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. 
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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, 
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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.