COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia
JOHN R. ZAMPOLIN
Record No. 0419-99-2
MEMORANDUM OPINION * BY
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
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
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
The jury found that no such agreement existed.
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
Finding no error, we affirm.
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
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
She argued that there was no agreement
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."
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
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
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?
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evidence, Zampolin requested the trial court to instruct the
jury regarding the legal principle of estoppel.
denied the proposed instruction, stating:
The trial court
"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.
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
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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
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.
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