PLOGGER v PLOGGER (unpublished)

APRIL 22, 1997
Record No. 1032-96-3




George E. Honts, III, Judge
Present: Judges Elder, Bray and Fitzpatrick

Argued at Salem, Virginia

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

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

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

"[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.
, 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.
, 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.




[*] Pursuant to Code ? 17-116.010
this opinion is not designated for publication.