Opinion
Record No. 1347-93-2
Decided: June 7, 1994
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG, Oliver A. Pollard, Jr., Judge
Affirmed.
(Theresa Rhinehart; Henry A. Conner, Jr., on brief), for appellant.
(Samuel P. Johnson, III; Richard H. Burton; White, Hamilton, Wyche Shell; Hunton Williams, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The trial court affirmed, ratified, and incorporated into the divorce decree the agreement Dorleen Tedesco signed with her husband, Anthony R. Tedesco. The wife contends (1) the trial court erred in not conducting a full hearing on the validity of the agreement; (2) the intervening change in Code Sec. 20-107.3 abrogated her rights under the agreement; and (3) enforcement of the contract would be unconscionable. Upon reviewing the record and the briefs, we conclude that this appeal is without merit. Accordingly, we affirm the trial judge's decision.
I.
"Property settlement and support agreements are subject to the same rules of construction and interpretation applicable to contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987). "[O]n appeal if all the evidence which is necessary to construe a contract was presented to the trial court and is before the reviewing court, the meaning and effect of the contract is a question of law which can readily be ascertained by this court." Id.
II.
The evidence before the trial judge included the pleadings, the agreement, and certain admissions of the parties. Based upon those documents, the trial judge indicated that an evidentiary hearing was appropriate only on wife's claim that the agreement was signed under duress. Wife, however, elected not to pursue this claim. The issue then remaining was one of contract construction. Although the allegation of duress, which the wife elected not to pursue, may have required additional fact finding, wife's other challenges presented either questions of law or were determinable based upon the parties' pleadings and admissions.
The decision to hold an ore tenus hearing is a matter within the sound discretion of the trial judge. Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648 (1986).
Code Sec. 20-109.1 provides the trial court with discretion to incorporate a property settlement agreement into a final decree of divorce. However, "Code Sec. 20-109.1 does not require the trial court to conduct a separate inquiry into the validity of a property settlement agreement which appears valid on its face."
Lockhart v. Baxter, 12 Va. App. 600, 604, 405 S.E.2d 434, 437 (1991).
No evidence in this record establishes that the trial judge abused his discretion in concluding that an ore tenus hearing was not needed to determine the validity of the property settlement agreement.
III.
Wife asserts that the change in Code Sec. 20-107.3, which allowed bifurcation of the divorce proceedings from the property issues upon the motion of "either party," abrogated her rights under the agreement. We disagree.
The change in the statute that occurred after the agreement was drafted did not affect any substantive right that the wife had under the agreement. "A subsequent change in the law does not justify the unilateral rejection of an agreement." Bragan v. Bragan, 4 Va. App. 516, 519, 358 S.E.2d 757, 759 (1987). Moreover, the parties cannot claim a vested interest in the procedures under which the courts apply the law. See Phipps v. Sutherland, 201 Va. 448, 452, 111 S.E.2d 422, 425 (1959).
The wife raises for the first time a constitutional challenge to the legislature's amendment of Code Sec. 20-107.3. The Court of Appeals will not consider an argument on appeal which was not presented to the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). Rule 5A:18 bars our consideration of this question. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
IV.
Wife also contends that enforcement of the agreement would be unconscionable because she did not receive adequate consideration. We disagree. "Consideration adequate to support a contract does not have to be full consideration. . . . Courts must view [claims of] inequity in light of other attendant circumstances to determine whether the agreement is unconscionable and should be declared invalid." Derby v. Derby, 8 Va. App. 19, 29, 378 S.E.2d 74, 79 (1989).
Wife received a cash settlement of $300,000 under the terms of the agreement, as well as the title to an automobile and payment of her uninsured medical expenses. In addition, wife received over $310,000 in spousal support and maintenance under the terms of the agreement and will continue to receive monthly payments of $600 a month until her death. Under these circumstances, we cannot say that the agreement was so "patently unfair" to wife as to be unenforceable. See id. at 28, 378 S.E.2d at 78.
Similarly, wife's contention that husband failed to fully disclose his assets is insufficient cause to set aside the agreement. In the trial court, wife argued the failure to have full disclosure demonstrated the incompetence of her attorney at the time she signed the agreement. In her appeal, she asserts the lack of disclosure amounted to constructive fraud. The allegation of constructive fraud was not raised below, and we will not consider it on appeal. See Rule 5A:18.
Accordingly, the decision of the trial court is affirmed.
Affirmed.