                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, AtLee and Senior Judge Clements
UNPUBLISHED



              LISA MERIA MAY GUST
                                                                              MEMORANDUM OPINION*
              v.     Record Nos. 0901-15-2 and 0024-16-2                          PER CURIAM
                                                                                  MAY 10, 2016
              ALEXANDER MARK GUST


                           FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
                                            Steven C. McCallum, Judge

                               (Kevin B. O’Donnell; Brian A. Carrico; Old Towne Lawyers, LLP,
                               on brief), for appellant.

                               (Craig W. Sampson; Barnes & Diehl, P.C., on brief), for appellee.1


                     Lisa Meria May Gust (wife) appeals a final decree of divorce. Wife argues that the trial

              court erred by (1) finding that the parties’ prenuptial agreement was valid and enforceable; and

              (2) denying her motion for continuance because she had been unable to review Dr. Michele

              Nelson’s custody evaluation. 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. See Rule 5A:27.

                                                        BACKGROUND

                     “When reviewing a trial court’s decision on appeal, we view the evidence in the light

              most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”

              Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Kevin D. Purnell, Guardian ad litem for the minor children, supports the appellee’s
              position with respect to the second assignment of error and takes no position on the first
              assignment of error because the issue is outside the scope of his representation.
        On August 21, 2004, wife and Alexander Mark Gust (husband) signed a premarital

agreement in Las Vegas, Nevada. On the same day, they married each other.

        On January 22, 2014, wife filed a complaint for divorce. She requested a divorce based

on fault grounds and asked the trial court to determine custody, visitation, child support, spousal

support, and equitable distribution. On February 25, 2014, husband filed an answer and

cross-complaint. He also sought a divorce on fault-based grounds and requested custody and

child support. On March 4, 2014, wife filed an answer to husband’s cross-complaint. On March

21, 2014, the parties appeared before the circuit court for a pendente lite hearing. On April 10,

2014, the circuit court entered a pendente lite order, which awarded child support and spousal

support to wife.

        On May 12, 2014, husband filed a motion for leave to file an amended answer and

counterclaim. For the first time, husband notified the court of the parties’ prenuptial agreement

and attached a copy of the prenuptial agreement to his amended counterclaim. He also filed a

motion to set aside the pendente lite order because the parties waived their right to seek spousal

support in the prenuptial agreement. Furthermore, husband filed a motion for a custody

evaluation.

        On July 8, 2014, the trial court entered an order in which the parties agreed to submit to

psychological evaluations and a custody evaluation performed by Dr. Nelson. The agreed order

stated, in part:

                          The Evaluator shall submit a written report to the Court and
                   counsel for the parties which the Clerk shall SEAL in the court
                   file.

                            It is hereby ORDERED that the lawyers for the parents
                   may discuss the report with their respective clients but it is
                   ORDERED that counsel SHALL NOT give copies of the report to
                   their clients in any form.



                                                  -2-
       On September 9, 2014, the trial court entered an order allowing husband’s amended

answer and counterclaim. On October 6, 2014, wife filed her answer to husband’s amended

counterclaim. She reserved her right to allege that the prenuptial agreement was unconscionable

and obtained under duress and without her “free and voluntary consent.”

       On December 5, 2014, the parties appeared before the circuit court for a hearing on the

validity of the prenuptial agreement. After hearing the parties’ evidence and argument, the trial

court ruled from the bench that wife had not met her burden of proof to show that the prenuptial

agreement was unconscionable or involuntary. On December 19, 2014, the trial court entered an

order that stated the prenuptial agreement was valid. The order also terminated the pendente lite

spousal support award and ordered that child support be recalculated as of December 5, 2014.

       On December 19, 2014, the trial court entered a pre-trial order and scheduled the final

hearing for April 13, 2015.

       On January 29, 2015, the trial court entered an order allowing wife’s counsel to

withdraw. Wife proceeded pro se.

       On April 1, 2015, wife, acting pro se, filed a pleading titled, “Notice and Motion to

Release Custody Evaluation, Motion to Compel Answers to Supplemental Interrogatories,

Motion to Continue Hearing.”

       The parties appeared before the trial court on April 13, 2015. Wife asked the trial court

to continue the hearing for numerous reasons, one of which was that she had not been able to

review Dr. Nelson’s psychological and custody evaluations. Dr. Nelson’s report was filed under

seal and unavailable to the parties pursuant to the July 8, 2014 order. The trial court denied

wife’s motion, but gave her an opportunity to review the evaluations in court before Dr. Nelson

testified. After hearing the evidence and argument, the trial court ruled from the bench and

awarded husband a divorce from wife based on no-fault grounds. The trial court awarded sole

                                               -3-
legal and physical custody of the children to husband. The trial court also determined a

visitation schedule and ordered wife to pay the statutory minimum child support. On May 8,

2015, the trial court entered the final decree of divorce, which incorporated, but did not merge,

the prenuptial agreement.

       Subsequent to the entry of the final decree of divorce, wife retained counsel. On May 22,

2015, wife, by counsel, filed a “Motion to Suspend Final Decree of Divorce and Motion for

Reconsideration.” The trial court did not enter an order suspending the final decree, so it became

final on May 29, 2015. See Rule 1:1. On June 4, 2015, the trial court entered an order denying

the motion. This appeal followed.

                                           ANALYSIS

                                      Assignment of error #1

       Wife argues that the trial court erred in finding that the prenuptial agreement was valid

and enforceable because she did not execute the prenuptial agreement voluntarily. Further, she

asserts that husband’s testimony was “inherently incredible.”

               A. A premarital agreement is not enforceable if the person against
               whom enforcement is sought proves that:

               1. That person did not execute the agreement voluntarily; or

               2. The agreement was unconscionable when it was executed and,
               before execution of the agreement, that person (i) was not provided
               a fair and reasonable disclosure of the property or financial
               obligations of the other party; and (ii) did not voluntarily and
               expressly waive, in writing, any right to disclosure of the property
               or financial obligations of the other party beyond the disclosure
               provided.

               B. Any 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.




                                               -4-
                 C. If a marriage is determined to be void, an agreement that would
                 otherwise have been a premarital agreement shall be enforceable
                 only to the extent necessary to avoid an inequitable result.

Code § 20-151.

       Husband and wife have very different accounts about what occurred prior to the

execution of the prenuptial agreement and what occurred on August 21, 2004, which was when

they signed the agreement and were married.

       According to wife, husband presented her with the prenuptial agreement shortly before

they got married. She said that they were in a limousine on the way to get married when

husband told the driver to stop at an office. Husband and wife went into the office, and husband

allegedly told wife that if she did not sign the prenuptial agreement, then “good luck getting

custody of our son.”2 Wife testified that this was the first time she had seen the prenuptial

agreement, and she did not read through it before she signed it. Wife told the trial court that she

was unemployed at the time, and she felt that if she did not sign the agreement, she would lose

her son and have nowhere to live. Wife said that she did not have an opportunity to seek legal

advice before she signed the prenuptial agreement.

       According to husband, he and wife had discussed the prenuptial agreement since April

2004. Husband’s father downloaded an agreement from the internet and drafted the agreement

for them. Husband testified that he presented a draft of a prenuptial agreement to wife in June

2004. She suggested several changes, which husband’s father made to the draft. According to

husband, the parties had not signed the prenuptial agreement before they went to Las Vegas to

get married because wife suggested numerous changes. Husband denied threatening wife prior

to her signing the agreement. He testified that when presented with the agreement in Las Vegas,

wife did not request any additional time to review the agreement and simply signed it.


       2
           The parties had a son prior to their marriage.
                                                  -5-
       After hearing the conflicting testimony and argument, the trial court noted that it had

heard “dramatically different accounts on what happened on the day or weeks or months before

this wedding.” The trial court stated that it did not “know who to believe to the requisite degree

of certainty . . . .” The trial court found that although the witnesses appeared to be credible and

telling the truth, “somebody was lying.” Consequently, the trial court explained that “[t]he

burden of proof determines the outcome.” As stated in Code § 20-151(A)(1), wife, as the party

disputing the enforceability of a prenuptial agreement, bore the burden of proving she did not

execute it voluntarily. The trial court found that she did not meet her burden of proof.

       Considering the specific circumstances of this case, the trial court did not err in finding

that wife did not meet her burden of proof to show that she did not enter into the prenuptial

agreement voluntarily.

                                      Assignment of error #2

       Wife argues that the trial court abused its discretion by denying her motion for a

continuance because she had not been able to review Dr. Nelson’s evaluations prior to trial.

       The parties agreed to submit to psychological evaluations and a custody evaluation

performed by Dr. Nelson. They also agreed that Dr. Nelson shall provide copies of the

evaluations to their attorneys. The attorneys could discuss the report with their clients, but could

not give them a copy. On July 8, 2014, the trial court entered an order reflecting the parties’

agreement.

       On December 2, 2014, Dr. Nelson filed her report with the court and stated that she

already provided the report to counsel.

       On January 29, 2015, the trial court entered an order allowing wife’s counsel to

withdraw, and wife proceeded pro se.




                                                -6-
       On April 1, 2015, wife filed a motion and asked the trial court to release to her a copy of

Dr. Nelson’s report. She stated, “As I am acting as my own attorney I need to review the report

in order to prepare for trial which will require additional time to prepare the case and may

require a second opinion.” She also asked the trial court to continue the scheduled hearing date

of April 13, 2015.

       At the beginning of the hearing on April 13, 2015, wife moved for a continuance. She

listed six reasons for why she needed a continuance. One of her reasons was that she had not

been able to review Dr. Nelson’s report. Husband opposed the continuance. With respect to her

review of Dr. Nelson’s report, husband’s counsel explained that the July 8, 2014 order prevented

wife from receiving a copy of the report. Husband was concerned that if wife received a copy,

then she would post it on the internet. He explained that wife had posted several things online

that were inappropriate. He also wondered whether she had reviewed it with her attorney before

her attorney withdrew because he had a copy of it. However, husband also conceded that “in the

interest of fairness, she should have some chance to take a look at it.” The trial court denied

wife’s motion for a continuance, but allowed wife to review Dr. Nelson’s report prior to

Dr. Nelson testifying.

       On appeal, wife argues that the trial court erred in denying her motion for a continuance

because she was pro se and not able to review the report ahead of time, which impacted her

ability to cross-examine Dr. Nelson.

               The decision to grant a motion for a continuance is within the
               sound discretion of the circuit court and must be considered in
               view of the circumstances unique to each case. The circuit court’s
               ruling on a motion for a continuance will be rejected on appeal
               only upon a showing of abuse of discretion and resulting prejudice
               to the movant.

Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007).



                                                -7-
       Contrary to wife’s arguments, the trial court did not abuse its discretion by denying her

motion for a continuance. Wife requested a continuance on six different grounds. She admitted

that she was raising many of the grounds for the first time. However, one ground was that she

had not been able to review Dr. Nelson’s report. She included this ground in her motion. The

trial court granted wife an opportunity to review Dr. Nelson’s report before she testified. The

trial court took a forty-five-minute recess, during which wife reviewed the report. After the

recess, wife did not renew her motion for a continuance or tell the court that she needed extra

time to review the report. Wife had the opportunity to cross-examine Dr. Nelson. Wife asked

questions about Dr. Nelson’s evaluations and the need for a follow-up appointment. Since wife

had an opportunity to review Dr. Nelson’s report and did not request a continuance after her

review of the report, wife did not show that the trial court abused its discretion in denying wife’s

request for a continuance.

       Furthermore, the trial court’s denial of the continuance did not prejudice wife with

respect to the court’s custody decision. The trial court heard from numerous witnesses about the

parents and their parenting skills. Although Dr. Nelson was one witness, the trial court did not

rely solely on Dr. Nelson’s report for its custody determination. At the conclusion of the hearing

on April 13, 2015, the trial court reviewed the Code § 20-124.3 factors for determining custody

and visitation. The trial court explained in detail its reasoning for granting sole legal and

primary physical custody of the children to husband. The trial court discussed wife’s lack of

proper boundaries with the children and noted that wife has told their twelve-year-old son

“things that are beyond his years and concerns.” It also focused on the fact that wife relied on

her sixteen-year-old son and the parties’ twelve-year-old son to take care of the house and the

two younger children. In addition, the trial court emphasized wife’s poor judgment and gave an

example of wife allowing “her common-law former husband,” who is a registered sex offender,

                                                -8-
to be around her children. She posted inappropriate things online. The trial court found that

wife’s efforts to support the children’s contact and relationship with husband were “just terrible.”

It is evident from the record that the trial court was concerned about wife’s harmful actions and

statements and the parties’ inability to resolve disputes together.

       Based on the circumstances, the trial court did not abuse its discretion in denying wife’s

motion for a continuance, and there was no prejudice to wife.

                                     Attorney’s fees and costs

       Husband asks this Court to award him attorney’s fees and costs incurred on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration

of the record before us, we deny his request for an award of attorney’s fees and costs he incurred

on appeal. Rule 5A:30(b).

                                          CONCLUSION

       For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                         Affirmed.




                                                -9-
