COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

KENNETH E. PLOGGER 

 MEMORANDUM OPINION* BY 

v. Record No. 1032-96-3 JUDGE LARRY G. ELDER 

 APRIL 22, 1997 

BETTY R. PLOGGER 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

George E. Honts, III, Judge 

 Philip H. Miller (Rhea & Miller, P.C., on 

brief), for appellant. 

 No brief or argument for appellee. 

 Kenneth E. Plogger (husband) appeals an order of the trial 

court specifically enforcing a separation agreement entered into 

between himself and Betty R. Plogger (wife). He contends that 

the trial court erred when it rejected his argument that the 

separation agreement is unconscionable. For the reasons that 

follow, we reverse. 

 Initially we consider wife's motion to dismiss husband's 

appeal. Wife contends that husband's appeal should be dismissed 

because he failed to file an appeal bond and because the record 

does not contain either a transcript of the proceedings below or 

a written statement of facts. We disagree. 

 Regarding the appeal bond, we grant husband's motion for 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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leave to pursue his appeal without surety because husband has 

filed an affidavit establishing his indigence. See Code 

§ 8.01-676.1(K) (stating that "[n]o person who is an indigent 

shall be required to post security for an appeal bond"). 

 We also conclude that husband failed to make part of the 

record either a transcript or a written statement of facts signed 

by the trial judge. However, even without the written statement 

of facts, the record on appeal, which includes the trial court's 

detailed opinion letter, is sufficient for us to consider 

husband's argument regarding the validity of the separation 

agreement. See Turner v. Commonwealth, 2 Va. App. 96, 99, 341 

S.E.2d 400, 402 (1986) (stating that "[i]f the record on appeal 

is sufficient in the absence of the transcript [or written 

statement of facts] to determine the merits of the appellant's 

allegations, we are free to proceed to hear the case"). 

 The record on appeal establishes that the parties married in 

1971, separated in mid-1994, and remain married. Wife does not 

work because of a disability and receives monthly government 

assistance of $354. In early August, 1994, husband and wife 

negotiated the terms of the separation agreement (agreement), 

which provided for the division of the parties' property and 

monthly support for wife. In 1995, husband fell behind on his 

monthly payments to wife. 

 On August 22, 1995, wife filed a bill of complaint seeking 

payment of husband's arrearage and specific performance of the 
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agreement's other terms. After a hearing, the trial court 

ordered husband to pay his support payments that were past due 

and to fulfill all of the terms of the agreement. The trial 

court rejected husband's argument that the agreement was 

unconscionable. 

 "[M]arital 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." Cooley v. Cooley, 220 Va. 749, 752, 263 

S.E.2d 49, 52 (1980). The doctrine of unconscionability is 

concerned with "the intrinsic fairness of the terms of the 

agreement in relation to all attendant circumstances, including 

the relationship between the parties." Derby v. Derby, 8 Va. 

App. 19, 28, 378 S.E.2d 74, 78 (1989). "Behavior that might not 

constitute fraud or duress in an arm's-length context may suffice 

to invalidate a grossly inequitable agreement where the 

relationship is utilized to overreach or take advantage of a 

situation in order to achieve an oppressive result." Id. at 29, 

378 S.E.2d at 79. 

 Determining whether a contract is invalid on the ground of 

unconscionability is a two-step process. First, a court 

considers whether there is a "gross disparity in value exchanged" 

under the contract. Drewry v. Drewry, 8 Va. App. 460, 473, 383 

S.E.2d 12, 18 (1989) (stating that "[a]bsent evidence of 'gross 

disparity in value exchanged' there exists no basis to claim 
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unconscionability"). If the court finds a gross disparity in the 

value exchanged under the contract, it then considers the 

circumstances of the formation of the contract to determine 

whether "oppressive influences" affected the fairness of the 

negotiating process such that the terms of the resulting 

agreement were unconscionable. See id.; Derby, 8 Va. App. at 29, 

378 S.E.2d at 79. "If inadequacy of price or inequality in 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. But, if the record indicates that oppressive 

influences affected the negotiation process, a court is more 

likely to grant relief on the ground of unconscionability. Id.

 When reviewing a trial court's decision regarding the 

validity of a separation agreement on appeal, we view the 

evidence in the light most favorable to the prevailing party 

below. Pillow v. Pillow, 13 Va. App. 271, 273, 410 S.E.2d 407, 

408 (1991) (citing Derby, 8 Va. App. at 26, 378 S.E.2d at 77). 

 We hold that the trial court erred when it concluded that 

the agreement was not unconscionable. The agreement in this case 

imposes a shocking monthly support obligation upon husband that 

was not discussed by the parties during their brief negotiation 

and that wife knew was essentially impossible for him to perform. 

 The separation agreement provides for a gross disparity in 

value exchanged. Under the agreement, husband relinquished his 

ownership rights to nearly all of the marital property, including 
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the marital home and furnishings and an automobile. In addition, 

the agreement imposes upon husband the onerous burden of paying 

$1,200 of his $1,386 monthly income to wife for two years. The 

agreement leaves husband with $2,232 a year on which to live 

while wife's income from the agreement and her government 

assistance is $1,554 per month. 

 The agreement was drafted by wife's attorney, and the trial 

court found that husband signed without reading the agreement. 

The trial court found that wife chose the figure of $1,200 to pay 

off the parties' revolving credit account debt. Husband's 

unrebutted testimony was that this figure was never discussed by 

the parties. The fact that wife lived with husband prior to 

their separation and signed the parties' tax returns in 1993 and 

1994 indicates that she was aware of husband's modest annual 

income. Husband's support obligation "shocks the conscience" 

because it leaves him with just $186 to meet his monthly 

expenses. In light of wife's knowledge of husband's finances, 

wife was overreaching when she sought without negotiation an 

amount of monthly support that would leave him virtually 

penniless. See Williams v. Williams, 306 Md. 332, 341, 508 A.2d 

985, 990 (1986) (holding that a separation agreement was 

unconscionable when it imposed upon husband a monthly support 

obligation that was impossible for him to perform and that was 

not negotiated by the parties). 

 For the foregoing reasons, the order of the trial court 
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enforcing the separation agreement is reversed. 

Reversed.