                     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.

                                 - 2 -
                       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

                               - 3 -
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.

                              - 4 -
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

                                 - 5 -
            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

                                - 6 -
          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


                                - 7 -
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

                                - 8 -
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

                                 - 9 -
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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