                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia


MICHAEL CHARLES FRIES
                                           MEMORANDUM OPINION * BY
v.   Record No. 2803-99-3                   JUDGE LARRY G. ELDER
                                                 MAY 2, 2000
PATRICIA ANN FRIES


            FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                   George E. Honts, III, Judge

          Frank K. Friedman (Nicholas C. Conte; Woods,
          Rogers & Hazlegrove, P.L.C., on briefs), for
          appellant.

          J. Emmette Pilgreen, IV (Jonathan S. Kurtin;
          Harvey S. Lutins & Associates; Shapiro &
          Kurtin, on brief), for appellee.


     Michael Charles Fries (husband) appeals from an equitable

distribution proceeding following his divorce from Patricia Ann

Kelly Fries Carroll (wife).    On appeal, he contends the trial

court erroneously (1) set aside the parties' 1978 separation

agreement and distributed their property pursuant to Virginia's

equitable distribution law; (2) assessed his ownership interest

in a particular piece of property at a level greater than that

supported by the evidence; and (3) awarded wife $25,000 in

attorney's fees.     We hold the trial court, in applying New York

law as required by the separation agreement, erred in concluding

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the parties' sixteen-year reconciliation abrogated the

agreement, where the agreement provided revocation had to be in

writing and would not be effected by reconciliation alone and

the court specifically found the parties did not execute such a

writing.   Therefore, we remand to the trial court for further

proceedings without reaching husband's second assignment of

error.   Because it is unclear whether the trial court's award of

attorney's fees to wife was predicated in part on the fact that

she prevailed in the dispute over the validity of the settlement

agreement, we vacate the award of attorney's fees and remand to

the trial court for reconsideration of that issue, as well.

     New York law applicable to the 1978 separation agreement

provided that, with only a few exceptions not applicable here,

the rules governing contracts generally are applicable to

separation agreements.   See 16 N.Y. Jurisp., Domestic Relations

§ 662 (1972) (hereinafter N.Y. Jurisp.).   Although New York law

previously provided that a husband and wife could not contract

to alter or dissolve their marriage, subsequent amendment of the

law "provides that an[] agreement . . . shall not be considered

'a contract to alter or dissolve the marriage . . . unless it

contains an express provision requiring the dissolution of the

marriage or provides for the procurement of grounds for

divorce.'"   Collins v. Johnson, 341 N.Y.S.2d 214, 216 (N.Y. Civ.

Ct. 1973) (quoting N.Y. Gen. Oblig. Law § 5-311); see Taft v.

Taft, 548 N.Y.S.2d 726, 727 (N.Y. App. Div. 1989) (holding that

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agreement otherwise void on this basis is valid if agreement

contains severability clause).    Pursuant to that amendment, "a

separation agreement which contains neither of such provisions

is not void as a contract to dissolve the marriage."     N.Y.

Jurisp., supra, § 663.

     Where the terms of a separation agreement "are clear and

unambiguous, the intent of the parties must be found therein."

Nichols v. Nichols, 119 N.E.2d 351, 353 (N.Y. 1954); see also

N.Y. Jurisp., supra, § 678.    General principles provide that

reconciliation and resumption of cohabitation following

execution of a separation agreement show an intent to abrogate

the agreement.   See, e.g., Markowitz v. Markowitz, 381 N.Y.S.2d

678, 679 (N.Y. App. Div. 1976); see also N.Y. Jurisp., supra,

§ 688.   However, to hold that reconciliation and a resumption of

cohabitation, standing alone, are sufficient to abrogate an

agreement which provides expressly that the agreement shall

remain effective following a reconciliation absent written

revocation is to ignore the intention of the parties expressed

in the agreement.

     We are aware of no New York appellate decision which has

expressly addressed this issue.    In Zambito v. Zambito, 566

N.Y.S.2d 789 (N.Y. App. Div. 1991), relied upon by wife, the

court considered the continuing validity of a separation

agreement which "required that any reconciliation should be

reduced to writing."     Id. at 791.   The court gave no indication

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that the separation agreement at issue provided a different

standard for determining abrogation, and it applied the general

standard that resumption of cohabitation with an intent to

reconcile results in abrogation.        See id.   In assessing the

factual question whether a reconciliation occurred, the court

noted that the parties shared the marital residence occasionally

but did not cohabit, that husband maintained a separate

residence with his sister and that he continued to make child

support payments.   See id.    It also noted that "the terms of the

separation agreement required that any reconciliation should be

reduced to writing."   Id.    Based upon all of those factors, it

concluded the trial court's "factual determination that there

had not been any mutual understanding of both parties to

effectuate an abrogation of the agreement through reconciliation

should not be disturbed."     Id.    The issue in Zambito was whether

a reconciliation occurred, not whether any such reconciliation

would abrogate the agreement.        See id.   The contractual

provision in Zambito that a reconciliation "should" be reduced

to writing is distinguishable from the contractual provision at

issue here that the agreement "shall not be invalidated . . . by

a reconciliation" unless documented by a writing both

acknowledging the reconciliation and canceling the agreement.

     The only New York case cited to this Court which is

precisely on point is Brown v. Brown, 1998 N.Y. Misc. LEXIS 419

(N.Y. Sup. Ct. 1988), issued by a New York trial court.          Based

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on Brown, we agree with husband's contention that a resumption

of cohabitation coupled with an intent to reconcile is

insufficient to establish a mutual intent to abrogate the

separation agreement where the agreement specifically requires

written revocation.

     Brown involved a separation agreement containing a

revocation provision almost identical to the one at issue in

this case.   See id. at *3-*4.   The court noted that "whether the

parties' acts of reconciliation rescind a separation agreement

where that agreement contained a provision that it could not be

invalidated or rescinded except in writing" is "a novel issue

which has yet to be specifically addressed" by a New York court.

See id. at *1.   In Brown, following execution of the separation

agreement, the parties resumed cohabiting in the marital

residence, despite a provision in the agreement granting wife

exclusive possession of the residence, and they resided there as

a "typical . . . married couple[]" for an additional

one-and-one-half years.   See id. at *2-*3.

     The court recognized the general principle that "'absent

any indication to the contrary,'" spouses who reconcile are

assumed to "'intend[] that all vestiges of the agreement that

. . . memorialize[d] their separation also [will] fall.'"     Id.

at *4-*5 (quoting In re Wilson, 427 N.Y.S.2d 977, 980 (N.Y.

1980)).   "'While generally cohabitation accompanied by intent to

reconcile will result in the repudiation of a separation

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agreement, this rule is grounded upon the presumed intent of the

parties, and should not be applied when a contrary intent is

clear.'"    Id. at *5 (quoting Breen v. Breen, 495 N.Y.S.2d 195,

195-96 (N.Y. App. Div. 1985) (citations omitted)).       Recognizing

that the intent of the parties is a question of fact to be

proven by their acts and expressions, see id. at *4, the court

held that "a contrary intent to the parties' actions has been

clearly expressed in . . . the Separation Agreement," id. at *5.

As a result, it held "the Court need not look to the acts and

expressions of the parties as the Court in Markowitz[, 381

N.Y.S.2d 678,] was forced to do."       Id. at *6.   Indeed, under

Nichols, where the terms of the separation agreement "are clear

and unambiguous, the intent of the parties must be found

therein."   119 N.E.2d at 353 (emphasis added).      To look

elsewhere to ascertain the parties' intent under such

circumstances is error.    Cf. Coccaro v. Coccaro, 130 N.Y.S.2d

609, 610 (N.Y. App. Div.) (holding that where real property is

conveyed by one spouse to another in conjunction with a

separation agreement, a reconciliation of the parties, without

more, does not void that conveyance), aff'd, 124 N.E.2d 330

(N.Y. 1954); N.Y. Jurisp., supra, § 689.

     We hold the same rationale applies in this case.          Although

this case involved a reconciliation of sixteen years, this time

differential is not dispositive.    Because the parties' agreement

specifically provided that revocation could only be effected in

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writing, the agreement remained binding, and the trial court

erred in finding otherwise.

     Therefore, we vacate the trial court's decision

invalidating the separation agreement, vacate its equitable

distribution of the parties' property pursuant to Virginia law,

and remand for further proceedings consistent with this opinion. 1

Because of our ruling, we do not reach husband's second

assignment of error.   Finally, because it is unclear whether the

trial court's award of attorney's fees to wife was predicated in

part on the fact that she prevailed in the dispute over the

validity of the settlement agreement, we vacate the award of

attorney's fees and remand to the trial court for

reconsideration of that issue, as well.

                                   Reversed, vacated and remanded.




     1
       We do not consider whether the parties may have repudiated
the agreement. The trial court did not reach that issue, and it
is not before us on appeal. We also note that the agreement, if
valid, does not prevent one spouse from gifting his or her real
or personal property to the other spouse individually or from
gifting a portion of that spouse's ownership interest therein.
Therefore, husband may or may not be entitled to a retracing of
property he owned at the time of execution of the separation
agreement.


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