                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and McClanahan
Argued at Chesapeake, Virginia


WALTER THOMAS GOLEMBIEWSKI
                                                             MEMORANDUM OPINION∗ BY
v.           Record No. 2993-02-1                         JUDGE ELIZABETH A. McCLANAHAN
                                                                  OCTOBER 7, 2003
GAE SUSAN GOLEMBIEWSKI


                 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                  Frederick B. Lowe, Judge

                       Lawrence D. Diehl for appellant.

                       Jerrold G. Weinberg (Michael L. Donner, Sr.; Weinberg & Stein,
                       on brief), for appellee.


             Walter Thomas Golembiewski (husband) appeals a decision of the trial court that he and

Gae Susan Golembiewski (wife) waived equitable distribution of their jointly owned property in

a premarital agreement (agreement), which the trial court incorporated into a final decree of

divorce.1 The parties questioned whether parol evidence should have been admitted to determine

the parties' intent at the time the contract was drafted. Both parties seek an award of attorneys'

fees and costs related to this proceeding. For the reasons that follow, we reverse the trial court

and remand on the application of equitable distribution to the parties' jointly owned property,

affirm with respect to the exclusion of parol evidence, and decline to award attorneys' fees and

costs to either party.


     ∗
         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
         1
     The terms of the agreement provide that it is to be interpreted under Pennsylvania law.
Since neither party raised an issue as to governing law, and since the parties argued the case
under Virginia legal principles, any objection to the application of Virginia law is deemed
waived. Rule 5A:18.
                                          I. Background

       On July 10, 1984, prior to their marriage on August 5, 1984, husband and wife entered

into a premarital agreement. On May 10, 2000, wife filed a bill of complaint for divorce,

seeking "remedies and relief . . . in accordance with Virginia Code Section 20-107.3." Code

§ 20-107.3 governs legal title as to property of divorcing parties. Husband filed a demurrer and

motion to dismiss on May 23, 2000, and an answer and cross-bill on June 9, 2000. In his

cross-bill, husband also asked the court to "adjudicate the remedies provided by § 20-107.3." On

June 14, 2000, wife filed a motion to dismiss cross-bill and an answer to cross-bill.

       On March 12, 2001, upon motion by wife, the chancellor entered a decree affirming,

ratifying and incorporating the premarital agreement into the divorce proceeding pursuant to

Code § 20-109.1. Subsequently, the chancellor referred the case to a commissioner in chancery

(commissioner), who held a pretrial conference on January 10, 2002.

       At the pretrial conference, the parties presented argument on whether the terms contained

in paragraphs 2, 3, and 7 of the agreement allow for equitable distribution of jointly titled

property, and whether the parol evidence rule should apply. Husband contended that paragraph 2

controls the distribution of property placed in joint tenancy to the exclusion of paragraph 7.

Wife contended that paragraph 7 provides a blanket waiver of equitable distribution for all

property upon divorce, regardless of how title in the property is held. Paragraph 2 of the

agreement states in pertinent part:

               Each party shall separately retain all of his or her own property
               whether now owned or hereafter acquired . . . with the same effect
               as if no marriage had been consummated between them; provided,
               however, nothing in this paragraph shall prevent either party in the
               future from voluntarily placing real or personal property in joint
               title, or in the name of the other in which case said property shall
               be held and disposed of in the same manner as if this Agreement
               had not been executed by the parties hereto.



                                            -2-
Paragraph 3 states in pertinent part:

              Each party does hereby waive, relinquish and release any and all
              right, claim, or demand of any kind, nature and description he or
              she might acquire or have at any time hereafter in any property
              whatsoever, or against the estate of the other, by reason of the
              marriage to each other, including rights under community property
              or equitable distribution laws, or as surviving spouse.

Paragraph 7 states in pertinent part:

              In the event of annulment, separation, legal or by mutual
              agreement, or pending in a final divorce between the parties hereto,
              or in the event that the parties hereto have lived apart . . . and one
              of the parties has no intention of returning, each agrees that there
              shall be no property settlement or division of property between
              them either by equitable distribution or any other form of property
              rights but, each shall keep and retain sole ownership, enjoyment,
              control and power of disposal of all property of every kind in
              nature whatsoever now or hereafter acquired by such party in their
              [sic] name along [sic] . . . free and clear of any interest right or
              claims of the other (including rights of community property or
              equitable distribution laws). Upon the happening of any of the
              events mentioned in the immediately preceding sentence, each
              irrevocably waives any rights, interest, claims or demand for any
              property settlement (including rights under community property or
              equitable distribution laws) and each shall retain sole ownership,
              control, and power of disposal of all property of any kind or nature
              whatsoever now owned or hereafter acquired and all increments in
              value thereto as if such parties have never been married.

       The commissioner found that the agreement was not ambiguous, excluded parol evidence

as to the parties' intent in drafting the agreement, and determined that the parties mutually

waived equitable distribution as to all property. The commissioner submitted a report on his

findings to the court on June 17, 2002. Husband filed exceptions to the commissioner's report

stating, with regard to the agreement:      "Commissioner failed to make a recommendation

concerning the issue of equitable distribution, having erroneously ruled that the parties waived

equitable distribution, pursuant to the terms of the Premarital Agreement, which the

Commissioner recommended be ratified, affirmed and incorporated into the Final Decree."



                                           -3-
       The chancellor held a hearing on exceptions to the commissioner's report on

September 10, 2002. The chancellor overruled husband's exception, found that there was no

conflict in the language of the agreement, confirmed the commissioner's recommendation that

the agreement was valid and should be incorporated into the divorce decree, and held that the

parties waived equitable distribution as to all property. A final decree of divorce incorporating

the chancellor's decision was entered on October 29, 2002.

                                            II. Analysis

       One of the primary purposes of a premarital agreement is to establish a distinction in the

ownership of property of married couples so that each spouse may hold property free from any

rights of the other spouse during the marriage or upon dissolution of the marriage. Separate

property and premarital agreements are commonly understood to convey the notion that, upon

marriage, the wife will have her property, the husband will have his property, and each may

dispose of that property as if the parties had never married.

       "Antenuptial agreements, like marital property settlements, are contracts subject to the

rules of construction applicable to contracts generally, including the application of the plain

meaning of unambiguous contractual terms." Pysell v. Keck, 263 Va. 457, 460, 559 S.E.2d 677,

678 (2002). As a legal question, we first determine whether "the parties set out the terms of their

agreement in a clear and explicit writing . . . [such that the writing] is the sole evidence of the

agreement." Durham v. Nat'l Pool Equip. Co., 205 Va. 441, 446, 138 S.E.2d 55, 59 (1964). The

question whether the language of a contract is ambiguous is a question of law which we review

de novo. Langman v. Alumni Ass'n of the Univ. of Va., 247 Va. 491, 498, 442 S.E.2d 669, 674

(1994). Accordingly, on appeal, we are not bound by the trial court's interpretation of the

contract provisions at issue; rather, we consider the words of the contract within the four corners




                                             -4-
of the instrument itself. Wilson v. Holyfield, 227 Va. 184, 313 S.E.2d 396 (1984); Utsch v.

Utsch, 266 Va. 124, 581 S.E.2d 507 (2003).

               "It is the function of the court to construe the contract made by the
               parties, not to make a contract for them. The question for the court
               is what did the parties agree to as evidenced by their contract. The
               guiding light in the construction of a contract is the intention of the
               parties as expressed by them in the words they have used, and
               courts are bound to say that the parties intended what the written
               instrument plainly declares."

Wilson, 227 Va. at 187, 313 S.E.2d at 398 (quoting Meade v. Wallen, 226 Va. 465, 467, 311

S.E.2d 103, 104 (1984)).

                       A well-settled principle of contract law dictates that "where
               an agreement is complete on its face, is plain and unambiguous in
               its terms, the court is not at liberty to search for its meaning
               beyond the instrument itself." A contract is not deemed ambiguous
               merely because the parties disagree as to the meaning of the
               language they used to express their agreement.

Ross v. Craw, 231 Va. 206, 212-13, 343 S.E.2d 312, 316 (1986) (quoting Globe Co. v. Bank of

Boston, 205 Va. 841, 848, 140 S.E.2d 629, 633 (1965)). Furthermore, "courts cannot read into

contracts language which will add to or take away the meaning of words already contained

therein." Pysell, 263 Va. at 460, 559 S.E.2d at 678.

       "When a written marital agreement is presented, a court applies the same rules of

formation, validity and interpretation used in contract law, except where specified by the Code."

Shenk v. Shenk, 39 Va. App. 161, 170, 571 S.E.2d 896, 901 (2002) (internal citations omitted).

"In reviewing the agreement, we must gather the intent of the parties and the meaning of the

language . . . from an examination of the entire instrument, giving full effect to the words the

parties actually used." Layne v. Henderson, 232 Va. 332, 337-38, 351 S.E.2d 18, 22 (1986); see

also King v. King, 40 Va. App. 200, 206, 578 S.E.2d 806 809-10 (2003). While the agreement

was, in the words of the trial court, "somewhat inartfully drafted," draftsmanship is not the issue;

the issue is whether the agreement determines if the parties' jointly titled property is subject to
                                            -5-
equitable distribution. "Even though an agreement may have been drawn unartfully, the court

must construe the language as written if its parts can be read together without conflict." Doswell

Ltd. P'ship v. Virginia Elec. and Power Co., 251 Va. 215, 222-23, 468 S.E.2d 84, 88 (1996).

       Analysis of the agreement begins in the preamble, which states, in pertinent part:

                       WHEREAS, each of the parties own property in his or her
               own name and each is desirous that his or her property be
               distributed on the respective death of each, to his or her lineal
               descendants or as provided by Wills, other documents of a
               testamentary nature or lifetime documents which are executed in
               the future by the parties; and
                       WHEREAS, each of the parties hereto are desirous of
               giving up any and all rights he or she may have in the estate of the
               other except as provided in this Agreement or in the other's Will,
               documents of a testamentary nature or lifetime documents which
               are executed in the future by the parties; and
                       WHEREAS, the parties may decide to marriage in the
               future and in anticipation thereof they desire to fix and determine
               by premarital agreement, the rights of each in the estate and
               property of the other.

We find that such language establishes that the purpose of the agreement was to control the

disposition of the parties' separate property and that the agreement, other than in paragraph 2,

which we discuss below, does not govern jointly titled property. We find that the parties did not

waive the application of statutory equitable distribution to the parties' jointly titled property.

Three paragraphs in the body of the agreement are at issue regarding division of property: 2, 3,

and 7. Taking the paragraphs in reverse order, paragraph 7 specifically governs in the event of

divorce. This paragraph states,

               there shall be no property settlement or division of property
               between them either by equitable distribution or any other form of
               property rights, but each shall keep and retain sole ownership,
               enjoyment, control and power of disposal of all property of every
               kind in nature whatsoever now or hereafter acquired by such party
               in their [sic] name along [sic]."2

   2
      The parties agree that the word "along" contains a typographical error and should be read
"alone." We reject appellee's contention that the word "their" means that the property referred to
in the sentence indicates jointly owned property in the couple's mutual married name. Instead,
                                           -6-
The paragraph specifically identifies the property at issue as property acquired in his or her name

alone. It does not waive equitable distribution of jointly owned property or property voluntarily

placed in joint title or property voluntarily placed in the name of the other. To find such would

require the court to separate one clause of the provision out of the whole, remove it from context,

and ignore a clause of paragraph 2, which would violate principles of contract interpretation.

See Pysell, 263 Va. at 460, 559 S.E.2d at 678; Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d

792, 796 (1983); Quesenberry v. Nichols and Erie, 208 Va. 667, 670, 159 S.E.2d 636, 638

(1968); Ames v. American National Bank, 163 Va. 1, 39, 176 S.E. 204, 216 (1934); Allsbury v.

Allsbury, 33 Va. App. 385, 390, 533 S.E.2d 639, 642 (2000).

       Paragraph 3 provides a mutual waiver of any right or claim in the property of the other

that "he or she might acquire . . . by reason of the marriage." (Emphasis added). In addition to a

waiver of equitable distribution, the waiver precludes application of any laws providing for

marital rights in the property of the other (for example, statutes providing for a surviving

spouse's elective share pursuant to Code §§ 64.1-13 and 64.1-16, family allowance under

§ 64.1-151.1, exempt property for the benefit of a surviving spouse provided by § 64.1-151.2,

and dower and curtesy (abolished in Virginia after January 1, 1991, see § 64.1-19.2). Thus,

despite paragraph 3's later reference to "any property whatsoever," this paragraph could only

apply to separate property: (1) to be consistent with the preamble; (2) in the context it is written;

(3) to give effect to the words "by reason of the marriage"; (4) by virtue of the examples listed;

and, (5) to give effect to all provisions of the agreement. This interpretation makes the specific



we construe this as a grammatical mistake -- "his or her" -- not "their" -- would have been
grammatically correct. To hold otherwise would require us to, inter alia, alter the meanings of
the phrases "between them," "each," "sole ownership," "such party," and "name alon[e]," and
ignore the fact that the parties drafted this agreement prior to the marriage, with wife using her
maiden name.


                                             -7-
waiver of equitable distribution in paragraph 3 consistent with paragraph 2. "The contract is to

be construed as a whole, and effect given to every provision thereof if possible. No word or

paragraph can be omitted in construing the contract if it can be retained and a sensible

construction given to the contract as a whole." Ames, 163 Va. at 39, 176 S.E. at 216; Richmond

Ice Co. v. Crystal Ice Co., 99 Va. 239, 375 S.E. 851 (1901). The paragraph only waives interest

in the separate property of the other that he or she might otherwise acquire or be entitled to by

reason of the marriage.

       In addition, the ejusdem generis rule requires that

               where general words follow particular words, the former are to be
               regarded as applicable to the persons or things particularly
               mentioned. The rule applies even if the general words are broad
               enough to cover other persons and things, unless something in the
               instrument plainly indicates that they are to be otherwise applied.

Standard Ice Co. v. Lynchburg Diamond Ice Factory, 129 Va. 521, 532, 106 S.E. 390, 393

(1921). Where general words are used in a contract after specific terms, the general words will

be limited in their meaning or restricted to things of like kind and nature with those specified.

Richmond Ice Co., 99 Va. 239, 37 S.E. 851. Paragraph 2 is the only provision in the agreement

that specifically contemplates how jointly titled property, property voluntarily placed in joint title

or property voluntarily placed in the name of the other party shall be handled. The paragraph

explicitly states that such property is to be held and disposed of "as if this Agreement had not

been executed." We find this language expressly and specifically exempts jointly titled property

from any of the provisions of the agreement. To construe any other general language in the

agreement to override such a specific exemption would be contrary to all rules of construction.

Therefore, the disposition of such jointly titled property is to be governed as if there were no

agreement, which means that Code § 20-107.3 applies. Separate property not voluntarily placed

in the name of the other remains subject to the parties' premarital agreement.

                                             -8-
        This Court's interpretation gives full effect to each word contained in the agreement and

maintains a sensible construction of the agreement as a whole. Paragraph 2 specifically exempts

any joint property or property voluntarily placed in joint title or property voluntarily placed in

the name of the other party from the agreement. Paragraph 3 waives any right or claim of a party

acquired in the separate property of the other by reason of the marriage. Paragraph 7 completes a

mutual waiver of any type of settlement or division of property acquired by the other party in his

or her name alone either before or after the parties' marriage. Therefore, we find that, while

inartfully drafted, the provisions of the agreement are consistent, clear and unambiguous.

        The general rule in Virginia is that parol evidence is inadmissible to vary, contradict, or

explain the terms of a complete, unambiguous, unconditional written contract. Price v. Taylor,

251 Va. 82, 86-87, 466 S.E.2d 87, 89 (1996).          The prenuptial agreement in this case is

unambiguous, and, therefore, parol evidence is not admissible. Additionally, the agreement

includes an integration clause in paragraph 8, which supports the inadmissibility of parol

evidence.

        Both parties requested an award of costs and attorneys' fees incident to appeal. Code

§ 20-99 allows a trial court to award costs incurred in that court; however, it does not provide

jurisdiction to the trial court to award costs incurred on appeal. A specific remand for an award

of attorneys' fees and costs is required. O'Loughlin v. O'Loughlin, 23 Va. App. 690, 695, 479

S.E.2d 98, 100 (1996). Upon a review of the record, it is evident that the litigation addressed

appropriate and substantial issues and neither party generated unnecessary delay nor expense in

pursuit of their respective interests. The Court, therefore, declines to award attorneys' fees and

costs to either party.




                                            -9-
                                          III. Conclusion

       Upon a de novo review of the agreement at issue, this Court reverses and remands on the

application of equitable distribution to the parties' jointly owned property, affirms with respect to

the exclusion of parol evidence, and declines to award attorneys' fees and costs to either party.

Therefore, we reverse and remand to the trial court for proceedings consistent with this opinion.

                                                                             Affirmed in part,
                                                                             reversed in part
                                                                             and remanded.




                                             - 10 -
