COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Elder 

Argued at Richmond, Virginia 

WILLIAM L. SMITH 

 MEMORANDUM OPINION* BY 

v. Record No. 2618-95-2 JUDGE JAMES W. BENTON, JR. 

 JULY 2, 1996 

CHERYL H. SMITH 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Robert N. Johnson (Robert N. & Anne M. 

Johnson, Inc., on brief), for appellant. 

 No brief or argument for appellee. 

 This appeal arises from a judgment enforcing the terms of a 

property settlement agreement. William L. Smith, the former 

husband, contends that the trial judge committed ten errors. We 

affirm nine of the trial judge's rulings and reverse only his 

decision concerning the life insurance policies. 

 The record establishes that William L. Smith and Cheryl H. 

Smith, then husband and wife, separated and executed a property 

settlement agreement dated December 21, 1990. They agreed upon 

an addendum to the agreement on April 23, 1991. The parties 

later reconciled for a time but then marital difficulties arose 

again. In a final decree of divorce entered in 1993, the trial 

judge declared the "agreement and addendum invalid and 

unenforceable, except as to those provisions which have been 

 

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

designated for publication. 
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executed prior to the reconciliation." 

 The wife appealed the trial judge's refusal to enforce the 

agreement. This Court reversed the trial judge's ruling and 

stated that "[b]ecause the parties had not revoked their 

agreement in writing, the agreement remained effective, even 

though the parties unsuccessfully attempted reconciliation." 

Smith v. Smith, 19 Va. App. 155, 157, 449 S.E.2d 506, 507 (1994). 

 On remand, the trial judge set aside the provisions of the final 

decree that voided the property settlement agreement and heard 

evidence concerning the property settlement agreement. 

 After an evidentiary hearing, the trial judge ruled, in 

pertinent part, as follows: 

 1. husband owes wife $5,000.00 from the 

 1991 tax return. 

 2. husband must maintain a life insurance 

 policy, similar to the one in effect on 

 January 1, 1990, on his own life with the 

 wife as a beneficiary. 

 3. The husband owes the wife $1,800.00 

 4. The marital residence shall be placed on 

 the market and when sold, the proceeds 

 shall be divided equally between the two 

 parties. 

 5. The husband owes the wife $400 per month 

 until the residence is sold. 

 6. The husband owes the wife $750.00 in 

 attorney's fees. 

 7. The husband shall receive a credit of 

 $2,500.00 for items in the garage. 

 8. The husband shall receive a credit of 

 $2,500.00 for the payment of attorney's 

 fees to enforce the agreement. 
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The husband now appeals the trial judge's rulings concerning the 

property settlement agreement. 

 On appeal, we apply the following well established rules: 

 Under familiar principles, we view the 

evidence and all reasonable inferences in the 

light most favorable to the prevailing party 

below, . . . . "The burden is on the party 

who alleges reversible error to show by the 

record that reversal is the remedy to which 

he is entitled." We are not the fact-finders 

and an appeal should not be resolved on the 

basis of our supposition that one set of 

facts is more probable than another. 

Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 

(1992)(citations omitted). 

 1. Income tax refund. 

 Under paragraph 11(g) of the separation agreement, the 

parties agreed to file joint tax returns for 1991 and agreed that 

the wife would receive $5,000 or one-half of the refund, 

whichever sum was greater. The parties received the refund 

during the attempted reconciliation and placed it in a joint 

account. The husband argues that upon deposit of the money into 

the joint account, he complied with paragraph 11(g) of the 

property settlement because the wife had access to the money. 

 The wife testified that she did not receive the $5,000. 

Furthermore, the evidence failed to prove the amount of the 

refund, the amount in the joint account at the time of the refund 

deposit and the number and amount of withdrawals from the 

account. On this evidence, the trial judge ruled the evidence 
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failed to prove that the wife received the amount she was owed. 

We agree. 

 That the wife later took the account balance of $2,900, did 

not prove that she received the $5,000 that the husband owed her. 

 The evidence did not prove that the remaining balance was a 

portion of the refund. Without proof of the account transactions 

we cannot say the trial judge should have credited the husband 

for the $2,900 withdrawn by the wife. The wife testified that 

she did not receive $5,000. The evidence does not disprove the 

hypothesis that the husband removed from the account the refund 

amount and other sums. Thus, the ruling is not plainly wrong or 

without evidence to support it. Box v. Talley, 1 Va. App. 289, 

293, 338 S.E.2d 349, 351 (1986). 

 2. Life insurance policy. 

 Paragraph 11(h) of the initial agreement stated that the 

parties "shall be or remain the beneficiary of all life insurance 

policies on each other's life in effect as of January 1, 1990." 

During the marriage two different life insurance policies insured 

the husband and named the wife as the beneficiary. In the final 

decree the trial judge ordered the husband to "maintain a life 

insurance policy, similar to the policy or policies in effect on 

his life as of January 1, 1990, with [the wife] as the 

beneficiary." The husband claims that he fulfilled the terms of 

the agreement and that the wife should be estopped from enforcing 

this provision of the agreement. 
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 The husband testified that he and the wife jointly decided 

during the reconciliation to let one policy lapse because of its 

exorbitant cost. The wife testified that the policy lapsed but 

did not explain why. Thus, the husband's testimony was 

uncontradicted. "'Elements necessary to establish equitable 

estoppel, absent a showing of fraud and deception, are a 

representation, reliance, a change of position, and detriment.'" 

Lataif v. Commercial Indust. Constr., Inc., 223 Va. 59, 63, 286 

S.E.2d 159, 161 (1982)(citation omitted). See also Emrich v. 

Emrich, 9 Va. App. 288, 294, 387 S.E.2d 274, 276-77 (1989). The 

husband's testimony that they allowed the policy to lapse because 

both he and the wife agreed that the policy cost too much 

establishes that the husband acted out of reliance upon the 

wife's statements. See Khoury v. Memorial Hospital, 203 Va. 236, 

243, 123 S.E.2d 533, 538 (1962). Because he changed his position 

to his detriment, we hold that the trial judge erred in not 

estopping the wife from enforcing this portion of the agreement. 

 The evidence also proved that the husband's employer 

terminated his other life insurance benefit for which the wife 

was named a beneficiary. The agreement only required that the 

wife remain a beneficiary of this policy. Thus, the husband 

complied with the agreement even though the employer terminated 

the benefit. Furthermore, the parties did not reasonably foresee 

the cancellation of the policy at the time of the agreement. 

Consequently, we hold that the trial judge erred in requiring the 
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husband to obtain replacement policies. 

 3. $1,800 payment. 

 Under paragraph 11(i) of the agreement, the husband agreed 

to pay the wife $1,800 on January 1, 1992. The wife testified 

that she did not receive the money. The husband testified that 

she refused the sum when he offered it to her. 

 The husband argues that the wife should be estopped from 

collecting because she refused his tender. He also argues that 

he should be credited for the $2,900 she withdrew from their 

joint bank account. Based on the ruling on this issue, the trial 

judge obviously chose to believe the wife's testimony over that 

of the husband's. Nothing in the record suggests that this 

finding of fact was plainly wrong. Bailes v. Sours, 231 Va. 96, 

100, 340 S.E.2d 824, 827 (1986). As we previously stated, the 

proof regarding the amount and use of funds in the account is 

lacking. Accordingly, we find no error. 

 4. Sale of the marital residence. 

 Paragraph 12 of the agreement required the jointly-owned 

marital residence to be sold unless the husband purchased the 

wife's interest by June 1, 1992. The uncontradicted evidence 

proved that the husband had not purchased the wife's interest by 

that date. Accordingly, we hold that the trial judge did not err 

in ordering the sale. 

 5. Husband's payment of $400 per month to the

wife until the sale of the marital residence. 
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 The parties waived spousal support and other rights in 

paragraph 14 of the agreement except as follows: 

 "[I]f the home of the parties is not sold by 

January 1, 1993 and the proceeds divided by 

the parties, Husband shall pay to the Wife 

the sum [of] $400.00 per month until such 

time as Wife receives her share of the 

proceeds from the sale of the home . . . 

unless the receipt of the proceeds is delayed 

due to Wife's unreasonable refusal to 

cooperate in the sale of the home." 

 The husband testified that he "stopped [paying $400 monthly] 

when the Appeals Court passed its ruling on the validity of the 

Agreement." He claimed that the wife "unreasonabl[y] refus[ed] 

to cooperate in the sale of the home." However, the wife 

testified that they received offers to sell the residence and the 

husband refused the offers. Upon this evidence the trial judge 

found that the wife did not unreasonably refuse to cooperate in 

the sale of the home. The trial judge has the duty to resolve 

witnesses' credibility and such "findings will not be reversed on 

appeal unless plainly wrong or without evidence to support them." 

Wyatt v. Virginia Dep't of Social Servs., 11 Va. App. 225, 230, 

397 S.E.2d 412, 415 (1990). We hold that the trial judge 

committed no error in resolving this issue. 

 6. The wife's attorney's fees. 

 The husband agreed to pay one-half of the wife's attorney's 

fees and costs in connection with any suit for divorce or 

involving the property agreement. On this appeal, he claims that 

her contest of the validity of the agreement bars her recovery of 
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attorney's fees. 

 The decision to award attorney's fees is within the 

discretion of the trial judge and will only be reversed for an 

abuse of discretion. Ingram v. Ingram, 217 Va. 27, 29, 225 

S.E.2d 362, 364 (1976). "[T]he key to a proper award of 

[attorney's] fees [is] reasonableness under all of the 

circumstances revealed by the record." McGinnis v. McGinnis, 1 

Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). After hearing the 

evidence in this case, the trial judge did not abuse his 

discretion in awarding the wife $750 in attorney's fees for the 

preparation of the settlement agreement and representation in the 

divorce proceeding. 

 7. Credit of $2,500 for the items in the garage. 

 The husband received ownership of the contents of the garage 

under paragraph 11(b) of the agreement. The husband testified 

that he never obtained possession of the items in the garage 

because they were removed during the time he was locked out of 

the house. Based upon the husband's testimony as to the value of 

the property in the garage, the trial judge did not err in 

allowing a $2,500 credit for the items. 

 8. The husband's attorney's fees. 

 In Paragraph 10 of the agreement, the parties agreed that 

the defaulting party should be responsible for any costs incurred 

by a party successfully enforcing the agreement. The husband's 

exhibits showed that during two different time periods he paid 
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legal fees of $3,905 and $4,630.52. The same trial judge heard 

all of the evidence and issued all of the decrees in this case. 

Based upon his familiarity with the proceedings, we do not find 

that he abused his discretion in reducing the husband's recovery 

to $2,500. Ingram, 217 Va. at 29, 225 S.E.2d at 364. 

 9. The husband's costs. 

 The husband argued that he incurred costs of $57,671.61 

because the wife refused to honor the agreement. The husband 

prepared an exhibit of those costs. However, the evidence failed 

to establish that those costs had an actual nexus to any loss 

that he suffered because of the wife's conduct. The husband 

offered no explanation of most of the costs. Without further 

evidence of why he incurred such costs, we will not reverse the 

trial judge's ruling. 

 10. Personal property. 

 The husband contended that the evidence proved he acquired 

separate tangible personal property with a value of $7,323 during 

the parties' separation and reconciliation. He also alleged that 

the wife took this property. The wife denied taking the 

property. The trial judge's decision based upon a resolution of 

conflicting oral testimony is not plainly wrong or without 

evidence to support it. Wyatt, 11 Va. App. at 226, 397 S.E.2d at 

412. 

 For these reasons, the judgment is affirmed except as to the 

provisions for the life insurance policies. 

 Affirmed, in part,
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 and reversed, in part.