Sims v. Sims

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Alston and Senior Judge Clements
Argued at Richmond, Virginia

BARBARA J. SIMS
OPINION BY
v. Record No. 3101-08-2 JUDGE LARRY G. ELDER
DECEMBER 15, 2009
MARVIN JUNIOR SIMS

FROM THE CIRCUIT COURT OF HANOVER COUNTY
J. Overton Harris, Judge

Paul H. Kunberger (Saunders, Cary & Patterson, on briefs), for
appellant.

Julie M. Cillo (Hall & Hall, PLC, on brief), for appellee.

Barbara J. Sims (wife) appeals a final decree of divorce that incorporated the property

settlement agreement she entered into with Marvin Junior Sims (husband). Wife argues the trial

court erred by (1) finding that the agreement was not unconscionable; (2) ratifying the

agreement; (3) granting husband’s motion to reconsider the ruling that the agreement was

unconscionable; and (4) refusing to retain jurisdiction over property omitted from the agreement.

We hold the trial court misinterpreted the controlling legal principles, and we conclude, based on

the facts found by the trial court, that the agreement was unconscionable and must be set aside.

Thus, we reverse and remand for further proceedings consistent with this opinion without

reaching wife’s final assignment of error.
 I.

BACKGROUND

“When reviewing a trial court’s decision on appeal, we view the evidence in the light

most favorable to the prevailing party, granting [that party] the benefit of any reasonable

inferences.” Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003).

The parties were married in 1968 and separated on August 11, 2006. Wife consulted an

attorney, who requested financial information from husband. Husband retained an attorney, who

responded to wife’s attorney and provided the requested financial information, including

information concerning husband’s deferred profit sharing and retirement benefits. Wife could

not afford to retain the attorney she had consulted, and she proceeded pro se for several months.

Wife told husband she wanted half of everything. Husband did not want to sell the marital

residence at that time because he was living in the residence and raising the parties’ grandson

there. As a result, he offered to pay wife $2,000 per month “until she had received half of

everything that [they] owned.” In late 2006 or early 2007, husband’s attorney prepared a

property settlement agreement and sent it to wife for her review, but wife refused to sign the

agreement because it did not provide for the division of husband’s retirement and deferred

compensation.

Later, however, wife told several people, including husband’s attorney and the parties’

son, that she did not want anything from the marriage and just wanted a divorce. After learning

of this from the parties’ son, husband asked his attorney to prepare such an agreement. Wife

telephoned husband’s attorney on numerous occasions to say she “just want[ed] a divorce” and

to inquire “how fast [she could] get one.” In March 2007, husband’s attorney prepared a second

property settlement agreement and sent it to wife for her review. On March 12, 2007, wife went

to the attorney’s office to sign the second agreement.

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 Under the terms of the agreement, each party waived the right to spousal support and

equitable distribution. Husband received the marital residence, which he valued at $300,000 at

the time of the parties’ separation, and assumed the related debt of approximately $100,000.

Each party received the automobile and other tangible personal property in his or her possession.

The agreement did not mention husband’s deferred profit-sharing account, valued at

approximately $128,000 at the time of the separation, and retirement benefits, from which he

received approximately $2,400 per month after withholding for taxes and insurance. Pursuant to

the agreement, wife received only the 1999 pickup truck and “yard sale” personal property in her

possession, and husband agreed to hold her harmless on the debt secured by the marital

residence. On April 11, 2007, wife returned to the office of husband’s attorney and signed a

waiver of service. Thereafter, husband’s attorney proceeded to finalize the divorce and sent the

necessary paperwork to the court.

Meanwhile, wife retained counsel, and on May 9, 2007, wife filed an answer and

cross-bill, alleging the agreement was unconscionable. On April 17, 2008, the trial court held a

hearing on the unconscionability issue. Wife offered evidence that she was “totally disabled”

due to numerous health conditions but that she did not receive disability. She said she applied

for Medicaid but did not qualify because her name was on the title for a relatively new vehicle

that husband had in his possession and she “couldn’t get it out of [her] name to get the Medicaid

back.” She was receiving food stamps and borrowing money from family and friends “to try to

get by.” Regarding her disabilities, wife testified she suffered from depression, high blood

pressure, rheumatoid arthritis, and diabetes and that she had had a foot fusion and dual hip, knee,

and knuckle replacements. She said she took medication for her depression, insulin for her

diabetes, and used morphine and Percocet for pain. Wife testified she had been using these

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medications for twenty years, including “at the time she signed th[e] agreement.” She had health

insurance at the time because she was still covered on husband’s policy.

Wife denied reading the agreement before signing it and said she did not understand its

legal impact other than that “it would let [her] get a divorce.” She admitted, however, that she

refused to sign the initial agreement because it did not provide her with a share of husband’s

retirement and deferred compensation benefits and that by the time she signed the second

agreement, she understood the “[h]ouse and car and truck and retirement and profit sharing”

were the assets comprising the marital estate. She conceded she probably received a copy of the

agreement in advance and that she just wanted a divorce. She admitted she had a “seasonal

business” picking boxwood and running pine for a florist in exchange for “a little spending

money.”

Wife offered testimony from her twin sister corroborating her testimony about her

“severe” medical conditions and the fact that she routinely took morphine. Wife’s sister also

testified that wife “does [not] read . . . well,” “doesn’t comprehend hardly at all,” “does [not] . . .

exercise good judgment,” and “is not always thinking clearly.”

Husband admitted wife had mood swings, which he did not attribute to her medical

conditions, and he conceded she had told him she took medication for pain and depression. He

said he first learned that wife did not want anything from the marital estate when the parties’ son

called him and told him about wife’s statements to that effect. Husband admitted he felt lucky

when he learned wife did not want anything.

The parties’ son conceded wife had “frequent[]” mood swings and that her decision to

relinquish one hundred percent of the marital estate to husband was “not a good judgment.” The

son also said mother’s medical conditions were “[a]s severe as she would like for them to be.”

When asked to explain, he indicated that as he was growing up, his mother’s medical conditions

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did not seem to prevent her from doing what she wanted to do but that she always seemed to be

“hurting, aching,” “if she didn’t want to clean the house or whatever.”

Husband offered evidence from his attorney indicating that wife conveyed her

understanding of the first agreement when she refused to sign it because it did not address

husband’s pension and profit sharing. The attorney also indicated he first learned wife had

changed her mind about the property division when she contacted him directly, indicating that

she wanted a divorce quickly and “[didn’t] want anything from [husband].” The secretary in

husband’s attorney’s office who notarized wife’s signature on the second agreement testified that

she took wife to the law firm’s conference room, gave her the document and asked her read it,

after which wife appeared to be doing so. When wife said she was finished reading it, the

secretary inquired whether wife had any questions. She also inquired whether wife understood

everything, and wife indicated that she did. The secretary testified wife did not appear to be

mentally impaired at any point during the encounter.

After hearing the evidence and argument of counsel, the trial court found the agreement

was unconscionable “[o]n the basis of O’Bryan [v. O’Bryan, No. 1912-91-4 (Va. Ct. App. July

28, 1992)],” which the court relied on as providing that a gross disparity in the division of

marital assets, standing alone, “if . . . great [enough],” is sufficient to support a ruling that an

agreement is unconscionable.

Husband filed a motion for reconsideration, which the trial court granted. The trial court

found that “while hardly an exaggeration to say that this is about as grossly disparate a deal as

probably anybody has ever seen, it’s not entirely true that [wife] didn’t get some value out of it.

She got held harmless on loans and mortgages and things like that.” The trial court concluded

under Galloway v. Galloway, 47 Va. App. 83, 622 S.E.2d 267 (2005), that the agreement was

valid and not unconscionable because wife proved only a gross disparity in the value of the

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division and failed, based on the testimony of husband’s former attorney and the attorney’s

secretary, to meet her burden of proving husband engaged in overreaching and oppressive

behavior.

Wife filed a motion asking the court to retain jurisdiction to divide omitted property,

arguing that husband omitted property, including retirement benefits and other assets, from the

agreement. Husband sought entry of a final decree incorporating the agreement. On December

5, 2008, the trial court entered the final decree incorporating the agreement and denied wife’s

motion to retain jurisdiction. Wife noted this appeal.

II.

UNCONSCIONABILITY OF THE AGREEMENT

In her first three assignments of error, wife argues the trial court erred in granting

husband’s motion for reconsideration, concluding that the agreement was not unconscionable,

and incorporating the agreement into the final decree. We agree and hold the agreement was

unconscionable on the facts of this case.

“Any issue of unconscionability of a premarital agreement shall be decided by the court

as a matter of law. Recitations in the agreement shall create a prima facie presumption that they

are factually correct.” Code § 20-151(B); see Code § 20-155 (providing that Code § 20-151

applies to marital agreements as well as premarital agreements).

While the question of unconscionability is a matter of law, the
underlying facts must be determined by the fact finder, and on
appeal we determine whether there is sufficient evidence to
support the factual findings. If there is credible evidence in the
record supporting the factual findings made by the trier of fact, we
are bound by those findings regardless of whether there is evidence
that may support a contrary finding.

Galloway, 47 Va. App. at 92, 622 S.E.2d at 271.

[W]hen “faced with a record of historical facts that supports
conflicting inferences” a court reviewing the sufficiency of the
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 evidence “must presume -- even if it does not affirmatively appear
in the record -- that the trier of fact resolved any such conflicts in
favor of the [party that prevailed below], and must defer to that
resolution.”

Harper v. Commonwealth, 49 Va. App. 517, 523, 642 S.E.2d 779, 782 (2007) (quoting Jackson

v. Virginia, 443 U.S. 307, 326, 99 S. Ct. 2781, 2793, 61 L. Ed. 2d 560, 578 (1979)) (emphasis

added).

Here, the recitations in the agreement state that “each party considers the terms of this

Agreement to be FAIR and EQUITABLE not UNCONSCIONABLE; and entered into

VOLUNTARILY for valuable CONSIDERATION.” Therefore, pursuant to Code § 20-151(B),

the presumption is that the agreement is not unconscionable.

Wife “had the burden at trial to prove by clear and convincing evidence the grounds

alleged to void or rescind the agreement.” Drewry v. Drewry, 8 Va. App. 460, 463, 383 S.E.2d

12, 12 (1989). In a typical case alleging unconscionability of a marital agreement, the court must

consider (1) whether “a gross disparity existed in the division of assets and [(2)] [whether the

evidence shows] overreaching or oppressive influences.” Galloway, 47 Va. App. at 92, 622

S.E.2d at 271; see also Shenk v. Shenk, 39 Va. App. 161, 179 n.13, 571 S.E.2d 896, 905 n.13

(2002). “[G]ross disparity in the value exchanged is a significant factor in determining whether

oppressive influences affected the agreement to the extent that the process was unfair and the

terms of the resultant agreement unconscionable.” Derby v. Derby, 8 Va. App. 19, 28, 378

S.E.2d 74, 79 (1989) (emphasis added), quoted with approval in Chaplain v. Chaplain, 54

Va. App. 762, 773, 682 S.E.2d 108, 113 (2009). Proof of the “overreaching or oppressive

influences” prong may be established in either of two ways:

“When the accompanying incidents are inequitable and show
[(a)] bad faith, such as concealments, misrepresentations, undue
advantage, [or] oppression on the part of the one who obtains the
benefit, or [(b)] ignorance, weakness of mind, sickness, old age,
incapacity, pecuniary necessities, and the like, on the part of the
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 other, these circumstances, combined with [evidence of the first
prong,] inadequacy of price, may easily induce a court to grant
relief, defensive or affirmative.”

Derby, 8 Va. App. at 28-29, 378 S.E.2d at 79 (quoting Pomeroy, Equity Jurisprudence § 928 (5th

ed. 1941)) (emphases added).

Wife argues first that, in keeping with the trial court’s initial ruling, a gross disparity in

the outcome is sufficient, standing alone, to prove that the agreement here was unconscionable

and that proof of oppressive influence is not required in all cases. We need not decide whether

or under what circumstances gross disparity may be enough because we hold as a matter of law

under the facts of this case that gross disparity in conjunction with pecuniary necessity on the

part of the disadvantaged spouse establishes unconscionability. 1

In the case of a marital agreement, “[w]hile no fiduciary duty exists between the parties,

marriage and divorce creates a relationship which is particularly susceptible to overreaching and

oppression,” and we have noted several reasons why courts should scrutinize separation

agreements more carefully than ordinary contracts. Id. at 29, 378 S.E.2d at 79. Among those

reasons are the fact that “the relationship between husband and wife is not the usual relationship

that exists between parties to ordinary commercial contracts” and that “[p]articularly when the

negotiation is between the parties rather than between their lawyers, the relationship creates a

situation ripe for subtle overreaching . . . .” Id. We also recognized that in cases involving

1
In Derby, 8 Va. App. at 28, 378 S.E.2d at 79, we cited Smyth Bros. v. Beresford, 128
Va. 137, 169-70, 104 S.E. 371, 381-82 (1920), for the proposition that, “If inadequacy of price or
inequality of value are the only indicia of unconscionability, the case must be extreme to justify
equitable relief,” thereby implying that, on appropriate facts, gross disparity in the value
exchanged may be sufficient by itself to establish unconscionability. In Galloway, 47 Va. App.
at 90-91, 622 S.E.2d at 270-71, we quoted this language from Derby but also rejected the claim
of Mrs. Galloway “that ‘gross disparity,’ with nothing more, should render the agreement void as
being unconscionable,” id. at 92, 622 S.E.2d at 271. We think a proper synthesis of these
principles, in light of our holdings in Shenk, Galloway, and Chaplain, is that when gross
disparity is so extreme as to prove “pecuniary necessities,” it establishes both prongs of the
unconscionability test.
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separation agreements, “unlike commercial contracts, the state itself has an interest in the terms

and enforceability of [the] agreement[]” because, “[i]f either spouse is left in necessitous

circumstances by a separation agreement, that spouse . . . might become [a] public charge[].” Id.

The holding in Galloway is illustrative. Galloway involved the husband’s receipt of what

we concluded was approximately 94% of the marital assets 2 pursuant to the parties’ agreement,

which we merely assumed established the first prong of the unconscionability test. 47 Va. App.

at 92-93, 622 S.E.2d at 272. The wife pointed to her waiver of spousal support as an additional

circumstance supporting a finding of unconscionability, but we noted the wife was employed

throughout the marriage, which lasted seventeen years, and testified “she could easily obtain a

job as a secretary.” Id. at 86, 88, 93-94, 622 S.E.2d at 268, 269, 272. Also, the wife had been

employed as a nurse’s aide for twenty years and then with husband in his heating and air

conditioning business for eleven years, during which time she worked as an installer. Id. at 86,

622 S.E.2d at 268. The trial court found no evidence that the wife “suffered from any disability

or necessity,” and we concluded the evidence proved she was “not penniless.” Id. at 89, 94, 622

S.E.2d at 270, 272. In addition to the fact that the wife retained her pension from working for

twenty years as a nurse’s aide, approximately half of which was marital but apparently was not

included in the separation agreement, the evidence established “[the wife] had inherited $30,000

cash and a home with no debt valued at $275,000.” On these facts, we held “[n]othing in the

record suggests [the wife] is incapable of enjoying financial independence.” Id. at 94, 622

S.E.2d at 272.

2
The opinion does not make clear how this 94% figure was calculated. Using a value for
the marital residence and business of $200,000, which the husband received, and a value of
$11,000 for a pickup truck, which wife received, yields a split of 94.5% to the husband and 5.5%
to the wife. However, these figures do not include the husband’s civil service pension, four
years of which accrued during the marriage, or the wife’s nurse’s aide pension, eleven years of
which accrued during the marriage.

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 Here, by contrast, the evidence, viewed in the light most favorable to husband,

establishes as a matter of law both “‘inadequacy of price or inequality in value’” and ““pecuniary

necessities” coupled with a degree of infirmity. Id. at 90-91, 622 S.E.2d at 270-71 (quoting

Derby, 8 Va. App. at 29, 378 S.E.2d at 79). Proof of “‘pecuniary necessities’” and infirmity

satisfies the second prong of the unconscionability test without the need for separate proof of

overtly “‘oppressive influences’” exerted by husband or on his behalf. Id. at 91, 622 S.E.2d at

271 (quoting Derby, 8 Va. App. at 29, 378 S.E.2d at 79 (quoting Pomeroy, supra, § 928)). It is

undisputed that wife, who had a third grade education and numerous health problems including

diabetes, “frequent[]” mood swings, and rheumatoid arthritis for which she took pain

medication, 3 was fifty-six years old at the time of the evidentiary hearing and had qualified to

receive food stamps. Wife had married husband when she was sixteen and remained married to

him for 38 years, during which time husband said her lack of education was a problem “to deal

with” and interfered with his ability to teach her how to do things like “pay bills and stuff of this

nature.” Although wife had engaged in some employment outside the home during the marriage,

wife testified she was totally disabled at the time of the evidentiary hearing due to her physical

condition. Husband made no claim that wife was capable of supporting herself at the time of the

divorce, and the evidence indicated her only recent employment had involved picking boxwood

and pine for a florist during the winter months. Husband received all the marital assets with the

exception of an automobile and the small amount of personal property in wife’s possession,

which husband testified consisted of “some of the stuff she had purchased over the years at yard

sales.” The parties’ son agreed that, given wife’s circumstances, her “relinquish[ing] 100 percent

of the marital property” to husband was “not a good judgment.” The trial court expressly found

3
Husband disputed the extent of wife’s disability from her various health conditions but
did not dispute the existence of her diabetes, arthritis, and mood swings.

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that “this is about as grossly disparate a deal as probably anybody has ever seen” and that the

only value wife received was husband’s agreement to hold her harmless on the debts secured by

the marital residence, in which husband received the remaining estimated $200,000 of equity.

Husband also received his deferred compensation account valued at $128,000 and his retirement

benefits, which yielded $2,400 per month after withholding for taxes and insurance. The trial

court further recognized the extreme disparity in this division and wife’s resulting pecuniary

need, concluding erroneously that although it “ha[d] to . . . deci[de]” that wife had not met the

controlling legal standard, it found the agreement was “[un]fair,” and it “strongly urge[d]”

husband to do “the right thing” “morally.”

Although the evidence supported the trial court’s finding that husband did not engage in

any overt overreaching or oppressive conduct, his act of entering into a contract with wife in

which she waived spousal support and relinquished to him almost 100% of the marital estate—

including the marital residence, all retirement benefits and deferred compensation—literally left

her penniless with no practical means for supporting herself. These facts stand in marked

contrast to those in Galloway, in which the wife had been employed outside the home throughout

the couple’s 17-year marriage, and had numerous job skills, a $275,000 home she inherited, and

assets of her own. 47 Va. App. at 89, 622 S.E.2d at 270. On those facts, the trial court held in

Galloway “‘[t]here [was] no evidence . . . that wife suffered from any disability or necessity.’”

Id.; see also Derby, 8 Va. App. at 29, 378 S.E.2d at 79 (recognizing that in cases involving

separation agreements, “unlike commercial contracts, the state itself has an interest in the terms

and enforceability of [the] agreement[]” because, “[i]f either spouse is left in necessitous

circumstances by a separation agreement, that spouse . . . might become [a] public charge[]”).

Here, the evidence established that wife had in fact already become a public charge, receiving

food stamps, despite husband’s retention of substantial marital assets. Thus, the evidence

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established not only a gross disparity in the division of assets but also infirmity and pecuniary

necessities which, in combination, established unconscionability.

III.

For these reasons, we hold the evidence, viewed in the light most favorable to husband,

compels the conclusion that the agreement was unconscionable and must be set aside. Thus, we

reverse and remand for further proceedings consistent with this opinion without reaching wife’s

final assignment of error.

Reversed and remanded.

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