                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia


JOHN R. ZAMPOLIN
                                      MEMORANDUM OPINION * BY
v.   Record No. 0419-99-2        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                         DECEMBER 28, 1999
MARY ELIZABETH BARNUM


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Theodore J. Markow, Judge

            David B. Hargett (Joseph D. Morrissey;
            Morrissey, Hershner & Jacobs, on brief), for
            appellant.

            Susan C. Armstrong (Melissa J. Roberts;
            Mays & Valentine, on brief), for appellee.


     In this domestic relations case, John R. Zampolin

(Zampolin) appeals the trial court's order awarding Mary

Elizabeth Barnum (Barnum) $175,602.65 in child and spousal

support arrearages.     At trial, Zampolin requested and the trial

court ordered an issue out of chancery to determine whether the

parties had agreed that Zampolin would pay the tuition for a

private school for the minor child in lieu of making support

payments.    The jury found that no such agreement existed.   The

sole issue raised on appeal is whether the trial court erred in




     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
refusing to instruct the jury regarding Zampolin's theory of

equitable estoppel.   Finding no error, we affirm.

                                 I.

     On appeal, we construe the evidence in the light most

favorable to Barnum, the prevailing party below, granting to her

evidence all reasonable inferences fairly deducible therefrom.

See Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257

(1995) (citing McGuire v. McGuire, 10 Va. App. 248, 250, 391

S.E.2d 344, 346 (1990)).   So viewed, the evidence established

that on January 4, 1990, the parties were awarded a divorce.

The trial court ordered equitable distribution of the marital

property and ordered Zampolin to pay Barnum $400 per month

spousal support and $1,000 per month child support.

     In 1992, the parties sent the minor child to a private

school.   At the hearing in this matter, husband testified that

the parties had agreed that, in lieu of making support payments,

he would pay the tuition for the private school, which varied

between $7,600 and $9,700 per year. 1   Husband did not pay either

spousal or child support between 1992-97.

     In 1997, Barnum filed a petition seeking an award for full

support arrearage.    She argued that there was no agreement



     1
       Defendant's Exhibit 3 provides that Zampolin made the
following tuition payments: $9,383.32 in 1992-93, $9,040.21 in
1993-94, $7,682.52 in 1994-95, $8,565.99 in 1995-96, $9,431.62 in
1996-97, and $9,778.83 in 1997-98.


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between the parties and that Zampolin's payment of tuition

expenses was voluntary.

     Over Barnum's objection, the trial court granted Zampolin's

Motion to Direct an Issue Out of Chancery to determine "whether

the parties entered into an oral agreement whereby they agreed

that [Zampolin] would pay for their child's tuition . . . and

other reasonable expenses in lieu of the previously ordered

child support, and whether the contract was performed."    The

trial court declined to refer the issue of "whether [Barnum's]

actions were such that she should be estopped from denying that

the parties entered into such an agreement."    Instead, the trial

court ruled that the issue of estoppel was a legal question to

be determined by the court.

     Prior to the presentation of evidence to the jury, Zampolin

agreed that his theory of estoppel was a legal question to be

decided by the trial court. 2   However, at the conclusion of the


     2
         The following colloquy occurred:

            COURT: . . . [T]he estoppel issue is not
            even relevant unless you have an agreement.

            [ZAMPOLIN'S COUNSEL]: Right. I think the
            jury has to decide if there was an
            agreement.

            COURT: If there is an agreement, then you
            don't need to worry about estoppel. Or if
            there's an agreement and if the facts
            support an estoppel, that's my call rather
            than a jury call, isn't it?

            [ZAMPOLIN'S COUNSEL]:   I agree.

                                - 3 -
evidence, Zampolin requested the trial court to instruct the

jury regarding the legal principle of estoppel.    The trial court

denied the proposed instruction, stating:    "You don't get to the

estoppel question unless you prove . . . Barnum represented to

[Zampolin] that she would allow him to pay for their school

tuition instead of paying her monthly support payments ordered

by the Court.   That's the agreement. . . . And if she didn't,

then there is no agreement."

     Following deliberations, the jury found that Zampolin did

not prove the existence of an agreement between the parties.

Accordingly, the trial court ordered Zampolin to pay Barnum

$175,602.65 in child and spousal support arrearages, including

interest and attorney's fees.

                                  II.

     Code § 18.2-336(E) provides that "[i]n any suit in equity,

the court may, of its own motion or upon motion of any party,

supported by such party's affidavit that the case will be

rendered doubtful by conflicting evidence of another party,

direct an issue to be tried by a jury."    The decision whether to

direct an issue out of chancery lies with the sound discretion

of the chancellor.     See Nelms v. Nelms, 236 Va. 281, 290, 374

S.E.2d 4, 10 (1988).

          The object of an issue is to satisfy the
          conscience of the chancellor in a doubtful
          case. But it is not to be directed merely
          because the evidence is contradictory. The
          conflict of evidence must be great and its

                                 - 4 -
          weight so nearly evenly balanced that the
          court is unable or with difficulty able to
          determine where preponderance lies. It is a
          matter within the sound judicial discretion
          of the chancellor and is subject to review
          on appeal.

Eastern Finance Co. v. Gordon, 179 Va. 674, 680, 20 S.E.2d 522,

524-25 (1942) (citations omitted).

     In the instant case, the trial court directed only one

factual issue to be determined as an issue out of chancery.

This was resolved against appellant.   We conclude that the trial

court did not abuse its discretion in denying appellant's

request to refer the legal determination of estoppel.

Accordingly, the judgment of the trial court is affirmed.

                                                        Affirmed.




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