Black v. Powers, Record No. 1544-05-1.

• Decision Date: 25 April 2006
• Docket Number: Record No. 1544-05-1.
• Citation: 628 S.E.2d 546,48 Va. App. 113
• Court: Virginia Court of Appeals
• Parties: Benita Frances BLACK v. William V. POWERS, Jr.

628 S.E.2d 546

48 Va. App. 113

Benita Frances BLACK v. William V. POWERS, Jr.

Record No. 1544-05-1.

Court of Appeals of Virginia, Chesapeake.

April 25, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Samuel R. Brown, II (Kaufman & Canoles, P.C., on briefs), Virginia Beach, for appellant.

William V. Powers, Jr., pro se (Robert Epstein; Epstein, Sandler and Flora, P.C., on brief), for appellee.

Present: FELTON,^* C.J., and HUMPHREYS and HALEY, JJ.

HUMPHREYS, Judge.

Appellant Benita Frances Black ("wife") appeals a ruling from the trial court upholding the validity of her prenuptial agreement with appellee William V. Powers, Jr. ("husband"). Wife contends that the trial court erred in holding that Virginia law governs the validity of the agreement, reasoning that the trial court should have applied the law of the United States Virgin Islands, the jurisdiction where the parties signed the agreement, instead. Wife also argues that the trial court erroneously held that, even under the law of the Virgin Islands, the prenuptial agreement is valid and enforceable. Finally, wife argues, in the alternative, that if the trial court correctly held that Virginia law determines the validity of the prenuptial agreement, the court erred in concluding that the agreement is valid and enforceable under Virginia law. For the reasons that follow, we hold that the trial court erroneously held that Virginia law governs the validity of the prenuptial agreement. However, because, according to the law of the Virgin Islands, the prenuptial agreement is valid and enforceable, we further hold that this error is harmless. Accordingly, we affirm the judgment below. Also, we deny husband's request for an award of the attorneys' fees associated with this appeal.

I. BACKGROUND

On appeal, we view the evidence in the light most favorable to husband, the party prevailing below. Congdon v. Congdon, 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed, the evidence in this case establishes the following.

Husband and wife began dating in 1979. At the time, wife was employed as a secretary at a law firm, and husband, a lawyer, was a solo practitioner. Both parties were Virginia residents. In late November of 1982, husband and wife decided to buy a house together. Although the parties closed on the house in December of 1982, wife informed husband that she would not move into the house with him unless he married her first. Husband, however, told wife repeatedly that he would never marry her unless she agreed to sign a prenuptial agreement. Although wife then moved some of her belongings into the jointly-owned residence, she did not move into the house herself. Rather, she went to live with her mother.

Several months later, the parties decided to marry, and they selected the island of St. Croix in the United States Virgin Islands as the location of the wedding ceremony. At some point during the spring of 1983, husband gave wife a copy of the proposed prenuptial agreement.¹ Wife, however, did not seek independent legal advice about the terms and conditions of the proposed agreement.

On July 10, 1983, the parties flew to St. Croix, and they arranged to be married on July 13, 1983. At the time, neither party had signed the prenuptial agreement. On July 12—the day before the wedding—husband gave wife another copy of the agreement. After a cursory review of the terms of the agreement, wife signed the document.² Neither party exchanged tax returns, bank statements, or other financial documents prior to the execution of the agreement.

The prenuptial agreement provides, in pertinent part, as follows:

Whereas, a marriage is intended to be solemnized between the parties, and in view of the fact that after their marriage, in the absence of any agreement to the contrary, their legal relations and powers with reference to their property may, by reason of some change in their domicile or other than those which they desire to have applied to their relationship, power and capacities, and in anticipation thereof they desire to fix and determine the rights and claim [sic] that will accrue to each of them in the property and the estate of the other by reason of the marriage, and to accept the provisions of this agreement in full discharge and satisfaction of such rights.

Whereas, each of the parties hereto has given a full and frank disclosure to the other the full amount of all property owned by each of the parties and each acknowledges that they are fully acquainted with the business and resources of each and each understands that the other is a person of possible substantial wealth. And each has answered all the questions each has about their income and assets and each understands that by entering into this agreement they may receive as the widow of each other substantially less than the amount they would otherwise be entitled to receive if they died intestate or if they elected to take against their Last Will and Testament pursuant to statute and each has carefully weighed all the facts and circumstances, and desires to marry each other regardless of any financial arrangements made for their benefits and each is entering into this agreement freely and voluntarily, on competent independent legal advice and with full knowledge of their rights.

Now, Therefore, In consideration of the promises and of the marriage and in further consideration of the mutual promises and undertakings hereinafter set forth the parties agree:

1. Each party hereby agrees, covenants and declares that ... in view and consideration of the proposed marriage, that so far as it is legally possible by their private act and agreement, all the property belonging to either of them at the commencement of the marriage or acquired by or coming to either of them during the marriage, shall be held and enjoyed by him or her, and be subject to his or her disposition as his or her separate property in the manner as if the marriage had never been consummated 2. The parties hereto expressly further agree and covenant to and with each other, that upon the death of either, the survivor shall not have and will not assert any claim, interest, estate or title under the laws of any state because of such survivorship in or to the property, real, personal or mixed, or life insurance, of which the deceased party die seized or possessed, and such survivor hereby relinquishes to the heirs, devisees, administrators, executors and assigns of the deceased party any and all of his or her claim, distributive share, interest, estate or title that he or she would be entitled to as the surviving husband or wife respectfully....

This provision is intended to and shall serve as a waiver and release of each parties [sic] rights of election in accordance with the requirement of Virginia Code 64.1-13 (1950 as amended), and any law amendatory thereof or supplemental or similar thereto.

3. Each party hereby waives, releases and relinquishes any and all claim and rights of every kind, nature or description that he or she may acquire by reason of the marriage in the other's property or estate under the present or future laws of the state of Virginia or any other jurisdiction.

4. Nothing contained in this agreement shall be deemed to constitute a waiver by either party of any bequest that the other party may choose to make to him or her by will or codicil. However, the parties acknowledge that no promises of any kind have been made by either of them to the other with respect to any such bequest.

5. This agreement contains the entire understanding of the parties. There are no representations, warranties or promises other than those expressly set forth herein.

(Emphases added). After the wedding ceremony, the parties returned to Virginia, where they continued to reside throughout the duration of their marriage.

In June of 1994, husband and wife separated. On August 22, 2001, wife filed a bill of complaint, seeking a divorce a vinculo matrimonii "on the ground of the continuous physical separation of the parties for a period of more than twelve (12) months without any cohabitation whatsoever." Wife further requested equitable distribution of the marital estate "under § 20-107.3 of the Code of Virginia... and [] such other and further relief as the nature of this case may require or as to equity shall seem meet and appropriate."

On October 24, 2001, husband filed an answer and cross bill, asserting, inter alia, that "the parties entered into a pre-marital agreement as defined in Virginia Code 20-148 and recognized under section 20-149 and 20-154." Husband further alleged that "said agreement as a matter of law defines their property rights and bars the equitable side of the court from deciding those rights under section 20-107.3."

On January 14, 2002, the trial court conducted a hearing to resolve the validity of the prenuptial agreement. During husband's case-in-chief, both parties testified that the signatures on the prenuptial agreement were valid. At the conclusion of husband's evidence, wife moved to strike the evidence, arguing that there was no evidence that the parties made a "full and frank disclosure" of their financial situation, that there was no evidence that wife signed the agreement "freely and voluntarily," and that there was no evidence that wife "entered into this with competent, independent, legal advice." The trial court overruled the motion to strike.

During rebuttal, wife testified that she stopped working as a legal secretary in 1979, two and a half years before the parties' marriage. Wife also stated that, although she knew what a prenuptial agreement was, she never assisted in the preparation of one during the course of her seven-month employment as a legal secretary. As to the specifics of her prenuptial agreement with husband, wife testified that neither party disclosed their financial assets prior to the signing of the agreement, and she further stated that she had...