COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Frank 

Argued at Salem, Virginia 

W. DOUGLAS DRUMHELLER 

 MEMORANDUM OPINION* BY 

v. Record No. 0163-02-3 JUDGE ROBERT P. FRANK 

 OCTOBER 1, 2002 

SANDRA JEAN BLAIR DRUMHELLER 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

 Annie Lee Jacobs (Tracey C. Hopper; Parker, 

McElwain & Jacobs, on briefs), for appellant. 

 Thomas G. Bell, Jr. (Timberlake, Smith, 

Thomas & Moses, on brief), for appellee. 

 W. Douglas Drumheller (husband) appeals the trial court's 

ruling on the division of assets pursuant to a premarital 

agreement entered into by husband and Sandra Jean Blair Drumheller 

(wife). Husband argues the trial court erred in considering parol 

evidence and misinterpreted the parties' agreement. We agree the 

court misinterpreted the agreement, and we reverse the decision. 

I. BACKGROUND

 Husband and wife negotiated and executed a premarital 

agreement. Husband's counsel initially drafted the agreement. 

Wife then requested "[t]hat there be a provision in there where 

 

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

designated for publication.
we would build a residence in Augusta County . . . [and] [t]hat 

it would be jointly titled and considered marital property." 

 According to wife, this provision concerning the marital 

dwelling "was very important." She explained, "[T]hat's why I 

signed the agreement. . . . Because it assured me that I would 

have a home and some financial security, because I was basically 

signing away everything else that I might be entitled to, 

whether we were married for two years or twenty." Wife 

testified she would not have signed the agreement without the 

requested provision.1 

 Husband agreed to include such a provision, and the 

agreement was re-drafted. The parties signed the agreement on 

March 17, 1994, after consulting with their individual 

attorneys. They married on April 9, 1994. 

 The agreement contained waivers of spousal support and of 

any interest in each other's separate property. It provided, in 

part: 

[Article I, 2.] It is the parties' 

intention, after they have married, to build 

a residence on approximately four acres of 

real estate located in Augusta County, 

Virginia; it is agreed that said real estate 

and residence shall be jointly titled to 

them and shall constitute marital property, 

any other provisions of this Agreement to 

the contrary notwithstanding. 

* * * * * * * 

 1

 Husband made no objection to this testimony. 

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[Article VI, 2.] In the event of a divorce, 

annulment, or other event triggering the 

right of either party to seek a division or 

distribution of marital property, . . . the 

parties agree that their ownership interest 

in their marital property shall be divided 

equally between them. 

* * * * * * * 

[Article VII] 1. This Agreement contains 

the entire understanding of the parties, and 

there are no representations, warranties, 

promises, covenants or undertakings, oral or 

otherwise, other than those expressly set 

forth herein. 

[Article VII] 2. This Agreement shall not 

be modified or annulled by the parties 

hereto except by written instrument executed 

by both of the parties in the same manner 

and with the same formalities as this 

Agreement expressly modifying or revoking 

the provisions hereof by specific reference. 

 Prior to the execution of the agreement, husband owned 

eight acres in New Hope, Augusta County.2 Within the acreage, 

adjacent to a parcel with husband's existing home, was "a 

potential building lot, but not a developed lot, for another 

house" (hereinafter the New Hope property). The parties both 

testified this adjoining parcel was the four acres referenced in 

the agreement. Husband and wife had "walked the property and 

picked a spot on the property that [they] both liked as a 

 2

 Husband entered a continuing objection to wife's testimony 

regarding the New Hope and Fishersville properties, on the 

ground that the trial court could not consider parol evidence to 

determine "whether this intention [in the agreement] constitutes 

an enforceable contract to build a home." 

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potential house site." However, the undeveloped, four-acre 

parcel had no "road access." 

 Around the time the parties married, husband began making 

attempts "to get road access," but each of those efforts failed. 

Husband then told wife, without any detail, that he was "running 

into problems" with the new house and, according to wife, 

"eventually it just sort of went by the wayside." The testimony 

conflicts on whether husband discussed with wife the 

practicality of acquiring access. In any event, no house was 

built on the four-acre parcel in New Hope. 

 The parties first separated on April 16, 1995. In December 

1995, husband and wife resumed their relationship by dating. 

Wife testified, "It was on-again/off-again until we finally 

reconciled and moved in together in May of 1998." 

 During the negotiations for reconciliation, wife indicated 

she would reconcile with husband if they purchased a jointly 

titled home and "that it would be considered marital property." 

Husband testified he had promised that the new property would be 

titled jointly and considered marital property, to be "divided 

up as marital property" if the parties divorced. However, the 

parties did not amend the premarital agreement or memorialize 

their negotiations. 

 Husband and wife found a "house under construction" in 

Fishersville, Augusta County (hereinafter the Fishersville 

property). The parties signed a contract to purchase this 

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property, listing the purchasers as "Warren Douglas and Sandra 

Jean Drumheller." 

 Shortly thereafter, husband unilaterally decided not to 

title the property jointly. Sometime in December 1995, husband 

informed wife he had changed his mind, and he would not title 

the property jointly. Wife was never informed of the closing 

date nor did she sign any documents waiving or assigning her 

rights under the purchase contract. The deed, dated December 

14, 1995 and recorded January 2, 1996, conveyed the Fishersville 

property solely to husband. 

 Wife reconciled with husband and moved into the 

Fishersville property in May 1998. In September 1999, husband 

and wife moved to a farm in Augusta County. The parties finally 

separated on January 8, 2000. Husband sold the Fishersville 

property on January 14, 2000, for $210,000. 

 On February 8, 2000, husband filed a bill of complaint, 

asking for a one year, "no fault" divorce. Wife filed an 

answer, requesting "that the Pre-Marital Agreement be enforced 

to provide her with property sufficient to satisfy [husband's] 

obligations under the Pre-Marital Agreement or, in the 

alternative[,] be declared unenforceable because of the breach 

of this provision." Neither party asked for an equitable 

distribution of marital assets. 

 

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 A hearing was conducted to determine whether the divorce 

should be granted and if the agreement had been breached. Over 

husband's objection, the trial court allowed parol evidence to 

ascertain the parties' intent when entering the agreement. The 

trial court ultimately ruled husband had breached the premarital 

agreement by not titling the Fishersville property jointly and 

assessed wife's damages at $105,000, half of the gross sales 

price of that property. The court explained from the bench: 

[W]hat's in this agreement supports the 

testimony of Ms. Drumheller as to how and 

what and everything that they agreed to, and 

I guess the short, simple answer to this is 

that they agreed to build a residence on 

approximately four acres of real estate in 

Augusta County, the one that they preferred 

to build on turned out to be impractical, 

although only two of the three routes were 

really impractical . . . . But that's 

beside the point, the fact is, they did 

construct a house [in Fishersville], that is 

-- says it's a contract for purchase, it is 

a contract to purchase, it's also a contract 

to construct. 

* * * * * * * 

And so it isn't any question in my mind of 

what [wife] was promised and there isn't any 

question in my mind that [husband] just 

simply changed his mind, and I just don't 

think he can do that, I think this contract 

is definite enough, when it's got some 

ambiguity in it, but the evidence supplies 

what the Court needs, I believe there was an 

enforceable contract, and I think [husband] 

breached the contract, and we've got a good 

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measure of damages right here, and it's half 

the value of that Fishersville property.3

II. ANALYSIS4

 On brief, appellant contends he did not violate the 

premarital agreement because the agreement did not contractually 

obligate him to title the New Hope property jointly. He 

maintains the word, "intention," as used in the agreement, did 

not create an enforceable provision, but simply expressed a 

desire to construct a home and title the land and improvements 

jointly. In the alternative, he contends the trial court erred 

by reforming the premarital agreement to create a promise to 

jointly title the Fishersville property, as opposed to the New 

 3

 The final order further explained the trial court's 

determination: 

After considering the evidence and the 

arguments, the Court finds that 

[husband]breached the Pre-Marital Agreement 

with respect to the provisions in Article I, 

paragraph 2, concerning the marital 

residence and that [wife] is entitled to 

payment of the sum of $105,000.00 as a 

result of that breach, for the reasons set 

forth on the record in open court. 

4

 We do not address husband's contention that the trial 

court erred in admitting evidence of the circumstances 

contributing to the dissolution of the marriage because he did 

not specifically object to this evidence at trial. Rule 5A:18 

requires that objections be made with specificity at the time of 

the error in order to allow the trial court to correct the 

problem. See, e.g., Campbell v. Commonwealth, 12 Va. App. 476, 

480, 405 S.E.2d 1, 2 (1991) (en banc); Lee v. Lee, 12 Va. App. 

512, 514, 404 S.E.2d 736, 737 (1991) (en banc). 

Additionally, resolution of this issue would not affect the 

outcome of this appeal. 

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Hope property, and then assessing damages based on the sale 

price of the Fishersville property. Appellant further contends 

the trial court erred in allowing parol evidence to ascertain 

the intent of the parties. 

 "Antenuptial agreements, like marital property settlements, 

are contracts subject to the rules of construction applicable to 

contracts generally, including the application of the plain 

meaning of unambiguous contractual terms." Pysell v. Keck, 263 

Va. 457, 460, 559 S.E.2d 677, 678 (2002). Therefore, we first 

determine whether "the parties set out the terms of their 

agreement in a clear and explicit writing . . . [such that the 

writing] is the sole evidence of the agreement." Durham v. 

Nat'l Pool Equip. Co., 205 Va. 441, 446, 138 S.E.2d 55, 59 

(1964). As this determination addresses a legal issue, we 

conduct this review de novo. See Tuomala v. Regent Univ., 252 

Va. 368, 374, 477 S.E.2d 501, 505 (1996). 

 Assuming, without deciding, that the parties formed a 

binding contract,5 the premarital agreement still contains 

ambiguity regarding the terms of the contract. "'An ambiguity 

 5

 Husband argues the agreement on its face is not ambiguous 

and does not create an enforceable contract. He also argues the 

trial court improperly heard parol evidence concerning the 

intention of the parties to make a binding contract. Given the 

finding of this case, infra, we assume, without deciding, the 

premarital agreement created a contract. Our conclusion in this 

case would be the same with or without the parol evidence on 

this issue. 

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exists when language admits of being understood in more than one 

way or refers to two or more things at the same time.' Renner 

Plumbing v. Renner, 225 Va. 508, 515, 303 S.E.2d 894, 898 (1983) 

(citing Berry v. Klinger, 225 Va. 201, 207, 300 S.E.2d 792, 796 

(1983))." Amos v. Coffey, 228 Va. 88, 92, 320 S.E.2d 335, 337 

(1984). 

 Article I of the premarital agreement states the parties 

will "build a residence on approximately four acres of real 

estate located in Augusta County, Virginia." No reference to 

the exact parcel intended by the parties is included, yet the 

language of the agreement suggests a particular piece of 

property was intended. We find the language of the agreement 

ambiguous on this point. Nothing within the four corners of the 

document indicates which particular parcel within Augusta County 

is intended. We must go outside the agreement to determine 

which particular parcel is in fact referenced. 

 While parol evidence generally is inadmissible, this rule 

"does not apply if the language of the written instrument is 

ambiguous." Id. 

When the language of a contract is 

ambiguous, parol evidence is admissible, not 

to contradict or vary contract terms, but to 

establish the real contract between the 

parties. The construction of an ambiguous 

contract is a matter submitted to the trier 

of fact, who must examine the extrinsic 

evidence to determine the intention of the 

parties. 

Tuomala, 252 Va. at 374, 477 S.E.2d at 505 (citation omitted). 

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"It is the duty of the court to construe the 

contract made between the parties, not to 

make a contract for them . . . . The facts 

and circumstances surrounding the parties 

when they made the contract, and the 

purposes for which it was made, may be taken 

into consideration as an aid to the 

interpretation of the words used, but not to 

put a construction on the words the parties 

have used which they do not properly bear." 

Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 64, 547 S.E.2d 

216, 226 (2001) (quoting Seaboard Air Line R.R. Co. v. 

Richmond-Petersburg Turnpike Auth., 202 Va. 1029, 1033, 121 

S.E.2d 499, 503 (1961)). 

 Wife argues husband failed to title the Fishersville 

property jointly, thereby breaching the contract. The 

uncontested facts prove husband and wife reconciled based upon 

an unwritten agreement that he would purchase and title the 

Fishersville property jointly and that the property would become 

a marital asset. Both husband and wife were contract purchasers 

for the Fishersville property. Husband conceded he then changed 

his mind and purchased the property solely in his name. 

 Husband later sold the Fishersville property for $210,000. 

The trial court used this sum to calculate wife's damages for 

husband's breach of the premarital agreement. We agree with 

husband that the trial court erred. 

 The uncontroverted evidence proves the premarital agreement 

referred only to the New Hope property. Neither party 

considered any other site prior to or at the time they 

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negotiated and signed the premarital agreement. Joint ownership 

of the Fisherville property was considered only as a condition 

of the reconciliation, not as an amendment to the original 

premarital agreement. Parol evidence is permitted only to 

clarify the parties' intentions at the time of negotiations and 

contract formation, not after the contract is signed. See

Seaboard Air Line R.R. Co., 202 Va. at 1033, 121 S.E.2d at 503 

(noting courts can consider the "facts and circumstances 

surrounding the parties when they made the contract" (emphasis 

added)). Even if the parties intended to amend their original 

contract, wife did not have the premarital agreement amended in 

writing, as required by its provisions, when she agreed to 

return to husband. 

 The language of the contract, although vague, does not 

suggest that any real estate in the county will be jointly 

titled. The reference to "four acres," especially considering 

the parol evidence that the parties had chosen the four acres in 

New Hope prior to signing the agreement, indicates the 

premarital agreement referred to a specific parcel. 

 Each party was represented by counsel. If wife wanted any

real estate in the county jointly titled, she could have made 

that demand. She did not do so. Instead, she asks this Court 

to expand the original intention of the parties. As we cannot 

use parol evidence to vary or contradict the original terms of 

the agreement, we cannot interpret the contract as wife 

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suggests. See Tuomala, 252 Va. at 374, 477 S.E.2d at 505. See 

also Lansdowne Dev. Co. v. Xerox Realty Corp., 257 Va. 392, 400, 

514 S.E.2d 157, 161 (1999) ("[W]e will not insert by 

construction, for the benefit of a party, a term not express in 

the contract."). 

 The trial court erred in holding husband breached the 

premarital agreement by failing to jointly title the 

Fishersville property. That parcel is not included in the 

premarital agreement.6 The trial court effectively reformed the 

agreement to include a broader provision encompassing any home, 

wherever located, when only the New Hope property was the object 

of the agreement. No evidence of mutual mistake, 

misrepresentation, or fraud exists which would allow such a 

reformation of the agreement.7 See Ward v. Ward, 239 Va. 1, 5, 

387 S.E.2d 460, 462 (1990). 

 Since the seller, husband, and wife agreed the Fishersville 

property would be conveyed to both husband and wife, wife may 

 6

 Wife makes no argument based on the New Hope property's 

value, and no evidence on its value, with or without a house, 

was presented at trial. The only theory of breach, and the only 

evidence for possible damages, presented by wife was the failure 

of husband to jointly title the Fishersville property. 

7

 Wife does not contend fraud or unconscionability. She 

does not argue husband deliberately or fraudulently failed to 

build a residence on the New Hope parcel. In fact, wife does 

not dispute husband's testimony that he could not secure access 

to that parcel. At trial, she agreed with husband's proffer 

"that there was no practical roadway through that property to 

give access to the four acres." 

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have some recourse for the violation of that sales contract. 

Here, however, wife seeks relief under the premarital agreement, 

not the Fishersville property contract. As the premarital 

agreement referred only to the New Hope property, the trial 

court erred in awarding her the requested relief of one-half of 

the Fishersville property's sale price. 

CONCLUSION

 We conclude the trial court erred in concluding husband 

breached the premarital agreement when he failed to jointly 

title the Fishersville property and in awarding damages based on 

that sale. We vacate the $105,000 judgment against husband and 

enter final judgment in favor of husband. 

Reversed and final judgment.

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Bumgardner, J., dissenting. 

 I respectfully dissent and would affirm the trial court. 

 The contract was ambiguous. The trial court properly 

considered the extrinsic evidence when construing the agreement 

between the parties, when determining the true intention of the 

parties at the time they entered the contract. It heard the 

parties and assessed their credibility firsthand. 

 The trial court found that the parties intended the wife to 

have an interest in the marital residence they would build after 

the marriage. That was the true intention at the time they 

entered the contract being construed. The parties did not 

intend to limit the wife's interest to a residence they 

contemplated building behind the house where the husband lived 

at that time. The finding comports with the supporting evidence 

of the situation of the parties, the subject matter of their 

agreement, and the object they intended to accomplish. Reid v. 

Boyle, 259 Va. 356, 367, 527 S.E.2d 137, 143 (2000) (citing High 

Knob, Inc. v. Allen, 205 Va. 503, 507-08, 138 S.E.2d 49, 53 

(1964)). The finding further comports with portions of the 

husband's own testimony and with his conduct in subsequently 

executing a joint contract to purchase the residence they 

actually acquired. 

 The record supports the trial court's findings. I would 

hold the trial court granted appropriate equitable relief by 

decreeing the relief that it did. 

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