Wills v. Wills

• Decision Date: 09 February 2021
• Docket Number: Record No. 0144-20-4,Record No. 0117-20-4
• Citation: 72 Va.App. 743,853 S.E.2d 536
• Court: Virginia Court of Appeals
• Parties: W. Neil WILLS v. Lisa J. WILLS Lisa J. Wills v. W. Neil Wills

72 Va.App. 743

853 S.E.2d 536

W. Neil WILLS

v.Lisa J. WILLS

Lisa J. Wills

v.W. Neil Wills

Record No. 0117-20-4

Record No. 0144-20-4

Court of Appeals of Virginia.

FEBRUARY 9, 2021

James Ray Cottrell ; John K. Cottrell, Alexandria (Amy W. Spain; Cottrell Fletcher & Cottrell, PC, on briefs), for W. Neil Wills.

Caroline E. Costle, McLean; Timothy R. Bradley (Cary S. Greenberg ; GreenbergCostle, PC, McLean, on briefs), for Lisa J. Wills.

Present: Judges Beales, Malveaux and Senior Judge Clements

OPINION BY JUDGE RANDOLPH A. BEALES

In these consolidated appeals, both W. Neil Wills ("husband") and Lisa J. Wills ("wife") appeal from a final order of divorce of the Circuit Court of Arlington County (the "circuit court"), awarding husband a divorce and addressing matters of equitable distribution, spousal support, child custody, and child support. In husband's appeal, he presents twelve assignments of error, primarily contending that the circuit court erred in finding that the parties’ "Postnuptial Agreement," signed approximately one month after the date of the marriage, was abrogated. Husband also asserts that the circuit court erred in awarding wife prejudgment interest on a retroactive child support award. Wife filed a cross-assignment of error in husband's appeal, arguing that the circuit court erred in finding that she was not under duress when she signed the "Postnuptial Agreement." Wife also filed her own appeal, assigning error to six decisions of the circuit court with respect to its equitable distribution and spousal support awards and its award of attorney's fees at trial.

I. BACKGROUND ¹

Husband and wife were married on December 11, 2004, in Arlington, Virginia. They had one child, who was still a minor at the time of the circuit court proceedings. Husband and wife last separated on July 13, 2015, after which there was no reconciliation. On August 25, 2016, husband filed a complaint for divorce based on the parties’ having been separated for more than one year. The complaint requested that the court affirm, ratify, and incorporate into a court order the agreement entitled "Postnuptial Agreement" that was signed by the parties on January 8, 2005. Wife filed an answer stating that the parties had separated and reconciled on several occasions following the signing of the Postnuptial Agreement and asking the court to find that the agreement was abrogated by one of these subsequent reconciliations pursuant to Code § 20-155.

On February 2, 2017, the parties appeared before the circuit court for a hearing to address whether the Postnuptial Agreement was abrogated by a subsequent reconciliation under Code § 20-155. Wife also testified regarding her alternative claim that the agreement should "be rescinded because of her involuntary endorsement under the duress of improper threats." She claimed that she only signed the agreement because husband threatened to divorce her if she refused to do so.

At the hearing, husband and wife testified to two very different versions of events leading up to the signing of the Postnuptial Agreement. According to husband, the parties began discussing a premarital agreement in March of 2004, nine months prior to their marriage in December 2004. He testified that he did not want wife to sign an agreement until she had first consulted with an attorney and received documentation of that consultation. He explained that, before the marriage, wife met with an attorney who worked directly with his attorney on the details of a premarital agreement, but because of a billing dispute, wife's relationship with that attorney ended. Husband stated that the parties "didn't do anything" more with the agreement until the fall of 2004 when wife told husband that she wanted to get married on December 11, 2004, which husband described as a "special day" for the couple.

Husband testified that, in light of their plan to get married on December 11, 2004, wife consulted with another attorney about the premarital agreement. He stated that wife informed him that "she would have the letter [confirming the consultation] by the 10th and that we were going to get a married, we were going to get married on the 11th. That was her plan. Our plan." He testified that the night before they were going to get married, he came home to find wife very upset. She told him that she had gone to the attorney's office to get the letter and was informed that it was not ready. Husband stated that wife suggested they just sign the agreement right away so that they could get married the next day. However, because he wanted her to have the letter prior to signing the agreement, he told her that they could go ahead and get married the next day, December 11, and then immediately after have an attorney draw up a document that would "allow us to have the same protections that a prenuptial agreement encompassed."

Husband testified that the week after they got married, he spoke with his attorney about making the proposed premarital agreement into a postnuptial agreement. The parties then signed the Postnuptial Agreement on January 8, 2005. Husband stated that, from the time of the marriage up until the time they signed the agreement, they were living together and having marital relations.² He denied having "shouting matches" about the agreement although he stated that they had "a serious discussion" where he told her that he needed the agreement signed. He agreed that wife "wasn't enthusiastic" about signing either a premarital or a postnuptial agreement but stated that "she signed it knowing that it would keep us together." He testified that he was honest with wife about how he "would not feel comfortable staying in the marriage if I did not have a document to protect me in the event of a divorce."

Over the objection of husband's counsel, wife's counsel asked husband a number of questions about several occasions during the marriage when husband and wife had arguments, leading husband to move out of the marital bedroom or the marital home, and about the couple's subsequent reconciliations.

Husband admitted to having arguments with wife and to sometimes sleeping in the guest room or another location after these arguments.

Wife testified that she had not wanted to sign a premarital agreement and that they had not agreed to sign a postnuptial agreement prior to getting married. She stated that, the day after Christmas, they called husband's parents and told them about their recent marriage. She explained how, when husband's mother asked about an agreement, husband "took me off the speaker and then talked to them alone." She stated that, soon after that conversation, husband told wife that she had to sign the agreement or "he's going to cancel the marriage and he's going to get me divorced." She testified that he started "showing violent behavior" and that he moved out of the marital bedroom. Wife claimed that she went with husband to the bank to sign the Postnuptial Agreement because she "was so intimidated" and because she "trusted him that he would get divorced" if she refused to sign.

Wife also testified about a number of instances following the signing of the Postnuptial Agreement when she and husband had arguments which resulted in husband leaving the bedroom or leaving the house entirely. She described how they reconciled following these disagreements until they separated for a final time in July 2015.

At the hearing, husband's counsel argued that the last sentence of Code § 20-155 (which states, "A reconciliation of the parties after the signing of a separation or property settlement agreement shall abrogate such agreement unless otherwise expressly set forth in the agreement.") did not apply to the parties’ Postnuptial Agreement. He argued that the Postnuptial Agreement was not a separation or property settlement agreement because the parties were not separated or in the process of ending their marriage. In fact, they were just beginning their marriage. Wife's counsel took the position that the parties were separated at the time that they signed the agreement but also argued that it was irrelevant whether the parties were separated. She argued that the agreement was a "property settlement agreement," and as such, "it will be abrogated if there's a reconciliation at some point after the signing."

In a memorandum opinion signed on June 13, 2017, the circuit court found that the agreement was abrogated by Code § 20-155 when the parties separated and then reconciled on one or more occasions following the signing of the agreement. Examining Code § 20-155, the trial judge stated, "Married persons, whether happily married or separated, may enter into an agreement to settle their respective property rights should the marriage subsequently dissolve, and should they separate or remain separated and then reconcile after signing the agreement, the agreement is abrogated unless the writing otherwise provides." Thus, the circuit court essentially concluded that it was irrelevant whether the agreement was entered into with the intent to separate or with the intent to remain married. The circuit court also found that wife was not under duress when she signed the agreement and that she "was able to understand the terms of the Marital Agreement and freely signed it."

On November 20, 2017, husband filed a motion for reconsideration, again arguing that the Postnuptial Agreement was not subject to the last sentence of Code § 20-155. He also argued that, assuming the agreement was subject to the last sentence, the agreement was not abrogated because it states that it can only be terminated by a subsequent writing. The circuit court denied the motion for reconsideration on February 8, 2018. The circuit court also later denied a motion filed by husband requesting that the provision of the agreement regarding spousal support be severed from the rest of the agreement and remain in effect.

At a hearing on November 27, 2017, the circuit court awarded wife pendente lite...