Vilseck v. Vilseck, Record No. 1207-04-2.

• Decision Date: 17 May 2005
• Docket Number: Record No. 1207-04-2.
• Citation: 45 Va. App. 581,612 S.E.2d 746
• Court: Virginia Supreme Court
• Parties: Joseph Richard VILSECK, Jr. v. Shirley Neale VILSECK.

612 S.E.2d 746

45 Va. App. 581

Joseph Richard VILSECK, Jr. v. Shirley Neale VILSECK.

Record No. 1207-04-2.

Court of Appeals of Virginia, Richmond.

May 17, 2005.

James C. Roberts (Peter A. Gilbert; Troutman Sanders LLP, on briefs), Arlington, for appellant.

Donald K. Butler (Mary Beth Joachim; ButlerCook LLP, on brief), Richmond, for appellee.

Present: FITZPATRICK, C.J., ELDER and KELSEY, JJ.

KELSEY, Judge.

Joseph Richard Vilseck, Jr. appeals a final divorce decree that equitably distributed property he claims to have acquired and titled separately during the marriage. The plain meaning of his premarital agreement, Vilseck argues, excluded this property from equitable distribution. The chancellor reached the opposite conclusion, holding that the plain meaning of the agreement included such property within the equitable distribution scheme. Upon our de novo review of the agreement, we find the contractual language ambiguous and remand the case for the chancellor to consider the parties' extrinsic evidence in support of their respective interpretations.

I.

A. THE PREMARITAL AGREEMENT

Joseph Vilseck married Shirley Neale Wiatt in 1983. Both had been married before and had children. Before marrying each other, they retained legal counsel and negotiated a premarital agreement. As most do, the agreement begins with a prefatory series of recitals followed by the transition phrase "Now, therefore ... Vilseck and Wiatt agree as follows." Some twenty numbered paragraphs, many with subparagraphs, then go into detail setting out the parties' contractual rights and liabilities.¹

The introductory recitals state that each party was "aware that the other owns substantial assets" and each

acquired all of his or her "Separate Property," as defined herein, independently of and without the assistance of the other. Each is aware of the rights and interests in and to the Separate Property of the other to which he or she might otherwise be entitled by virtue of the marriage. (Emphasis added).

Thus, whatever the meaning of "`Separate Property,' as defined herein," the context of the recital limited it to separate property owned by either party before marriage. In this respect, the contractual meaning parallels the usual meaning employed by the equitable distribution statute. See Code § 20-107.3(A)(1)(i) (defining separate property as including all property acquired "before the marriage").

One of the rights each party became entitled to "by virtue of the marriage" was the legal capacity to renounce the other's will and to claim minimum threshold rights of inheritance in the deceased spouse's separate property.² As it concerns premarital property, therefore, the phrase "Separate Property" in the recital demonstrates the parties' intent to shield such property from spousal inheritance rights. That result clears the way for paragraph 8, entitled "Provisions Upon Death of Vilseck," which sets out inheritance rights Wiatt would have by contract (not by "virtue of the marriage") under various scenarios depending on who died first, the number of surviving children, and the value of the estate.

The premarital agreement also includes a provision entitled "Retention of Separate Property." Paragraphs 2(A) and (B) read:

Except as provided herein, each of the parties shall retain sole ownership of all of his or her Separate Property and shall have the exclusive right to sell, convey ... or otherwise dispose of any and all of his or her Separate Property and any right or interest therein during lifetime by inter vivos transfer or upon death by will, or by any other method of disposition, free from interference by or of any right or interest of the other therein, in such manner as shall be determined in his or her sole discretion and as if the marriage had not taken place.

As used in this agreement, the term "Separate Property" shall mean all real and personal property of each of the parties and all rights and interests in such property of whatever kind and wherever located, regardless of whether such property is now owned or hereafter acquired.

Except for the very last clause of the last sentence, these provisions fit comfortably within the statutory meaning of separate property and the context of the earlier recital protecting premarital property from spousal inheritance claims.

By recognizing the possibility of property "hereafter acquired," however, the last clause of paragraph 2(B) implies that contractual "Separate Property" can be acquired at any time, even during marriage. That would not be ordinarily true of statutory separate property under Code § 20-107.3(A)(1)(i), which includes only property acquired "before the marriage." But it could be true for inherited property received during marriage, Code § 20-107.3(A)(1)(ii), property acquired in exchange for, or from the proceeds of, preexisting separate property, Code § 20-107.3(A)(1)(iii), and any separate property component of hybrid property, Code § 20-107.3(A)(1)(iv) & (A)(3).

Paragraph 5 of the premarital agreement deals with jointly titled property and deems each party to own an undivided half interest in such property "[n]otwithstanding any other provisions of this agreement" to the contrary. Under this provision, no matter how one interprets separate property, once it has been jointly titled it becomes jointly owned in equal shares.

Paragraph 7 addresses "Spousal Support and Monetary Award." It states that, despite the upcoming nuptials, the parties recognize the possibility of a divorce within five years of marriage. If that happened, Wiatt waives under paragraph 7(B)(1) any "spousal support or monetary award (whether payable in a lump sum or in periodic payments or over a period of time in fixed amounts) which Wiatt might otherwise have the right to receive in accordance with applicable law." If they divorce after five years, paragraph 7(C) provides that Wiatt would receive whatever the law allowed "subject, however, to all of the provisions of this agreement, including, without limitation, the definition of `Separate Property' contained herein."

B. THE TRIAL COURT PROCEEDINGS

Wiatt filed for divorce in 1999 and requested spousal support and an equitable distribution award pursuant to Code § 20-107.3. In response, Vilseck asserted that the premarital agreement should be interpreted to deem all property acquired and titled individually during the marriage to be characterized as contractual "Separate Property" wholly immune from the equitable distribution statute.

Wiatt argued that the agreement addressed "Separate Property" to protect premarital property from spousal inheritance claims. The contractual reference to property "hereinafter acquired," Wiatt reasoned, merely broadened the protection to property purchased during the marriage with premarital separate funds, property inherited during marriage, and whatever separate property components existed within hybrid property— each tracking the limited categories of statutory separate property that could be acquired during marriage. See Code § 20-107.3(A)(1)(ii), (A)(1)(iii), (A)(1)(iv) & (A)(3).

Both Vilseck and Wiatt claimed that their mutually exclusive interpretations had the textual support of the plain meaning of the premarital agreement. But each was also quick to acknowledge, however, that extrinsic evidence should be considered if the chancellor rejected their plain meaning arguments and deemed the agreement ambiguous.

The chancellor held the agreement, as a matter of law, unambiguously endorsed Wiatt's interpretation of "Separate Property" and thus found no need to consider any extrinsic evidence from either party. "While the use of the phrase `Separate Property' may be ambiguous on the face of the document," the chancellor held, "the plain meaning of these words are found [sic] by a reading of the whole instrument." After ruling on the meaning of the premarital agreement, the chancellor appointed a judge pro tempore to conduct an evidentiary hearing to distribute the marital assets pursuant to the approved interpretation.

II.

On appeal, Vilseck argues that the plain meaning of the premarital agreement supports only his interpretation and expressly rejects the interpretation advanced by Wiatt and adopted by the chancellor. In the alternative, Vilseck contends, "if the Court, in its de novo review, determines that the language of the agreement is ambiguous, it should remand the case for the presentation of evidence." We reject Vilseck's primary argument, but accept his alternative contention.

Under settled principles, the "law presumes property acquired during a marriage to be marital, not separate, property." Smith v. Smith, 43 Va.App. 279, 286-87, 597 S.E.2d 250, 254 (2004) (citing Code § 20-107.3(A)(2)). Contractual parties "may defeat that presumption by agreement." Id. "Contracts seeking to do this before marriage, like the prenuptial agreement in this case, should be interpreted and enforced no differently than any other type of contract." Id. (citations omitted). "Thus, we employ `rules of construction applicable to contracts generally, including the application of the plain meaning of unambiguous contractual terms.'" Id. (quoting Pysell v. Keck, 263 Va. 457, 460, 559 S.E.2d 677, 678 (2002); King v. King, 40 Va.App. 200, 206, 578 S.E.2d 806, 809 (2003)).

Virginia law resolves "contractual vagaries in one of three ways." Smith, 43 Va.App. at 287, 597 S.E.2d at 254. "First, if no patent or latent ambiguities exist, a court should enforce the plain meaning of the contractual language without resort to extrinsic evidence." Id. "Second, if an ambiguity exists, a court should still enforce the contract if the real meaning of the ambiguous provision can be discerned from extrinsic evidence." Id. "Third, if an ambiguity renders the alleged agreement too indefinite—even after the consideration of extrinsic evidence—for the court to determine the parties' intent, the contract cannot be enforced due...