COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Clements Argued at Salem, Virginia

MICHAEL F. COLOCCIA, BY AND THROUGH HIS NEXT FRIEND, CYNTHIA CORTESE, MEMORANDUM OPINION * BY v. Record No. 1787-06-3 JUDGE LARRY G. ELDER MARCH 6, 2007 LORNA D. COLOCCIA

FROM THE CIRCUIT C OURT OF AUGUSTA COUNTY Thomas H. Wood, Judge Frankie C. Coyner for appellant. (Walter F. Green, IV, on brief), for appellee.

Michael F. Coloccia (husband), by his next friend, Cynthia Cortese, 1 appeals from a decision of the Augusta County Circuit Court up holding the validity of the property settlement agreement he entered into with Lorna D. Coloccia (wife). On a ppeal, husband contends the court erred in refusing to invalidate the propert y settlement agreement. 2 We hold the evidence supports

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Husband filed his original bill of complaint in the trial court in his own name but subsequently moved the trial court for leave to file an amended complaint through his next friend, Cynthia Cortese, his sister. The trial court granted husband’s request. Although the record contains some inconsistencies in the way various documents are styled, the record confirms that the style of the case, as amende d, includes language indica ting Michael F. Coloccia has proceeded at all relevant times in this matter “By and Through His Next Friend, Cynthia Cortese.”

2 The parties do not challenge the court’s au thority to set aside the divorce based on a finding that they had not lived separate and apart for six months prior to entry of the decree, and we do not address this issue on appeal. As to the authority of the trial court to consider husband’s challenge to the validity of the incorporated property settlement agreement based on a claim of incompetency, we hold the court- 2 - the trial court’s findi ng that husband failed to prove by clear and convinci ng evidence that he was incompetent when he executed the property settlement agr eement. Thus, we affi rm the trial court’s refusal to set aside the agreement. In Virginia, “‘marital proper ty settlement agreemen ts entered into by competent parties upon valid consideration for lawful purposes are favor ed in the law and such will be enforced unless their illegality is clear and certain.’” Parra v. Parra , 1 Va. App. 118, 128, 336 S.E.2d 157, 162 (1985) (quoting Cooley v. Cooley , 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980)). “The law presumes that every adult party who executes an agreemen t is mentally compet ent to enter into a contract.” Drewry v. Drewry , 8 Va. App. 460, 467, 383 S.E.2d 12, 15 (1989) . A party seeking to void a facially valid agreement on th e ground that he lacked the mental capacity to en ter into it bears the burden of proving his incompetence by cl ear and convincing evidence. Id. at 463, 383 S.E.2d at

12. “The resolution of conflicti ng evidence bearing on an individual’s mental capacity is a factual determination to be made by the trial court.” Id. at 467, 383 S.E.2d at 15. On appeal, we view the evidence in the light most favorable to the preva iling party and determine wh ether that evidence was sufficient to prove “the grounds relied upon to vitiate the agreement.” Id. at 463, 383 S.E.2d at 12.

had subject matter jurisdiction to consider that ch allenge via a bill of review and that it implicitly construed husband’s pleading filed March 1, 2005, as a bill of review. Husband’s pleading was filed within six months after entry of the fina l decree and execution of the property settlement agreement as permitted by Code § 8.01-623. Although Code § 8.01-623 required husband to ob tain leave of court to file the bill because it was not based on an “error of law appare nt upon the face of the record,” the trial court implicitly granted that leave by acting on husba nd’s filing. We hold any right to object to husband’s failure to seek leave of court prior to his March 1, 2005 filing has been waived. See, e.g. , Moore v. Commonwealth , 259 Va. 431, 437, 52 7 S.E.2d 406, 409 (20 00) (“emphasizing the necessary distinction to be drawn . . . between the power of a court to adjudicate a specified class of cases, commonly known as ‘subject ma tter jurisdiction,’ and the authorit y of a court to exercise that power in a particular case”), overruled on other grounds by Nelson v. Warden , 262 Va. 276, 281, 552 S.E.2d 7 3, 75 (2001).- 3 - In order for a party to be co mpetent to enter into a legally binding contract, he “must have ‘sufficient mental capacity to understand the na ture and effect of th e transaction.’” Id. at 467, 383 S.E.2d at 15 (quoting Price’s Ex’r v. Barham , 147 Va. 478, 482, 137 S.E. 511, 51 2 (1927)). [A] party is not required to exerci se good judgment or to make wise decisions so long as he or she understands the nature and character of the agreement and consequences of en tering into it. Thus, “weakness of mind short of insanity; or imma turity of reason in one who has obtained full age; or the mere abse nce of experience or skill upon the subject of the particular contract affords per se, no ground for relief at law or in equity.”

Id. (quoting Chesapeake & Ohio Ry. Co. v. Mosby , 93 Va. 93, 94, 24 S. E. 916, 916 (1896)). Although “the party’s capacity or condition before and after executing the ag reement is relevant evidence to determine competency, . . . the dispositive question is the individual’s mental capacity

to understand the nature of the agreement and the consequences of his or her act at the time the agreement is ex ecuted.” Id. Relevant evidence includes “testimony from lay witnesses acquainted with the person, opinions of doctors or psychiatri sts who have treated or examined the party, and testimony of witnesses who ob served the person negotiate or sign the contract.” Id. We applied these principles in Drewry , in which we held that Mr s. Drewry failed to prove by clear and convincing evidence that her depression rendered he r incompetent to enter into a legally binding property se ttlement agreement with Mr . Drewry. 8 Va. App. at 468-69, 383 S.E.2d at 15-16. Mrs. Drewry contended the testimony of her treating psychiatrist, Dr. Luedke, that “she was ‘totally incompetent to re ason through any impo rtant legal document’ due to her mental disorder on the day she signed the agreement” “u nequivocally established that she was unable to comprehend the nature and co nsequences of her actions” at the relevant time. Id. at 466, 468, 383 S.E.2d at 14, 15. We rejected that contention, emphasizing as follows: “Dr. Lu edke testified that Mrs. Drewry lacked the ability to ‘reason through an y important legal document ’ due to the severity of her depression. He did not address whether she comprehended the nature and character of her- 4 - agreement and the consequences of executing a legal document.” Id. at 469, 383 S.E. 2d at 16. We also noted that Mr. Drewry’s attorney, who had been “employed . . . to draft the agreement[] and . . . knew of Mrs. Drewry’s hospitali zation, testified that he observed nothing from her demeanor which caused him to question her capacity to contract or whether she understood the terms and nature of the agreement.” Id. at 468, 383 S.E.2d at 15. Finally, we noted the testimony of Mr. Drewry and other lay witnesses with no known financial interest in the outcome of the case “that they observed nothing about Mrs. Drewry’s behavior which caused them to question her me ntal competency.” Id. Here, similar to Drewry , husband’s best evidence was the testimony of his treating neurologist, Patricia Shipley, who examined him on December 6, 2004, within three days of when the parties signed the separation agreement. Dr. Sh ipley testified that, at that time, because of

husband’s deme ntia, his “ability to understa nd a legal contract with va rious terms in it” “would [have] be[en] compromise d” and that it would have been “dif ficult” for him to “read different paragraphs” and “process the information in his head.” However, like in Drewry , Dr. Shipley did not “address whether [husband] comprehended the na ture and character of [his] agreem ent and the consequences of executing a legal document.” Id. at 469, 383 S.E.2d at 16. Dr. Shipley’s conclusions that husband had “short-term memory pr oblems” and “difficulty with his thinking” also did not compel the conclusion, by clear and convincing evidence, th at he did not “comprehend the nature and character of [his] agreement and the co nsequences of executing a legal document.” Id. Finally, wife’s report to Dr. Shipley on Dece mber 6, 2004, that husband’s short-term memory was worsening--evidenced by the fact that he forgot conv ersations and tele phone messages and could no longer keep score while playing golf --and her admission at the March 2006 hearing

that she knew husband was not “o n equal footing” with her when they executed the agreement in December 2004 do not compel the conclusion that husband did not at that time “comprehend the nature and character of [his] agreement and the co nsequences of executing a legal document.” The- 5 - trial court, as the finder of f act, was entitled to judge the credibility of the witnesses and was entitled, as it di d, to credit wife’s and her lawyer’s testimony th at tended to indicate husband did, in fact, know what he was doing when he signed the property se ttlement agreement and other

documents. Wife testified that she and husband had talked about the division of property and “all the issues in the separati on agreement” over the course of at least several months prior to execution of the agreement. She testified, “In the separa tion agreement it was exact ly as we had always discussed everything would be. He would have none of th e debt, none of the worries and be given -- I pay for all of his heal th insurance, the long-term care insura nce and give him so me cash.” Wife received the house, which sh e had inherited from her mother during the marriag e, as well as most of the money she had inherited from her mother. Fi nally, wife testified th at husband read the agreement prior to signing it and that, in her opi nion, he understood its contents at that time. The trial court was not required to accept husband’s statement, given 15 months later at the March 2006 hearing when his Alzheimer’s-related de mentia likely had progre ssed further, that he “didn’t realize what was goi ng on” in December 2004 when they we nt to the lawyer’s office and he “signed a paper.” Husband admitted at the March 2006 hearing that he “probably” “read[] papers at the lawyer’s office” but that he “[didn’t] remember.” His test imony at the March 2006 hearing indicated he was, at that time, uncertain ab out many of the events of December 2004. Thus, the evidence, viewed in the light most favorable to wife, supported the trial court’s determination that husband failed to establish by clear and convincing eviden ce he was incompetent

at the time he entered into the property settlement agre ement. Accord ingly, we affirm the trial court’s refusal to set aside the property settlement agreemen t on this ground.

Affirmed.