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Amber J. v. Shannon J.

Supreme Court of West Virginia

May 22, 2017

Amber J., Respondent Below, Petitioner
v.
Shannon J., Petitioner Below, Respondent

         (Kanawha County 15-D-814)

          MEMORANDUM DECISION

         Petitioner Amber J.[1], by counsel Mark W. Kelley, appeals the Circuit Court of Kanawha County's February 23, 2016, order validating the parties' postnuptial agreement. Respondent Shannon J., by counsel Allyson E. Hilliard, filed a response in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in reversing the decision of the Family Court of Kanawha County invalidating the parties' postnuptial agreement.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In March of 2008, the parties were married. Subsequently, in April of 2008, respondent sustained severe injuries in a workplace accident.[2] Following the accident, the parties filed a civil law suit against respondent's employer, All Crane & Equipment Rental Corporation.

         In June of 2011, in anticipation of a settlement, the parties entered into a postnuptial agreement to divide any settlement proceeds. Attorney Scott Kaminsky drafted the agreement for both parties. The parties met with Mr. Kaminsky on two occasions; once to draft the agreement and once to review and sign the agreement. Ultimately, the personal injury case settled for $2, 365, 000 and the parties received approximately $1, 800, 000.

         In June of 2015, petitioner filed for divorce. The family court held an evidentiary hearing in October of 2015 on the sole issue of the validity of postnuptial agreement. At the hearing, several witnesses testified regarding the validity of the parties' postnuptial agreement, including the parties and Mr. Kaminsky.[3] The parties each testified that they jointly desired to enter into a legally-binding agreement in regard to distribution of the funds received by petitioner in correlation to the sums received by respondent from his injuries. The parties also testified that they were referred to Mr. Kaminsky to prepare an agreement outlining the terms previously agreed to by the parties. Mr. Kaminsky testified that he did not provide legal counsel to either party but advised them of their right to obtain independent counsel to review the agreement. He also testified that he did not represent either party in the preparation of a legally-binding agreement and that no financial statements were prepared or exchanged in relation to the agreement. By final order entered on October 7, 2015, the family court held that the postnuptial agreement was invalid, and found that the parties' representation by Mr. Kaminsky was contrary to West Virginia law, and that the parties did not exchange any financial disclosures in relation to the "assets and liabilities . . . which they intended to preserve."

         In November of 2015, respondent appealed to the circuit court. Petitioner filed a motion to dismiss respondent's petition for appeal. The circuit court held a hearing and thereafter entered an order denying petitioner's motion to dismiss. Following a hearing on petitioner's appeal, the circuit court entered a final order on February 23, 2016. The circuit court found that the family court misapplied West Virginia law to the relevant facts, reversed the family court's ruling, and directed the family court to "completely enforce" the parties' postnuptial agreement. This appeal followed.

         Our standard for reviewing a circuit court order in a family court matter was set forth in the syllabus of Carr v. Hancock, 216 W.Va. 474, 475, 607 S.E.2d 803, 804 (2004):

In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.

         With this standard in mind, we review the circuit court and family court orders.

         Petitioner argues that the circuit court erred in reversing the family court's decision to invalidate the parties' postnuptial agreement. Specifically, she argues that because the parties were represented by the same attorney, the postnuptial agreement is void. Petitioner further argues that the parties' postnuptial agreement is per se invalid because "one attorney may not represent, nor purport to counsel, both parties to a prenuptial agreement." Syl. Pt. 4, Ware v. Ware, 224 W.Va. 599, 687 S.E.2d 382 (2009).[4] We note, however, that "no state [including West Virginia] has instituted a per se rule requiring that parties to a prenuptial agreement must always obtain independent counsel." Id. at 607, 687 S.E.2d at 390. While petitioner argues that the "law is crystal clear" that Mr. Kaminsky's role as counsel for the parties was improper and, thus, the postnuptial agreement was void, our previous holding in Ware has established otherwise. According to our holding in Ware,

[t]he validity of a prenuptial agreement is dependent upon its valid procurement, which requires its having been executed voluntarily, with knowledge of its content and legal effect, under circumstances free of fraud, duress, or misrepresentation; however, although advice of independent counsel at the time parties enter into a prenuptial agreement helps demonstrate that there has been no fraud, duress or misrepresentation, and that the agreement was entered into knowledgeably and voluntarily, such independent advice of counsel is not a prerequisite to enforceability when the terms of the agreement are understandable to a reasonably intelligent adult and both parties have had the opportunity to consult with independent counsel

Id. at 601, 687 S.E.2d at 384, Syl. Pt. 2. (emphasis added).

         In this case, we conclude that the parties' postnuptial agreement is valid and enforceable. It is clear from the record on appeal that the parties signed the instant postnuptial agreement in 2011. Both parties later testified that the agreement was not obtained by fraud, duress, or other unconscionable conduct. Petitioner testified that each party was advised by Mr. Kaminsky of their right to obtain independent counsel and that she voluntarily chose not to obtain independent counsel. Additionally, respondent and Mr. Kaminsky both testified that petitioner was the party "who wanted the postnuptial agreement" and was not "forced into making the agreement." The parties and Mr. Kaminsky all testified that Mr. Kaminsky was not hired to represent the parties in the formation of the postnuptial agreement, but rather Mr. Kaminsky was hired to draft the agreement ...


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