                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia


SUSAN W. KREITER
                                          MEMORANDUM OPINION * BY
v.   Record No. 1856-01-2               JUDGE ROBERT J. HUMPHREYS
                                               JULY 23, 2002
VICTOR W. KREITER, JR.


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       Gary A. Hicks, Judge

          John B. Mann (Levit, Mann & Halligan, on
          briefs), for appellant.

          Jennifer E. Crossland (William H. Parcell,
          III; Parcell, Webb & Wallerstein, P.C., on
          brief), for appellee.


     Susan W. Kreiter (wife) appeals a decision by the circuit

court, denying her motion to set aside the property settlement

agreement tendered by Victor W. Kreiter, Jr.(husband), pursuant to

their divorce proceedings.   Wife contends the trial court erred in

refusing to set aside the agreement as she had withdrawn her offer

to accept the terms of the agreement prior to its filing, and

because she signed the agreement under duress.    For the reasons

that follow, we affirm in part and reverse and remand in part.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this memorandum
opinion has no precedential value, we recite only those facts
necessary to our holding.
     We first note that "[i]n challenging the court's decision on

appeal, the party seeking reversal bears the burden to demonstrate

error on the part of the trial court." 1   Further, when a trial

court hears evidence ore tenus, as in this case, its findings

based on an evaluation of the testimony are entitled to the same

weight as a jury's verdict. 2   Thus, the trial court's decision

will be upheld unless it appears from the evidence that the

judgment is plainly wrong or unsupported by the evidence. 3

     Here, the trial court relied upon Richardson v. Richardson,

10 Va. App. 391, 382 S.E.2d 688 (1990), in finding that the

parties had, at least orally, reached an agreement, prior to

wife's attempted revocation, settling the equitable distribution

issues, as implied by their words, acts and conduct, evincing the

intention of the parties to contract and their meeting of the

minds.   Accordingly, the court held that the alleged revocation by

wife was not effective, as the signing of the second property

settlement agreement (PSA #2) by husband only served to

memorialize the already existing contractual agreement and actions

of the parties.   Finally, the court found the evidence failed to

"establish any scintilla of duress in [wife's] execution and


     1
       Barker v. Barker, 27 Va. App. 519, 535, 500 S.E.2d 240,
248 (1998) (citation omitted).
     2
       RF&P Corp. v. Little, 247 Va. 309, 319, 440 S.E.2d 908,
915 (1994).
     3
       Tuomala v. Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501,
505 (1996).

                                - 2 -
signing of PSA #2, on October 15, 1998," nor any unconscionability

on the part of husband in the formation of the agreement.

     While it is true that "[s]eparation agreements and property

settlement agreements are contracts" and as such, "'we must apply

the same rules of interpretation applicable to contracts

generally,'" 4 the Supreme Court of Virginia recently overruled

Richardson, in relevant part, in Flanary v. Milton, 263 Va. 20,

556 S.E.2d 767 (2002).   In Flanary, the Supreme Court held that

pursuant to Code § 20-155, property settlement agreements made in

conjunction with divorce proceedings must be made in writing and

signed by both parties in order to be valid and enforceable. 5

Code § 20-155 states as follows:

            Married persons may enter into agreements
            with each other for the purpose of settling
            the rights and obligations of either or both
            of them, to the same extent, with the same
            effect, and subject to the same conditions,
            as provided in §§ 20-147 through 20-154 for
            agreements between prospective spouses,
            except that such marital agreements shall
            become effective immediately upon their
            execution. However, a reconciliation of the
            parties after the signing of a separation or
            property settlement agreement shall abrogate
            such agreement unless otherwise expressly
            set forth in the agreement.




     4
       Douglas v. Hammett, 28 Va. App. 517, 523, 507 S.E.2d 98,
101 (1998) (quoting Tiffany v. Tiffany, 1 Va. App. 11, 15, 332
S.E.2d 796, 799 (1985)).
     5
         Flanary, 263 Va. at 24, 556 S.E.2d at 769.

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Accordingly, to be enforceable, PSA #2 must have been signed by

both parties. 6   However, PSA #2 was not signed by both parties

until February 4, 2000.    Thus, it did not become a binding

agreement, pursuant to Code § 20-155, until that point in time.

     Because the trial court assumed the agreement became

enforceable before wife allegedly attempted to revoke the

agreement, it made no factual or legal findings concerning the

validity of wife's attempted revocation in the context of the then

unsigned agreement.    Therefore, we reverse and remand on this

issue for further findings by the trial court, consistent with

this opinion.

     We next address wife's argument concerning duress as it will

undoubtedly be raised once again should the trial court hold that

wife's alleged revocation was insufficient as a matter of law to

invalidate the agreement.    We first note that "[w]hile

corroboration of testimony is not a prerequisite for rescission of

[an agreement] on the ground of duress, it is necessary that the

testimony establishing duress be clear and convincing."7    In

considering the issue of whether a parent had entered into a




     6
       The first property settlement agreement was signed only by
wife, and undisputedly, was never acted upon by the parties.
Further, wife's counsel altered the first agreement, creating
PSA #2, which wife then signed and offered to husband.
Accordingly, we do not address that agreement in this opinion.
     7
       Jacobs v. Jacobs, 218 Va. 264, 267, 237 S.E.2d 124, 127
(1977).

                                - 4 -
permanent entrustment agreement under the influence of duress in

Norfolk Div. of Soc. Servs. v. Unknown Father, 2 Va. App. 420, 345

S.E.2d 533 (1986), we described duress as follows:

          "Duress . . . means that degree of
          constraint or danger, either actually
          inflicted or threatened and impending, which
          is sufficient in severity or in apprehension
          to overcome the mind and will of a person of
          ordinary firmness . . . .

            *     *      *     *       *   *      *

          Duress may exist whether or not the threat
          is sufficient to overcome the mind of a man
          of ordinary courage, it being sufficient to
          constitute duress that one party to the
          transaction is prevented from exercising his
          free will by reason of threats made by the
          other and that the contract is obtained by
          reason of such fact. Unless these elements
          are present, however, duress does not
          exist. . . . Authorities are in accord that
          the threatened act must be wrongful to
          constitute duress." 8

Wife contends that PSA #2 was the product of duress and,

therefore, is invalid and unenforceable.   She argues that

husband's conduct in threatening her and her counsel during the

August 1997 meeting compelled her to sign PSA #2. 9   She further

contends that she was under a significant amount of anxiety during


     8
       Norfolk Div. of Soc. Serv., 2 Va. App. at 434-35, 345
S.E.2d at 541 (quoting 6B Michie's Jurisprudence Duress and
Undue Influence §§ 2-3 (Repl. Vol. 1985)).
     9
       On brief, wife repeatedly uses the words "treat" or
"treats," instead of "threat" or "threats." Upon a review of
the record, we assume wife's use of these words on brief is the
result of her counsel's carelessness and/or failure to proofread
the brief prior to filing, as opposed to a facially absurd
argument that husband caused wife duress by making "treats."

                               - 5 -
that time, as well as pressure, due to her impending sentencing

for the embezzlement conviction.    However, we find no merit in

these contentions.

        Indeed, the facts and circumstances of this case support the

trial court's determination that duress did not contribute to

wife's signing of PSA #2.    Wife signed PSA #2 well after her

sentencing and incarceration, and well after husband's threat.

Further, there was no evidence that any threatening or improper

conduct on the part of husband continued after August of 1997, or

in any way affected her decision to sign PSA #2 in October of

1998.    Thus, the evidence supported the trial court's conclusion

on this issue.

        For the foregoing reasons, we affirm in part and reverse and

remand in part.

                                         Affirmed in part, and
                                         reversed and remanded in part.




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