony establ ishing duress be cl ear and co nvincing." 7 In considering the is sue of whether a parent had entere d 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).

- 4 -permanent entrustment agreem ent 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 desc ribed 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 produc t of duress and, therefore, is invalid and unen forceable. Sh e argues that husband's cond uct in threatenin g her and her coun sel during the August 1997 meet ing compelled her to sign PSA #2. 9 She further contends that sh e was under a sign ificant 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."

- 5 -that time, as well as pressure, due to her impending se ntencing for the embezzleme nt conviction. However, we find no merit in these cont entions. Indeed, the facts and circumstan ces of this ca se support the trial court's dete rmination that duress did not cont ribute to wife's signing of PSA #2. Wife signed PS A #2 well after her sentencing and incarcer ation, and well afte r husband's threat. Further, there was no evidence that any threatening or improper conduct on the part of husband contin ued after August of 1997, or in any way affect ed her decision to sign PSA #2 in October of 1998. Thus, the eviden ce supported the tria l court's co nclusion on this issue. For the foregoin g reasons, we af firm in part and reverse and remand in part. Affirmed in part, and reversed and rema nded in part.

- 6 -