COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
MANSUR RAHNEMA
v. Record No. 1081-99-1
SHAHLA RAHNEMA MEMORANDUM OPINION * BY
JUDGE LARRY G. ELDER
SHAHLA RAHNEMA MARCH 7, 2000
v. Record No. 1156-99-1
MANSUR RAHNEMA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Moody E. Stallings, Jr. (Stallings &
Richardson, P.C., on brief), for Mansur
Rahnema.
Glenn R. Croshaw (Daniel T. Campbell;
Willcox & Savage, P.C., on briefs), for
Shahla Rahnema.
Mansur Rahnema (husband) and Shahla Rahnema (wife) appeal
the decision of the circuit court awarding husband a divorce and
determining the validity of certain agreements signed by the
parties. 1 Husband contends the trial court erred by (1) granting
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
The order from which the parties appeal was not a final
order. The trial court retained the matter on its docket for
enforcement of the terms of the separation agreement. However,
the order was appealable as an interlocutory order "adjudicating
the principles of a cause." See Code § 17.1-405(4)(ii); see
a divorce based on a one-year separation rather than on adultery
without hearing any evidence on the adultery issue; and (2)
sustaining the recommendation of the commissioner that the post
marital agreement entered into by the parties on July 29, 1993
was valid and enforceable. In her appeal, wife contends that
the trial court erred by (1) finding that the set of marital
agreements entered into on April 22, 1994 were unconscionable;
and (2) failing to award wife attorney's fees and costs to which
she claimed entitlement under the 1993 marital agreement. We
find no reversible error and affirm the ruling of the trial
court.
"The commissioner's report is deemed to be prima facie
correct." Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545,
548 (1990). "When the commissioner's findings are based upon
ore tenus evidence, 'due regard [must be given] to the
commissioner's ability . . . to see, hear and evaluate the
witnesses at first hand.'" Id. (quoting Hill v. Hill, 227 Va.
569, 577, 318 S.E.2d 292, 297 (1984)). On appeal, "[t]he decree
confirming the commissioner's report is presumed to be correct
and will not be disturbed if it is reasonably supported by
substantial, competent and credible evidence." Brawand v.
Brawand, 1 Va. App. 305, 308, 338 S.E.2d 651, 652 (1985).
also Erikson v. Erikson, 19 Va. App. 389, 391, 451 S.E.2d 711,
712-13 (1994). This Court, therefore, has jurisdiction to hear
this appeal.
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Record No. 1081-99-1
Husband contends the trial court erred in affirming the
commissioner's finding that he be granted a divorce on the
ground that the parties lived separate and apart in excess of
one year rather than on the ground of adultery. The
commissioner found that husband failed to prove adultery.
Husband excepted to the commissioner's finding. Husband
contends that he was denied the opportunity to present evidence
on adultery because the commissioner refused to hear his
evidence. The commissioner ruled that evidence of adultery was
unnecessary in light of his finding that the first marital
agreement was valid. Under that agreement, the parties waived
any benefit to which they were otherwise entitled by law,
including equitable distribution under Code § 20-107.3 and
spousal support other than contractually agreed.
Assuming that the commissioner erred in refusing husband's
proffer of evidence supporting his allegations of adultery, we
find no basis to reverse the trial court's decision because we
affirm the trial court's decision regarding the validity of the
first marital agreement. The evidence established that the
parties lived apart following their separation in 1997. Even if
husband proved adultery, a trial court is "not compelled to
'give precedence to one proved ground of divorce over another.'"
Williams v. Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253
(1992) (citation omitted). Therefore, under the circumstances
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of this case, we find no grounds for reversing the decision of
the trial court granting husband a divorce on the ground of a
one-year separation.
Husband also contends that the trial court erred by
accepting the commissioner's finding that the 1993 agreement
signed by the parties was valid and enforceable because he
signed the agreement under duress. He further contends that
paragraph VII--which required husband to execute a will contract
leaving wife eighty percent of his assets upon his death and
prevented him from further encumbering any of his assets without
wife's consent--is unconscionable and should be severed from the
agreement.
In the agreement, husband disclosed all his property,
listed in the attached Schedule A, and gave wife a fifty percent
interest in his separate property. Husband expressly waived the
requirement for written disclosure of wife's property. Husband
and wife agreed that wife would receive $100,000 in lump sum
spousal support if the parties divorced after less than five
years of marriage and $250,000 in lump sum spousal support if
the marriage lasted more than five years. In paragraph VII,
husband also agreed to revise his will to leave eighty percent
of his assets to wife.
"[P]roperty settlement agreements are contracts . . .
subject to the same rules of formation, validity, and
interpretation as other contracts." Smith v. Smith, 3 Va. App.
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510, 513, 351 S.E.2d 593, 595 (1986). "In construing the terms
of a property settlement agreement, just as in construing the
terms of any contract, we are not bound by the trial court's
conclusions as to the construction of the disputed provisions."
Id. "If all the evidence which is necessary to construe a
contract was presented to the trial court and is before the
reviewing court, the meaning and effect of the contract is a
question of law which can readily be ascertained by this court."
Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346
(1987).
Although husband contends he signed the agreement under
duress, the commissioner found that no evidence supported this
assertion. We agree that the evidence, viewed in the light most
favorable to wife, supports this finding.
Common-law "duress" includes "'any wrongful acts that
compel a person, such as a grantor of a deed, to manifest
apparent assent to a transaction without volition or cause such
fear as to preclude him from exercising free will and judgment
in entering into a transaction.'" Norfolk Div. of Soc. Servs.
v. Unknown Father, 2 Va. App. 420, 435, 345 S.E.2d 533, 541
(1986) (citation omitted).
"'Duress may exist whether or not the threat
is sufficient to overcome the mind of a man
of ordinary courage, it being sufficient to
constitute duress that one party to the
transaction is prevented from exercising his
free will by reason of threats made by the
other and that the contract is obtained by
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reason of such fact. Unless these elements
are present, however, duress does not
exist. . . . Authorities are in accord that
the threatened act must be wrongful to
constitute duress.'"
Pelfrey v. Pelfrey, 25 Va. App. 239, 246, 487 S.E.2d 281, 284
(1997) (citations omitted). The evidence indicated that husband
was anxious to have this marriage, his fourth, work out.
However, he had counsel's assistance and advice throughout the
drafting of the agreement. Although husband's counsel refused
to let him sign the first draft of the agreement, husband
nevertheless proceeded to sign a revised agreement.
Under Code § 20-155(B), applicable to this agreement
through Code § 20-151 and § 20-154, "[a]ny 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." Here, the agreement expressly provided that
[t]he parties both freely and expressly
stipulate that this Agreement is not
unconscionable nor was it at the time it was
negotiated and executed; that each party was
provided a fair and reasonable disclosure of
all the property and financial obligations
of the other party, with Schedule "A" being
attached hereto as proof of Husband's
disclosure to Wife and Husband does hereby
voluntarily and expressly waive any
disclosure other than that previously orally
provided to him by the Wife; that each is
satisfied with all the property and
financial disclosure heretofore made by each
to the other; and that each party
voluntarily and expressly waives any right
to a disclosure of the property or financial
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obligations of the other party beyond that
disclosure provided by this Agreement.
Therefore, the record contains prima facie evidence that the
agreement was not unconscionable when husband signed it.
"It is the function of the court to construe
the contract made by the parties, not to
make a contract for them. The question for
the court is what did the parties agree to
as evidenced by their contract. The guiding
light in the construction of a contract is
the intention of the parties as expressed by
them in the words they have used, and courts
are bound to say that the parties intended
what the written instrument plainly
declares."
Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398
(1984) (quoting Meade v. Wallen, 226 Va. 465, 467, 311 S.E.2d
103, 104 (1984)). The commissioner found no evidence that
husband acted under duress when he entered into the agreement or
that he lacked the capacity at that time to sign the agreement.
We find no basis to reverse the decision of the trial court
accepting the commissioner's finding.
For these reasons, we affirm the ruling of the trial court
on the ground for the divorce and the validity of the first
marital agreement.
Record No. 1156-99-1
In her appeal, wife contends that the commissioner erred by
finding that the series of property conveyances and agreements
referred to as the second set of agreements were unconscionable.
"Historically, a bargain was unconscionable in an action at law
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if it was '"such as no man in his senses and not under delusion
would make on the one hand and as no honest and fair man would
accept on the other."'" Derby v. Derby, 8 Va. App. 19, 28, 378
S.E.2d 74, 78-79 (1989) (citations omitted), quoted with
approval in Pelfrey, 25 Va. App. at 244, 487 S.E.2d at 284. In
Derby, this Court set aside as unconscionable a contract which
awarded the wife virtually all the husband's property, noting
that "gross 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, 8 Va.
App. at 28, 378 S.E.2d at 79.
In the second series of agreements, husband gave wife
virtually everything he owned, giving up even the fifty percent
interest in certain property that he had retained under the
first marital agreement. The deeds granted wife in her sole
name, "by reason of love and affection," 116 acres of land in
Pungo, the marital residence and its contents, husband's IRA
certificate worth $24,237, certain stocks, and his pension plan.
Although wife's counsel, Carrollyn Cox, sent certain letters to
husband's counsel, Greg Giordano, Giordano testified that he did
not communicate with husband concerning the second series of
agreements. The commissioner found that husband was not
represented by counsel when he executed these deeds. Despite
the fact that the parties had been married for only a year at
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the time the deeds were executed and that the marriage lasted
only four years, the agreements gave wife everything husband had
acquired in his thirty years of professional life. The
agreements left nothing for husband's son, who suffered from
mental illness and was unable to provide for himself. The
commissioner found clear and convincing evidence proved that the
agreements were unconscionable. The commissioner's findings
were fully supported by the evidence, viewed in the light most
favorable to husband. Therefore, we find no error in the
decision of the trial court affirming the commissioner's report
and setting aside the second set of agreements on the ground
that they were unconscionable.
Wife also contends that the commissioner erred by not
awarding her attorney's fees and costs as provided in the first
agreement. An award of attorney's fees or costs is a matter
submitted to the sound discretion of the trial court and is
reviewable on appeal only for an abuse of discretion. See
Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558
(1987). The key to a proper award of counsel fees is
reasonableness under all the circumstances. See McGinnis v.
McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
The commissioner refused to award wife attorney's fees,
finding that "the majority of the effort and, therefore, I
assume the attorney's fees has been about the second set of
documents, which I have found to be invalid." The commissioner
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ordered the parties to split the costs equally. We reject
wife's contention that she was entitled to an award of
attorney's fees under the first marital agreement because the
commissioner found that the majority of the fees did not arise
in the context of enforcing that agreement. Further, as wife
conceded at oral argument, the trial court had the authority to
award husband fees based on the resolution of the challenge to
the second agreement in a manner favorable to him. Accordingly,
the trial court reasonably could have concluded that the net fee
award to wife should be zero. For the same reason, we find no
abuse of discretion in the decision not to award her costs.
For these reasons, we affirm the trial court's ruling
regarding the unconscionability of the second set of agreements
and its denial of wife's request for attorney's fees and costs
pursuant to the first agreement.
Affirmed.
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