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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge McClanahan and Senior Judge Fitzpatrick Argued at Richmond, Virginia

STEPHEN L. BRYANT v. Record No. 3028-05-2 OPINION BY CHIEF JUDGE WALTER S. FELTON, JR. NOVEMBER 21, 2006

KERREN B. McDOUGAL

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY George F. Tidey, Judge Designate Todd M. Ritter (Travis R. Williams; Daniels & Morgan, on brief), for appellant. No brief or argument for appellee.

Appellant Stephen L. Bryant (husband) appeals from his final decree of divorce from Kerren B. McDougal (wife). He contends the trial court erred in finding that he had entered into a valid and binding property settlement agreement with wife, and in incorporating the terms of the purported agreement into the final decree of divorce. For the reasons that follow, we reverse the judgment of the trial court. I. BACKGROUND "On appeal, we construe the evidence in the light most favorable to wife, the prevailing party below, granting to that evidence all reasonable inferences fairly deducible therefrom." Wright v. Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002). So viewed, the evidence established that the parties married in June 1992. No children were born of the marriage. In January 2004, husband filed a Bill of Complaint for a no-fault divorce. Wife responded in June 2004 by filing an Answer and Cross-Bill requesting that she be granted a divorce a mensa et thoro on grounds of desertion with leave to merge the divorce into a divorce a vinculo matrimonii at the end of the

statutory period. Wife also requested that she be awarded permanent spousal support and equitable distribution. On July 21, 2005, the parties convened in the office of wife's counsel for the purpose of conducting depositions. At that time, husband appeared without counsel. Instead of proceeding with the scheduled depositions, the parties negotiated the distribution of their marital assets and debts. Upon conclusion of the negotiation, wife's counsel read the terms of the purported oral agreement into the record in the presence of a court reporter. Wife's counsel then asked wife if "this [is] the agreement as to your knowledge?" Wife responded, "Yes, it is." Wife's counsel then engaged husband in the following colloquy: [WIFE'S COUNSEL]: Do you acknowledge that these are the terms that you and Dr. McDougal have agreed to resolving the entire matter between the two of you? [HUSBAND]: I acknowledge that this outlines the substance, the essential substance of an agreement that is subject to being put into a Property Settlement Agreement, a fully completed Property Settlement Agreement. Yes. I do acknowledge that. [WIFE'S COUNSEL]: Will you acknowledge that these are the terms that you and Dr. McDougal have agreed to as resolving the entire divorce matter, and that there are no outstanding matters between the two of you to resolve the divorce? There are no property interests or any debt that needs to be discussed. These are all of the terms between you and Dr. McDougal? [HUSBAND]: No. Subject to inclusion into a Property Settlement Agreement. [WIFE'S COUNSEL]: All the terms that you have agreed to with Dr. McDougal, it will be put into a Property Settlement Agreement that you will sign. Is that correct? [HUSBAND]: Yes. In a letter dated July 22, 2005, husband told wife's counsel that, "It has consistently been [his] understanding that the general terms of the property settlement . . . would be memorialized in a written separation agreement." Husband then advised that -2-

it ha[d] never been [his] intention to rely solely on oral evidence read into the record as a final disposition of [] property rights [and that] [i]t ha[d] consistently been [his] offer that [he] would be afforded the opportunity to review the property settlement with independent counsel of [his] choosing before execution. Husband reasserted his "right to review the proposed Property Settlement Agreement with independent counsel before signing" the agreement in a July 25, 2005 letter to wife's counsel. Subsequently, both parties drafted and circulated written property settlement agreements. However, neither party signed the other's proposed agreement. On August 11, 2005, wife filed a Motion to Affirm, Ratify and Incorporate the terms of the July 21, 2005 purported oral property settlement agreement. She also filed a Notice of Presentation of the Final Decree of Divorce. A hearing was held on November 9, 2005, at which husband objected to the validity of the July 21, 2005 oral agreement on the basis that no meeting of the minds had occurred. The following day, the trial court entered a Final Decree of Divorce in which the terms of the July 21, 2005 agreement were affirmed, ratified, and incorporated into the final decree. II. ANALYSIS Husband argues that the July 21, 2005 oral property settlement agreement was invalid under Code

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