COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Kelsey and Haley 

Argued at Chesapeake, Virginia 

DIANA RUTH MERGET GALLOWAY 

 OPINION BY 

v. Record No. 0468-05-1 JUDGE ROBERT P. FRANK 

 NOVEMBER 29, 2005 

DAVID WILLIAM GALLOWAY 

 FROM THE CIRCUIT COURT OF MATHEWS COUNTY 

William H. Shaw III, Judge 

 Glenn R. Croshaw (Robert L. “Bo” Foley; Willcox & Savage, P.C., 

on briefs), for appellant. 

 E. Thomas Cox for appellee. 

Diana Ruth Merget Galloway, appellant/wife, appeals the judgment of the trial court 

reversing the commissioner in chancery’s ruling that the parties’ property settlement agreement 

is unconscionable. For the reasons that follow, we affirm. 

BACKGROUND

 “When reviewing a trial court’s decision on appeal, we view the evidence in the light 

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” 

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). 

 The parties were married June 1, 1984, and separated on October 1, 2001. There were no 

children born or adopted of this marriage. 

 At marriage, husband worked in civil service at Fort Eustis. After leaving that position in 

1988, husband started his own business, Cassenvey Heating, Air Conditioning and Refrigeration, 

Ltd. From its inception, husband was, and continued to be, the sole stockholder and president of 

this business. For the first five years, husband worked alone. 
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 At marriage, wife was employed as a nurse’s aide at Eastern State Hospital where she had 

worked since approximately January of 1973. She retired from Eastern State Hospital July 31, 

1993 after nine years of marriage to husband. At that time, she began working at Cassenvey 

Heating, Air Conditioning and Refrigeration, Ltd. as a secretary. Within a few months, wife 

began installing heating and air conditioning in the field. Wife worked for husband continuously 

from 1993 until six months before the April 20, 2004 commissioner’s hearing. 

 During their eleven years employed together, both parties worked to expand the business, 

with its gross receipts for 2002 reaching over $1,000,000. This figure was twice that of the gross 

receipts for 2001. At the time of the commissioner’s hearing, husband drew $900 per week from 

the business. 

 In February of 1984 and prior to the June 1, 1984 marriage, husband purchased and titled 

in his own name the marital home property located on a 3.5-acre tract. As a wedding present, 

wife gave husband a contiguous parcel containing .9 acre.1

 The record is silent as to the value of 

this property at the time of the commissioner’s hearing. Husband purchased a third contiguous 

2-acre parcel sometime in 1994 or 1995. After the parties separated, husband sold the 2-acre 

parcel for $80,000, netting $18,000.2

 Since the business and the marital property were located on the 3.5-acre parcel, husband 

had the business and real property appraised as a unit in 2003 for a total of $200,000. Husband 

testified that if he sold the business and the home, he would ask between $200,000 and $250,000. 

The appraisal included shop tools and equipment worth $60,000. Additionally, the business 

 1

 The record also refers to this parcel as .65 acre. 

2

 While the record does not disclose the exact date of the sale, the property settlement 

agreement dated September 28, 2004 mentions this parcel as the husband’s property. 
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owned three vehicles valued at $15,000, had accounts receivable between $2,000 and $7,000, 

and a business checking account of approximately $1,000. 

 The balance due on the loan for the house and business was $87,000 at the time of the 

commissioner’s hearing. The fair market value of the residence at the time of separation was 

$60,000. 

 In 2000, wife’s father died and she inherited his debt-free residence valued at $275,000, 

along with $30,000 in cash. 

 At the end of September 2001, husband brought to wife a property settlement agreement 

prepared by his attorney that granted him all of the interest in the marital residence and the 

business. Wife would receive a 1999 GMC Chevy pickup truck, valued at the time of settlement 

at $11,000. Each party waived spousal support and any interest in the other party’s pension 

accounts. Each party received some personal property but the record does not disclose any 

value. Husband also agreed to pay wife $400 per week as an employee of the business “for as 

long as the parties are husband and wife” and to pay her hospitalization while she was so 

employed. 

 Prior to having the agreement drafted, husband and wife had discussed the terms of the 

agreement. Husband brought the agreement to wife’s apartment the night before it was executed. 

Husband testified, “[S]he knew the agreement was coming.” After reading the agreement, and 

prior to signing it, wife proposed no changes.3

 Husband told wife, “[H]ere it is, look at it, and if 

you want to go with it, sign it.” Husband also told wife she could get a lawyer, but wife declined 

to do so. 

 3

 After the agreement was executed, wife suggested a change but then withdrew her 

suggestion. 
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 Husband characterized the agreement as “what we both wanted.” Husband testified wife 

knew the value of the business and home parcel was around $200,000. 

 The following day, husband drove wife to a bank to execute the agreement. The notary 

public at the bank testified wife did not appear to be under stress or duress, nor did she appear to 

be worried. The agreement was executed on September 29, 2001. 

 At the commissioner’s hearing, wife testified she had read the entire agreement and 

denied being forced to sign it. She indicated she voluntarily went to the bank with husband. She 

further testified she could easily obtain a job as a secretary. Wife testified husband, on one 

occasion, told her if she did not sign the agreement, he would take her to court. Nevertheless, 

she explained the reason why she signed the agreement, saying, “[I]f this is what he wants, I’m 

going to go ahead and sign it. That’s the reason I signed it. Like a fool, I should have had a 

lawyer.” 

 The commissioner in chancery found the property settlement agreement was 

unconscionable, ruling that a “gross disparity” existed between the value of the property each 

party would receive. The commissioner concluded: 

The husband never discussed his retirement at Fort Eustis with the 

wife although it doesn’t appear that the amount that the husband 

would receive from his retirement is significant. The husband 

never advised the wife as to the value of the business or of the real 

property including the marital residence. Apparently there were no 

negotiations between the parties; the wife simply signed the 

document prepared by the husband’s attorney. 

The only income that the wife receives is $400.00 per week from 

her employment at Cassenvey Heating and Air Conditioning “for 

so long as the parties are husband and wife.” The wife waived 

spousal support and will be without any apparent income upon the 

entry of a final decree of divorce. 

The wife does appear to have some marketable skills since she has 

previously worked in an office and as an installer for Cassenvey 

Heating and Air Conditioning. Her age is certainly a factor as to 

what type of employment she could maintain or even obtain. To 
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waive spousal support after 17 years of marriage without apparent 

means to support oneself together with the gross disparity in the 

value of the property received by the parties creates a set of 

circumstances which becomes inequitable, unfair and causes 

enforcement of the agreement to be unconscionable. 

 Husband filed exceptions to the commissioner’s finding of unconscionability. The trial 

court sustained husband’s objections, finding the property settlement agreement was not 

unconscionable. The trial court opined: 

Even accepting the commissioner’s findings of the value of 

assigned properties, there are no accompanying circumstances 

indicative of bad faith or inequity under the law. There is no 

evidence that Husband concealed or misrepresented his financial 

status or coerced Wife, nor that Wife suffered from any disability 

or necessity. Given the status of their marriage, there was no 

fiduciary relationship between the parties. Each acted at arm’s 

length. Those factors noted in Derby [v. Derby, 8 Va. App. 19, 

378 S.E.2d 74 (1989),] which would support unconscionability are 

not present here. At worst, Wife made a bad bargain, but she read 

the agreement and had the opportunity, as she indicated in the 

agreement, to consult with an attorney about it, and chose not to. 

She has not shown by “clear and convincing evidence” that the 

terms of the agreement are unconscionable. 

The Commissioner apparently concluded that Wife’s waiver of 

spousal support constituted the inequitable circumstances, apart 

from gross disparity, in satisfaction of the standard in Derby. 

Assuming that Wife was entitled to support (by no means 

determined by the evidence), her waiver is nevertheless a factor in 

determining the values exchanged. It does not provide separate 

evidence in this case of such circumstances of inequity that would 

render the agreement unconscionable. In other words, her waiver 

may increase the disparity, but the remaining circumstances do not 

justify a conclusion of unconscionability, however inadvisable her 

decision may have been. 

Accordingly, the Court will enter an order concluding that the 

agreement is valid and enforceable. 

 This appeal follows. 
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ANALYSIS

 While appellant has offered seven assignments of error, all can be distilled into one issue 

of whether the trial court erred in finding the property settlement agreement was not 

unconscionable. 

 Both parties agree that Derby v. Derby, 8 Va. App. 19, 378 S.E.2d 74 (1989), sets forth 

the basis for analyzing this issue: 

If inadequacy of price or inequality in value are the only indicia of 

unconscionability, the case must be extreme to justify equitable 

relief. [Smyth] Bros. v. Beresford, 128 Va. 137, 169-70, 104 S.E. 

371, 381-82 (1920). A person may legally agree to make a partial 

gift of his or her property or may legally make a bad bargain. Id. 

But gross disparity in the value exchanged is a significant factor in 

determining whether oppressive influences affected the agreement 

to the extent that the process was unfair and the terms of the 

resultant agreement unconscionable. Id. at 170, 104 S.E. at 382. 

Other unfair and inequitable incidents in addition to the 

inadequacy, however, may more readily justify relief. 

When the accompanying incidents are inequitable and show bad 

faith, such as concealments, misrepresentations, undue advantage, 

oppression on the part of the one who obtains the benefit, or 

ignorance, weakness of mind, sickness, old age, incapacity, 

pecuniary necessities and the like, on the part of the other, these 

circumstances, combined with inadequacy of price, may easily 

induce a court to grant relief, defensive or affirmative. Pomeroy, 

Equity Jurisprudence § 928 (5th ed. 1941). 

Id. at 29, 378 S.E.2d at 79. 

 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 79 (quoting Restatement (second) of

Contracts § 208 comment b (quoting Hume v. United States, 132 U.S. 406, 411 (1889))). 

 “[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) 
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(citation omitted); Derby, 8 Va. App. at 25, 378 S.E.2d at 77. Therefore, in this case, wife “had 

the burden at trial to prove by clear and convincing evidence the grounds alleged to void or 

rescind the agreement.” Drewry v. Drewry, 8 Va. App. 460, 463, 383 S.E.2d 12, 12 (1989). On 

appeal, we review the evidence in the light most favorable to the prevailing party below and 

determine whether that evidence established as a matter of law any of the grounds wife relied 

upon to vitiate the agreement. Id. at 463, 383 S.E.2d at 12-13. 

 “Any issue of unconscionability of a [marital] agreement shall be decided by the court as 

a matter of law. Recitations in the agreement shall create a prima facie presumption that they are 

factually correct.” Code § 20-151(B) (applied to post-marital/separation agreements through 

Code § 20-155).4

 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 a 

‘gross disparity in the 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.’” Id. (quoting Derby, 8 Va. App. at 28, 378 

S.E.2d at 79). 

 Thus, Derby sets forth a two-step test. Appellant must prove both 1) a gross disparity 

existed in the division of assets and 2) overreaching or oppressive influences. Shenk v. Shenk, 

39 Va. App. 161, 179 n.13, 571 S.E.2d 896, 905 n.13 (2002). Courts must view the apparent 

inequity in light of other attendant circumstances to determine whether the agreement is 

unconscionable and should be declared invalid. Derby, 8 Va. App. at 29, 378 S.E.2d at 79. 

 Wife argues that “gross disparity,” with nothing more, should render the agreement void 

as being unconscionable. As discussed above, this is not the correct legal standard. While the 

 4

 There is no recitation in the agreement that addresses the fairness of the agreement. 
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question of unconscionability is a matter of law, the underlying facts must be determined by the 

fact finder, and on appeal we determine whether there is sufficient evidence to support the 

factual findings. If there is credible evidence in the record supporting the factual findings made 

by the trier of fact, we are bound by those findings regardless of whether there is evidence that 

may support a contrary finding. Barnes v. Moore, 199 Va. 227, 228, 98 S.E.2d 683, 684 (1957). 

Granted, the agreement gave husband approximately 94% of the marital assets. Yet, as 

the trial court correctly found, there was no evidence of overreaching or oppressive behavior by 

husband. Assuming the first prong of unconscionability is present, the second prong has not 

been proven. As wife conceded at oral argument, a spouse can give away his/her entire portion 

of the marital estate as long as there is no oppressive conduct by the other spouse. “[E]very 

person . . . is entitled to dispose of [his] property, in such manner and upon such terms as he 

chooses, and whether his bargains are wise, or discreet, or profitable, or unprofitable, or 

otherwise, are considerations not for courts of justice, but for the party himself to deliberate 

upon.” Smyth Bros. v. Beresford, 128 Va. 137, 170, 104 S.E. 371, 382 (1920). 

 Alternatively, wife claims under Derby that there are “oppressive influences” present that 

render the agreement unconscionable. Wife does not claim fraud nor any breach of fiduciary 

relationship, yet argues the marital relationship requires “heightened examination.” In her brief, 

wife points to the fact that the parties were living under the same roof, that husband drove wife 

to the bank to execute the agreement, and that wife had no attorney. 

 The facts belie wife’s argument of overreaching. Husband and wife had discussed the 

contents of the agreement prior to husband having his attorney draft the agreement. Wife knew 

husband was going to the attorney. Husband brought the agreement to wife the night before it 

was executed. Wife testified she read the agreement. Husband advised wife she could consult 

with an attorney but wife chose not to do so. Wife testified she was not forced to sign the 
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agreement. The notary testified wife did not seem to be under stress or duress. She voluntarily 

went with husband to the bank. Wife indicated she signed the agreement because “this is what 

he wants.” Wife characterized her action as foolish but never described it as the result of any 

overreaching conduct by husband. At no time did wife indicate she was under duress or that 

husband exercised any undue influence for her to sign the agreement. There is no evidence of 

oppressive behavior or coercion on husband’s part. 

Finally, wife argues that her waiver of spousal support “represents an additional attendant 

circumstance” warranting a finding of unconscionability. Again, we find no merit to wife’s 

contention. Wife was not penniless. She had inherited $30,000 cash and a home with no debt 

valued at $275,000. Further, she had a pension derived from working twenty years at Eastern 

State Hospital. She testified she would have no difficulty becoming re-employed. Nothing in 

the record suggests she is incapable of enjoying financial independence. Also, husband gave 

wife the opportunity to consult a lawyer and/or propose any changes to the agreement. She 

declined these offers and elected to freely sign the agreement. For the reasons stated above, we 

cannot say that wife’s voluntary waiver of spousal support warrants a finding of 

unconscionability. 

While the commissioner in chancery found unconscionability, the trial court found no 

“accompanying circumstances indicative of bad faith or inequity under the law.” Wife contends 

the trial court erred in overturning the commissioner’s recommendation. However, a trial court 

is not bound by a commissioner’s legal conclusions. See Dukelow v. Dukelow, 2 Va. App. 21, 

26, 341 S.E.2d 208, 210 (1986) (“When a court refers a cause to a commissioner in chancery, it 

does not delegate its judicial functions to the commissioner, and it is not bound by the 

commissioner’s recommendations. Rather, the court must review the evidence, apply the correct 

principles of law, and make its own conclusions as to the appropriate relief required.”). 
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While the commissioner found husband did not disclose the value of his Fort Eustis 

pension and the value of the assets, and placed particular emphasis on wife’s waiver of spousal 

support, the ultimate determination of unconscionability is a legal issue. Code § 20-151(B). The 

trial court found, as a matter of law, that the agreement was not unconscionable. We agree with 

the trial court. 

 Nothing in the record, including wife’s testimony, indicates husband acted in bad faith, 

coerced or misled wife. She had an opportunity to obtain counsel and declined to do so. The 

record thus supports the trial court’s ruling that the agreement constituted a valid contract.5

 Wife 

did not show unconscionability by clear and convincing evidence. 

CONCLUSION

 For the foregoing reasons, we find that the trial court did not err in finding that the 

parties’ agreement is valid and enforceable. The decision of the trial court is affirmed. 

Affirmed.

 5

 Since we affirm the trial court, we need not address husband’s laches argument.