                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia


DEBORAH A. GROW
                                       MEMORANDUM OPINION * BY
v.   Record No. 2755-98-4            JUDGE ROSEMARIE ANNUNZIATA
                                          JANUARY 27, 2000
DAVID P. GROW


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      M. Langhorne Keith, Judge

            Mary Elliott for appellant.

            Rebecca R. Masri (Law Offices of Earl E.
            Shaffer, on brief), for appellee.


     Deborah A. Grow ("wife") appeals from an order of the

Circuit Court of Fairfax County, decreeing that her Property

Settlement Agreement ("PSA") with her former husband, David P.

Grow ("husband") is legally valid and enforceable.     Wife asserts

that the PSA 1) is invalid because of fraudulent inducement by

husband; 2) is unconscionable; 3) is invalid because she

consented to it under duress; and 4) has been repudiated by

husband.    Wife also contends the trial court erred by refusing

to admit into evidence the de bene esse deposition of Sandra

Browning.   We find no error and affirm the decision of the trial

court.


     *Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                               BACKGROUND

     In accordance with well established principles, this Court

views the facts in the light most favorable to the party

prevailing below.   See Richardson v. Richardson, 30 Va. App.

341, 349, 516 S.E.2d 726, 730 (1999).   "'Where . . . the [trial]

court hears the evidence ore tenus, its finding is entitled to

great weight and will not be disturbed on appeal unless plainly

wrong or without evidence to support it.'"   Hurt v. Hurt, 16

Va. App. 792, 798, 433 S.E.2d 493, 497 (1993) (quoting

Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,

631 (1988) (citations omitted)).

     The parties to this appeal were married on March 9, 1985,

and during the course of their marriage gave birth to two

daughters.   For all but the first three months of the

twelve-year marriage, wife was a full-time homemaker.    By the

spring of 1997, wife had become severely depressed, and she

underwent treatment that included counseling and medication.

She continued her treatment with anti-depressant drugs through

the fall of 1997.   In August, 1997, husband claimed the parties'

children told him that wife had become verbally and physically

abusive toward them, and had on at least one occasion struck

them with a wooden spoon.   By September, 1997, husband suspected

wife was suffering from severe mental illness.   At that time, he




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began to compile documentary evidence he believed would show

that she was abusing the children.

     At some time prior to September 25, husband hired an

attorney to draft a separation agreement.   Upon learning of

husband's intention to remove her from the marital home and to

seek a legal separation, wife hired an attorney and withdrew

half the funds from the parties' joint checking account.     That

evening she confronted husband concerning his intentions, which

he admitted.   He also accused wife of abusing the parties'

children.    Husband then produced a draft property settlement

agreement.   Because wife was too emotionally distressed to read

the document, husband read portions of it to her.     No agreement

was reached at that time, however.

                                 I.

                WIFE'S CLAIM OF FRAUDULENT INDUCEMENT

     Wife contends that husband obtained her consent to the PSA

by assuring her that, if she agreed to it, he would permit her

continued visitation with the children.   Wife argues that

husband's representation constituted constructive fraud, because

he subsequently petitioned the court to limit her visitation

rights.   We find wife's claim to be without merit.

     "'"[T]he elements of a cause of action for constructive

fraud are a showing by clear and convincing evidence that a

false representation of a material fact was made innocently or


                                - 3 -
negligently, and the injured party was damaged as a result of

his reliance upon the misrepresentation."'"   Prospect

Development Co., Inc. v. Bershader, 258 Va. 75, 86, 515 S.E.2d

291, 297 (1999) (quoting Blair Constr., Inc. v. Weatherford, 253

Va. 343, 346-47, 485 S.E.2d 137, 138-39 (1997) (citations

omitted)).   See Webb v. Webb, 16 Va. App. 486, 491, 431 S.E.2d

55, 59 (1993).

     Additionally, "[t]he duty by which conduct is measured to

determine fraud is established by the relationship and

circumstances which exist between parties."   Webb, 16 Va. App.

at 491, 431 S.E.2d at 59 (citing Drewry v. Drewry, 8 Va. App.

460, 469, 383 S.E.2d 12, 16 (1989)).   "Marriage is a

confidential relationship of trust imposing the highest

fiduciary duty upon the spouses in their intermarital dealings."

Derby v. Derby, 8 Va. App. 19, 27, 378 S.E.2d 74, 78 (1989).

However, "[i]f a husband and wife separate and employ attorneys

to negotiate an agreement in settlement of their property

rights, they become adversaries and their former fiduciary or

confidential relationship ends."   Barnes v. Barnes, 231 Va. 39,

42, 340 S.E.2d 803, 804 (1986) (quoted in Derby, 8 Va. App. at

27, 378 S.E.2d at 78 (citations omitted)).

     Wife presented in her testimony the only evidence in

support for her claim that she was fraudulently induced by

husband to enter the PSA.   Wife testified that husband made


                               - 4 -
statements leading her to believe that if she would sign the

PSA, she would be able to see her children, and that if she

withheld her consent to the agreement her visitation with them

would be curtailed.   In fact, the record fails to reflect that

husband made any such representations.

     Wife also contends that husband held out the hope of

reconciliation, and on that ground she entered the PSA.

However, under this Court's decision in Derby, evidence of

harbored hopes of reconciliation is insufficient to establish

fraud.   Furthermore, the record reflects that wife was well

aware of her husband's intention to separate from her and that

he was proceeding with the divorce action.   As such, husband's

action lacked the "tendency to deceive [wife] or violate [her]

confidence."   Derby, 8 Va. App. at 26, 378 S.E.2d at 78.

     Finally, wife premises her claim of constructive fraud on

husband's purported representation that he did not intend to

seek child support from her, contending that his fraudulent

intent was made evident when he ultimately petitioned the court

for child support in his cross-bill of complaint.   However, the

PSA expressly reserves husband's right to seek child support,

knowledge with which wife is chargeable since the term was

included in the PSA when she signed it.   She thus cannot claim

to have been misled as to any material aspect of the agreement's

provisions regarding child support, because no claim of fraud


                               - 5 -
lies when the party claiming fraud had knowledge of the true

state of affairs.   Compare Chesapeake & Ohio Ry. Co. v. Walker,

et al., 100 Va. 69, 93, 40 S.E. 633, 641 (1902) (party alleging

fraud must "be destitute of knowledge of the [true] state of

facts" fraudulently misrepresented).

     In sum, the evidence presented does not rise to the level

of clear and convincing proof that husband misrepresented a

material fact which induced wife to enter the PSA.   Accordingly,

we find no error in the trial court's findings on this issue.

                                II.

             WIFE'S CLAIM THAT PSA IS UNCONSCIONABLE

     Wife's claim that the PSA should be set aside on the ground

of unconscionability is without merit.   Under the terms of the

PSA the parties agreed that funds in the amount of $3,000 that

wife withdrew from the parties' joint bank account were to be

considered a lump sum payment to her.    Husband agreed to pay

wife $300 per month in spousal support, subject to incremental

reductions should her income increase above levels set forth in

the agreement.   Husband also agreed to maintain health insurance

coverage of wife by his health insurance provider until the

parties were divorced, and to pay one-half of the premiums on

wife's life insurance policy benefiting the children.   The

parties agreed that their jointly owned house would become the

sole property of the husband, who would assume all financial


                               - 6 -
obligations connected with it.    They also divided their personal

property, with wife being provided with household items having

an agreed value of $14,495, in addition to one of the two family

cars.    Finally, the parties agreed to an equal division of

husband's vested federal government retirement plan.    Husband

also agreed to assume as his sole obligation any of the parties'

jointly assumed debts not otherwise provided for in the PSA.

        The trial court found that, although the PSA may have

favored husband and may have constituted "a bad bargain" for

wife, it nevertheless was not "so inadequate" that "the

necessary clear and convincing evidence to set aside [the]

agreement is there."    The evidence supports the trial court's

decision on this issue.

        The party challenging a property settlement agreement must

prove unconscionability by clear and convincing evidence.       See

Derby, 8 Va. App. at 26, 378 S.E.2d at 77 (citing Winn v. Aleda

Constr. Co., 227 Va. 304, 308, 315 S.E.2d 193, 195 (1984); Gill

v. Gill, 219 Va. 1101, 1106, 254 S.E.2d 122, 125 (1979)).       When

asked to determine whether such a gross disparity in exchanged

value exists to rescind a settlement agreement on grounds of

unconscionability, a court 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, 8 Va. App. at 472-73, 383 S.E.2d at


                                 - 7 -
18 (quoting Derby, 8 Va. App. at 28, 378 S.E.2d at 79).       In some

instances, "'[a] party may be free of fraud but guilty of

overreaching or oppressive conduct in securing the agreement

which is so patently unfair that courts of equity may refuse to

enforce it.'"   Id. at 472, 383 S.E.2d at 18 (quoting Derby, 8

Va. App. at 28, 378 S.E.2d at 78).       However, absent evidence of

a gross disparity in the value exchanged, the court need not

consider whether one of the parties was guilty of such

overreaching conduct.   See id. at 473, 383 S.E.2d at 18.      As we

have observed previously, "'"[c]ourts cannot relieve . . . the

consequences of a contract merely because it was unwise" . . .

[or] "rewrite a contract simply because the contract may appear

to reach an unfair result."'"     Pelfrey v. Pelfrey, 25 Va. App.

239, 245, 487 S.E.2d 281, 284 (1997) (quoting Rogers v.

Yourshaw, 18 Va. App. 816, 823, 448 S.E.2d 884, 888 (1994)).

     Although the PSA arguably leaves husband in a better

position than wife, it clearly evidences an exchange of value

that is not grossly disparate:    Husband assumed responsibility

for all indebtedness remaining on the home mortgage; he provided

wife with health insurance coverage until the divorce; he

provided wife with spousal support, however small a percentage

of his gross income it may have been; wife took possession of

personalty valued at over $14,000; and she was awarded at least

a portion of the funds in the parties' joint bank account.      As


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wife's proof falls well below the clear and convincing

evidentiary burden which is required by law, her claim must

fail. 1

                                 III.

                      WIFE'S CLAIM OF DURESS

      Wife's claim she consented to the provisions of the PSA

under duress is without merit.    Wife focuses her argument upon

the two weeks from September 26, 1997 to October 15, 1997, when

she finally signed the PSA.   She claims that during this period

husband forced her, almost without surcease, to contemplate the

terms of the agreement.   She claims, inter alia, that husband

stated that if she did not cooperate with him, the terms of

separation would have to be settled in court, in which case his

allegations of wife's child abuse would be aired, likely to her

detriment.   She claims husband told her that such allegations

"would follow [her] for the rest of [her] life."   In sum, wife

argues that this approximately two-week period of "intense

discussion" regarding the allegations of child abuse, her mental

stability, and the possible results of settling the conditions

of separation in court rather than by agreement, constituted a

"long continued and deliberate course of mental intimidation,"


      1
       Because we resolve the claim of unconscionability against
wife, we need not reach her contention that she consented to the
PSA as a result of undue influence exercised over her by
husband. Compare Banner v. Rosser, 96 Va. 238, 246-48, 31 S.E.
67, 69-70 (1898).

                                 - 9 -
"which resulted in the [PSA] being signed by [her] under

duress."

     Because "'[d]uress is not readily accepted as an excuse,'

and must be proven by clear and convincing evidence," Pelfrey,

25 Va. App. at 246, 487 S.E.2d at 284, wife must meet a high

evidentiary burden to prove her claim.   She has not met this

burden.    The trial court concluded that wife had not been

subject to any threats.   Determinations of credibility and

weight of the evidence fall within the discretion of the trier

of fact.    See Anderson v. Anderson, 29 Va. App. 673, 687, 514

S.E.2d 369, 376 (1999) ("the trier of fact determines the

credibility and weight of the evidence"); Parish v. Spaulding,

26 Va. App. 566, 575, 496 S.E.2d 91, 95 (1998) ("it is well

settled that issues of credibility and the weight of the

evidence are within the unique province of the trier of fact").

"This Court will not substitute its judgment for the trial

court's determination . . . ."    Parish, 26 Va. App. at 575, 496

S.E.2d at 95.   We therefore affirm its finding that wife did not

enter the PSA as a result of duress.

                                 IV.

                          REPUDIATION CLAIM

     Wife further claims that because the PSA granted her

regular, unsupervised visitation with her children, husband's

subsequent petition in the Juvenile and Domestic Relations


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District Court of Fairfax County seeking to restrict her access

to them to supervised visitation only, filed within a month of

executing the PSA, constitutes evidence of repudiation

sufficient to prevent husband from enforcing the contract.

     However, because wife's right of unsupervised visitation

with the children was restored by consent decree entered June

15, 1998, we find her claim that husband repudiated the PSA to

be without merit.   See Hurt, 16 Va. App. at 798, 433 S.E.2d at

497 ("It is firmly established that for a repudiation of a

contract to constitute a breach, the repudiation must be clear,

absolute, unequivocal, and must cover the entire performance of

the contract." (quoting Vahabzadeh v. Mooney, 241 Va. 47, 51,

399 S.E.2d 803, 805 (1991))); see also Allocca v. Allocca 23

Va. App. 571, 578-79, 478 S.E.2d 702, 705-06 (1996); Carter v.

Carter, 18 Va. App. 787, 789, 447 S.E.2d 522, 523 (1994).

     Wife's claim that husband repudiated the PSA by seeking

child support is also without merit as it is belied by the PSA

itself.   The PSA states specifically that husband "reserve[d]

the right to request child support in the future."   husband did

not repudiate the contract by exercising a right it expressly

provided him.   In short, the evidence fails to support wife's

claim that husband repudiated the PSA.




                              - 11 -
                                V.

     EXCLUSION OF DE BENE ESSE DEPOSITION OF SANDRA BROWNING

     Wife claims the trial court erred by excluding the de bene

esse deposition of Sandra Browning, a licensed social worker in

the employ of Fairfax County Child Protective Services.   Wife

contends that Browning falls squarely within Rule 4:7(a)(4)(E)'s

provisions allowing into evidence de bene esse depositions from

"public officers" whose duties prevent them from appearing in

court.   Without deciding whether Browning falls within the ambit

of Rule 4:7(a)(4)(E), we find no error in the exclusion of the

deposition.

     Browning is a Senior Social Worker with Fairfax County

Child Protective Services.   At the time of her deposition, she

had been employed in child abuse investigation for sixteen

years.   She began her investigation of wife on November 19,

1997, pursuant to a report of suspected abuse made to social

services by husband on November 7, 1997.   In the course of her

investigation, Browning concluded that the allegations of abuse

were unfounded and that husband may have concocted them in an

effort to alienate the children from wife.

     Wife sought to have the deposition admitted to show that

husband brought his allegations of child abuse against wife in

bad faith, for the sole purpose of preventing her from having

unsupervised visitation, and that husband repudiated the PSA and


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misrepresented his intentions regarding visitation.   The court

declined to admit the deposition on the ground that it was

irrelevant to the issues under consideration.   "Absent an abuse

of discretion, we will not reverse a trial court's decision in

admitting or excluding evidence of prior occurrences."   A. H. v.

Rockingham Pub. Co., Inc., 255 Va. 216, 224, 495 S.E.2d 482, 487

(1998) (citing Roll 'R' Way Rinks, Inc. v. Smith, 218 Va. 321,

327, 237 S.E.2d 157, 161 (1977)).   We find the court did not

abuse its discretion in excluding the proffered evidence.

Whether husband attempted to alienate the children from wife has

no bearing upon whether her visitation with the children should

have been suspended.   It further had no bearing on wife's claim

that husband repudiated the agreement.   Finally, as we concluded

supra, wife's allegation of fraud is without merit.

     For the foregoing reasons, we affirm the judgment of the

trial court.

                                                      Affirmed.




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