                        COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, McClanahan and Senior Judge Coleman


ANITA LOUISE MURDAUGH
                                             MEMORANDUM OPINION *
v.      Record No. 0233-03-1                     PER CURIAM
                                                JUNE 24, 2003
MARSHALL ELMORE MURDAUGH


             FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                         Marc Jacobson, Judge

             (Gary W. Searcy, on brief), for appellant.
             Appellant submitting on brief.

             (William R. O'Brien; Bridges, O'Brien &
             Frucci, P.C., on brief), for appellee.
             Appellee submitting on brief.


        Anita Louise Murdaugh (wife) appeals the circuit court's

final decree of divorce incorporating a written agreement signed

by wife and Marshall Elmore Murdaugh (husband).    On appeal, wife

contends the trial court erred by denying her motion to rescind

the agreement on the ground that she was mentally incompetent to

enter into it.    We disagree and affirm the trial court's decision.

                               Background

        The parties married on October 17, 1987.   Wife filed her

bill of complaint seeking a divorce from husband on December 13,

2000.     On August 22, 2002, following a two-hour discussion and

negotiation in the commissioner's office in which both parties'


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
counsel participated, the parties entered into a handwritten

stipulation agreement providing for the division of certain

property and the payment of spousal support from husband to wife

in the amount of eight hundred dollars per month.    Both parties

signed the agreement, which was witnessed by both counsel.

     Wife testified she suffers from Lyme disease, among other

ailments.   She explained that on the day she signed the

agreement she was afflicted by "brain fog, weakness, [and]

fatigue" which caused her to not "understand some of the things

[her counsel] was saying to [her]."

     Wife's doctor, Charles L. Crist, confirmed wife suffers

from Lyme disease and elaborated on the symptoms the disease

produces.   He explained wife had "good days and bad days" and

that, based upon the facts wife described to him, he concluded

wife did not understand the nature and character of the

agreement on the day she entered it.    Crist indicated wife told

him she had made a "bad decision."

                             Analysis

     In Virginia, "'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.'"     Parra v. Parra, 1 Va. App.

118, 128, 336 S.E.2d 157, 162 (1985) (quoting Cooley v. Cooley,

220 Va. 749, 752, 263 S.E.2d 49, 52 (1980)).    Code § 20-109.1

provides that a court in its discretion may incorporate by

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reference into its final divorce decree "any valid agreement

between the parties."

               The law presumes that every adult party
          who executes an agreement is mentally
          competent to enter into a contract.
          Chesapeake & Ohio Ry. Co. v. Mosby, 93 Va.
          93, 94, 24 S.E. 916, 916 (1896). A party
          may rebut that presumption by proof that
          when the person executed the agreement he or
          she lacked the capacity to understand the
          nature and consequences of the transaction.
          Lohman v. Sherwood, 181 Va. 594, 607, 26
          S.E.2d 74, 79-80 (1943). In order to be
          competent to enter into a legally binding
          obligation, a party is not required to
          exercise good judgment or to make wise
          decisions so long as he or she understands
          the nature and character of the agreement
          and consequences of entering into it. Thus,
          "weakness of mind short of insanity; or
          immaturity of reason in one who has obtained
          full age; or the mere absence of experience
          or skill upon the subject of the particular
          contract affords per se, no ground for
          relief at law or in equity." Mosby, 93 Va.
          at 94, 24 S.E. at 916. The party's capacity
          or condition before and after executing the
          agreement is relevant evidence to determine
          competency, but the dispositive question is
          the individual's mental capacity to
          understand the nature of the agreement and
          the consequences of his or her act at the
          time the agreement is executed. Price's
          Ex'r v. Barham, 147 Va. 478, 481, 137 S.E.
          511, 512 (1927). The party must have
          "sufficient mental capacity to understand
          the nature of and effect of the transaction
          . . . ." Id. at 482, 137 S.E. at 512. The
          resolution of conflicting evidence bearing
          on an individual's mental capacity is a
          factual determination to be made by the
          trial court, Waddy v. Grimes, 154 Va. 615,
          641, 153 S.E. 807, 815 (1930), and it will
          not be disturbed on appeal, unless plainly
          wrong or without evidence to support it.



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           Pommerenke v. Pommerenke, 7 Va. App. 241,
           244, 372 S.E.2d 630, 631 (1988).

Drewry v. Drewry, 8 Va. App. 460, 467, 383 S.E.2d 12, 15 (1989).

     "The law does not require that one have the ability to make

a reasoned judgment concerning an agreement but only that he or

she understand the nature and consequences of his acts."       Id. at

468, 383 S.E.2d at 16.    The trial court determined wife failed

to demonstrate she did not understand the nature and

consequences of entering into the stipulation agreement.      She

signed the agreement with the advice of counsel following a

two-hour discussion and negotiation of the terms in the

commissioner's office.    The court found wife's testimony

concerning her comprehension of the events on the day she signed

the agreement was not credible.    Similarly, the court determined

Crist's conclusion was based solely on wife's description to him

of her condition on that date.    "We defer to the trial court's

evaluation of the credibility of the witnesses who testify ore

tenus."   Shackelford v. Shackelford, 39 Va. App. 201, 208, 571

S.E.2d 917, 920 (2002).   We cannot say that the trial court's

judgment was plainly wrong or without evidence to support it.

                                                             Affirmed.




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