COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Ha ley and Senior Judge Coleman

TWILA EILEEN MARTIN MEMORANDUM OPINION * v. Record No. 1577-06-3 PER CURIAM DECEMBER 12, 2006 MORRIS DEAN MARTIN, JR.

FROM THE CIRCUIT COUR T OF BOTETOURT COUNTY Michael S. Irvine, Judge (William L. Heartwell, III, on brief), for appellant. (Michael B. Massey; Spigle, Ro e, Massey & Clay, P.C., on brief), for appellee.

Twila Eileen Martin appeals from a final decree granting Morris Dean Martin, Jr., her husband, a divorce. Wife contends 1) the parties’ separation agreem ent was unconsciona ble, 2) this Court is not bound by the trial court’s factual findings, and 3) th e agreement, if valid, should “be

construed to ascertain the intention of the parties with respect to the real estate.” Husband seeks attorney’s fees incurred in conjun ction with this appeal. Upon revi ewing the record and briefs, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the

trial court. See Rule 5A:27.

BACKGROUND On appeal, we view the evidence and all reasona ble inferences in the light most favorable to appellee as the party prevailing below. See McGuire v. McGuire , 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). So viewed, the evidence proved the parties married on November 18, 1983 and separated on March 31, 2004. On Ap ril 28, 2004, wife signed a separation and

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - property settlement agreement drafted by husband’s counsel. Wife conceded at trial that she signed the agreement voluntarily. The agreement grants husband sole possession of the marital reside nce and responsibility for the outstanding mortgage on the property. Hu sband also assumed responsibility for $8,300 of marital debt. Two of the parties’ marital vehi cles were awarded to hus band, and wife received the third vehicle. The parties retained personal property in the possession of each party. Each party waived any interest in the other’s pension. At trial, wife presented no evidence regardi ng the value of the mar ital residence or any other marital property. The agreement contains no va luations. Wife testified there was equity in the marital residence, but she did not prove the amount of the equity or the outstanding mortgage. ANALYSIS

I. “[M]arital property settlements entere d 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 ce rtain.” Cooley v. Cooley , 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980) (citation omitted); Derby v. Derby , 8 Va. App. 19, 25, 378 S.E.2d 74, 77 (1989). Therefore, in this case, wife “had the burden at trial to pr ove 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).

Wife contends the trial court should have se t aside the agreement as unconscionable.

Wife asserts the distribution of a ssets as outlined in the agreement is grossly disproportionate as husband received “all of the marital property w ith the exception of the Chrysler Cirrus which wife would share with” the parties’ son.- 3 - [U]nconscionability is more conc erned with the intrinsic fairness of the terms of the agreement in relation to all attendant circumstances, including the rela tionship and duties between the parties. A party may be free of fraud but guilty of overreaching or oppressive conduct in securing an ag reement which is so patently unfair that courts of equity may refuse to enforce it. Derby , 8 Va. App. at 28, 378 S.E.2d at 78. Howeve r, “[c]ourts cannot relieve one of the consequences of a contract merely be cause it was unwise.” Owens v. Owens , 196 Va. 966, 974, 86 S.E.2d 181, 186 (1955). The agreement provides that each party will retain his or her own retirement benefits and his or her own personal property. Although wife asserts she has no retirement funds, she presented no evidence to support th is contention. She also failed to prove the value of husband’s retirement account, the value of th e residence, the amount of the mortgage on the property, or the value of the parties’ personal prope rty. In short, the wife merely alleges a “disparity in value exchanged.” The wife’s evidence of a probable disparity in the values of the parties’ [property] was insu fficient to prove by clear and convincing evidence a “gross disp arity” in the entire values exchanged under the Agreement.

Allocca v. Allocca , 23 Va. App. 571, 579, 478 S.E.2d 702, 706 (1996). “Absent evidence of ‘gross disparity in value exchanged’ there exists no basis to claim unconscionability; thus in this

context consideration whether one party was guilty of overreac hing and the other susceptible thereto is unnecessary.” Drewry , 8 Va. App. at 473, 383 S.E.2d at 18.

We find no error in the trial court’s determination that wife failed to demonstrate the agreement was unconscionable.

II. Wife frames her second question presented mere ly as an assertion th at this Court “is not bound by the trial court’s factual findings.” In her argument in support of this question, wife- 4 - appears to contend the trial court improperly “d isregarded the uncontradicted testimony” she presented. As noted above, wife failed to present any ev idence regarding the valu ation of the various property mentioned in the agreement. The ev idence wife presented, even if uncontradicted, simply did not demonstrate a gross disparity. In stead, the testimony she references pertained to the circumstances surrounding the negotiation and execution of the parties’ ag reement. We find no error in the court’s factual findings.

III. In pertinent part, para graph four of the parties’ agreem ent provides: “The Husband shall have exclusive right and possession of the marita l property and all equity therein. The Husband shall be solely responsible for the mortgage a nd shall refinance or otherwise have the Wife’s name removed from the property within ninety (9 0) days of the signing of this Agreement.” Wife contends this “provision means that husba nd is to have possession only and that in exchange for his right of possession, he is to re finance or taken [sic] her off of the note which

underlies the deed of trust.” The trial court concluded the provisio n unambiguously gran ts husband not only possession of the property, but also “exclusi ve right” and “all the equity therein.”

Contracts are construed as written, without adding terms that were not included by the parties. Wilson [v. Holyfield] , 227 Va. [184,] 187, 313 S.E.2d [396,] 398 [(1984)]. Where the terms in a contract are clear and unambig uous, the contract is construed according to its plain meaning. Bridgestone/Firestone v. Prince William Square Assocs. , 250 Va. 402, 407, 463 S.E.2d 661, 664 (1995); Ross v. Craw , 231 Va. 206, 212, 343 S.E.2d 312, 316 (1986). A contract is not ambi guous merely because the parties disagree as to the meaning of the terms used. Id. at 212-13, 343 S.E.2d at 316. Furthermore, contra cts must be considered as a whole “without giving emphasis to isolated terms.” American- 5 - Spirit Ins. Co. v. Owens , 261 Va. 270, 275, 541 S.E.2d 553, 555 (2001). TM Delmarva Power v. NCP of Virginia , 263 Va. 116, 119, 557 S.E.2d 199, 200 (2002). We are not bound by the trial court’s conclusi ons as to the constr uction of disputed provisions in an agreement. Utsch v. Utsch , 266 Va. 124, 129, 581 S.E.2d 507, 509 (2003). Therefore, “[w]e review th e terms of an agreement de novo .” Shenk v. Shenk , 39 Va. App. 161, 173, 571 S.E.2d 896, 903 (2002). “The question for the court is wh at did the parties agree to as evidenced by their contract. Th e guiding light in the construction of a contract is the intention of the parties as expressed by them in the words they have used, and courts are bound to say that the parties intended what the written instrument plainly declares.”

Wilson , 227 Va. at 187, 313 S.E.2d at 398 (quoting Meade v. Wallen , 226 Va. 465, 467, 311 S.E.2d 103, 104 (1984)). “In reviewing the agreement, we must gather the intent of the parties and the meaning of the language . . . from an examination of the enti re instrument, giving full effect to the words the parties actually used.” Layne v. Henderson , 232 Va. 332, 337-38, 351 S.E.2d 18, 22 (1986). The construing court “must give effect to all of th e language of [the instrument] if its parts can be read together without conflict.” Berry v. Klinger , 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983). In this case, the agreement clearly provides husband with “exclusive right and possession of the marital property and all equity therein.” (Emphasis ad ded.) Wife’s interpretation of the provision is strained, at best. Her reading of the provision ignores the language giving husband “right” and “all equity” in additi on to mere possession. We hold that the terms of the contract do not support wife’s interpretation. The trial court’s construction of the contract was correct.- 6 - IV. Husband requests attorney’s fees for matters relating to this appeal. The rationale for the appellate court being the proper forum to determine the propriety of an awar d of attorney’s fees for efforts expended on appeal is clear. The appellate court has the opportunity to view the record in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment. O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In this context, and upon consideration of the entire record in this case, we hold th at the appeal is frivolous and that husband is entitled to attorney’s fees in th e matter. We, therefore, remand to the trial court to fix reasonable attorney’s fees. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.

Affirmed and remanded.