COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Frank 

Argued at Salem, Virginia 

JAMES P. HART, III 

 

v. Record No. 1574-00-3 

 

MARIE HOLT HART (NOW PRATT) OPINION BY 

 JUDGE ROSEMARIE ANNUNZIATA 

MARIE HOLT HART (NOW PRATT) APRIL 3, 2001 

v. Record No. 1603-00-3 

JAMES P. HART, III 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Lawrence D. Diehl, Judge Pro Tempore

 Melissa W. Friedman (Charles B. Phillips; 

Phillips, Swanson & Phillips, on briefs), for 

James P. Hart, III. 

 William H. Cleaveland (Leisa Kube Ciaffone; 

Rider, Thomas, Cleaveland, Ferris & Eakin; 

Gentry, Locke, Rakes & Moore, on briefs), for 

Marie Holt Hart (now Pratt). 

 This divorce action is before us for the second time. 

Previously, in Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496 

(1998), we reversed four rulings made by the Roanoke County 

Circuit Court and remanded the case for further proceedings 

consistent with our ruling. 

 On this second appeal, James P. Hart, III (husband) and 

Marie Holt Hart (now Marie Holt Pratt) (wife) separately appeal 

several of the trial court's rulings on remand. The husband 
alleges that, on remand, the trial court erred: (1) in 

modifying the easement over husband's partitioned parcel, which 

the trial court granted in the original divorce decree; (2) in 

determining the value of husband's separate property 

contributions made to the parties' New York property and in 

failing to properly recalculate husband's interest in the 

parties' USAA Bond Fund account, which contained proceeds from 

the New York mortgage note; (3) in computing the increase in 

value of wife's contribution of her separate property to the 

parties' USAA Bond Fund account; and (4) in ruling that a 

portion of the parties' jointly owned real estate, "Parcel A," 

must be placed on the real estate market for sale at fair market 

value. 

 Wife cross-appeals, alleging the court erred: (1) in 

allowing the husband to introduce additional evidence of his 

contributions of separate property to the parties' New York 

property and in failing to properly recalculate each party's 

portion of the USAA Bond Fund account; and (2) in finding that 

wife had not properly exercised her option to purchase Parcel A. 

 For the following reasons, we affirm in part, reverse in 

part, and remand for further proceedings consistent with this 

opinion. 

BACKGROUND

 The parties were married in New York in 1968 and lived in a 

home that husband had purchased before the marriage for $27,000. 

 - 2 - 
In 1986, they sold the New York home for $259,000, receiving a 

part payment of $40,000 and a $219,000 twenty-year promissory 

mortgage note. After selling the New York home, the parties 

opened a USAA Bond Fund account using the $40,000 down payment 

they received for the New York home as the initial deposit. 

Over the years, money from various sources was deposited into 

the account, including the New York mortgage note payments and 

$20,500 that wife inherited from a relative. 

 The parties moved to Virginia, where they purchased a 

forty-two acre parcel of land, called Plantation Point, which is 

located on Smith Mountain Lake. At Plantation Point, they built 

a home for themselves, eight rental units, and a home for wife's 

parents. 

 The parties separated on February 4, 1994, and husband 

filed for divorce in October, 1994. The trial court appointed a 

commissioner in chancery to hear evidence and make 

recommendations regarding equitable distribution of the parties' 

property. The trial court issued a final divorce decree and 

approved the commissioner's equitable distribution 

recommendations with some modifications. 

 Both parties appealed the final decree. On appeal, we 

reversed four of the trial court's rulings, three of which are 

relevant to this appeal. 

 In the final decree, the trial court divided the Plantation 

Point property into three parcels. The court awarded the 

 - 3 - 
husband the marital home and four of the eight rental units, and 

awarded the wife the home that had been built for her parents 

and the remaining four rental units. A third parcel, "Parcel 

A," was to remain titled to both parties as tenants in common. 

The final decree gave husband first option to purchase wife's 

interest in Parcel A. Husband had sixty days from the entry of 

the final decree within which to exercise the option. If 

husband failed to exercise the option, wife was given sixty days 

to purchase husband's interest in Parcel A. If neither party 

exercised their option within the respective option periods, the 

final decree provided that "the property shall be placed on the 

market with an agreeable realtor at a fair market value and 

sold, and the parties shall divide the net proceeds from the 

sale equally." 

 In the final decree, the trial court established easements 

on each party's tract for ingress and egress. The easement over 

husband's tract granted the wife ingress and egress rights to a 

boat ramp on Smith Mountain Lake. The court ruled that the cost 

of maintaining each of the two easements "shall be the sole 

responsibility of the respective owners" of the tracts across 

which the easements run. We reversed this ruling, finding that 

because both parties and their tenants would use the two 

easements, the costs of maintaining and repairing the easements 

must be apportioned between the parties. We remanded the case 

to the trial court to "redetermine the parties' responsibilities 

 - 4 - 
for the maintenance costs of the joint easements in accordance 

with our holding." 

 The trial court also divided the parties' interests in the 

mortgage note from the New York home. Because husband had 

purchased the home before the parties married, the court 

classified the note as hybrid property. The court concluded 

that in addition to making a $2,700 down payment on the home, 

husband had made pre-marital mortgage payments in the amount of 

$3,565 and had made improvements to the home prior to the 

marriage at a cost of $10,000. The court further found that the 

parties contributed $17,335 of marital property to the 

post-marital mortgage payments. Based on these figures, the 

court determined that the New York property and, thus, the 

balance of the mortgage note, was 48.4% husband's property and 

51.6% marital property. 

 We reversed the calculation, finding that the trial court 

erred in including the cost of the improvements made by husband, 

rather than the value those improvements added to the property. 

We directed that "on remand, the chancellor shall determine the 

husband's separate interest based on the value added by the 

improvements rather than their cost." 

 In the final divorce decree, the court divided the parties' 

interest in the USAA Bond Fund account. During the marriage, 

wife inherited $20,500, which was deposited into the account. 

The trial court ruled that the inheritance had been commingled 

 - 5 - 
with marital property to the extent that it was no longer 

separate property. We reversed this ruling and held that the 

inheritance money was wife's separate property. On remand, we 

directed the trial court to reclassify the USAA Bond Fund 

account, taking into account wife's separate contribution of the 

inheritance proceeds as well the correct percentage of husband's 

separate property interest in the New York mortgage note. 

 On January 15, 1999, the trial court held an evidentiary 

hearing on the remanded issues. In addition, by agreement of 

the parties, the court heard evidence concerning the purchase of 

Parcel A that arose subsequent to the first appeal. The court 

entered an order resolving the issues on November 16, 1999, and 

these appeals followed. 

ANALYSIS

I. 

Easement

 Husband alleges the trial court, on remand, exceeded its 

authority in amending the definition of the easement over 

husband's property. We agree. 

 Following the first appeal, we remanded the case to the 

trial court to reallocate the parties' responsibilities for 

maintenance costs for the two easements. On remand, the trial 

court ordered the parties to divide the costs equally. After 

ruling on this matter, the court stated, "[i]n addition to the 

ruling of the court on the specific remand issue, the court has 

 - 6 - 
been requested to clarify the extent, width or other parameters 

of the easements . . . ." The court then established detailed 

specifications for the easements. We hold that the court erred 

in doing so. 

 In the final decree, the court granted each party an 

easement over the other party's parcel "[i]n order to permit 

access of the parties to their residences, and for the 

tenants . . . ." The easement in question over husband's 

property was described as follows: 

[Wife] and her tenants shall have the joint 

use of Trah Drive for ingress and egress 

over such portions of such roadway contained 

on Parcel C [husband's property] . . . 

including access from Blackwood Road to the 

Southern part of such road and the branch 

extending from said road to the existing 

boat ramp . . . . 

Neither party appealed the grant of the easements or the 

description provided by the trial court. 

 On remand, the trial court supplemented its description of 

the easement.1 The court referred to the original report of the 

 1

 On remand, the trial court ordered the following: 

The specifications of the easements shall be 

as follows: 

 - 7 - 

(1) Based upon the testimony of the parties, 

it is the opinion of the court that the 

easement of ingress and egress for all joint 

use easements affecting the property of each 

party should be no less than a width of 

FIFTEEN (15) feet. This will permit the 

passage of two vehicles in opposite 

directions and the towing of reasonably 

sized boats on trailers. 
 

 -

(2) At the bottom of Trah Drive at the boat 

ramp spur, the easement should be expanded 

to a width of not less than FORTY-FIVE (45) 

feet or at such width as determined by the 

parties, as will enable a vehicle towing a 

boat trailer to turn around. The ability of 

such a vehicle to turn around after dropping 

off a boat was certainly implied and was the 

intent of the court since it would be 

unreasonable to assume that Mr. Hart would 

require a vehicle to drive backwards with an 

attached trailer along the entire length of 

the road after dropping off the boat at the 

ramp location. The court assumes that the 

parties can determine the parameters of the 

location of such an easement for such 

purposes in the final easement to be drafted 

herein. The ingress and egress shall be to 

and include access to the boat ramp itself 

sufficient to place a boat into the water of 

the lake from such ramp and shall be up to 

the 800 foot contour line of the property 

owned by Mr. Hart, or such expanded 

ownership beyond said line if owned by Mr. 

Hart and if necessary to permit access of 

boats into the water at the ramp 

location. . . . 

(3) The easement at the area near the boat 

ramp location should also be of sufficient 

size to permit the parallel parking of only 

the vehicles used for towing and trailers 

for the applicable boat along the side of 

the access easement during the use of such 

boat so as to avoid the requirement that a 

user would have to drive the vehicle and 

trailer all the way back to their rental 

unit and then walk back down to the boat. 

Any such proposal that such a vehicle and 

trailer cannot be kept near the boat ramp 

during the use of the boat would, in effect, 

defeat the reasonable effectuation of an 

ingress and egress easement and use of the 

boat ramp as originally contemplated by the 

commissioner and court. In common 

experience, where one uses a boat ramp in a 

reasonable manner, that includes within the 

parameters of a reasonable easement access, 

the ability to park within a near proximity 

8 -
commissioner, which was approved by the trial court and 

incorporated into the final divorce decree. The commissioner's 

report provided "a specific access (ingress and egress) easement 

for boats and recreational access from the bottom of the tract 

Parcel B across Parcel C to the waterfront with sufficient width 

to permit reasonable boating access to the boat ramp . . . ." 

 Because wife did not appeal the easement granted in the 

final divorce decree, husband objected to the court's 

"clarification" of the easement, arguing that the divorce decree 

was a final order, which after twenty-one days, could not be 

modified by the trial court. Rule 1:1. The court held that its 

"clarification" of the terms of easement did not constitute an 

impermissible modification of its original order and that even 

 

 - 9 - 

to the ramp after placing the boat in the 

water. Any other interpretation would defy 

common sense. Such a reasonable easement 

and use shall be included in the easement to 

be awarded to Mrs. Pratt for such boat ramp 

access. Based upon the testimony of Mrs. 

Pratt, the length of said parallel parking 

easement shall be at least 300 feet from the 

boat ramp up Trah Drive in order to 

accommodate a sufficient number of vehicles 

and boat trailers. Pursuant to the parties 

agreement and testimony, and while the court 

understands that Mr. Hart does not agree to 

this ruling, the said parking easement shall 

be located on the west side of the access 

road easement. The width shall be an 

additional TEN (10) feet to the west of the 

general access road easement in order to 

accommodate the width of the vehicle and 

trailer and sufficient parking placement so 

as to avoid any technical interference with 

Mr. Hart's land. 
after twenty-one days "[t]he court has the power to clarify its 

orders where there are clerical errors or omissions pursuant to 

Va. Code Section 8.01-428(B)." 

 As the trial court acknowledged, under Rule 1:1, twenty-one 

days after a court issues a final order, the court loses 

jurisdiction over the case and cannot thereafter modify, 

suspend, or vacate its final order. Code § 8.01-428(B) 

provides: "[c]lerical mistakes in all judgments or other parts 

of the record and errors therein arising from oversight or from 

an inadvertent omission may be corrected by the court at any 

time . . . ." We find that the "clarification" made in this 

case does not constitute a clerical mistake or error as 

contemplated by Code § 8.01-428(B). Such mistakes or omissions 

must be apparent from the record. Cass v. Lassiter, 2 Va. App. 

273, 277, 343 S.E.2d 470, 473 (1986) ("Code § 8.01-428(B) 

confers upon a court the power to correct . . . clerical 

mistakes in judgments which arise from oversight or inadvertent 

omission. However, to invoke such authority the evidence must 

clearly support the conclusion that an error of oversight or 

inadvertence has been made."). In this case, however, the court 

heard new evidence on the matter and elaborated on its original 

decree. 

 - 10 - 
 We likewise find that the court lacked authority to modify 

its award under Code § 20-107.3(K)(4).2 The clear language of 

that statute limits the court's authority to modification of 

awards dealing with pensions or retirement benefits. 

 Finally, we find that the court's "clarification" of the 

easement definition impermissibly exceeded the scope of its 

remand jurisdiction. Searles' Adm'r v. Gordon's Adm'r, 156 Va. 

289, 294-99, 157 S.E. 759, 761-62 (1931); Krise v. Ryan, 90 Va. 

711, 712-13, 19 S.E. 783, 783-84 (1894); Kaufman v. Kaufman, 12 

Va. App. 1200, 1207-10, 409 S.E.2d 1, 5-7 (1991). Wife never 

appealed the grant of the easement or its scope; therefore, we 

did not consider that issue on appeal. We remanded the easement 

issue for the explicit purpose of reallocating the parties' 

responsibilities for the maintenance costs of the easements. 

"Clarification" of the scope of the easement was not necessary 

to the maintenance issue, nor did the court clarify the 

 2

 Code § 20-107.3(K)(4) provides: 

The court shall have the continuing authority 

and jurisdiction to make any additional 

orders necessary to effectuate and enforce 

any order entered pursuant to this section 

[giving the court authority to decree as to 

the property of the parties], including the 

authority to . . . [m]odify any order entered 

in a case . . . intended to affect or divide 

any pension, profit-sharing or deferred 

compensation plan or retirement benefits 

pursuant to the United States Internal 

Revenue Code or other applicable federal 

laws, only for the purpose of establishing or 

maintaining the order as a qualified domestic 

relations order or to revise or conform its 

 - 11 - 
definition for that purpose. Indeed, the court in its order 

indicated that the issues were independent and that it was 

considering the easement scope issue "in addition" to the 

"specific remand issue." 

 Wife had twenty-one days to seek "clarification" or 

modification of the easement scope or to appeal the court's 

final order on that issue. However, wife failed to do so; 

therefore, the order became final, and the trial court lacked 

jurisdiction to alter the easement definition. 

II. 

Improvements to the New York Property

 Husband alleges the trial court erred in valuing the 

pre-marital improvements husband made to the parties' New York 

home. Wife alleges the court was correct in its valuation, but 

that it erred in allowing the husband to introduce evidence, on 

remand, of additional pre-marital improvements he made to the 

home. We agree that the court erred in allowing the husband to 

introduce evidence of additional improvements. 

 During the original divorce proceeding, the husband 

testified to improvements he had made to the New York home prior 

to his marriage to wife. Specifically, husband testified that 

he had installed carpeting in the home and a pool on the lot, at 

a cost of $10,000. 

 terms so as to effectuate the expressed 

intent of the order. 

 - 12 - 
 On the first appeal, we held the trial court erred in using 

the cost, rather than the value, of the improvements husband 

made to the New York property in determining what portion of the 

mortgage note was his separate property. We ordered the court, 

on remand, to "determine the husband's separate interest based 

on the value added by the improvements rather than their cost." 

 On remand, over wife's objection, the court heard new 

evidence concerning the pre-marital improvements husband had 

made to the New York home. Both husband and his first wife, 

with whom he originally purchased the New York home, testified 

concerning the improvements husband made to the home prior to 

his marriage to wife. Although during the original divorce 

proceeding the husband testified only to the cost of installing 

the carpeting and the pool, on remand, he and his first wife 

testified to various other improvements that they had made, such 

as landscaping, repairing the barn, completing the ceiling in 

the home, and installing sheet rock. 

 In order to establish the value added to the home by the 

improvements, husband introduced evidence of an increase in the 

state tax assessment of the property from the time he purchased 

the home until the time he married wife. The court found that 

based on the assessment figures alone, the house increased in 

value over $20,000 prior to husband's marriage to wife. 

 However, the court discounted the increase in value to 

$10,000 because "some of the improvements were completed after 

 - 13 - 
the new assessment was placed on the property" and "many of such 

items were not capital improvements, but were more in the nature 

of general repairs and maintenance for which no increase in 

value can be attributable." The court also found that the tax 

assessment value husband presented at the remand hearing 

exceeded the value of the home he testified to during the 

original divorce proceeding. Based on his original testimony, 

the house only increased in value by $10,000 prior to his 

marriage to wife. The court, therefore, held that husband was 

limited to his testimony during the first trial as to the 

overall increase in value of the home. 

 We agree with wife that the court erred in admitting 

evidence of additional improvements husband made to the home. 

The scope of remand was limited to determining the value the 

carpeting and the pool added to the home; therefore, evidence of 

further improvements was beyond the scope of remand. Newton v. 

Newton, 202 Va. 96, 100-01, 116 S.E.2d 94, 97 (1960); Krise, 90 

Va. at 712-12, 19 S.E. at 783-84. Although the court did not 

find the property had increased in value to the full extent of 

the tax assessment increase, and although the court stated that 

it was not premising its decision on the repair and maintenance 

improvements that were made, it is not clear from the court's 

order whether it excluded from its determination of the increase 

in value in husband's property the improperly admitted evidence 

and whether it limited its consideration to the increase in 

 - 14 - 
value which the carpeting and pool added to the property. 

Therefore, we remand on this issue and direct the trial court to 

determine the value added to the home by the installation of the 

carpeting and the pool alone. Because a portion of the proceeds 

from the sale of the New York home, specifically the mortgage 

note, was deposited into the USAA Bond Fund account, we also 

order the trial court, following its recalculation of husband's 

separate property share of the mortgage note, to determine the 

parties' proportionate shares of the USAA Bond Fund account. 

III. 

Appreciation of Inheritance Property

 During the first appeal, we held the trial court erred in 

not classifying as separate property the $20,500 wife had 

inherited from a relative. In accordance with our ruling, on 

remand, the court reclassified the inheritance money as wife's 

separate property. During their marriage, wife had deposited 

the inheritance money into the parties' joint USAA Bond Fund 

account. On remand, wife argued she should also receive the 

passive growth of her inherited share in this account. The 

trial court awarded her a proportionate share of the overall 

growth of the account from the time she deposited the 

inheritance money until the account funds were distributed to 

the parties. Husband argues the court erred in granting wife 

this increase because she failed to establish a proper method of 

 - 15 - 
determining the growth amount attributable to the inheritance 

money. We disagree. 

 A party is entitled to the passive growth of their separate 

property where the party can provide sufficient proof of such 

increase. Moran v. Moran, 29 Va. App. 408, 415, 512 S.E.2d 834, 

837 (1999); Mann v. Mann, 22 Va. App. 459, 465, 470 S.E.2d 605, 

608 (1996). In this case, the court found that the wife had 

proven the date when she deposited the inheritance money and 

that she had made no withdrawal from the account after the 

deposit. Based on the evidence, the court was also able to 

determine the increase in value of the account over the relevant 

time period and the wife's proportionate share of that growth in 

value. Based on the evidence and the court's calculations, we 

find the trial court did not abuse its discretion in finding 

that wife had proven the value of the passive growth of her 

separate property and in awarding her the appropriate amount. 

V. 

Parcel A

 In the final divorce decree, the court divided the 

Plantation Point property into three parcels, granting Parcel B 

to wife and Parcel C to husband. The parties were to hold 

Parcel A as tenants in common. Husband had sixty days from the 

entry of the final divorce decree to "exercise his option" to 

purchase wife's share of Parcel A for $7,500 per acre. If 

husband did not exercise his option, then wife had "sixty days 

 - 16 - 
in which to purchase" husband's interest in Parcel A. If wife 

failed "to exercise her option to purchase" husband's interest, 

the court ordered that the property was to be sold at fair 

market value. Wife claims the trial court erred in finding that 

she failed to properly exercise her option to purchase Parcel A. 

We agree. 

 The final decree was entered on March 21, 1997. Husband 

did not exercise his option within the initial sixty-day period. 

Wife's attorney sent a letter to husband's attorney on June 26, 

1997 stating: 

Please accept this letter as notice that the 

Defendant, Marie Holt Hart, hereby exercises 

her option to purchase the Complainant's 50% 

interest in parcel A, at $7,500.00 per acre, 

pursuant to the Final Decree . . . . 

Mrs. Hart will tender the appropriate cash 

on or before July 18th, 1997 in exchange for 

Mr. Hart's endorsement on the appropriately 

drafted Deed. 

Husband did not respond to this letter and on July 3, 1997, 

wife's attorney sent another letter stating: "I am writing this 

letter as a follow-up to my previous letter notifying you of 

Marie Hart's intention to purchase the acreage of Parcel A, 

pursuant to the Final Decree." Wife enclosed a check for 

$2,836.80, and explained in the letter that she was deducting 

from the Parcel A purchase price various amounts husband 

allegedly owed wife. 

 The trial court found that, although wife had 

"articulat[ed] an intent to exercise the option" in a timely 

 - 17 - 
manner, by not tendering the full purchase price in her second 

letter, she had made a counter offer to husband, rather than 

exercised the option. Further, the court found that the final 

decree required the wife to complete the purchase within the 

sixty-day period. We disagree with the trial court's ruling. 

 The issue presented here has not been previously addressed 

by this Court or the Supreme Court of Virginia. However, the 

applicable principles are well-rooted in recognized principles 

of contract law. An "option" is merely a "continuing offer to 

sell, irrevocable during the option period." J.R. Kemper, 

Necessity for Payment or Tender of Purchase Money Within Option 

Period in Order to Exercise Option in Absence of Specific Time 

Requirement for Payment, 71 A.L.R.3d 1201 § 2 (1976 & Supp. 

2000). Once the optionee "exercises" the option, or accepts the 

offer, the option is converted into a bilateral contract of 

purchase and sale. Am. Jur. 2d Vendor and Purchaser § 56 

(2000). "The acceptance of an option to purchase realty must be 

absolute and unconditional, in accordance with the offer made, 

and without modification or the imposition of new terms in order 

to constitute a valid exercise of the option . . . ." Id. 

§ 49. The language of the option determines the method of 

required acceptance. Although the parties can require tender of 

payment as the method of exercising the option, unless the 

parties specify such a requirement, tender is not necessary in 

order to exercise the option. 

 - 18 - 
[W]here an option contract does not provide 

for payment of the purchase price at the 

time of, or coincident with, an optionee's 

exercise or attempted exercise of the 

option, or where such contract is silent as 

to the time of payment, the courts have 

usually adhered to the view, sometimes 

referred to as the general rule, that in 

such circumstances payment is not a 

necessary requisite to exercise but is 

instead simply one of the acts required of 

the optionee in performance of his part of 

the bilateral contract of purchase and sale 

which was formed when he communicated to the 

optionor his election or intention to 

exercise the option and thereby accepted the 

optionee's offer. 

71 A.L.R.3d 1201 § 2 (1976); see also Am. Jur. 2d Vendor and 

Purchaser § 48, § 53. 

 The general rule that unless expressly stated otherwise, 

tender is not required to exercise an option has also been 

expressed in 1 Samuel Williston & Richard A. Lord, A Treatise on 

the Law of Contracts § 5:18 (4th ed. 1990): 

Especially in cases of options for the sale 

of land, most courts interpret the option as 

conditioned upon the giving of a promise to 

pay the price for the land, that is, as 

calling for the formation of a bilateral 

contract rather than for tender of the 

actual performance, which would be required 

for acceptance in a unilateral contract. 

This interpretation accords with the common 

law preference for bilateral contracts, as 

well as with the business need of 

appropriate time for arranging the necessary 

papers or other arrangements required to 

make the conveyance. 

 

 This general rule also comports with the Restatement 

(Second) of Contracts § 32 (1981), as to the required method of 

 - 19 - 
acceptance of offers: "In case of doubt an offer is interpreted 

as inviting the offeree to accept either by promising to perform 

what the offer requests, or by rendering the performance, as the 

offeree chooses." 

 Accordingly, we hold that where an agreement granting an 

option to purchase a particular tract of land requires that it 

be exercised on or prior to a designated date, but is silent as 

to the time at which payment of the stipulated purchase price is 

to be made, the option may be exercised by the optionee without 

making or tendering payment at the time of, or coincident with, 

such exercise.3

 

 - 20 - 

3

 The courts of other jurisdictions have likewise held that 

where the option agreement does not expressly require payment as 

a condition precedent to exercise of the option, the optionee 

may exercise the option by communicating his or her acceptance, 

and tender of payment is not required. See, e.g., Grey v. 

Nickey Bros., Inc., 271 F. 249 (5th Cir. 1921) ("[U]nless it is 

the clear intention of the parties to require both acceptance 

and performance within the time limit, the time within which an 

option is to be exercised, relates only to acceptance and not to 

performance."); Shull v. Sexton, 390 P.2d 313 (Colo. 1964) 

("'payment or tender is not essential to acceptance unless the 

option instrument makes it a condition precedent to, or a part 

of, or necessary to, the acceptance or the exercise of the 

option'" (citation omitted)); Parkway Trailer Sales, Inc. v. 

Wooldridge Bros., Inc., 166 A.2d 710 (Conn. 1960) (holding that 

where option agreement "was silent as to the manner in which the 

option was to be exercised," notice of acceptance was sufficient 

to exercise option); Littlefield v. Brown, 394 A.2d 794 (Me. 

1978) (holding that where option agreement does not specify time 

of payment, optionee may exercise option without tendering 

payment); Gulf Oil Corp. v. Ferguson, 509 S.W.2d 1 (Mo. 1974) 

(holding that where option did not expressly or impliedly 

require payment of purchase price, notice of acceptance was 

sufficient to exercise option); Siders v. Odak, 513 N.Y.S.2d 549 

(N.Y. App. Div. 1987) ("[I]n the absence of a specific provision 

providing otherwise, an option is a unilateral contract which 
 The trial court concluded that because the decree gave wife 

"sixty days in which to purchase," wife had to tender payment 

within the sixty days in order to exercise the option. However, 

the decree did not specify that tender of payment was a 

condition precedent to accepting the offer. In fact, the decree 

made no mention of the method or timing of payment. Therefore, 

we conclude that wife was free to choose her method of 

acceptance, either by giving notice of her acceptance or by 

actually performing. Furthermore, a contrary reading would 

permit the husband to exercise his option by simply 

communicating his acceptance, while requiring the wife to tender 

full payment for the same piece of property. We reject such a 

reading as inequitable. See Zimmerman v. Brown, 36 A. 675 (N.J. 

Ch. 1897) ("Any doubts as to the character of the provisions as 

to payment should here be resolved in favor of a construction 

which will preserve the substantial equities of the parties."). 

 

 - 21 - 

calls for acceptance in the form of a promise to create a 

second, bilateral contract."); International Speedways, Inc. v. 

Aman, 161 S.E.2d 50 (N.C. Ct. App. 1968) ("Where the terms of 

the option do not require payment of the purchase price or any 

part therof before it is exercised, no tender must be shown."); 

Pennsylvania Min. Co. v. Martin, 59 A. 436 (Pa. 1904) (holding 

that "the word 'buy,' when applied to a real estate transaction, 

more often describes the passing of the equitable title from the 

vendor to the vendee than it does the exchange of the full 

purchase price and the deed of conveyance"). 
 Wife's first letter to husband on June 26, 1997 constituted 

a valid acceptance of the option to purchase. In the first 

letter, wife communicated her full, unequivocal and 

unconditional acceptance to the terms contained in the final 

decree. Upon husband's receipt of the letter, the parties had a 

binding, bilateral, executory contract to sell Parcel A. See

Am. Jur. 2d Vendor and Purchaser § 56; Restatement of Contracts 

2d § 63 (1981). From that point forward, husband was bound to 

sell Parcel A to wife, and wife was obligated to buy Parcel A 

according to the terms contained in the final decree. Any 

conduct that occurred following the receipt of the first letter 

pertained to performance, rather than formation, of the contract 

to sell. Therefore, wife's letter dated July 3, 1997, whereby 

she attempted to pay less than the full amount for Parcel A, 

related to performance of her obligation under the contract and 

did not constitute a failure to properly exercise the option. 

 Therefore, we hold that wife properly exercised her option 

to purchase Parcel A. Any subsequent conduct not in accordance 

with the terms of the contract may form the basis for a breach 

of contract action by either party but does not affect the 

existence of the contract. 

 Because we find wife properly exercised her option to 

purchase, we do not reach husband's claim that the court did not 

have the authority to order the sale of Parcel A. 

 - 22 - 
 Accordingly, we affirm in part, reverse in part, and remand 

for further proceedings consistent with this opinion. 

 Affirmed in part, 

and reversed in 

 part. 

 - 23 -