ROMINGER LEGAL
Virginia Legal Research & Resources - VA Legal Resources
Need Legal Help?
NOT FINDING WHAT YOU NEED? -CLICK HERE
This opinion or court case is from the Courts of Virginia. Search our site for more cases - CLICK HERE

LEGAL RESEARCH
COURT REPORTERS
PRIVATE INVESTIGATORS
PROCESS SERVERS
DOCUMENT RETRIEVERS
EXPERT WITNESSES

 

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

 
Web Rominger Legal

Legal News - Legal Headlines

 

                 COURT OF APPEALS OF VIRGINIA



Present:  Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia


KENNETH E. PLOGGER
                   MEMORANDUM OPINION BY
v.           Record No. 1032-96-3          JUDGE LARRY G. ELDER
                                           APRIL 22, 1997
BETTY R. PLOGGER


          FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
                  George E. Honts, III, Judge


         Philip H. Miller (Rhea & Miller, P.C., on
         brief), for appellant.

         No brief or argument for appellee.


    Kenneth E. Plogger (husband) appeals an order of the trial
court specifically enforcing a separation agreement entered into
between himself and Betty R. Plogger (wife).  He contends that
the trial court erred when it rejected his argument that the
separation agreement is unconscionable.  For the reasons that
follow, we reverse.
    Initially we consider wife's motion to dismiss husband's
appeal.  Wife contends that husband's appeal should be dismissed
because he failed to file an appeal bond and because the record
does not contain either a transcript of the proceedings below or
a written statement of facts.  We disagree.
              Regarding the appeal bond, we grant husband's motion for
leave to pursue his appeal without surety because husband has
filed an affidavit establishing his indigence.  See Code
 8.01-676.1(K) (stating that "[n]o person who is an indigent
shall be required to post security for an appeal bond").
    We also conclude that husband failed to make part of the
record either a transcript or a written statement of facts signed
by the trial judge.  However, even without the written statement
of facts, the record on appeal, which includes the trial court's
detailed opinion letter, is sufficient for us to consider
husband's argument regarding the validity of the separation
agreement.  See Turner v. Commonwealth, 2 Va. App. 96, 99, 341
S.E.2d 400, 402 (1986) (stating that "[i]f the record on appeal
is sufficient in the absence of the transcript [or written
statement of facts] to determine the merits of the appellant's
allegations, we are free to proceed to hear the case").
    The record on appeal establishes that the parties married in
1971, separated in mid-1994, and remain married.  Wife does not
work because of a disability and receives monthly government
assistance of $354.  In early August, 1994, husband and wife
negotiated the terms of the separation agreement (agreement),
which provided for the division of the parties' property and
monthly support for wife.  In 1995, husband fell behind on his
monthly payments to wife.
    On August 22, 1995, wife filed a bill of complaint seeking
payment of husband's arrearage and specific performance of the
agreement's other terms.  After a hearing, the trial court
ordered husband to pay his support payments that were past due
and to fulfill all of the terms of the agreement.  The trial
court rejected husband's argument that the agreement was
unconscionable.  
    "[M]arital property settlements entered into by competent
parties upon valid consideration for lawful purposes are favored
in the law and such will be enforced unless their illegality is
clear and certain."  Cooley v. Cooley, 220 Va. 749, 752, 263
S.E.2d 49, 52 (1980).  The doctrine of unconscionability is
concerned with "the intrinsic fairness of the terms of the
agreement in relation to all attendant circumstances, including
the relationship between the parties."  Derby v. Derby, 8 Va.
App. 19, 28, 378 S.E.2d 74, 78 (1989).  "Behavior that might not
constitute fraud or duress in an arm's-length context may suffice
to invalidate a grossly inequitable agreement where the
relationship is utilized to overreach or take advantage of a
situation in order to achieve an oppressive result."  Id. at 29,
378 S.E.2d at 79.
    Determining whether a contract is invalid on the ground of
unconscionability is a two-step process.  First, a court
considers whether there is a "gross disparity in value exchanged"
under the contract.  Drewry v. Drewry, 8 Va. App. 460, 473, 383
S.E.2d 12, 18 (1989) (stating that "[a]bsent evidence of 'gross
disparity in value exchanged' there exists no basis to claim
unconscionability").  If the court finds a gross disparity in the
value exchanged under the contract, it then considers the
circumstances of the formation of the contract to determine
whether "oppressive influences" affected the fairness of the
negotiating process such that the terms of the resulting
agreement were unconscionable.  See id.; Derby, 8 Va. App. at 29,
378 S.E.2d at 79.  "If inadequacy of price or inequality in value
are the only indicia of unconscionability, the case must be
extreme to justify equitable relief."  Derby, 8 Va. App. at 28,
378 S.E.2d at 79.  But, if the record indicates that oppressive
influences affected the negotiation process, a court is more
likely to grant relief on the ground of unconscionability.  Id.
    When reviewing a trial court's decision regarding the
validity of a separation agreement on appeal, we view the
evidence in the light most favorable to the prevailing party
below.  Pillow v. Pillow, 13 Va. App. 271, 273, 410 S.E.2d 407,
408 (1991) (citing Derby, 8 Va. App. at 26, 378 S.E.2d at 77).
    We hold that the trial court erred when it concluded that
the agreement was not unconscionable.  The agreement in this case
imposes a shocking monthly support obligation upon husband that
was not discussed by the parties during their brief negotiation
and that wife knew was essentially impossible for him to perform.
    The separation agreement provides for a gross disparity in
value exchanged.  Under the agreement, husband relinquished his
ownership rights to nearly all of the marital property, including
the marital home and furnishings and an automobile.  In addition,
the agreement imposes upon husband the onerous burden of paying
$1,200 of his $1,386 monthly income to wife for two years.  The
agreement leaves husband with $2,232 a year on which to live
while wife's income from the agreement and her government
assistance is $1,554 per month.  
    The agreement was drafted by wife's attorney, and the trial
court found that husband signed without reading the agreement.
The trial court found that wife chose the figure of $1,200 to pay
off the parties' revolving credit account debt.  Husband's
unrebutted testimony was that this figure was never discussed by
the parties.  The fact that wife lived with husband prior to
their separation and signed the parties' tax returns in 1993 and
1994 indicates that she was aware of husband's modest annual
income.  Husband's support obligation "shocks the conscience"
because it leaves him with just $186 to meet his monthly
expenses.  In light of wife's knowledge of husband's finances,
wife was overreaching when she sought without negotiation an
amount of monthly support that would leave him virtually
penniless.  See Williams v. Williams, 306 Md. 332, 341, 508 A.2d
985, 990 (1986) (holding that a separation agreement was
unconscionable when it imposed upon husband a monthly support
obligation that was impossible for him to perform and that was
not negotiated by the parties).
    For the foregoing reasons, the order of the trial court
enforcing the separation agreement is reversed.
                                                       Reversed.                                                    

Ask a Lawyer

 

 

FREE CASE REVIEW BY A LOCAL LAWYER!
|
|
\/

Personal Injury Law
Accidents
Dog Bite
Legal Malpractice
Medical Malpractice
Other Professional Malpractice
Libel & Slander
Product Liability
Slip & Fall
Torts
Workplace Injury
Wrongful Death
Auto Accidents
Motorcycle Accidents
Bankruptcy
Chapter 7
Chapter 11
Business/Corporate Law
Business Formation
Business Planning
Franchising
Tax Planning
Traffic/Transportation Law
Moving Violations
Routine Infractions
Lemon Law
Manufacturer Defects
Securities Law
Securities Litigation
Shareholder Disputes
Insider Trading
Foreign Investment
Wills & Estates

Wills

Trusts
Estate Planning
Family Law
Adoption
Child Abuse
Child Custody
Child Support
Divorce - Contested
Divorce - Uncontested
Juvenile Criminal Law
Premarital Agreements
Spousal Support
Labor/Employment Law
Wrongful Termination
Sexual Harassment
Age Discrimination
Workers Compensation
Real Estate/Property Law
Condemnation / Eminent Domain
Broker Litigation
Title Litigation
Landlord/Tenant
Buying/Selling/Leasing
Foreclosures
Residential Real Estate Litigation
Commercial Real Estate Litigation
Construction Litigation
Banking/Finance Law
Debtor/Creditor
Consumer Protection
Venture Capital
Constitutional Law
Discrimination
Police Misconduct
Sexual Harassment
Privacy Rights
Criminal Law
DUI / DWI / DOI
Assault & Battery
White Collar Crimes
Sex Crimes
Homocide Defense
Civil Law
Insurance Bad Faith
Civil Rights
Contracts
Estate Planning, Wills & Trusts
Litigation/Trials
Social Security
Worker's Compensation
Probate, Will & Trusts
Intellectual Property
Patents
Trademarks
Copyrights
Tax Law
IRS Disputes
Filing/Compliance
Tax Planning
Tax Power of Attorney
Health Care Law
Disability
Elder Law
Government/Specialty Law
Immigration
Education
Trade Law
Agricultural/Environmental
IRS Issues

 


Google
Search Rominger Legal


 


LEGAL HELP FORUM - Potential Client ? Post your question.
LEGAL HELP FORUM - Attorney? Answer Questions, Maybe get hired!

NOW - CASE LAW - All 50 States - Federal Courts - Try it for FREE


 


Get Legal News
Enter your Email


Preview

We now have full text legal news
drawn from all the major sources!!

ADD A SEARCH ENGINE TO YOUR PAGE!!!

TELL A FRIEND ABOUT ROMINGER LEGAL

Ask Your Legal Question Now.

Pennsylvania Lawyer Help Board

Find An Attorney

TERMS OF USE - DISCLAIMER - LINKING POLICIES

Created and Developed by
Rominger Legal
Copyright 1997 - 2010.

A Division of
ROMINGER, INC.