COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Senior Judge Hodges 

Argued at Norfolk, Virginia 

MICHAEL L. PELFREY 

 OPINION BY 

v. Record No. 2585-96-1 JUDGE JERE M. H. WILLIS, JR. 

 JULY 15, 1997 

LINDA M. PELFREY 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

 Paul M. Lipkin (Goldblatt, Lipkin & Cohen, 

P.C., on brief), for appellant. 

 Vicki Beard for appellee. 

 Michael L. Pelfrey contends that the property settlement 

agreement (agreement) he entered into with his former wife, Linda 

M. Pelfrey, was unconscionable and that its execution was the 

product of duress. We disagree and affirm the decree of the 

trial court. 

 I. 

 Michael L. Pelfrey and Linda M. Pelfrey were married on 

August 3, 1973, and were divorced on December 8, 1988. Prior to 

their 1988 divorce, the parties, represented by counsel, 

negotiated and executed a property settlement agreement. They 

remarried on September 12, 1991, and separated in the fall of 

1992. 

 In February, 1992, Mr. and Mrs. Pelfrey began discussing a 

second property settlement agreement. Mr. Pelfrey presented Mrs. 

Pelfrey with an agreement prepared by his attorney. Mrs. Pelfrey 
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"tore it up," because it provided only one year of spousal 

support. In October, 1992, Mrs. Pelfrey retained an attorney to 

draft an agreement. On November 18, 1992, Mr. Pelfrey signed the 

agreement drafted by Mrs. Pelfrey's attorney. Mrs. Pelfrey 

signed it the following day. 

 Mr. Pelfrey testified that he did not consult an attorney 

concerning the terms of the agreement. However, prior to signing 

the agreement, he reviewed it and commented upon several drafts 

prepared by Mrs. Pelfrey's attorney. Mrs. Pelfrey's attorney 

presented Mr. Pelfrey with a cover letter to the agreement 

advising him of the importance of the document and the need to 

have it reviewed by an attorney. 

 On July 13, 1993, Mr. Pelfrey sued for divorce, alleging 

that the agreement was unenforceable. The trial court referred 

the question of the validity of the agreement to a commissioner 

in chancery. Following submission of written briefs and an ore

tenus hearing, the commissioner recommended that the agreement be 

declared valid and enforceable, finding that "[t]here is no 

evidence of [a] gross disparity of assets being given to Wife 

versus the Husband." The trial court accepted the commissioner's 

findings and incorporated the terms of the agreement into the 

final decree of divorce. 

 II. 

 The agreement contains separate paragraphs that inform the 

parties of the binding nature of the document. It states that 
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each party has had adequate opportunity to consult with legal 

counsel and that each had signed the agreement freely, 

voluntarily and without coercion or compulsion. 

 The agreement provides that Mr. Pelfrey shall pay child 

support of $600 per month and spousal support of $1,100 per 

month. Upon the cessation of child support, Mr. Pelfrey must pay 

$1,700 per month spousal support to Mrs. Pelfrey. While Mrs. 

Pelfrey's remarriage would suspend spousal support, support would 

be reinstated upon the death of any subsequent husband or a 

marital separation for seven consecutive days. Mr. Pelfrey also 

agreed to pay for Mrs. Pelfrey's medical and telephone bills. 

 The agreement stipulates that support payments made by Mr. 

Pelfrey are not tax deductible. See I.R.C. §§ 71, 215. 

Furthermore, should the support payments be deemed "income" to 

Mrs. Pelfrey for tax purposes, the payments shall be modified so 

as to provide Mrs. Pelfrey with an after-tax income equal to the 

amount specified in the agreement. 

 In return, Mrs. Pelfrey relinquished any interest in Mr. 

Pelfrey's pension, profit-sharing or deferred compensation plans, 

of which none existed, and any interest in his two corporations, 

TEI, Inc. (TEI) and Tidewater Express, Inc. (Tidewater). 

 In 1991, Tidewater had gross receipts of $438,140, income of 

$111,973 and a tax loss of $924. In 1992, Tidewater had gross 

receipts of $533,168, income of $338,071 and a tax loss of 

$5,812. In 1991, TEI had gross receipts of $218,222 and a tax 
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loss of $48,936. In 1992, TEI had gross receipts of $336,621 and 

a tax loss of $58,441. Mr. Pelfrey has undertaken extensive 

expansion of his businesses. 

 III. 

 On appeal, we review the evidence in the light most 

favorable to the party prevailing below. Derby v. Derby, 8 Va. 

App. 19, 26, 378 S.E.2d 74, 77 (1989). Furthermore, we are bound 

to affirm the trial court's approval of the commissioner's report 

unless that approval is plainly wrong or without evidence to 

support it. See Scinaldi v. Scinaldi, 2 Va. App. 571, 573, 347 

S.E.2d 149, 150 (1986). 

 Public policy seeks prompt resolution of issues concerning 

marital property rights. Westbrook v. Westbrook, 5 Va. App. 446, 

452, 364 S.E.2d 523, 527 (1988). When the parties have entered 

into a valid agreement, the trial court may incorporate that 

agreement by reference into its final decree of divorce. Code 

§ 20-109.1; Drewry v. Drewry, 8 Va. App. 460, 466, 383 S.E.2d 12, 

14 (1989). 

 Mr. Pelfrey contends that the terms of the agreement are 

unconscionable. He bore the burden of proving that allegation by 

clear and convincing evidence. Derby, 8 Va. App. at 26, 378 

S.E.2d at 77. "Historically, a bargain was unconscionable in an 

action at law if it was '"such as no man in his senses and not 

under delusion would make on the one hand and as no honest and 

fair man would accept on the other."'" Id. at 28, 378 S.E.2d at 
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78-79 (citations omitted). 

 To determine whether an agreement is unconscionable, a court 

must examine the "adequacy of price" or "quality of value." 

Drewry, 8 Va. App. at 472, 383 S.E.2d at 18. "If inadequacy of 

price or inequality of value are the only indicia of 

unconscionability, the case must be extreme to justify equitable 

relief." Derby, 8 Va. App. at 28, 378 S.E.2d at 79 (citation 

omitted). However, "[i]f a 'gross disparity in value exchanged' 

exists then the 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 18 

(citation omitted). 

 Mr. Pelfrey has undertaken substantial, and possibly 

continuing, financial obligations under the terms of the 

agreement. However, he maintains sole ownership and control of 

two expanding corporations. While he received income from 

Tidewater of only $26,700 in 1991 and $29,174 in 1992, he 

testified that Tidewater owed him money with which he planned to 

pay support to Mrs. Pelfrey. 

 "'Courts cannot relieve one of 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.'" Rogers v. Yourshaw, 18 Va. App. 816, 823, 448 

S.E.2d 884, 888 (1994) (citations omitted). Settlement 
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provisions concerning payment of medical and telephone bills, 

conditioned increases of spousal support, and attorney's fees do 

not shock the conscience. Rather, such clauses provide a 

realistic framework in which the parties may appraise each 

other's needs in resolving marital property issues. Instead of 

providing larger support payments or health insurance, a party 

may opt to pay medical bills directly. A party receiving spousal 

support is under no obligation to remarry. In order to encourage 

remarriage, and a negotiated cessation to support payments, the 

payor spouse may agree to reinitiate support payments to the 

payee spouse if a future marriage ends. Notwithstanding the 

disintegration of the marriage, the parties may have a continuing 

concern for each other's well being. 

 Because he did not prove by clear and convincing evidence a 

great disparity in value, Mr. Pelfrey failed to satisfy the 

initial threshold required for further judicial scrutiny. Thus, 

we need not examine the circumstances surrounding the adoption of 

the agreement to determine whether there existed "oppressive 

influences." The evidence sufficiently supports the finding that 

the agreement is not unconscionable. 

 IV. 

 Mr. Pelfrey contends that the agreement was the product of 

duress, and, therefore, is invalid and unenforceable. He argues 

that Mrs. Pelfrey's conduct compelled him to sign the agreement. 

 We find no merit in this contention. 

 "Duress may exist whether or not the 
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threat is sufficient to overcome the mind of 

a man of ordinary courage, it being 

sufficient to constitute duress that one 

party to the transaction is prevented from 

exercising his free will by reason of threats 

made by the other and that the contract is 

obtained by reason of such fact. Unless 

these elements are present, however, duress 

does not exist. . . . Authorities are in 

accord that the threatened act must be 

wrongful to constitute duress." 

Division of Social Services v. Unknown Father, 2 Va. App. 420, 

435, 345 S.E.2d 533, 541 (1986) (quoting 6B Michie's 

Jurisprudence Duress and Undue Influence §§ 2-3 (Repl. Vol. 

1985)). "[D]uress is not readily accepted as an excuse," and 

must be proven by clear and convincing evidence. Id. at 434, 345 

S.E.2d at 541 (citations omitted). 

 A wide range of emotions is an expected and not uncommon 

byproduct of the dissolution of a marriage. However, when 

spouses commence divorce proceedings and "propose to divide or 

sell all their property interests, they have assumed adversarial 

roles and no longer occupy a position of trust." Drewry, 8 Va. 

App. at 470, 383 S.E.2d at 17. 

 The facts and circumstances of this case support the trial 

court's determination that duress did not excuse enforcement of 

the agreement. Mr. Pelfrey testified that Mrs. Pelfrey had 

threatened to kill herself on more than one occasion if he did 

not sign an agreement. He noted that she tried repeatedly to 

convince him to sign an agreement. Mrs. Pelfrey admitted to 

threatening to kill herself twice in February, 1992, when Mr. 
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Pelfrey told her that he did not love her. However, when the 

agreement was signed nine months later, Mr. Pelfrey was living 

with another woman. He was not under a doctor's care. The 

commissioner found that: "It is clear from the evidence that 

[Mr. Pelfrey] 'wanted his freedom' and the signing of the 

Property Settlement Agreement was another step toward freedom. 

There is no evidence of oppressive conduct or overreaching on 

behalf of [Mrs. Pelfrey]." The evidence supports the trial 

court's approval of this conclusion. 

 The decree of the trial court is affirmed. 

 Affirmed.