                      COURT OF APPEALS OF VIRGINIA


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


E. STEVEN PALMORE
                                           MEMORANDUM OPINION * BY
v.   Record No. 2033-99-2                JUDGE ROBERT J. HUMPHREYS
                                                JUNE 27, 2000
PAMELA S. PALMORE


           FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
                    Richard S. Blanton, Judge

          Michael J. Brickhill (Michael J. Brickhill,
          P.C., on brief), for appellant.

          Mary Burkey Owens (Ishneila Ingalls Gubb;
          Cowan & Owen, P.C., on brief), for appellee.


     E. Steven Palmore ("husband") contends the trial court

committed reversible error when it relied upon a separation and

property settlement agreement and refused to award him a share

of the post-separation increase in value of the "marital home."

For the reasons that follow, we affirm the decision of the trial

court.

                            BACKGROUND

     Husband and Pamela S. Palmore ("wife") were married on

December 12, 1970.   They have two children, both of whom are

emancipated.   In May 1988 they executed a separation and

property settlement agreement ("the agreement" or "PSA").    In

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
pertinent part, the agreement stated that wife would retain

exclusive title to the marital residence.   In the agreement,

husband "waive[d], remis[sed] and release[d] any and all rights

to the Wife’s property and estate now and hereafter existing in

his favor."   In addition, husband agreed to "pay the note

secured by the residential real estate."    The parties agreed

that the agreement would

          be filed with the pleadings in any divorce
          suit filed by either party pursuant to
          [Virginia Code] Section § 20-109 . . . and
          that no decree will be entered in any
          divorce suit that is in conflict with the
          provisions of this agreement nor will either
          party ask for a provision in any decree in
          any proceeding that is in conflict with this
          agreement.

Further, the agreement stipulated that any breach of a provision

of the document would not be deemed a waiver of the provisions

of the agreement.   The parties agreed that any modification to

the agreement would be "in writing and executed with the same

formality as this agreement."   Finally, the agreement provided

that "it is the parties' express intent that this agreement

shall continue in force even though the parties reconcile."      The

parties separated on July 24, 1988, two months after executing

the agreement.

     According to the record, neither party strictly observed

the provisions of the agreement.   In 1988, after the separation,

husband moved back into the marital residence in Buckingham

County while wife lived in Richmond.    Later, husband left the

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marital residence and wife returned to live there.     In 1996, by

oral agreement, the parties agreed that husband would move back

into the marital residence, pay off the mortgage, and jointly

sign a new five-year note secured by the marital residence.

Most of the money received from the note was used "to make
                                    1
improvements to the real estate."       The trial court noted that

husband "compiled a list of his monetary contributions to the

real estate in the total sum of $18,190.00 during the past three

years."

     On December 4, 1998, wife filed a bill of complaint seeking

a divorce.    In paragraph 7 of the bill, wife asked that "the

Property Settlement Agreement dated May, 1988, entered into

between the parties be affirmed and ratified by this Court and

incorporated as part of any Final Decree."     On December 28,

1998, husband filed his answer to the bill of complaint.     He

admitted all allegations set forth in the first six paragraphs;

however, regarding paragraph 7, husband answered that these

allegations are "neither admitted or denied and therefore strict

proof is required."   Husband also asked the trial court to

"equally divide the property" in accordance with Code

§ 20-107.3.




     1
       The parties filed no transcript of the August 16, 1999
hearing. This information was taken from the "Written Statement
of the Incidents of the case" prepared by the trial court.


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     On August 16, 1999, the trial court heard the matter and

entered a final decree of absolute divorce.   Before ruling, the

trial court "permitted counsel for both parties to present brief

oral argument."   The trial court also noted the existence of the

agreement "which both parties stipulated was a valid and

enforceable contract."   Due to the existence of the agreement,

the trial court declined to credit husband with the alleged

improvements and ruled that husband was barred from any

equitable distribution based upon the plain language of the

agreement.

     Husband contends he had a substantive right to an equitable

distribution and that the trial court was required to conduct an

equitable distribution hearing pursuant to § 20-107.3 and

classify, value and distribute separate and marital property.

Husband argues further that in such hearing the trial court was

required to classify as marital property the increased value of

the marital home.   Because the increased value resulted from his

post-separation efforts which were based upon oral agreements

between the parties, husband contends he was entitled to an

equitable share of the increased value, notwithstanding the

plain language of the PSA.   We disagree.

                             ANALYSIS

     In accordance with well-established principles, we review

the facts in the light more favorable to the party prevailing

below.   See Richardson v. Richardson, 30 Va. App. 341, 349, 516

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S.E.2d 726, 730 (1999).    In an appeal from a divorce decree,

"[t]he burden is upon the party appealing to point out the error

in the decree and to indicate how and why it was wrong."

Kaufman v. Kaufman, 7 Va. App. 488, 499, 375 S.E.2d 374, 380

(1988).   "Where . . . the [trial] court hears the evidence

ore tenus, its finding is entitled to great weight and will not

be disturbed on appeal unless plainly wrong or without evidence

to support it."     Hurt v. Hurt, 16 Va. App. 792, 798, 433 S.E.2d

493, 497 (1993).

     Code § 20-109(C) provides, in pertinent part, that

                  [i]n suits for divorce, . . . if a
             stipulation or contract signed by the party
             to whom such relief might otherwise be
             awarded is filed before entry of a final
             decree, no decree or order directing the
             payment of support and maintenance for the
             spouse, suit money, or counsel fee
             establishing or imposing any other condition
             or consideration, monetary or non-monetary,
             shall be entered except in accordance with
             that stipulation or contract. If such
             stipulation or contract is filed after entry
             of a final decree and if any party so moves,
             the court shall modify its decree to conform
             to such stipulation or contract.

     "Nothing in this section shall be construed to prevent the

affirmation, ratification and incorporation in a decree of an

agreement between the parties pursuant to §§ 20-109 and

20-109.1."    Code § 20-107.3(I).

     "Agreements between divorcing spouses to settle property or

support claims are contracts; therefore the same rules generally

applicable to contracts control the issue of whether divorcing

                                 - 5 -
spouses have reached a valid agreement."   Richardson v.

Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688, 690 (1990).

          Although a divorce court is not bound to
          approve in its divorce decree a settlement
          agreement between divorcing parties, and is
          required to exercise its discretion in
          adjudicating property, support, and custody
          issues as provided in Code §§ 20-107.1 and
          20-107.3, a court "may affirm, ratify and
          incorporate by reference in its decree
          dissolving a marriage or decree of divorce
          . . . any valid agreement between the
          parties, or provisions thereof, concerning
          the conditions of the maintenance of the
          parties, or . . . , or establishing or
          imposing any other condition or
          consideration, monetary or non-monetary."

Id. at 399, 392 S.E.2d at 692 (quoting Code § 20-109.1).

     "Marital property settlements entered into by competent

parties upon valuable consideration for lawful purposes are

favored in the law and will be enforced unless their illegality

is clear and certain."   Cooley v. Cooley, 220 Va. 749, 752-53,

263 S.E.2d 49, 52 (1980).

          [T]o the extent that the parties have
          already stipulated to a particular
          disposition of their property, the court may
          not decree an equitable distribution award
          that is inconsistent with that contract. To
          hold otherwise would not only fail to give
          full effect to the property division
          statutes, but also would fail to support
          Virginia’s public policy in favor of prompt
          resolution of property disputes in divorce
          cases through voluntary court-approved
          agreements.

Parra v. Parra, 1 Va. App. 118, 128-29, 336 S.E.2d 157, 162

(1985).


                               - 6 -
     The parties entered into a valid and binding agreement.

After hearing argument, the trial court barred husband from "any

equitable distribution or marital claim in regards to the wife's

property based on the plain language of the property settlement

agreement."   In light of the unambiguous agreement, that the

parties agreed was valid and binding, appellant has failed to

demonstrate that the trial court's decision was plainly wrong or

without evidence to support it.   Accordingly, we affirm the

trial court's decision.

                      ATTORNEY'S FEES ON APPEAL

     Wife requested that she be awarded attorney's fees and

costs related to defending this appeal.   She argues that husband

failed "to demonstrate a viable appealable issue."

     The decision whether attorney's fees incurred on appeal

should be awarded is a determination to be made by the appellate

court.    See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 694-95,

479 S.E.2d 98, 100 (1996); Gottlieb v. Gottlieb, 19 Va. App. 77,

95-96, 448 S.E.2d 666, 677 (1994).

     Upon consideration of the entire record in this case,

including a review of the terms and conditions of the agreement

and the basis of husband's appeal, we hold that wife is entitled

to a reasonable amount of attorney's fees for defending this

appeal.   Accordingly, we remand this matter to the trial court

for the limited purpose of determining the amount wife should be



                                - 7 -
awarded for attorney's fees and costs incurred in defending this

appeal.

                                           Affirmed and remanded.




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