Benita Frances Black v. William v. Powers, Jr. ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia
BENITA FRANCES BLACK
MEMORANDUM OPINION* BY
v. Record No. 2022-02-1 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 4, 2003
WILLIAM V. POWERS, JR.
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Samuel R. Brown, II (Samuel R. Brown, II, P.C., on briefs), for
appellant.
William V. Powers, Jr., pro se (Robert S. Ricks, on brief), for
appellee.
In this pending suit for divorce a vinculo matrimonii, Benita Frances Black appeals a
preliminary ruling of the chancellor that the parties' pre-nuptial agreement is governed by the law
of the Commonwealth of Virginia and is valid and enforceable under Virginia law. Specifically,
Black contends the chancellor erred in finding that the pre-nuptial agreement is not governed by
the law of the United States Virgin Islands, and contends that under such law the agreement is
"unenforceable as unconscionable and demonstrably unfair." In the alternative, Black contends
the chancellor erred in "finding that the pre-nuptial agreement [is] []enforceable" under Virginia
law. Because we find that we are without jurisdiction to consider this interlocutory issue, we
dismiss this appeal.
I. BACKGROUND
On August 22, 2001, Black filed a bill of complaint for divorce with the Circuit Court of
the City of Portsmouth, seeking a divorce from her husband, William V. Powers, Jr. Black
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* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
alleged that the parties separated on June 4, 1994 and remained physically separated since that
date, with the intent to "discontinue permanently the marital cohabitation." Thus, Black
requested a divorce a vinculo matrimonii, as well as equitable distribution of the parties' marital
property, pursuant to Code § 20-107.3.
Powers filed an answer and cross-bill on October 24, 2001, alleging that Black had
committed "and continue[d] to commit adultery numerous times with numerous individuals"
within the preceding five-year period. Powers stated that Black "willfully deserted the
[marriage] to continue these affairs." Powers further alleged that the parties had entered into a
pre-marital agreement (hereinafter "Agreement"), "as defined in Virginia Code 20-148 and
recognized under section 20-149 and 20-154," prior to their marriage that, as a "matter of law
define[d] their property rights and bar[red] the equitable side of the court from deciding those
rights" pursuant to Code § 20-107.3. Thus, Powers requested that the court grant him an
absolute divorce on the grounds of adultery and willful desertion and that the court sitting in
equity defer to the court sitting in law and enforce the Agreement.
The Agreement, which was attached to Powers' answer and cross bill, provided as
follows in relevant part:
Whereas, a marriage is intended to be solemnized between the
parties . . . and in anticipation thereof they desire to fix and
determine the rights and claim 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
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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:
* * * * * * *
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.
* * * * * * *
5. This agreement contains the entire understanding of the parties.
There are no representations, warranties or promises other than
those expressly set forth herein.
The Agreement was dated July 12, 1983, signed by both parties, and notarized.
On January 14, 2002, the chancellor held a hearing concerning the "validity" of the
Agreement. Evidence presented during the proceeding established that the parties, both residents
of Virginia, signed the Agreement on July 12, 1983 while vacationing on the island of Saint
Croix, in the United States Virgin Islands. The parties were married in Saint Croix the next day.
At the close of the evidence, Black argued that the Agreement was invalid because it
contained no "fair and reasonable provision" for Black, because there was no "full and frank
disclosure" of Powers' worth before she signed the Agreement, and because she did not sign the
Agreement "freely and voluntarily on competent, independent advice, with full knowledge of her
rights."
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The trial court stated as follows:
I think your only hope is to find out that Saint Croix law or Virgin
Island law or they had to apply the federal law down there on these
cases, and I don't know the answer to that.
* * * * * * *
Now, given the fact that [Powers and Black] had business dealings
together, given the fact that it was clear at least for three or four
months before they entered into this agreement there was going to
be a prenupt. [sic] - there is some dispute about whether the actual
prenupt. [sic] was handed over, but given all this – this was an
arm's length contract that should stand on its face, absent – there is
no evidence of fraud. There is no evidence of deceit.
The court further found no "fraud in the inducement," and stated, "I think the Saint Croix law is
the law that should apply here, unless I can hear some argument to the contrary," and set the
matter for further argument on the choice of law issue.
On March 28, 2002, after reviewing briefs filed by the parties addressing the choice of
law issue, the trial court heard further argument on the matter. In addition to arguing the choice
of law issue, Black informed the trial court that "[f]ederal law preempts [s]tate law under
retirement plans, recent retirement plans. And prenuptial agreements cannot waive one's rights."1
Relying on 29 U.S.C. § 1056, Black therefore requested discovery concerning any such items
held by Powers. Powers' attorney agreed that Black should be entitled to any "URISA [sic]
retirements," "those retirements that are not allowed to be addressed in the prenuptial."
Accordingly, the trial court ordered Powers to provide Black with information concerning
"[e]very retirement plan" in which he participated during the marriage.
Regarding the choice of law issue, the court found as follows:
1
The validity of the legal basis for Black's argument in this regard was not addressed by
the trial court and is not an issue on this appeal.
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[G]iven this contract, I am going to rule that Virginia law applies,
number one, and that, under Virginia law, it is valid. I will also
state that, in my opinion, under Virgin Islands law, it is valid.2
It is this ruling that Black now appeals. The record reflects that no children were born of the
marriage and that no decree of divorce has been entered.
II. ANALYSIS
Prior to oral argument on this appeal, Powers filed a Motion to Dismiss Interlocutory
Appeal. In his motion, Powers contends the appeal is interlocutory and should be dismissed,
because the issue that is the subject of the appeal "does not adjudicate the principles of a cause as
required by the provisions of Section 17.1-405(4)." We consider this motion before addressing
the merits of the appeal.
"The Court of Appeals of Virginia is a court of limited jurisdiction. Unless a statute
confers jurisdiction in this Court, we are without power to review an appeal." Canova Electric
Contracting v. LMI Ins., 22 Va. App. 595, 599, 471 S.E.2d 827, 829 (1996) (citations omitted).
This Court has appellate jurisdiction over final decrees of a circuit
court in domestic relations matters arising under Titles 16.1 or 20,
and any interlocutory decree or order involving the granting,
dissolving, or denying of an injunction or "adjudicating the
principles of a cause." Code § 17.1-405(3)(f) and (4), recodifying
Code § 17-116.05(3)(f) and (4). A final decree is one "which
disposes of the whole subject, gives all the relief that is
contemplated, and leaves nothing to be done by the court."
Erikson v. Erikson, 19 Va. App. 389, 390, 451 S.E.2d 711, 712
(1994) (internal quotation marks and citations omitted).
Wells v. Wells, 29 Va. App. 82, 85-86, 509 S.E.2d 549, 551 (1999).
The parties here agree that the trial court's order declaring the Agreement valid pursuant
to Virginia law is a non-final, interlocutory order. Therefore, unless it constitutes an
2
The trial court entered a written order to this effect on July 19, 2002. That order was
signed by counsel for both parties, with objections noted by Black.
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interlocutory order that "adjudicates the principles of the cause," we do not have jurisdiction to
consider this appeal.
For an interlocutory decree to adjudicate the principles of a cause,
the decision must be such that "'the rules or methods by which the
rights of the parties are to be finally worked out have been so far
determined that it is only necessary to apply those rules or methods
to the facts of the case in order to ascertain the relative rights of the
parties, with regard to the subject matter of the suit.'" Pinkard v.
Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991)
(quoting Lee v. Lee, 142 Va. 244, 252-53, 128 S.E. 524, 527
(1925)). An interlocutory order or decree that adjudicates the
principles of a cause is one which must "determine the rights of the
parties" and "would of necessity affect the final order in the case."
Pinkard, 12 Va. App. at 851, 407 S.E.2d at 341. An interlocutory
order that adjudicates the principles in a divorce case must
"respond to the chief object of the suit which was to secure a
divorce." Id. at [8]52, 407 S.E.2d at 341-42. "'[T]he mere
possibility' that an interlocutory decree 'may affect the final
decision in the trial does not necessitate an immediate appeal.'"
Polumbo v. Polumbo, 13 Va. App. 306, 307, 411 S.E.2d 229, 229
(1991) (quoting Pinkard, 12 Va. App. at 853, 407 S.E.2d at 342).
Erikson, 19 Va. App. at 391, 451 S.E.2d at 712-13.
In Erikson, the trial court's ruling that the parties were validly married was found to be an
unappealable interlocutory order. The court stated:
Although the factual finding and legal holding that the parties are
validly married is an essential element of the complainant's cause
of action, that ruling is not a legal determination of "the principles"
that are necessary to adjudicate the cause, and the ruling does not
"respond to the chief object of the suit which was to secure a
divorce."
Id. at 391, 451 S.E.2d at 713 (citations omitted). However, Erikson does not hold that, in any
case in which a divorce is sought, there could be no appealable interlocutory order that did not
grant the divorce. Indeed, such an interpretation would render meaningless the limited statutory
grant of jurisdiction to this Court to hear certain interlocutory appeals. See Code § 17.1-405(4).
Thus, we have recognized that there are potentially many "chief objects" in a suit for divorce.
Those objects include determining the status of the parties' marriage, the distribution of the
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parties' property, the custody of any children, and, if appropriate, awarding spousal and child
support. Wells, 29 Va. App. at 86, 509 S.E.2d at 552 (divorce decree and custody
determination); Nenninger v. Nenninger, 19 Va. App. 696, 697, 454 S.E.2d 45, 45 (1995)
(divorce decree and equitable distribution).
In full accord with these principles, in Polumbo, we held that an order declaring invalid
an antenuptial agreement denying the wife spousal support and a monetary award did not
adjudicate the principles of the cause. Polumbo, 13 Va. App. at 308, 411 S.E.2d at 230. In
Polumbo, the order did not dispose of any of the "chief objects" in the case, because it did not
adjudicate the legal principles necessary to adjudicate the cause. See Erickson, 19 Va. App. at
391, 451 S.E.2d at 713.
In the case at bar, however, the chancellor declared the Agreement valid and, thus, a
binding instrument necessarily affecting the parties' property rights in the matter. Nevertheless,
although the chancellor's ruling, if unchanged, would undoubtedly affect the ultimate decision as
to the distribution of the parties' separate property, the record reflects that no decree of divorce
has been entered and that the Agreement, by concession of the parties, may or may not dispose
of all the property acquired by the parties during the marriage. Specifically, the parties
themselves agreed that distribution of certain retirement assets may not be governed by the
Agreement.
Accordingly, the chancellor's ruling here did not necessarily establish the complete and
final set of rules by which the property rights of the parties would be determined. Indeed, the
record reflects that the ultimate matter of property distribution appears to be "still in the breast of
the court and 'subject to alteration and amendment' by the judge before entering an appealable
order." Weizenbaum v. Weizenbaum, 12 Va. App. 899, 903, 407 S.E.2d 37, 39 (1991) (holding
that the legal principles determined in an interlocutory order substantially dictated the final order
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in the case) (quoting Richardson v. Gardner, 128 Va. 676, 685, 105 S.E. 225, 228 (1920)). Thus,
we hold that the order here is interlocutory and does not sufficiently adjudicate the principles of
the cause. Therefore, we find that we are without jurisdiction to entertain the merits of the
appeal.
Dismissed.
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