Kenneth E. Plogger v. Betty R. Plogger

• Court: Court of Appeals of Virginia
• Decided: April 22, 1997
• Docket: 1032963
• Status: Unpublished

Opinion

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

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 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

-2- 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

-3- 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

-4- 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

-5- enforcing the separation agreement is reversed.

Reversed.

-6-