Shenk v. Shenk

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank
Argued by teleconference

WILLIAM R. SHENK
OPINION BY
v. Record No. 2723-01-3 JUDGE ROBERT P. FRANK
NOVEMBER 19, 2002
BRENDA C. SHENK

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge

Stephen G. Cochran (William H. Ralston Jr.;
Lisa L. Knight; The Ralston & Knight Law
Firm, on briefs), for appellant.

David A. Penrod (Hoover, Penrod, Davenport &
Crist, on brief), for appellee.

William R. Shenk (husband) appeals from a final decree of

divorce entered by the Circuit Court for Rockingham County, which

included an order finding husband and Brenda C. Shenk (wife)

entered into a marital agreement when they signed an "assignment."

Based on this ruling, the trial court determined several

businesses were the separate property of wife. Husband argues the

"assignment" did not convert marital property into separate

property and the "assignment" was unconscionable. For the reasons

stated below, we affirm the trial court's ruling.

I. BACKGROUND

The parties were married in 1981. In mid-1997, husband

left the marital home in Harrisonburg, Virginia, and did not
return, although he stayed in town and continued his involvement

in the family's businesses. In June 1998, husband left

Virginia. He occasionally returned to visit his children, but

he did not live in the Commonwealth nor did he send wife any

money for child or spousal support.

When husband left Virginia, he and wife owned several

businesses in Harrisonburg. 1 Shenk Enterprises, a Honda

motorcycle dealership, was sold by the parties around the time

husband left. The proceeds from this sale, after the debts were

paid, consisted of several promissory notes totaling

approximately $375,000, payable over eighty-four months. The

parties also owned and operated the Shenandoah Heritage Farmer's

Market (the Market), 2 which rented space to independent stores,

and a store within the Market known as Grandma's Pantry.

Prior to their separation, the parties both worked in the

Market and Grandma's Pantry. When the parties separated, these

businesses were in financial trouble. The Market had over $2.2

million dollars in debt on its books and a negative cash flow.

The Market's assessed value was $1.75 million as of March 1999.

Its construction loan through Community Federal Savings Bank was

1
The parties agree these businesses were originally marital
property.
2
The parties owned sixty percent of the Market, and
husband's father owned forty percent.

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in danger of foreclosure and needed to be replaced by permanent

financing. Grandma's Pantry was not profitable.

Knowing the state of the businesses, husband decided

unilaterally and secretly to leave Virginia in June 1998. He

left a letter for wife:

For sometime now I have been a perceived
liability and embarrassment to your family,
my family and I feel to you. Because of our
inability to live our lives privately, and
the relentless pursuit of WBW, my high
visibility in the community and the belief
of you and other family around me that I am
a liability to the success and health of the
market. I will no longer settle for that or
even a zero effect to those close to me. I
will and I must for my own health be a
positive force and a source of pride to
those around me. I know that I have the
ability to make a difference and must find
out how and were [sic] that is to be. I
will be leaving Harrisonburg and not
returning . . . .

I wish for you happiness, fulfillment,
contentment, and to finally have a peace
about who you are. I do, and will always
believe that you can do and be anything you
would like or need to be if you will just
visualize and believe in yourself. I
believe that I have been an overwhelming
shadow of intimidation for you and at the
same time have not been able to be all that
I can be and for that I am sorry.

You and others always thought money was my
motivation YOU WERE WRONG . . . I am
motivated by challenge and the stewardship
of using or losing my talents . . . My
greatest pain comes from the knowledge that
what really matters is relationships. . . .
I have always been able to develop
meaningful relationships (Business and
Social) with those outside your circle of
influence. . . . (Lightspeed, Lemco,

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 Racing, etc.). I feel like a hostage with
Cory, Joy, and Brian, for it seems I can
only have a relationship with them if it
includes you "or us" and in that environment
I do not feel like I am the positive example
I can be for our children . . .

As for the proceeds from Shenk Honda, SHFM,
Grandma's Pantry etc., I leave it all . . .

I will do what I can to answer questions and
give direction in my absence if it is
desired or needed.

(Ellipses in original). The letter then listed the proceeds of

the Shenk Honda sale.

Husband left town and was never again involved with the

businesses. He made no significant financial contribution to

the businesses after he left town, 3 although he claimed, when he

returned to town to visit his children, he did some gardening

work around the Market. On one of these return visits, husband

told John Bincie, the parties' accountant, that "he was leaving

and that he was turning everything over to [wife]."

Wife attempted to refinance the construction loan.

However, officials with Community Federal Savings Bank were

concerned about the effect of the parties' divorce on their

ability to reach the assets. Bincie testified, "[T]hey didn't

want to get in the middle of a marital asset dispute, so they

3
Husband claims he sent money to pay various bills and
expenses. However, those debts were personal debts of husband.
Additionally, wife testified she could not remember receiving
any money from husband, for either the businesses or support,
after June 1998.

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wanted to know that [husband] was completely out of this as far

as having any access to these assets." After negotiating with

the bank, Bincie understood the bank wanted the parties to sign

an agreement "that would prevent any marital asset issues from

coming up after they made the loan."

Steven Weaver, the attorney for the businesses, testified

he prepared a document to "transfer all right, title, and

interest in those various entities to [wife]." When asked by

the trial court if the document was "necessarily a predicate

. . . to the Mercantile loan," Weaver responded, "Not that I'm

aware of." Wife testified she understood the document "just

confirmed what was reality."

On March 19, 1999, husband and wife signed a document

labeled an "assignment." The document said, in part:

1. [Husband] desires to withdraw as an
owner of Shenandoah Heritage Farmers Market,
L.L.C. (hereinafter "the Market"), Shenk and
Heatwole, Inc. t/a Grandma's Pantry
(hereinafter "Shenk and Heatwole"), and
Shenk Enterprises, Inc. (hereinafter "Shenk
Enterprises").

2. [Husband] has agreed to assign all of
his right, title, and interest, in the
aforesaid entities to [wife], individually,
and/or the Market, as hereinafter set forth,

* * * * * * *

1. [Husband] does hereby give, grant,
assign and transfer unto [wife] his 50%
membership interest in the Market, thereby
giving [wife] a 60% ownership in the
Market. . . .

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 2. [Husband] does hereby assign all of his
right, title, and interest, both
individually and as a shareholder in Shenk
Enterprises to [wife]. . . .

3. [Husband] does hereby assign, transfer,
and convey all of his right, title, and
interest, in and to [Grandma's Pantry], to
[wife]. . . . 4

The document noted husband remained "personally liable, to the

extent of his current personal liability, on any and all debts

of the aforesaid entities." The "assignment" also recognized

wife's agreement "to use her best efforts to continue the

business operations . . . [and] to pay the debts, liabilities,

and obligations of the aforesaid entities."

With this document, and increased rent payments from

Grandma's Pantry, the loan to the Market was refinanced. The

businesses made a profit, for the first time, in 1999, and were

expected to improve in 2000.

Husband testified he signed the "assignment" in order to

"smooth out the management, to transfer responsibility to get

things where they needed to be." He explained wife was

attempting to "destroy" him by destroying the Market, so he

wanted to become "a totally separate entity" in the hope that

"she won't try to destroy it any longer." On cross-examination,

husband said he believed he needed to sign the "assignment"

"[f]or the Community Federal financing." He claimed he

4
Husband also resigned his positions as president of Shenk
Enterprises and Grandma's Pantry.

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"absolutely" did not intend "to sign away any of [his] marital

rights in the property."

The trial court ruled from the bench that the agreement

conveyed the properties to wife, as her separate property, under

"the provisions relating to marital and premarital agreements"

in Code §§ 20-147 through 20-155. The court's order, entered on

April 30, 2001, held, "[T]he parties' Assignment of March 19,

1999 is a valid contract and marital agreement." The order

explained the court's decision relied mainly on the 1998 letter

and the 1999 "assignment." The court noted neither document

included a reservation "whereby the husband suggests that these

post separation transfers to his wife were anything other than

complete and final." The court also found, even if the

agreement was invalid, husband was estopped from challenging the

"assignment." 5

II. ANALYSIS

Husband argues the trial court (1) used the wrong burden of

proof and (2) erred in finding the "assignment" was intended to

convert marital property into wife's separate property. Husband

further argues, even if such intent were present, the assignment

is unconscionable and, therefore, unenforceable. We disagree

with husband.

5
As we find the "assignment" constituted a valid marital
agreement, we do not address this alternative ruling.

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 A. Burden of Proof

First, husband claims the trial court did not require wife

to prove "clearly and unambiguously" under Kelln v. Kelln, 30

Va. App. 113, 515 S.E.2d 789 (1999), that he transferred all his

rights, including his marital rights, to her. However, husband

has taken the court's comments out of context.

When the judge announced the decision from the bench, he

noted "a curious thing" about the presumption that property is

marital property, codified in Code § 20-107.3. He explained:

But that presumption is not applicable
because whatever was conveyed here was
conveyed to her after the last separation.
So I don't think we have a question of
something being presumed to be marital. But
in any event I don't really think that's
dispositive of my ruling, but one of you may
need it in the Court of Appeals.

Clearly, the court did not ignore the burden of proof. The

judge merely pointed out that the presumption that property

received by a spouse is marital property no longer applies after

the spouses' last separation. See Code § 20-107.3(A)(2).

A trial court is presumed to apply the law correctly.

Starks v. Commonwealth, 225 Va. 48, 54, 301 S.E.2d 152, 156

(1983); Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848,

852 (1992). The judge's statement regarding presumption does

not indicate the trial court applied an incorrect presumption or

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burden in this case. Husband has not overcome the presumption

of correctness. 6

Additionally, husband did not object to this statement or

any perceived error in application of the burden of proof during

the hearing. In order to preserve an issue for a ruling by this

Court, the specific argument must be made to the trial court at

the appropriate time, or the allegation of error will not be

considered on appeal. See Torian v. Torian, 38 Va. App. 167,

185-86, 562 S.E.2d 355, 365 (2002). Therefore, husband did not

preserve any objection to this particular aspect of the court's

ruling and may not argue error now before this Court. See Rule

5A:18.

B. The "Assignment"

The parties agree the businesses were marital property

initially. Therefore, they "may become separate property only

through a 'valid express agreement by the parties' . . . or as

provided in Code § 20-107.3(A)(3)(d)." 7 McDavid v. McDavid, 19

Va. App. 406, 411, 451 S.E.2d 713, 716-17 (1994) (citing Wagner

v. Wagner, 4 Va. App. 397, 404, 358 S.E.2d 407, 410 (1987); Code

§ 20-155). As subsection (A)(3)(d) does not apply to the facts

6
Even if husband were correct, the evidence in this case
meets the burden of proof he asks us to apply. See infra B(3)
(Intent).
7
Subsection (A)(3)(d) discusses commingling of assets,
which is not argued here.

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of this case, the issue here is whether the parties had a valid

express agreement regarding the businesses.

Wife had the burden to prove to the trial court that such

an agreement existed. See id. at 411, 451 S.E.2d at 717. She

met this burden by presenting the written "assignment" to the

trial court. When a written marital agreement is presented, a

court applies "the same rules of formation, validity and

interpretation" used in contract law, Smith v. Smith, 3 Va. App.

510, 513, 351 S.E.2d 593, 595 (1986), except where specified by

the Code. Compare, e.g., Code § 20-149 (premarital agreements

"shall be enforceable without consideration") with Sager v.

Basham, 241 Va. 227, 229-30, 401 S.E.2d 676, 677 (1991) (a valid

contract must be supported by some slight consideration).

1. Marital Agreement under Code § 20-155

On appeal, husband does not contest the fact that a

contract was formed. Rather, he argues the "assignment" was not

intended to convert marital property into wife's separate

property. We disagree.

Husband argues the "assignment" was not signed as part of

separation or divorce negotiations and, therefore, is not a

marital agreement. However, marital agreements are not limited

to actions taken in contemplation of divorce.

Marital agreements are permitted under Code § 20-155:

Married persons may enter into agreements
with each other for the purpose of settling
the rights and obligations of either or both

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 of them, to the same extent, with the same
effect, and subject to the same conditions,
as provided in §§ 20-147 through 20-154 for
agreements between prospective spouses,
except that such marital agreements shall
become effective immediately upon their
execution.

Accordingly, marital agreements may address:

1. The rights and obligations of each of
the parties in any of the property of either
or both of them whenever and wherever
acquired or located;

2. The right to buy, sell, use, transfer,
exchange, abandon, lease, consume, expend,
assign, create a security interest in,
mortgage, encumber, dispose of, or otherwise
manage and control property;

3. The disposition of property upon
separation, marital dissolution, death, or
the occurrence or nonoccurrence of any other
event;

4. Spousal support;

5. The making of a will, trust, or other
arrangement to carry out the provisions of
the agreement;

6. The ownership rights in and disposition
of the death benefit from a life insurance
policy;

7. The choice of law governing the
construction of the agreement; and

8. Any other matter, including their
personal rights and obligations, not in
violation of public policy or a statute
imposing a criminal penalty.

Code § 20-150.

"Courts are not allowed to write new words into a statute

plain on its face." Flanary v. Milton, 263 Va. 20, 23, 556

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S.E.2d 767, 769 (2002). Husband would have us read into Code

§§ 20-155 and 20-150 a requirement that the agreement be made

specifically in contemplation of divorce. While Code

§ 20-150(3) permits agreements in that context, subsection (3)

does not modify the entirety of the section. Subsections (1),

(2), and (8) do not limit marital agreements to contracts made

in contemplation of divorce. Therefore, the Code allows marital

agreements made outside the context of separation and divorce.

Code § 20-155 permits these agreements generally, without

restricting the context to divorce or separation proceedings,

subject only to the limitations of Code §§ 20-147 through

20-154. See, e.g., McDavid, 19 Va. App. at 411-12, 451 S.E.2d

at 717 (finding a deed of gift, executed before the parties

contemplated divorce, transferred wife's marital rights to

husband under Code § 20-155). Code § 20-150(1), (2), and (8)

permit contracts that transfer "all of [husband's] right, title,

and interest" in the parties' businesses to wife. Therefore,

the "assignment" is a valid marital agreement under Code

§ 20-155.

2. "Arising from the Marital Relationship"

Husband argues the "assignment" did not address rights

"arising from the marital relationship," therefore, it is not a

marital agreement under Black v. Edwards, 248 Va. 90, 445 S.E.2d

107 (1994). He misinterprets this case.

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 Black involved a suit by third parties against the estate

of decedent, for his revocation of a reciprocal will after the

death of his wife, which withdrew the names of the third parties

as beneficiaries of his will. Id. at 91-92, 445 S.E.2d at 108.

The property interests of the decedent and his wife were not in

question. Only the interests of third-party beneficiaries were

at issue. The estate argued that an agreement on reciprocal

wills must be in writing under Code § 20-155, and this agreement

was oral. Id. at 93-94, 445 S.E.2d at 109.

The Supreme Court explained, "[W]e do not think that the

legislature intended Code § 20-155 to require that contracts

between spouses be in writing, while permitting other persons to

make such contracts orally." Id. at 94, 445 S.E.2d at 110. The

Court then held:

[W]e are of [the] opinion that the
emphasized portion of Code § 20-155 clearly
limits its provisions to those contracts
affecting those "rights and obligations"
that arise from the marital relationship.
Here, each spouse's contractual intent to
benefit third parties after the death of
both spouses did not affect the "rights and
obligations" arising from the [decedent's
and his wife's] marital relationship. Thus,
we conclude that Code § 20-155 is
inapplicable.

Id.

Husband claims, based on Black, "The parties' ownership of

stock in the businesses at issue does not arise from their

marital relationship; it is a fact outside the marital

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relationship. Thus, an agreement to adjust that ownership is

not a marital agreement." However, Black does not hold that

only marital rights, i.e., the rights that develop exclusively

from a marriage, such as spousal support and equitable

distribution, are the only rights and obligations covered by

Code § 20-155. Black simply stands for the proposition that

marital agreements must deal with the rights and obligations

between spouses, not third parties. Id.

The only rights we are asked to examine are the interests

that arose because the parties were married. 8 Unlike Black,

where the spouses' rights to the property were not in question,

this case clearly involves the spouses' "'rights and

obligations' that arise from the marital relationship." Id.

The "assignment" was a marital contract under Code § 20-155.

3. Intent

Husband also argues the agreement did not transfer his

marital property to wife as her separate property because he did

not intend to transfer those interests. He bases this argument

on both the language of the "assignment" and parole evidence of

his intent. 9

8
Husband has never objected to the retitling of the stock
and ownership interests, his removal as president of the
businesses, nor the failure to include him in the operation of
the businesses.
9
Neither party objected to the use of parole evidence by
the trial court. In fact, both parties suggested they wanted
the judge to consider evidence outside the "assignment."

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 We review the terms of an agreement de novo. See Smith, 3

Va. App. at 513, 351 S.E.2d at 595 ("[W]e are not bound by the

trial court's conclusions as to the construction of the disputed

provisions.").

Virginia adheres to the "plain meaning" rule – courts

examine the plain language of an agreement, going beyond the

written contract only when its meaning is ambiguous. See Pysell

v. Keck, 263 Va. 457, 460, 559 S.E.2d 677, 678-79 (2002);

Douglas v. Hammett, 28 Va. App. 517, 524-25, 507 S.E.2d 98, 101

(1998); Tiffany v. Tiffany, 1 Va. App. 11, 15-16, 332 S.E.2d

796, 799 (1985). Courts shall not include or ignore words to

change the plain meaning of the agreement. Southerland v.

Estate of Southerland, 249 Va. 584, 590, 457 S.E.2d 375, 378

(1995).

The language of the "assignment" plainly gives wife "all of

[husband's] right, title, and interest" in the businesses.

(Emphasis added). The preamble of the agreement expresses

husband's desire to "withdraw as an owner" in all the

businesses. The contract was not intended to transfer only bare

legal title, as husband suggests, but transferred "all" of his

rights.

Husband argues marital rights were not included in "all" of

the rights transferred by the agreement, because the

"assignment" did not explicitly refer to those rights. He

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compares the language of the "assignment" to the language used

in the deed of gift in McDavid.

In McDavid, the wife transferred her interest in real

estate to her husband "'in his own right as his separate and

equitable estate as if he were an unmarried man . . . free from

the control and marital rights of his present . . . spouse.'"

19 Va. App. at 411, 451 S.E.2d at 717 (ellipses in original).

The Court found this language transferred wife's marital rights

in the real estate to her husband. Id. at 411-12, 451 S.E.2d at

717.

While the "assignment" does not include the phrase,

"marital rights," as used in McDavid, it does transfer "all

right, title, and interest" to the businesses. We must "'give

effect to all of the language of a contract.'" Tiffany, 1

Va. App. at 16, 332 S.E.2d at 799 (quoting Berry v. Klinger, 225

Va. 201, 208, 300 S.E.2d 792, 796 (1983)). See also Winn v.

Aleda Constr. Co., 227 Va. 304, 307, 315 S.E.2d 193, 195 (1984)

("[T]here is a presumption that the parties have not used words

aimlessly.").

"All" generally means the entirety. See Random House

Webster's College Dictionary 34 (1997). As the trial court

indicated, the "assignment" did not include a reservation of any

right. Instead, the "assignment" effectively eliminated all

connection between husband and the ownership and control of the

businesses. To find the "assignment" transferred only legal

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title would require that we ignore its use of the word, "all,"

which modifies "right" and "interest." The express and specific

language of the agreement transferred all husband's rights and

interests, which logically includes his marital rights, to wife.

Even if the document was ambiguous, the context in which

the agreement was reached would clarify the meaning of "all of

his right, title, and interest." As the trial court found:

[Husband] basically decided to pack it in
and leave. Based on the evidence, he left
this letter, and he says in the letter, I
will be leaving Harrisonburg and not
returning. And then as for the proceeds of
the Shenk Honda or [the Market], Grandma's
Pantry, et cetera, I leave it all. The
clear implication that is I leave it all to
you.

* * * * * * *

And it is inconceivable to me that if his
intent was not to assign to her everything
and make it her separate property that that
would have been specifically set forth in
either the letter he left her or in the
document that he signed on March 18, [sic]
1999.

The evidence supports this factual finding by the trial court.

See, e.g., Welshman v. Commonwealth, 28 Va. App. 20, 36-37, 502

S.E.2d 122, 130 (1998) (en banc) (explaining a trial court

determines factually whether a defendant intended to distribute

cocaine and that finding "is binding on appeal unless plainly

wrong").

Husband relinquished all interest in the businesses to wife

in a letter. The letter clearly expressed husband's intention

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to permanently leave his wife, children, and the businesses. He

wrote, "I wish for you happiness, fulfillment, contentment, and

to finally have a peace about who you are." He indicated he

felt "like a hostage" with the children. He said, "As for the

proceeds [of the businesses] . . . I leave it all." The

"assignment" was signed eight months after husband left town.

The trial court could properly infer from this letter, coupled

with the assignment, that husband intended to divest himself of

the marital relationship and the assets of that relationship.

Although husband was actively involved in running the

businesses prior to leaving, he did nothing to help wife with

the businesses after he wrote the letter and left town. 10 When

he relinquished his rights to the businesses, he knew they had

significant debt and were in danger of foreclosure.

This Court has explained intent in the context of Code

§ 20-107.3 11 :

Where the facts clearly and unambiguously
support the conclusion that one of the
parties has relinquished all right and
interest in marital property and has
transferred those rights unconditionally to
the other, to the exclusion of the donor's

10
Husband testified he sent money for business debts and
helped with some maintenance at the Market. However, wife
testified he did nothing to help. This evidence must be viewed
in the light most favorable to wife, the party prevailing below.
See Gilman v. Gilman, 32 Va. App. 104, 115, 526 S.E.2d 763, 768
(2000).
11
Code § 20-107.3 discusses determinations of separate and
marital property in the context of equitable distribution.

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 continuing claim upon the property as a
marital asset pursuant to Code § 20-107.3, a
separate property right will be found to
exist.

Kelln, 30 Va. App. at 122-23, 515 S.E.2d at 793-94 (discussing

interspousal gifts).

Husband transferred all his right and interest in the

businesses, without reservation, both in the letter and in the

"assignment." He made no continuing claims on the property and

exercised no control, at least until the parties began

discussing a property settlement and husband discovered the

businesses were beginning to make a profit, nine months after

the "assignment" was executed.

From the evidence, the trial court could conclude husband

abandoned his family and his businesses, at a time when the

businesses had no value. Indeed, the businesses had a negative

cash flow, foreclosure was imminent, and the debts exceeded the

value of the businesses. Only through the work of wife and her

father-in-law did the businesses become profitable. Now,

husband appears to claim the benefit of his wife's and father's

labors. We find the businesses became wife's separate property

when the parties entered into the marital agreement.

C. Unconscionability

Husband argues, if the "assignment" converted marital

property to wife's separate property, then it is unconscionable

under Code § 20-151(A)(2). He contends (1) no consideration was

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exchanged, (2) husband's responsibility for the business debts

continued, and (3) wife's receipt of 100% of the marital assets

is facially unconscionable. We note initially that he must

prove unconscionability by "clear and convincing evidence," with

the evidence viewed in the light most favorable to wife, the

party prevailing below. Derby v. Derby, 8 Va. App. 19, 26, 378

S.E.2d 74, 77 (1989).

1. Consideration

Husband concedes a marital agreement is enforceable without

consideration. Husband claims, however, while an agreement

might be enforceable, in this context, the lack of consideration

makes the agreement unconscionable. We disagree.

Code § 20-149 clearly states, "Such agreements [premarital

and marital agreements] shall be enforceable without

consideration." An agreement cannot be both unconscionable and

enforceable. While Code § 20-151 allows courts to find some

marital agreements unconscionable, lack of consideration without

deception or bad faith is not a factor in making such a finding.

See, e.g., Derby, 8 Va. App. at 28-33, 378 S.E.2d at 78-81.

Husband was an "experienced businessman." He does not

claim he was unaware of the condition of the businesses or of

their potential for growth. On appeal, neither party suggests

this case involves a failure to disclose information, trickery,

or bad faith. Assuming no consideration was exchanged, the

agreement is still enforceable.

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 2. Continuing Debt

Husband also argues the agreement is unconscionable because

"the assignment does not charge the wife with all of the

businesses' debts." We disagree.

The "assignment" included the following provision:

"[Husband] understands and acknowledges that he will remain

personally liable, to the extent of his current personal

liability, on any and all debts of the [businesses] and any

guaranties or endorsements that are currently in place."

(Emphasis added.) Assuming husband is correct that he remained

liable on the businesses' debts, we would not find the agreement

unconscionable. The courts will not second-guess the wisdom of

contractual provisions. See Rogers v. Yourshaw, 18 Va. App.

816, 820, 448 S.E.2d 884, 886 (1994).

While potentially unwise, husband signed the agreement,

which clearly included the statement that he retained some

liability for current debt. He does not argue the statement was

hidden or ambiguous. Additionally, husband does not suggest

that he ever had to make any payments on any business, as

opposed to personal, debts. He does not argue any actual

detriment from this provision. In fact, wife agreed she would

"use her best efforts to continue the business operations . . .

[and] to pay the debts, liabilities, and obligations" of the

businesses, which reduced husband's exposure on the debts and

eliminated his responsibility to work in the businesses.

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Retention of liability for his existing debts is not

unconscionable in this context.

3. Facial Unconscionability

Finally, husband argues the agreement is unconscionable

because it gives all of the parties' significant property to

wife, leaving husband with nothing. 12 He claims Derby controls

this case.

In Derby, this Court found, "[T]he gross disparity in the

value of the property each received under the separation

agreement [was] shocking in that Sandra Derby becomes sole owner

of the bulk of the parties' marital property valued at $260,000

. . . ." 8 Va. App. at 30, 378 S.E.2d at 80 (emphasis added).

The Court also noted that the agreement included a waiver of Mr.

Derby's "rights to spousal support while Sandra Derby retained

hers" and that evidence proved "concealment, misrepresentation,

and undue advantage on the part of Mrs. Derby as well as

emotional weakness on the part of Mr. Derby." Id. at 31, 378

S.E.2d at 80. None of these factors exists in the case before

us.

12
The parties did own other real estate, including the
marital home, which wife retained when husband left. The status
of these properties as well as the parties' personal property is
not an issue before us.

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 Husband does not allege concealment, misrepresentation,

undue advantage, or emotional weakness. 13 He argues only that

wife received all of the marital assets. However, he ignores

the fact that, at the time the "assignment" was signed, the

businesses were significantly in debt and not making a profit.

The value of the real estate and building was less than the

amount of the debt. Wife actually became the owner of

businesses that had no value and were saddled with debt. She

also took over all of husband's responsibility for operating the

businesses, significantly increasing her working hours. 14

Husband had no more responsibility to improve the viability of

the businesses. He was free to leave the state, travel, and

seek other employment, which he did. When the parties signed

the agreement, wife received all the responsibility as well as

all the ownership in a failing business. We do not find such an

agreement is unconscionable.

13
Under the rule of law established in Drewry v. Drewry, 8
Va. App. 460, 472-73, 383 S.E.2d 12, 18 (1989), and Pelfrey v.
Pelfrey, 25 Va. App. 239, 244-45, 487 S.E.2d 281, 284 (1997),
appellant must prove both (1) a gross disparity existed in the
division of assets and (2) overreaching or oppressive influences
created an unfair process. Husband alleges only the first prong
of this test. Wife, however, does not challenge husband's
unconscionability argument on his failure to allege
overreaching.
14
Husband's father still owned part of the Market and was
involved in the operation of the business.

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 The parties entered into a marital agreement. That

agreement is valid. For the reasons stated above, we affirm the

trial court's ruling.

Affirmed.

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