                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


MARTIN C. DAVIDSON, JR.

v.   Record No. 1588-95-2                        MEMORANDUM OPINION *
                                                     PER CURIAM
RHONDA O. DAVIDSON                                FEBRUARY 20, 1996


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     William R. Shelton, Judge

            (Gail H. Miller; Smith & Miller, P.C., on
            brief), for appellant.
            No brief for appellee.



     Martin C. Davidson, Jr. (husband) appeals the decision of

the circuit court awarding Rhonda O. Davidson (wife) a divorce on

the grounds of adultery.    Husband argues that, under the terms of

the parties' Agreement and Stipulation (Agreement), wife waived

her right to seek a divorce on the ground of adultery.      Husband

also argues that the trial court erred in relying on an affidavit

executed by husband in which he admitted committing adultery.

Finally, husband contends that there was insufficient evidence to

establish that he committed adultery.    Upon reviewing the record

and opening brief, we conclude that this appeal is without merit.

 Accordingly, we summarily affirm the decision of the trial

court.   Rule 5A:27.

     The evidence in this matter was presented solely by

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
deposition.
          "The rule is firmly established in Virginia
          that a divorce decree based solely on
          depositions is not as conclusive on appellate
          review as one based upon evidence heard ore
          tenus, but such a decree is presumed correct
          and will not be overturned if supported by
          substantial, competent and credible
          evidence."


Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828

(1986) (citation omitted).

                  Interpretation of the Agreement
     "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.

     Paragraph four of the parties' Agreement stated in part as

follows:
           Subsequent Divorce: Husband and Wife
           anticipate subsequent divorce. Upon
           presentation to the Court of a sketch for
           either a bed and board decree of divorce or a
           final decree of divorce, Husband and Wife
           agree to request the Court to affirm, ratify
           and incorporate, but not merge this Agreement
           and Stipulation into said decree.


Thus, by the express terms of the Agreement, the parties

anticipated filing a suit for divorce.   The parties placed no




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limitations or representations anywhere in the Agreement

concerning the grounds upon which a divorce would be sought.

     Husband relies upon Paragraph 16, entitled "Mutual Release

and Discharge of General Claims," to support his claim that wife

waived her right to seek a divorce on the grounds of adultery.

That paragraph stated that
          [s]ubject to the provisions of this
          Agreement, Husband and Wife hereby mutually
          release and forever discharge, and by these
          presents does for himself or herself, and his
          or her heirs, legal representatives,
          executors, administrators and assigns,
          release and forever discharge the other of
          any and all causes of action, claims, rights,
          or demands whatsoever in law or equity, which
          either Husband or Wife hereto ever had, or
          now has, against the other excepting only
          every right that is given or created by this
          Agreement.

Paragraph 16 does not, by its express terms nor by implication,

amount to a waiver by either party of any potential grounds for a

divorce.   Therefore, we conclude that the Agreement did not bar

wife from seeking a divorce on the ground of adultery.

     We also reject husband's contention that wife was estopped

from seeking a divorce on the basis of adultery.   In executing

the Agreement, the parties acknowledged in Paragraph 1 that the

Agreement was entered into
          upon mature consideration; that consent to
          the execution of this Agreement . . . has not
          been obtained by duress, fraud, or undue
          influence of any person; that no
          representations of fact or otherwise have
          been made by either party; . . . and that
          this Agreement . . . is FAIR and EQUITABLE
          and entered into VOLUNTARILY for valuable
          CONSIDERATION.



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Husband's allegations that wife induced him to execute the

Agreement are unsupported by the record.   The Agreement expressly

contemplated the parties' subsequent filing for divorce and, as

provided under its terms, the Agreement was affirmed and

incorporated into the parties' final decree of divorce.    The

terms of the property settlement agreed to by the parties

remained unchanged.   Therefore, wife was not estopped from

seeking a divorce on the ground of adultery.
               Admissibility of Husband's Affidavit

     Husband alleges that the trial court erred by allowing into

evidence his sworn affidavit in which he admitted "under oath

that he has committed adultery with one DONA FOGG during the last

12 months from the date of this Affidavit and without the consent

or knowledge of his wife."   Husband repudiated the contents of

the affidavit, alleging that he signed the affidavit solely to

keep his alleged paramour from being called to testify.

     The circumstances surrounding husband's execution of the

affidavit go to its weight, not its admissibility.
          Generally, evidence that has rational
          probative value and adds force and effect to
          other evidence is competent and admissible.
          A trial court, in the exercise of its
          discretion, determines whether evidence is
          competent. Of course, the weight to be given
          to such evidence is a decision for [the fact
          finder].


Williams v. Garraghty, 249 Va. 224, 233, 455 S.E.2d 209, 215

(1995).   Husband admitted he knew what he was doing when he

executed the affidavit, and that he wanted to sign the affidavit


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in order to keep from involving Fogg in the divorce proceeding.

Husband was aware that his interests were adverse to those of his

wife and that he was not represented by wife's counsel.

Therefore, we cannot say the trial court abused its discretion by

allowing into evidence husband's affidavit.

                      Sufficiency of the Evidence

        The trial court reviewed the depositions of the witnesses

and parties and found sufficient evidence to support wife's

ground for divorce on the basis of husband's adultery with Donna

Fogg.    This finding was not plainly wrong or without evidence to

support it.
        Husband's credibility was undercut by his deposition

testimony, which was fraught with qualifications.    Husband

admitted that he had "intercourse" with Fogg, but denied having

sexual intercourse with her.    Husband admitted signing the

affidavit in which he swore that he committed adultery with Fogg,

but stated that the affidavit was "not exactly the truth."

        Husband knowingly executed the affidavit admitting that he

committed adultery with Fogg.    Wife testified that husband

admitted to her that he had sexual intercourse with Fogg.

Husband and Fogg admitted that husband regularly visited Fogg's

apartment in the morning, as observed by the private investigator

hired by wife.    Therefore, clear and convincing evidence

supported the trial court's decision to award wife a divorce on

the ground of husband's adultery.



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          Accordingly, the decision of the circuit court is

summarily affirmed.

                                                  Affirmed.




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