COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Felton and Kelsey 

Argued at Richmond, Virginia 

CRISTIE A. BINHAMMER 

 MEMORANDUM OPINION* BY 

v. Record No. 1907-01-2 JUDGE WALTER S. FELTON, JR. 

 FEBRUARY 11, 2003 

DANIEL W. REILLY 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

 Paul T. Buckwalter, II, for appellant. 

 Jennifer E. Crossland (William H. Parcell, 

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

briefs), for appellee. 

 Cristie Binhammer ("Binhammer") appeals from a final order of 

partition of the marital home dated June 8, 2001. She contends on 

appeal that the trial court erred (1) in voiding as a mutual 

mistake of facts, the property clause, paragraph (D)(16), in the 

property settlement agreement; (2) in failing to estop Daniel 

Reilly ("Daniel") from claiming a higher value for his interest in 

the family home, after acquiring his father's interest; and (3) in 

rewriting the terms of the property settlement agreement and 

increasing the value of Daniel's interest in the family home. For 

the following reasons, we affirm the judgment of the trial court. 

 

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

designated for publication.
I. BACKGROUND

 On June 14, 1980, Cristie Binhammer and Daniel Reilly were 

married. In June 1987, with the substantial financial 

assistance of Daniel's father, William Reilly ("William"), the 

couple purchased a house. William provided the couple with 

approximately $10,000 as a down payment on the real estate and 

for closing costs. He was an applicant with Binhammer and 

Daniel for the purchase money loan for the property. 

 Binhammer and Daniel dispute whether the $10,000 was a loan 

or a gift. Binhammer claims the money was a gift. Daniel 

contends the money was a loan and that his father informed the 

couple that they did not have to pay interest to him on the 

$10,000 he provided. However, Daniel further contends that if 

the house was sold, his father expected to be repaid. In 

addition, the parties agreed that in return for the down 

payment, William would be permitted to claim the value of 

mortgage interest payments as a deduction on his tax returns. 

He filed for the deduction on his tax returns each year until 

1996, even though Daniel and Binhammer separated in 1991 and 

divorced in 1993. In 1996, Binhammer refused to provide William 

Reilly with the necessary documentation to claim the interest 

deduction. 

 On June 12, 1987, the house was conveyed by deed to 

Binhammer, Daniel, and William. The deed conveyed the property 

as follows: 

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This deed made this 12th day of June, 1987, 

by and between Richard G. Zyne and Paula C. 

Zyne, husband and wife, herein called 

"Grantor" and Daniel W. Reilly and Cristie 

A. Reilly, husband and wife, and William C. 

Reilly, herein called "Grantee": 

Witness that for and in consideration of the 

sum of Ten Dollars ($10.00) and other 

valuable consideration . . . the said 

Grantors do hereby grant and convey with 

General Warranty and English Covenants of 

Title to the said Daniel W. Reilly and 

Cristie A. Reilly, his wife, a two thirds 

undivided interest as tenants by the 

entirety with the right of survivorship as 

at common law in and to the below described 

real property and to William C. Reilly, 

married, a one third undivided interest as 

his sole separate equitable estate to be 

held, owned, and disposed of as hereinafter 

set forth in and to the below described real 

property; the said Daniel W. Reilly and 

Cristie A. Reilly, his wife, and William C. 

Reilly, married, to hold title as joint 

tenants with the right of survivorship as at 

common law . . . . 

(Emphasis added.) 

 On June 16, 1991, Binhammer and Daniel separated. On March 

22, 1993, they entered into a property settlement agreement that 

purported to address, among other things, their respective 

interests in the home. The property settlement agreement states 

in relevant part: 

D. REAL ESTATE 

 16. MARITAL RESIDENCE. The parties 

agree that Husband's share of the equity in 

the home shall be fixed at $2,000.00 and 

shall be paid by Wife to Husband upon the 

earlier of (a) the sale of the home or (b) 

remarriage of the Wife. 

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Husband hereby relinquishes all right, title 

and interest in the home other than that 

designated herein. Wife shall be 

responsible for all maintenance. 

This agreement is based upon the following 

assumptions: 

(1) Husband's father has no financial claim 

against the home.

(2) Wife is free to sell the home at her 

sole discretion.

(3) Husband may not use this figure to 

offset other obligations. 

(Emphasis added.) 

 William was not a party to the property settlement 

agreement and was not consulted by Binhammer or her attorney, 

who prepared the document, prior to the execution of the 

agreement. The agreement was affirmed, ratified, and 

incorporated into the final decree of divorce on May 4, 1993. 

On August 1, 1996, William Reilly executed a will leaving his 

interest in the home to his son. The will states in pertinent 

part: 

I devise all of my right, title and interest 

in and to certain lot(s) and home located at 

8245 Greenock Drive, Richmond, VA 23235, to 

my son, Daniel W. Reilly, in fee simple. 

Any indebtedness on said property will be 

assumed by Daniel W. Reilly and not paid 

from my estate. 

 In 1997, on a date not specified in the record, Binhammer 

remarried. Subsequent to the marriage, however, she failed to 

pay Daniel the $2,000 for his share of the equity in the home, 

as required by the property settlement agreement. Also in 1997, 

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Binhammer filed an application to obtain a loan for the home. 

In order to obtain the loan, she mailed a deed to Daniel and 

William asking for the transfer of their respective interests in 

the home to her so that she would be the sole owner of the 

property. Neither signed the deed because of the final illness 

of William. The loan fell through. 

 Shortly thereafter, William Reilly died. Relying on the 

provisions of his father's will, Daniel asserted ownership to 

his father's one-third interest in the home. Relying on the 

property settlement agreement, Binhammer initiated a suit for 

specific performance to obtain, for $2,000, the original 

one-third interest held by Daniel as well as the one-third 

interest that passed to him through William's will. 

 On November 2, 2000, following a number of hearings, the 

trial court held that the disposition of the marital residence 

was based on certain assumptions, assumptions that "were not 

accurate and constitute a mutual mistake of fact. The first 

assumption was that 'husband's father has no financial claim 

against the home.' The evidence is clear that the husband's 

father had a legal interest in the home and, therefore, had a 

financial claim against the home." As a result, the court 

severed paragraph (D)(16) from the property settlement agreement 

relating to the sale of the marital property and held the real 

estate was subject to partition. Based on the language of the 

1987 deed conveying the property and the transfer of William's 

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interest at his death, the trial court ruled that Daniel owned a 

two-thirds undivided interest in the property and that Binhammer 

owned a one-third undivided interest. 

 On March 7, 2001, an ore tenus hearing was held. The trial 

court reiterated its finding that Daniel owned a two-thirds 

undivided interest and that Binhammer owned a one-third 

undivided interest in the property. It set the equity property 

value at $33,441.15 and permitted either party to purchase the 

share of the other party. On June 8, 2001, the trial court 

entered a final order of partition. Daniel was ordered to 

convey his two-thirds interest in the property to Binhammer in 

return for payment in the sum of $22,291.87. Binhammer 

subsequently paid Daniel for his two-thirds undivided interest 

and Daniel conveyed to Binhammer by deed, his undivided 

interests in the subject property. 

II. ANALYSIS

 "Under familiar principles we view [the] evidence and all 

reasonable inferences in the light most favorable to the 

prevailing party below. Where, as here, the court hears the 

evidence ore tenus, its finding is entitled to great weight and 

will not be disturbed on appeal unless plainly wrong or without 

evidence to support it." Pommerenke v. Pommerenke, 7 Va. App. 

241, 244, 372 S.E.2d 630, 631 (1988) (quoting Martin v. 

Pittsylvania Dep't of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 

13, 16 (1986)). 

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 This matter has been subject to a long and tortuous 

journey, including several prior show cause orders issued by 

this Court resulting from Binhammer's failure to adhere to our 

rules for filing an appeal. The sole issue before us is whether 

the trial court correctly determined the value of the parties' 

respective interests in the marital home. The dispute arises 

out of paragraph (D)(16) of the property settlement agreement 

relating to the disposition of the marital home. 

 During oral arguments on November 14, 2002, the question 

was raised as to whether we had jurisdiction to hear the appeal 

from the final order of partition, a proceeding in equity. The 

parties were asked to brief this additional question. Having 

reviewed the briefs filed by counsel and considered the matter, 

we conclude that we have jurisdiction pursuant to Code 

§§ 17.1-405(3)(f) and 8.01-670(A)(1)(a). 

A. MUTUAL MISTAKE

 We first consider whether the trial court erred in voiding 

as mutual mistake of facts, paragraph (D)(16) of the property 

settlement agreement. We find that it did not. 

Generally, "[i]f certain facts are assumed 

by both parties as the basis of the 

contract, and it subsequently appears that 

such facts did not exist, the contract is 

inoperative." Virginia Iron, Coal, & Coke 

Co. v. Graham, 124 Va. 692, 708, 98 S.E. 

659, 664 (1919). 

The mistake may be common to both parties to 

a transaction, and may consist either in the 

expression of their agreement, or in some 

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matter inducing or influencing the 

agreement, or in some matter to which the 

agreement is to be applied. Nothing is more 

clear in equity than the doctrine that a 

contract founded in mutual mistake of the 

facts constituting the very basis or essence 

of it will avoid it. 

Jennings v. Jennings, 12 Va. App. 1187, 1192, 409 S.E.2d 8, 12 

(1991). 

 We agree with the trial court that paragraph (D)(16) of the 

property settlement agreement was void because it was based on 

the mutual mistake of facts assumed by the parties. The 1987 

deed to the marital house clearly provides William Reilly with a 

one-third undivided interest. His name appears on the purchase 

money loan documents. Additionally, he provided the parties 

with a substantial down payment on the purchase price of the 

house and paid the closing costs. Despite the glaring evidence 

of William's interest in the house, Binhammer's attorney 

prepared the property settlement agreement without contacting 

William as to his claims against the property and without 

seeking to make him a party to the agreement. As drafted and 

executed, the property settlement agreement assumed that William 

had no financial claim against the home and that Binhammer was 

"free to sell the home at her sole discretion." Both 

assumptions were impossible to complete without affirmative acts 

by William. The evidence clearly shows that William had an 

interest in the house and because of that interest, Binhammer 

was unable to sell it at her sole discretion. Since the 

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property settlement agreement was based on assumed facts that 

did not exist, the trial court did not err in voiding and 

severing paragraph (D)(16) on the grounds of mutual mistake of 

facts. 

B. EQUITABLE ESTOPPEL

 Having determined that the trial court did not err in 

voiding paragraph (D)(16) in the property settlement agreement 

because of mutual mistake of facts, we next consider whether the 

trial court erred in failing to estop Daniel from claiming a 

greater value for his interest in the family home than that 

recited in paragraph (D)(16), particularly the claim of his 

father's interest in the property acquired at his father's 

death. The doctrine of equitable estoppel provides that a 

"party is prevented by his own acts from claiming a right to 

[the] detriment of [the] other party who was entitled to rely on 

such conduct and has acted accordingly." Blacks Law Dictionary

551 (6th ed. 1990). 

The elements necessary to establish 

equitable estoppel are (1) a representation, 

(2) reliance, (3) change of position, and 

(4) detriment, and the party who relies upon 

estoppel must prove each element by clear, 

precise, and unequivocal evidence. Dominick 

v. Vassar, 235 Va. 295, 298, 367 S.E.2d 487, 

489 (1988). Because the doctrine of 

estoppel prevents the showing of the truth, 

it is applied rarely and only from 

necessity. 

Princess Anne Hills Civic League, Inc. v. Susan Constant Real 

Estate Trust, 243 Va. 53, 59, 413 S.E.2d 599, 603 (1992). 

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Binhammer failed to prove the elements of estoppel by clear and 

unequivocal evidence. 

 Binhammer asserts that when Daniel signed the property 

settlement agreement he represented that his father had "no 

financial claim" against the home, thereby barring his claim to 

any ownership interest of his father. Contrary to her 

assertions, the record does not support such a contention. To 

start, the trial court voided paragraph (D)(16) on which her 

contention is based. With paragraph (D)(16) voided and severed 

from the property settlement agreement, we must look to the 

record for evidence that Daniel had affirmatively represented 

that his father did not have an ownership interest in the 

marital home and that Binhammer reasonably relied on that 

representation. We find no such evidence. 

 The record before us indicates that Daniel's position has 

consistently been that his father loaned the parties the money 

to purchase the house and expected repayment should the house be 

sold. The record reflects that neither Binhammer nor her 

attorney contacted William to verify that he "had no financial 

claim against the property." The record also reflects that 

Daniel told Binhammer that she should talk with William about 

any interest he claimed in the property. 

 It is inconceivable that Binhammer would rely on the 

assumption that her father-in-law possessed no ownership or 

financial interest in the marital home when the evidence clearly 

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and overwhelmingly indicates the contrary. William's ownership 

interest is reflected in the deed that creates a joint tenancy 

with the right of survivorship of a one-third undivided interest 

in the house. Furthermore, he provided a substantial down 

payment for the property. His name appears on the purchase 

money loan documents, and he deducted the interest from the 

house payments, even for several years after they were divorced, 

in lieu of Daniel and Binhammer making interest payments to him. 

Neither Binhammer nor her attorney who drafted the property 

settlement agreement contacted William to determine if the 

assumptions were correct. Daniel had no authority to relinquish 

any ownership interest his father possessed in the property or 

the interests of any other third party without their consent. 

Any reliance on the assumptions would be per se unreasonable 

under the facts of this case. 

 Failing to prove the threshold elements, we need not 

consider the other factors. We hold that the trial court did 

not err in finding the evidence insufficient to apply the 

doctrine of equitable estoppel. 

C. VALUE OF DANIEL REILLY'S INTEREST

 Finally we consider whether the trial court erred in 

determining the value of Daniel's interest in the marital home, 

at the time of his father's death. In the trial court below, 

Binhammer requested that the marital home be partitioned and the 

interests be valued as follows: (1) William's interest to be 

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valued at zero, and (2) Daniel's one-third interest to be valued 

at $2,000, based on the value set in the property settlement 

agreement. The trial court refused such a valuation, finding 

that Daniel and Binhammer based the disposition of the marital 

home on certain assumptions it found to be mutual mistake of 

facts. The court severed paragraph (D)(16) of the property 

settlement agreement and ordered the property to be partitioned. 

It determined from the evidence before it that Daniel owned a 

two-thirds undivided interest and Binhammer a one-third 

undivided interest. 

 The 1987 deed to the marital home clearly established that 

from the time the home was purchased until his death, William 

Reilly possessed a one-third undivided interest. Upon his 

death, his will provided that any interest he owned in the 

property would pass to Daniel. There is some question as to 

whether William's one-third undivided interest passed by devise 

under his will or passed in equal shares, to Binhammer and 

Daniel, upon his death, as tenants in common by virtue of the 

joint survivorship under the grantee clause of the deed.1 

However, the parties failed to preserve or brief that issue for 

appellate review. Rule 5A:18. The evidence reflects no 

 1 See Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 

(1984). Code § 20-111 provides that divorce creates a tenancy 

in common between former spouses who held the property during 

the marriage as tenants by the entirety with the right of 

survivorship as at common law. 

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miscarriage of justice or other good cause justifying an 

exception to the operation of Rule 5A:18. Binhammer acquired 

the entirety of Daniel's fee simple interest in the property by 

deed pursuant to the partition order. 

 The judgment of the trial court is affirmed.2

 Affirmed. 

 2

 The Court denies Binhammer's request that she be awarded 

attorney's fees and costs in this appeal. Her continued 

insistence that William Reilly had no financial claim or 

ownership interest in the property, despite the clear language 

of the deed of conveyance, his substantial monetary contribution 

toward the purchase of the home, and his name being on the loan 

documents, has resulted in unnecessarily protracted litigation. 

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