                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

Mary Anne C. Teed,
Petitioner Below, Petitioner                                                     FILED
                                                                                 May 17, 2013
                                                                            RORY L. PERRY II, CLERK
vs) No. 12-0421 (Kanawha County 09-D-2372)                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

James L. Teed,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner-Wife Mary Anne C. Teed, by counsel Lyne Ranson, appeals the February 24,
2012, order of the Circuit Court of Kanawha County that denied her appeal of the November 9,
2011, final order of the Family Court of Kanawha County in her action for divorce. Respondent-
Husband, James L. Teed, by counsel Mark A. Swartz, filed a response in support of the circuit
court’s order. Mrs. Teed filed a reply.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       The parties began a long-distance relationship in 1991. Mrs. Teed lived in Arlington,
Virginia; Mr. Teed lived in Charleston, West Virginia, where he owned an accounting firm. In
November of 1995, the parties became engaged when Mrs. Teed discovered she was pregnant.
Mrs. Teed quit her consulting job in January of 1996, in part because of her pending marriage
and anticipated move to Charleston, and in part because of job-related issues. However, Mrs.
Teed remained in Arlington until the parties’ marriage in March of 1996.

       Early in 1996, Mr. Teed, whose assets were significantly greater than Mrs. Teed’s, asked
Mrs. Teed to sign an antenuptial agreement (“agreement”) drafted by his lawyer. Mr. Teed urged
Mrs. Teed to hire a lawyer to represent her in regard to the agreement. Mrs. Teed complied. Mrs.
Teed claims that at her sole meeting with her lawyer, she explained the situation and gave him a
copy of the agreement and contact information for Mr. Teed’s lawyer. She also claims that she
did not discuss the contents of the agreement with her lawyer and he did not explain its
ramifications to her. Thereafter, Mrs. Teed’s lawyer discussed possible revisions to the
agreement with Mr. Teed’s lawyer. At least one of the revisions proposed by Mrs. Teed’s lawyer
was incorporated into the “revised” agreement; that revision required Mr. Teed to fund an
annuity for Mrs. Teed during the parties’ marriage.


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       Thereafter, the parties set and then cancelled various wedding dates. Mr. Teed claims the
wedding dates were cancelled due to conflicts in the parties’ schedules. Mrs. Teed claims that the
dates were canceled because she had not yet signed the agreement.

        Mr. Teed visited Mrs. Teed in Arlington on March 24, 1996, four days before the parties’
next scheduled wedding date. Mrs. Teed, who was then seven months pregnant, states that she
first saw the revised agreement that day. However, Mr. Teed believes Mrs. Teed got a copy of
the revised agreement a day or two earlier. The parties reviewed the revised agreement along
with a notebook containing Mr. Teed’s financial and business documents for approximately
twenty minutes. Mrs. Teed claims Mr. Teed left the revised agreement with her, but took the
notebook that contained his financial information when he left to return to Charleston. Mrs. Teed
avers that she called her lawyer repeatedly over the next few days, but he never returned her
calls.

       When Mr. Teed arrived in Arlington the night before the parties’ March 28, 1996,
wedding, Mrs. Teed claims that Mr. Teed told her again that he would not marry her if she did
not sign the agreement. Just prior to the wedding, Mrs. Teed signed the agreement without
additional legal advice and without having read the agreement in its entirety. Mrs. Teed
maintains that she signed the agreement because she did not want her child to be born out of
wedlock.

       The parties’ antenuptial agreement states, in relevant part, as follows:

              Each party hereby releases the other from all duty or obligation of support
       and agrees to look solely to that party’s separate property and income for support.

              Each party hereby waives any right to claim, assert, receive or collect
       permanent alimony, temporary alimony, rehabilitative alimony, or any support or
       alimony against or from the other party.

               [In the] event the parties . . . divorce, [Mr. Teed] agrees to pay
       rehabilitative alimony to [Mrs. Teed] in the amount of $6,000.00 per month
       during the first year following the entry of the divorce decree and $3,000.00 per
       month during the second year . . . adjusted for the effects of inflation. . . .

               Each of the parties forever waives . . . any right or claim . . . to equitable
       distribution [of their “Separate Estates.”]

              “Separate Estates” [are defined as] any and all property . . . that the other
       may own or have an interest in at the time of such marriage, may acquire with
       separate funds after the marriage, and all increases and appreciation of such
       property which may result regardless of whether the increase is the result of labor
       performed . . . by the other party . . . which contributes to the appreciation or
       increase in value of the separate property.




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               [Mr. Teed and Mrs. Teed] will merge sufficient amounts of their current
       income to provide a fund for their common marital needs . . . [t]he merger of such
       income shall be evidenced by funds that are held jointly in any account, note or
       other evidence of estate or title. . . .

             Mr. Teed agrees, during the term of the marriage, to contribute $500.00
       per month into a variable commercial annuity [for the benefit of Mrs. Teed]. . . .

       During the parties’ marriage, Mr. Teed formed a second accounting firm and purchased
other businesses and rental property. Mrs. Teed states that at Mr. Teed’s request, she did not
work outside the home during the marriage, and that she performed essentially all of the
homemaking and childcare duties. Mrs. Teed filed for divorce on October 29, 2009, on adultery
and other grounds.

        At a January 19, 2010, temporary support hearing, Mrs. Teed challenged the validity of
the parties’ agreement. The family court set a hearing on the matter for May 19, 2010. Following
this hearing, the family court entered its July 28, 2010, “Order Regarding Antenuptial
Agreement,” that found the parties’ agreement to be valid and enforceable.

        On January 26, 2011, the family court entered an order regarding Mrs. Teed’s motion to
characterize businesses started or acquired by Mr. Teed during the marriage as marital property.
Based on the language in the agreement, the family court denied Mrs. Teed’s motion and found
that Mr. Teed’s businesses were part of his separate estate and, therefore, not subject to equitable
distribution.

       The family court entered its final order divorcing the parties on November 9, 2011, which
Mrs. Teed appealed to the circuit court.

        Mrs. Teed now appeals the circuit court’s February 24, 2011, order denying her appeal of
the family court’s final order. In appeals of such orders, we apply the following the standard of
review:

       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.

Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

         On appeal, Mrs. Teed raises five assignments of error. Mrs. Teed’s first assignment of
error is that the family court abused its discretion in finding that the parties’ agreement was valid
and enforceable. Mrs. Teed argues that the agreement was invalid and unenforceable because it
was not fair or reasonable, and was obtained by fraud, duress, and by Mr. Teed’s unconscionable
conduct. In support of her argument, Mrs. Teed relies upon Mitchell v. Mitchell, 205 W.Va. 203,
208, 517 S.E.2d 300, 305 (1999), wherein the Court stated that pursuant to West Virginia Code §

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48-2-16(a) (1984), a final divorce order must conform to the separation agreement if the
agreement is fair and reasonable, and not obtained by fraud, duress, or other unconscionable
conduct by one of the parties.

        Mrs. Teed argues that she was under duress when she signed the agreement because she
was seven months into a high-risk pregnancy and had no job or health insurance. Mrs. Teed also
argues that the agreement was unconscionable because the parties’ bargaining positions were
unequal, Mrs. Teed had insufficient access to Mr. Teed’s financial information, and the
agreement gave Mrs. Teed almost nothing of value acquired during the marriage while Mr. Teed
got his full marital share of Mrs. Teed’s valuable homemaker and childrearing services.
Alternatively, Mrs. Teed argues that if the agreement is not unconscionable, it is still invalid and
unenforceable because the parties’ circumstances changed so significantly, from the time the
parties’ married in 1996, to the time they divorced in 2011, that enforcement of the agreement
would be inequitable pursuant to Syllabus 3 of Gant v. Gant, 174 W.Va. 740, 329 S.E.2d 106
(1985),1 which provides as follows:

         [a]t the time a prenuptial agreement is presented to a court for enforcement a court
         may consider whether the agreement’s terms are ostensibly fair. Unless, however,
         the agreement is unconscionable, as that term has been defined in the general law
         of contracts, a court’s review of the agreement’s ostensible “fairness” is limited to
         an inquiry into whether circumstances have changed to such an extent from what
         the parties foresaw at the time they entered into the agreement that enforcement
         would be inequitable.

Mrs. Teed claims that when she signed the agreement in 1996, she could not have foreseen the
present poor state of the economy, the doubling of unemployment rates, or the vastly more
difficult job market.

       Mrs. Teed also argues that the agreement is invalid and unenforceable because her legal
representation was inadequate. Mrs. Teed contends that because she did not have sufficient
contact with her lawyer, she did not understand the agreement’s contents and legal effects, or
that Mr. Teed’s lawyer did not also represent her interests.

        Mrs. Teed last argues that Mr. Teed should be precluded from enforcing the agreement
because he failed to perform his only obligation under the agreement—his duty to create an
annuity for Mrs. Teed’s benefit and to make monthly deposits into it. Mrs. Teed contends that
because Mr. Teed never complied with this term, his consideration for the agreement was
illusory and insufficient.

       In its “Order Regarding Antenuptial Agreement” entered July 28, 2011, the family court
considered and rejected each of Mrs. Teed’s arguments, in turn. For example, in regard to Mrs.
Teed’s duress argument, the family court found that in 1991, the Legislature amended West
Virginia Code 48-2-1(b) (1984) to eliminate pregnancy as a statutory ground to void an
antenuptial agreement, in part, because antenuptial agreements encourage marriage.

1
    Gant was overruled on other grounds in Ware v. Ware, 224 W.Va. 599, 687 S.E.2d 382 (2009).
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      In support of its rejection of Mrs. Teed’s unconscionability and unforeseen events
arguments, the family court found that there was

       nothing unreasonable about [Mrs. Teed’s] waiver of any interests in separate
       estates. . . . Both parties were middle-aged, both had been married before, both
       were represented by independent counsel, [Mrs. Teed] was pregnant at the time of
       the signing of the agreement and no other children were born of the parties; and
       that the divorce occurred sufficiently close in time (fourteen years) to the signing
       of the antenuptial agreement that this divorce was an event that was contemplated
       and foreseen at the time [the] agreement was entered into.

In support of its findings, the family court cited to Gant, 174 W.Va. at 749, 329 S.E.2d at 116,
which provides as follows:

       West Virginia courts will not evaluate the substantive fairness of prenuptial
       agreements; most prenuptial agreements are designed to preserve the property
       interests of the stronger party. Nonetheless, prenuptial agreements will be
       enforced in their explicit terms only to the extent that circumstances at the time
       the marriage ends are roughly what the parties foresaw at the time they entered
       into the prenuptial agreement. In this regard the passage of time, a change of
       position based upon reasonable reliance on the permanence of the marriage, and
       the birth of children are relevant factors, among others, for a court to consider.

        In rejecting Mrs. Teed’s inadequate legal representation argument, the family court cited
to Syllabus Point 5 of Ware which states, in relevant part, “[f]or the presumption of validity to
apply to a prenuptial agreement, both parties to that agreement must be represented by
independent counsel.” The family court then found that Mrs. Teed was highly educated, had
ample opportunity to read and review the agreement before the parties’ wedding, and was
represented by independent counsel who worked with Mr. Teed’s lawyer to modify the
agreement for Mrs. Teed’s benefit. The family court noted that Mrs. Teed could have delayed the
parties’ wedding, which had already been twice delayed, to allow Mrs. Teed further time to
consult with her lawyer.

        In regard to Mrs. Teed’s argument that Mr. Teed should be precluded from enforcing the
agreement because he failed to create Mrs. Teed’s annuity, the family court noted in its final
order that the agreement anticipated that Mr. Teed might fail to create the annuity, and
specifically provided that, in that event, Mrs. Teed had the right to recover any missed payments.

     In light of the family court’s well-reasoned and comprehensive findings and conclusions
regarding the validity and enforceability of the parties’ antenuptial agreement, we cannot say that
the family court erred.

        Mrs. Teed’s second assignment of error is that the family court abused its discretion in
finding that Mrs. Teed was entitled to only the two years of rehabilitative alimony provided by
the agreement. Mrs. Teed argues that pursuant to West Virginia Code § 48-6-201(b),

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       [a]ny award of periodic payments of spousal support shall be deemed to be
       judicially decreed and subject to subsequent modification unless there is some
       explicit, well expressed, clear, plain and unambiguous provision to the contrary
       set forth in the court-approved separation agreement or the order granting the
       divorce. . . .

Mrs. Teed contends that because the agreement contains no provision prohibiting modification of
her rehabilitative alimony, the family court, pursuant to West Virginia Code § 48-6-201(b),
should have modified Mrs. Teed’s alimony. Mrs. Teed adds that pursuant to West Virginia Code
§ 48-8-104, Mr. Teed’s fault—his admission of adultery—must be taken into consideration in
any modification of alimony.

     In regard to Mrs. Teed’s argument that spousal support payments are modifiable absent an
explicit provision in a “court-approved separation agreement or the order granting the divorce,”
we note that, contrary to Mrs. Teed’s claims, the family court’s final order contains an explicit
provision that requires Mr. Teed to pay Mrs. Teed alimony “pursuant to the parties’ [a]ntenuptial
[a]greement.” Therefore, West Virginia Code § 48-6-201(b) is not applicable in the instant case.
Further, as we noted above, the family court did not abuse its discretion in finding the agreement
to be valid and enforceable. Therefore, the agreement’s terms regarding alimony are valid and
enforceable, and may not be modified absent an agreement of the parties.

        Mrs. Teed’s third assignment of error is that the family court abused its discretion in
finding that Mrs. Teed had no equitable share in the businesses Mr. Teed purchased or acquired
during the marriage. Similarly, Mrs. Teed’s fourth assignment of error is that the family court
abused its discretion when it found that Mr. Teed’s alleged co-mingling of marital earnings with
separate property did not transmute the character of the separate property into marital property.
Mrs. Teed argues that West Virginia Code § 48-2-1(e)(1) (1986) expresses a marked preference
for characterizing the property of the parties to a divorce action as marital property.

        In its January 26, 2011, order regarding Mrs. Teed’s motion to characterize businesses
started or acquired by Mr. Teed during the marriage as marital property, the family court rejected
Mrs. Teed’s arguments and ordered that, in accordance with the parties’ agreement, only those
assets that were jointly held or titled would be divided by equitable distribution. As such,
because Mr. Teed’s businesses were not jointly held, they were not subject to equitable
distribution under the following language in the agreement:

               Each of the parties forever waives . . . any right or claim . . . to equitable
       distribution [of their “Separate Estates.”]

               “Separate Estates” [are defined as] any and all property…that the other
       may own or have an interest in at the time of such marriage, may acquire with
       separate funds after the marriage, and all increases and appreciation of such
       property which may result regardless of whether the increase is the result of labor
       performed…by the other party…which contributes to the appreciation or increase
       in value of the separate property.

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              [Mr. Teed and Mrs. Teed] will merge sufficient amounts of their current
       income to provide a fund for their common marital needs…[t]he merger of such
       income shall be evidenced by funds that are held jointly in any account, note or
       other evidence of estate or title. . . .

(Emphasis added.) Given this language, it is clear that the family court appropriately applied the
relevant provisions of the parties’ valid and enforceable agreement in denying Mrs. Teed’s
request for equitable distribution of Mr. Teed’s separate estate. Therefore, we cannot say that the
family court abused its discretion.

        Mrs. Teed’s fifth and final assignment of error is that the family court abused its
discretion in adopting Mr. Teed’s expert’s “blended method” of valuing Mrs. Teed’s annuity that
Mr. Teed failed to fund. Mrs. Teed argues that the blended method unfairly yielded the lowest
possible valuation for the annuity. Mrs. Teed claims that the family court should have used her
expert’s .37% “proxy return” method to value the annuity.

       The family court found that the blended method provided the most realistic estimation of
the value of Mrs. Teed’s annuity, had it been funded during the course of the marriage. The
family court based that ruling on the fact that Mr. Teed’s method applied the actual change in
blended appraisal with S&P, NYSE, and Government bonds, whereas the 37% proxy return
method applied only an average change.

        In her brief on appeal, Mrs. Teed fails to state how the family court’s findings were
clearly erroneous or how the family court abused its discretion in applying the law to the facts.
Thus, we presume that the family court’s proceedings and judgment were correct.

       On an appeal to this Court the appellant bears the burden of showing that there
       was error in the proceedings below resulting in the judgment of which he
       complains, all presumptions being in favor of the correctness of the proceedings
       and judgment in and of the trial court.

Syl. Pt. 2, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 652 (1973).

       For the foregoing reasons, we affirm the circuit court’s order.


                                                                                        Affirmed.




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ISSUED: May 17, 2013

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

NOT PARTICIPATING:

Chief Justice Brent D. Benjamin




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