                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia


DONALD C. McINTYRE

v.        Record No. 0167-95-4          MEMORANDUM OPINION * BY
                                     JUDGE JERE M. H. WILLIS, JR.
GARNET M. McINTYRE                         OCTOBER 3, 1995


           FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                 Benjamin N. A. Kendrick, Judge
          Mary M. Benzinger (Raymond B. Benzinger, on
          brief), for appellant.

          Marcia M. Maddox (Heather A. Dipoma, on
          brief), for appellee.



     On appeal from the trial court's decree of December 22,

1994, granting him a divorce from Garnet M. McIntyre, Donald C.

McIntyre contends the trial court erred (1) in holding the

premarriage agreement void as against public policy, (2) in

refusing to sever the offending language from the premarriage

agreement, (3) in using the date of the equitable distribution

hearing as the valuation date for his pension and cash assets,

(4) in computing the marital share of his pension, (5) in

including the Met Whole Life Policy, and NCSC-IRA and NFCU 005

accounts in the marital estate, and (6) in awarding Ms. McIntyre

permanent spousal support.    We find no error and affirm the

judgment of the trial court.


     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                     I.   PREMARRIAGE AGREEMENT

     Mr. and Mrs. McIntyre were married in September 1978.     Five

days prior to their marriage, Mr. McIntyre asked Ms. McIntyre to

sign a premarriage agreement.   The premarriage agreement provided

the following:
          1.   SHE shall continue to use her maiden name,
               Garnet Marie Taylor.

          2.    HE only shall be responsible for any and all
                financial liabilities that HE had before the
                marriage, and for which HE becomes liable
                during the marriage.
          3.    SHE only shall be responsible for any and all
                financial liabilities that SHE had before the
                marriage, and for which SHE becomes liable
                during the marriage.

                *    *     *     *      *    *       *

          5.    SHE shall totally support HERSELF.

          6.    HE shall have total ownership of all
                properties, real, personal and intangible
                that are titled or registered in HIS name,
                and SHE shall not make claim against such.

                *    *     *     *      *    *       *

          9.    SHE shall not claim that HE owes HER anything
                of value at any time.

                *    *     *     *      *    *       *

          11.   Should HE or SHE want to dissolve this
                marriage, the parties shall cooperate to
                expediciously [sic] dissolve the marriage and
                HE and SHE shall not seek alimony.


     Ms. McIntyre brought no significant assets to the marriage.

The premarriage agreement was drafted by Mr. McIntyre.   He did

not disclose his assets or their value to Ms. McIntyre before she




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signed the agreement.   She had no legal advice before signing,

and she was not aware of her rights.

     On December 20, 1991, Ms. McIntyre left Mr. McIntyre.     On

June 18, 1993, Mr. McIntyre filed for divorce.   On September 27,

1993, Ms. McIntyre filed a motion denying the validity of the

premarriage agreement and seeking equitable distribution and

spousal support.   The trial court held the premarriage agreement

to be void.   It stated, "I believe that if you read the agreement

as a whole it is void as being against public policy.   I think

also that there is a real question here of the disclosure as to

whether or not it is adequate."   We find no error in this

holding.
            To render an ante-nuptial agreement valid,
            there must be a fair and reasonable provision
            therein for the wife, or -- in the absence of
            such provision -- there must be full and
            frank disclosure to her of the husband's
            worth before she signs the agreement, and she
            must sign freely and voluntarily, on
            competent independent advice, and with full
            knowledge of her rights.


Batleman v. Rubin, 199 Va. 156, 158, 98 S.E.2d 519, 521 (1957).

We followed the holding of Batleman in Carpenter v. Carpenter, 19

Va. App. 147, 449 S.E.2d 502 (1994).

     The premarriage agreement made no provision for Ms.

McIntyre.   She relinquished all her rights in her future

husband's property.   Because she had no knowledge of her future

husband's assets, no independent legal advice, and no knowledge

of her rights before signing, the agreement is void under




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Batleman.

     The trial court did not err in refusing to sever the

provision contained in Number 11 of the premarriage agreement.

The agreement was not severable because as a whole it was void as

against public policy.

            II.   VALUATION DATE OF PENSION AND CASH ASSETS

     The trial court did not err in valuing Mr. McIntyre's

pension and cash assets as of the date of the equitable

distribution hearing.     On August 9, 1994, Mr. McIntyre filed a

motion to set the valuation date of the property as the date of

separation based on Code § 20-107.3(G)(1).
     Code § 20-107.3(A) provides
          upon decreeing a divorce from the bond of
          matrimony      . . . the court . . . shall
          determine the legal title as between the
          parties, and the ownership and valuation of
          all property . . . . The court shall
          determine the value of any such property as
          of the date of the evidentiary hearing on the
          evaluation issue. Upon motion of either
          party made no less than twenty-one days
          before the evidentiary hearing the court may,
          for good cause shown, in order to attain the
          ends of justice, order that a different
          valuation date be used.


Va. Code Ann. § 20-107.3(A).

     Mr. McIntyre's motion met the twenty-one day time

requirement.      However, Mr. McIntyre failed to show good cause why

the valuation date should be the date of separation rather than

the date of the evidentiary hearing.      "The value of the assets

determined as near as practicable to the date of trial will



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usually be the most current and accurate value available."

Gaynor v. Hird, 11 Va. App. 588, 593, 400 S.E.2d 788, 791 (1991)

(quoting Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d

18, 21 (1987)).

            III.    COMPUTATION OF MARITAL SHARE OF PENSION

     The trial court did not err in computing Ms. McIntyre's

marital share of Mr. McIntyre's Air Force pension based on the

ratio of years of marriage during service to years of total

service.    He testified that the Air Force used a point system

rather than a length of service system in determining the accrual

of a pension.
     Code § 20-107.3(G)(1) defines marital share as "that portion

of the total interest, the right to which was earned during the

marriage and before the last separation of the parties . . . ."

The trial court properly determined the marital share based on

the ratio of years of marriage during service to years of total

service.    See Mosley v. Mosley, 19 Va. App. 192, 450 S.E.2d 161

(1994).

                   IV.   DETERMINATION OF MARITAL ESTATE

     The trial court did not err in including in the marital

estate, the Met Whole Life Policy, the NCSC-IRA account, and the

NFCU 005 account, which Mr. McIntyre asserts are his own separate

property.   He argues that the life insurance policy is separate

property because it was acquired prior to the marriage and no

marital funds were used to pay for it.       The court however, found



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that payments totaling $2,274.05 were made on the policy during

the marriage, making a portion of the policy marital property.

The record supports this finding.

     Mr. McIntyre argues that the increase in the NCSC-IRA

account was not marital property because the increase was due to

income derived post-separation.    However, the trial court found

that the increase in the shared savings account could be traced

to dividend reinvestment.    It ruled that "[t]he increases in

value of the marital assets that were built up during the

marriage should accrue to the benefit of both parties up to the

time of the distribution."
     Mr. McIntyre argues that the NFCU 005 account is separate

property.   He contends the account contains the proceeds from the

sale of a house owned by him and his first wife.   He contends

these funds were always maintained separately and as such are

separate property under Code § 20-107.3(1)(iii).

     The trial court found that the account does contain the

proceeds from the sale of Mr. McIntyre's first residence.

However, Mr. McIntyre testified that the account was established

during his second marriage and that he made mortgage payments on

the house during his second marriage.   This supports the trial

court's finding that the NFCU 005 account is a marital asset.

                        V.   SPOUSAL SUPPORT

     The court did not err in awarding $1,500 a month permanent

spousal support to Ms. McIntyre.    "[I]n awarding spousal support,




                                - 6 -
the trial court 'must consider the relative needs and abilities

of the parties.'"   Mosley, 19 Va. App. at 197, 450 S.E.2d at 164

(quoting Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827,

829 (1986)).   "When a [trial] court awards spousal support based

upon due consideration of the factors enumerated in Code

§ 20-107.1, as shown by the evidence, its determination 'will not

be disturbed except from a clear abuse of discretion.'"     Huger v.

Huger, 16 Va. App. 785, 791, 433 S.E.2d 255, 259 (1993) (quoting
Poliquin v. Poliquin, 12 Va. App. 676, 679, 406 S.E.2d 401, 403

(1991)).   The trial court found (1) Ms. McIntyre had a high

school equivalency degree (GED), while Mr. McIntyre had a

master's degree and credits toward a doctorate, (2) Ms. McIntyre

had numerous physical ailments for which she had undergone

surgery, (3) Ms. McIntyre's monthly income was $414 from her

civil service pension, of which the court awarded Mr. McIntyre

50% of the 97% marital share; Ms. McIntyre had contributed

substantially to Mr. McIntyre's career, placing her career

second; and Mr. McIntyre had a monthly income of $6,746.    This

supports the award of spousal support under Code § 20-107.1.

     We affirm the judgment of the trial court.
                                              Affirmed.




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