                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


DONALD RAY SCROGGINS
                                               MEMORANDUM OPINION *
v.   Record No. 1861-95-4                          PER CURIAM
                                                 MARCH 26, 1996
CATHERINE M. SCROGGINS


                                      FROM THE CIRCUIT COURT OF
FAIRFAX COUNTY
                       J. Howe Brown, Jr., Judge
            (William B. Reichhardt; Elizabeth D. Teare;
            Surovell, Jackson, Colten & Dugan, on
            briefs), for appellant.

            (Joyce M. Henry-Schargorodski; Gaughan &
            Schargorodski, on brief), for appellee.



     Donald Ray Scroggins (husband) appeals the decision of the

circuit court which, among other things, set aside a Property

Settlement Agreement (Agreement) entered into with Catherine M.

Scroggins (wife).   Specifically, husband raises the following

issues on appeal:
          (1) whether the trial court erred in
               setting aside the parties'
               Agreement;

           (2)   whether the trial court erred in finding
                 that the waiver of spousal support was
                 not severable from the remainder of the
                 Agreement;

           (3)   whether the trial court erred in
                 awarding wife survivor benefits
                 despite her waiver of those
                 benefits under the terms of a
                 separate contract;

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
            (4)   whether the trial court erred in
                  treating as marital property funds
                  received after separation by
                  husband as part of an employment
                  severance settlement; and

            (5)   whether the trial court erred in
                  refusing to order the sale of the
                  marital residence.


Upon reviewing the record and briefs of the parties, we conclude

that this appeal is without merit.     Accordingly, we summarily

affirm the decision of the trial court.    Rule 5A:27.
     The parties presented their evidence in a series of

hearings.   "The judgment of a trial court sitting in equity, when

based upon an ore tenus hearing, will not be disturbed on appeal

unless plainly wrong or without evidence to support it."     Box v.

Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).

                    Enforceability of the Agreement

     "Marital 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).    A party contesting a settlement agreement

on the grounds of unconscionability must provide clear and

convincing evidence to support his or her allegations.     Derby v.

Derby, 8 Va. App. 19, 26-27, 378 S.E.2d 74, 77 (1989).     While

"[c]onsideration adequate to support a contract does not have to

be full consideration," id. at 29, 378 S.E.2d at 79, "[i]f a

'gross disparity in the value exchanged' exists then the court



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should consider 'whether oppressive influences affected the

agreement to the extent that the process was unfair and the terms

of the resulting agreement unconscionable.'"       Drewry v. Drewry, 8

Va. App. 460, 472, 383 S.E.2d 12, 18 (1989) (citing Derby, 8 Va.

App. at 28, 378 S.E.2d at 79).    Moreover, "[w]hen the

accompanying incidents are inequitable and show bad faith, such

as concealments, misrepresentations, undue advantage, oppression

on the part of the one who obtains the benefit, or ignorance,

weakness of mind, sickness, old age, incapacity, pecuniary

necessities, and the like, on the part of the other, these

circumstances, combined with inadequacy of price, may easily

induce a court to grant relief . . . ."
Derby, 8 Va. App. at 28-29, 378 S.E.2d at 79 (citation omitted).

     In ruling on wife's motion to set aside the Agreement on the

grounds of unconscionability, the trial judge noted that he

"generally found the testimony of [wife] to be credible."      The

judge found husband's testimony "at times to be embellished and

unreliable," noting particularly that husband gave "evasive

testimony with respect to the value of consideration exchanged by

the parties pursuant to the property settlement agreement."

"'The credibility of witnesses was crucial to the determination

of the facts, and the findings of the trial court based upon the

judge's evaluation of the testimony of witnesses heard ore tenus

are entitled to great weight.'"       Gottlieb v. Gottlieb, 19 Va.

App. 77, 83-84, 448 S.E.2d 666, 670 (1994) (citation omitted).



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     In the course of the parties' property settlement

discussions, husband supplied wife with a list of marital assets

to be divided, of which wife was to receive assets worth $119,500

and husband was to receive assets worth $92,500.   However,

husband failed to disclose the value of his pension, his

retirement incentive payment from IBM, and his medical benefits

at the time the parties were purported equally dividing the

marital assets.   The value of these assets exceeded $400,000.

The evidence therefore supports the trial court's conclusion that

there was a gross disparity between the consideration received by

husband and that received by wife under the Agreement.
     While the trial court found that wife was competent at the

time the Agreement was signed, the trial court also found that

the gross disparity in the assets the parties received "was the

result of over-reaching and oppressive conduct" by husband.    The

court found that husband "facilitated his wife's execution of the

. . . agreement at a time when she was patently suicidal and

operating under impaired judgement."   Wife had returned from a

trip in which she planned to commit suicide but instead incurred

a substantial gambling debt in her failed attempt to cope with

increasing financial losses.   Husband offered to repay her

gambling loss but also again pressured her to sign the Agreement.

     The Agreement itself was drafted by an attorney who

purportedly represented both parties, but who had prior dealings

with husband's girlfriend which were not disclosed to wife, who




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made changes beneficial to husband, and who subsequently filed

the divorce action for husband.

     Finally, the trial court noted that wife "was not as

sophisticated as her husband[,] that she relied upon his

integrity in their dealings, rather than retaining an attorney to

obtain separate counsel as to her rights.   And it is also clear

that [husband] knew of that reliance and that he encouraged it."

     The trial court's decision to set aside the parties'

Agreement on the grounds of unconscionability is supported by

evidence and is not plainly wrong.

            Severability of Waiver of Spousal Support

     Husband argues that wife's waiver of spousal support was

severable from the portions of the Agreement found by the trial

court to be unconscionable.   As the trial court found the

Agreement to be unconscionable, we find no error in the trial

court's decision to set aside the entire Agreement, including the

parties' waiver of support.
                  Waiver of Survivor's Benefits

     Husband admitted that wife's waiver of her right to survivor

benefits under his pension was linked to the benefits she would

receive under the Agreement. He represented to wife
          that she should sign this agreement [waiving
          her right to survivor benefits] so that I
          could release my pension, and begin to
          receive it, and that in exchange for that, in
          the settlement agreement there would be an
          amount in there to cover her half of the
          retirement eligibility as of 1988.




                                  5
However, husband failed to fully disclose to wife the assets he

had or the value of his IBM pension.

     The trial court ruled that "[w]ife's purported waiver of

survivor benefits is of no effect, for the reasons stated in the

opinion letter . . . setting aside that Property Settlement

Agreement."    Husband's own testimony demonstrates that wife's

waiver of survivor benefits was linked to what she would receive

under the Agreement.   Therefore, as evidence supports the trial

court's decision, it will not be disturbed on appeal.

                   Severance Package from Employer

     The trial court ruled that the early retirement incentive

received as a lump sum payment by husband in 1992 was marital

property subject to equitable distribution.   Husband testified

that the payment was based on two weeks' pay for each year's

service dating back to 1964, plus accrued vacation pay.   The

evidence therefore demonstrated that the amount of the payment

was determined by husband's years of employment with IBM during

the marriage.

     This evidence supports the trial court's determination that

the lump sum payment was a marital asset.
                          Marital Residence

     "Fashioning an equitable distribution award lies within the

sound discretion of the trial judge and that award will not be

set aside unless it is plainly wrong or without evidence to

support it."    Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396




                                  6
S.E.2d 675, 678 (1990).   Under Code § 20-107.3(C), the court may,

"based upon the factors listed in subsection E, divide or

transfer or order the division or transfer, or both, of jointly

owned marital property, or any part thereof."    The court is also

authorized to "apportion and order the payment of the debts of

the parties, or either of them . . . ."   Id.

     The trial court was authorized to order husband to transfer

his interest in the marital residence and to order wife to hold

husband harmless for any liability in the mortgage note.

Husband's assertion that he may be forced to pay the mortgage in

the future, skewing the equitable distribution, is mere

speculation.   Therefore, as the trial court's award is neither

plainly wrong nor unsupported by the evidence, it will not be

disturbed on appeal.
     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                Affirmed.




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