COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

VICKIE LYNN FIELDS 

v. Record No. 0239-95-3 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

DAVID CARL FIELDS FEBRUARY 27, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL 

Charles B. Flannagan, II, Judge 

 Frederick W. Adkins (Cline, Adkins, Cline & 

Rogers, on brief), for appellant. 

 Dennis E. Jones, for appellee. 

 In this domestic appeal, the sole issue is whether the trial 

court erred in finding the parties' property settlement agreement 

to be valid. We hold that wife failed to prove fraud by clear 

and convincing evidence and affirm the trial court. 

 Vickie Lynn Fields (wife) and David Carl Fields (husband) 

were married on June 6, 1980 and had one child born of the 

marriage, Justin Heath. Each had been divorced before and had 

children from their previous marriages. At the time of the 

marriage, both parties worked at Pittston Coal Group (Pittston) 

in Lebanon, Virginia, wife as a keypunch operator and husband as 

an accountant. At the time of the hearing, husband was an 

assistant vice-president and comptroller of Pittston, and had 

also held the position of financial analyst during his tenure 

with the company. Wife left Pittston when the parties' son was 

 

 *Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 
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born and works at Teague Associates as an executive secretary. 

During the marriage, husband handled the parties' financial 

affairs, but wife had access to their financial documents, which 

were kept at the marital residence. 

 The parties began having marital difficulties during 

December 1992. In the spring of 1993, the parties discussed 

entering into a property settlement agreement and agreed that 

husband would prepare a draft agreement. Husband compiled the 

agreement using Pittston's law library and blank forms obtained 

from an attorney. Neither party received legal advice. On 

May 8, 1993, husband brought the draft agreement home and asked 

wife to sign it. Wife testified that she did not understand some 

of the clauses and specifically asked husband about the child 

support provisions, but did not ask him about other parts of the 

agreement. The evidence established that husband would have told 

wife the value of individual assets or any other information if 

she had asked. Husband answered her questions about child 

support, but did not give her legal advice nor discourage her 

from seeking advice from an attorney. Wife signed the agreement 

that night without consulting an attorney. 

 Paragraph 11(i) of the agreement provides as follows: 

 All funds of the husband in the savings 

investment plan which the husband presently 

has with his employer and all the husband's 

right, title and interest in and to any 

vested retirement plans of the husband with 

his employer shall remain the sole and 

separate property of the husband and the wife 

hereby agrees to relinquish all right, title 

and interest which she may have in and to any 
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of the said funds. 

Similarly, under the agreement, husband agrees to relinquish any 

rights in wife's pension: 

 All funds of the wife in the savings 

investment plan which the wife presently has 

with her employer and all the wife's right, 

title and interest in and to any vested 

retirement plans of the wife with her 

employer shall remain the sole and separate 

property of the wife and the husband hereby 

agrees to relinquish all right, title and 

interest which he may have in and to any of 

the said funds. 

Paragraph 11(i) does not disclose the specific value of either 

party's pension assets. The only asset of the parties not 

addressed in this agreement is $13,049 of United States savings 

bonds that husband purchased during the marriage. Husband's 

proposed findings of fact indicated that the bonds were worth 

$13,049; that the marital portion of his savings investment plan 

was $59,357 after taxes and penalty for early withdrawal; and 

that the present value of the marital portion of his retirement 

plan was $25,382. 

 After the parties signed the agreement, husband continued to 

live at the marital residence until August 1, 1993. The parties 

separated on that date, and wife filed a bill of complaint for 

divorce on November 17, 1993, moving to set aside the agreement 

of May 8, 1993 as having been "procured by fraud, intimidation 

and deceit." The trial court held a hearing on wife's motion to 

set aside the agreement on December 15, 1993. In the January 13, 

1995 final decree, the court found as follows: 
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 UPON FURTHER CONSIDERATION of the 

physical and mental condition of the parties 

at the date and time of the entry of the 

Agreement of May 8, 1993, evidence and 

arguments of counsel; that there exists no 

gross disparity in the economic value of the 

portion of the marital estate that each party 

is to receive that shocks the [conscience] of 

the Court; it is therefore 

 ADJUDGED, ORDERED and DECREED that the 

Agreement between the parties dated May 8, 

1993 . . . is a valid and binding contract 

between the parties, however, the Court 

declines to ratify, confirm and incorporate 

into this Decree by reference the Agreement 

between the parties dated May 8, 1993. 

(Emphasis added.) Although the court made no specific findings 

as to the value of the parties' property, it found that the terms 

of the agreement were not unconscionable. 

 Wife argues on appeal that the trial court erred in 

validating the agreement because husband acted fraudulently by 

failing to disclose the value of his pension assets, and the 

existence and value of the savings bonds. We disagree. 

 "'[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.'" Webb v. Webb, 16 Va. App. 486, 491, 431 

S.E.2d 55, 59 (1993) (quoting Cooley v. Cooley, 220 Va. 749, 752, 

263 S.E.2d 49, 52 (1980)). "[T]he one contesting the contract 

must prove the allegations by clear and convincing evidence." 

Derby v. Derby, 8 Va. App. 19, 26, 378 S.E.2d 74, 77 (1989). "On 

appeal we review the evidence in the light most favorable to the 
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prevailing party and determine whether that evidence established 

as a matter of law any of the grounds relied upon to vitiate the 

agreement and decree." Drewry v. Drewry, 8 Va. App. 460, 463, 

383 S.E.2d 12, 12-13 (1989). 

 Constructive fraud is a "'breach of legal or equitable duty 

which, irrespective of moral guilt, is declared by law to be 

fraudulent because of its tendency to deceive others or violate 

confidence.'" Webb, 16 Va. App. at 491, 431 S.E.2d at 59 

(quoting Wells v. Weston, 229 Va. 72, 77, 326 S.E.2d 672, 675-76 

(1985)). "'[T]o establish constructive fraud one must prove the 

following by clear, cogent and convincing evidence: that there 

was a material false representation, that the hearer believed it 

to be true, that it was meant to be acted on, that it was acted 

on, and that damage was sustained." Webb, 16 Va. App. at 491, 

431 S.E.2d at 59 (quoting Nationwide Ins. Co. v. Patterson, 229 

Va. 627, 629, 331 S.E.2d 490, 492 (1985)). 

 Assuming without deciding that under the facts of this case 

husband had a duty to disclose, and viewing the evidence in the 

light most favorable to husband, the prevailing party, we hold 

that wife failed to prove fraud by clear and convincing evidence. 

 The agreement included a provision that dealt with each party's 

savings investment and retirement plans. Wife was fully aware 

that husband had a savings investment plan and a retirement plan. 

 Husband's failure to list the specific values of his savings 

investment and retirement plans did not amount to a material 
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misrepresentation of value. The agreement does not contain the 

values of several assets, including wife's savings investment 

plan and pension plan. Moreover, the evidence established that 

husband did not refuse to disclose nor misrepresented the values 

and would have disclosed the value of any asset to wife had she 

asked. Furthermore, wife had access to the financial documents 

of the parties. Thus, the trial court did not err in validating 

the parties' agreement. 

 The instant case is clearly distinguishable from Webb. In 

Webb, the husband, who also handled the parties' financial 

affairs, drafted the property settlement agreement and failed to 

disclose the value of his pension. However, we determined that 

the husband was in a "special relationship" with his wife 

primarily because he was an experienced attorney who gave his 

wife legal advice regarding the agreement and other aspects of 

the divorce and actively discouraged her from seeking legal 

advice from independent counsel. 16 Va. App. at 492, 431 S.E.2d 

at 60. None of these factors exists in this case. Although 

husband was more knowledgeable about the parties' financial 

affairs, unlike the husband in Webb, he was not an attorney 

acting as an attorney in the negotiation and drafting of the 

agreement. 

 Next, wife argues that, if not fraudulently procured, the 

agreement was unconscionable. "When a court considers whether a 

contract is unconscionable, adequacy of price or quality of value 
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transferred in the contract is of initial concern." Drewry, 8 

Va. App. at 472, 383 S.E.2d at 18. An agreement's terms are 

unconscionable if there is "gross disparity in the value 

exchanged." Derby, 8 Va. App. at 28, 378 S.E.2d at 79. 

 Under the agreement in this case, wife receives the marital 

home, a car, a boat, and child support of $600 per month in 

exchange for husband receiving two empty lots and two cars. Both 

parties waived spousal support. In Paragraph 10 of the 

agreement, husband agrees to pay the mortgage and other 

maintenance expenses on the marital home, at least until the 

parties' son becomes emancipated and subject to other 

contingencies. The agreement equally divides the parties' 

personal property, a joint savings account, and an individual 

retirement account. The agreement also provides for both parties 

to receive their own savings investment plans, pension plans, and 

individual bank accounts. On these facts, we cannot say that the 

trial court erred in finding that "there exists no gross 

disparity in the economic value of the portion of the marital 

estate that each party is to receive that shocks the [conscience] 

of the Court." 

 Finally, we hold that husband's omission of the savings 

bonds worth $13,049 from the agreement did not constitute 

constructive fraud. The record does not establish why the 

savings bonds were left out of the agreement, and the trial judge 

made no finding regarding this asset. Because no evidence 
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explained the absence of a provision dealing with the bonds, the 

proof failed to establish that the omission was a "material false 

representation." Thus, husband's failure to disclose the bonds, 

standing alone, is not sufficient to void the agreement. 
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 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.