                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                         FILED
BEVERLY TRUMAN-GILMORE,
Respondent Below, Petitioner                                           May 13, 2015
                                                                       released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
vs) No. 14-0194 (Kanawha County 10-D-469)                            SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA

BOYD GILMORE,

Petitioner Below, Respondent



                              MEMORANDUM DECISION

               The petitioner, Beverly Truman-Gilmore, by counsel Michael D. Weikle,
appeals the January 28, 2014, final order of the Circuit Court of Kanawha County denying
her appeal of a December 11, 2013, order of the Family Court of Kanawha County. The
family court found a prenuptial agreement entered into by Ms. Truman-Gilmore and the
respondent herein, Boyd Gilmore, to be valid and enforceable. Based on the terms of the
prenuptial agreement, the family court ordered Ms. Truman-Gilmore to pay Mr. Gilmore the
sum of $2,069,000.00, which was comprised of the value placed on a government securities
investment account and certain insurance proceeds. In this appeal, Ms. Truman-Gilmore
challenges the family court’s ruling declaring the prenuptial agreement valid and enforceable.
Mr. Gilmore, by counsel Thomas J. Gillooly, maintains that the family court committed no
reversible error.

               Upon review of the parties’ arguments, the appendix record, and the pertinent
authorities, we reverse the family court’s decision finding the prenuptial agreement valid and
remand this case to the family court for further proceedings consistent with this decision.
This case does not present a new or significant question of law and, therefore, satisfies the
“limited circumstance” requirement of Rule 21(d) of the Rules of Appellate Procedure. As
such, it is properly disposed of through this memorandum decision.

              The parties were married on August 23, 2004. Prior to their marriage, Mr.
Gilmore disclosed to Ms. Truman-Gilmore that he was under a criminal indictment for what
he characterized as a domestic dispute with one of his ex-wives1 and that she had filed a civil


       1
           Mr. Gilmore was married seven times before he met Ms. Truman-Gilmore.

                                              1

suit against him. Immediately after they were married, the parties traveled to Florida for their
honeymoon. According to Ms. Truman-Gilmore, on August 26, 2004, while they were in
Florida, Mr. Gilmore took her to a bank and transferred to her his sole ownership of a
government securities investment account with a value of approximately $2,000,000.00.
Upon returning from their honeymoon, Mr. Gilmore sold his home in Charleston, West
Virginia. In addition, he sold two rental properties he owned to a friend. Thereafter, on May
20, 2005, Mr. Gilmore pled guilty pursuant to a plea agreement to the felony offense of
burglary by entering without breaking.2 Subsequently, Mr. Gilmore was sentenced to a
indeterminate term of one to fifteen years in prison.3 Mr. Gilmore was incarcerated
sometime in late July 2005; he was released from prison on January 10, 2010. The parties
never lived together after Mr. Gilmore went to prison. While Ms. Gilmore initially visited
Mr. Gilmore, the parties became estranged sometime in 2009.

              On March 15, 2010, Mr. Gilmore filed a petition for divorce from Ms. Truman-
Gilmore. The parties had no children together and, therefore, the only issue to be resolved
was the division of property. At issue in particular were the funds that were originally in the
government securities investment account. By the time of the divorce proceedings, Ms.




       2
         The appendix record submitted in this case includes a Presentence Report prepared
by the Adult Probation Department of Kanawha County, West Virginia, as a result of Mr.
Gilmore’s guilty plea. The report states that a Kanawha County Grand Jury returned a four-
count indictment against Mr. Gilmore in May 2003 charging him with one count each of the
following offenses: burglary by breaking and entering; burglary by entering without
breaking; domestic battery; and violation of a protective order. It was alleged that on August
26, 2002, Mr. Gilmore used a screwdriver to gain entry through a rear sliding glass door into
a home belonging to Kimberly Baire Gilmore, his estranged wife at that time. When the
police responded to a hang up call received by Metro 911 from Ms. Baire Gilmore’s home
that evening, she ran out into her front yard and reported that Mr. Gilmore had entered her
residence through a rear door, tackled her, and proceeded to shock her with what was later
determined to be a 200,000 volt stun gun. The stun gun was recovered by the police from
Ms. Baire Gilmore’s home along with a black stocking mask, a Craftsman brand screwdriver,
wire ties and a rubber surgical glove. The couple’s five children were inside the residence
at the time of the incident.
       3
        According to Ms. Truman-Gilmore, Mr. Gilmore agreed to plead guilty because he
believed that the sentencing court would accept the State’s recommendation of home
incarceration in lieu of incarceration in a state prison facility.

                                               2

Truman-Gilmore had transferred a substantial portion of the funds, i.e., $1,175,000.00,4 into
what is referred to in the family court order as the “Cook Islands Trust.”5 Mr. Gilmore
asserted that the government securities investment account was his separate property and that
he transferred the funds to Ms. Truman-Gilmore to enable her to manage the money during
his imprisonment. Conversely, Ms. Truman-Gilmore maintained that Mr. Gilmore had made
an unconditional gift of the funds to her.6

            During the proceedings before the family court, Mr. Gilmore submitted into
evidence a document entitled “Ante-Nuptial Agreement” purported to be a prenuptial


       4
         The family court determined that the government securities investment account had
a total value of $2,049,000.00 at the time of the parties’ separation. Ms. Truman-Gilmore’s
financial statement listed her significant assets as the Cook Islands Trust; $50,000.00 in
checking accounts; and $247,923.02 in prepaid legal fees. Ms. Truman-Gilmore testified that
the legal fees were paid to her attorney, Mr. Weikle, in cash from funds that the Trustee, her
nephew, withdrew from the Trust on her behalf. Based on the value of the subject funds at
the date of separation and Ms. Truman-Gilmore’s financial statement, it was determined that
there was a $576,077.00 deficit. During the proceedings below, Ms. Truman-Gilmore
testified that she could not account for the missing funds.
       5
           The family court order states that:

                        The uncontroverted evidence established that [Ms.
                 Truman-Gilmore] created the Trust and funded it with a portion
                 of the Treasury Direct Securities. By its terms, the Trust
                 Agreement subjects the Trust to the “Laws of the Cook Islands
                 pursuant to the International Trust Act of 1984.” The Cook
                 Islands are located in the South Pacific. . . .The Trust Agreement
                 explains elsewhere that . . . the Trust assets are protected from
                 court orders issued in other countries[.]
       6
        Mr. Gilmore did not claim any ownership of the funds in the government securities
investment account when he disclosed his financial status to the Kanawha County Probation
Department prior to his sentencing for his burglary conviction. He only reported that his
assets had a total value of $70,000.00. He failed to disclose the recent sale of his Charleston
home and rental properties for which he received a total of $267,000.00. Moreover, while
he was incarcerated, Mr. Gilmore on several occasions filed affidavits in both state and
federal courts declaring he was an indigent person in order to obtain waivers of filing fees,
transcription costs, court costs, and copying fees. Ultimately, he requested and received
appointment of counsel to represent him based on his alleged indigent status.

                                                 3

agreement executed by the parties on August 10, 2004. In the agreement, the parties
essentially waived all claims of any sort against each other arising out of their marriage. Mr.
Gilmore argued that the prenuptial agreement barred any claim by Ms. Truman-Gilmore to
the funds that had been formerly held in the government securities investment account.7 Ms.
Truman-Gilmore contested the genuineness of the prenuptial agreement, contending first that
the notary’s signature had been forged and later, that her own signature was forged as well.
Mr. Gilmore then presented expert testimony from a document examiner who opined that the
signatures of both the notary and Ms. Truman-Gilmore were not forged based upon a
comparison of their signatures on the prenuptial agreement with their signatures on unrelated
sample documents. Based on this testimony, and finding no evidence of coercion, undue
influence, disability or lack of education on the part of Ms. Truman-Gilmore, the family court
found that the prenuptial agreement was valid and enforceable. The court further found that
the money formerly held in the government securities investment account was Mr. Gilmore’s
separate property pursuant to the prenuptial agreement and was simply put under Ms.
Truman-Gilmore’s control as a matter of convenience to enable her to manage the funds, at
his direction, during his incarceration. Determining that the funds had a total value of
$2,049,000 at the time of separation and that Ms. Truman-Gilmore owed Mr. Gilmore an
additional $20,000.00 based on her own testimony acknowledging that she had deposited an
insurance proceeds check8 that belonged to him into her checking account, the family court
ordered Ms. Truman-Gilmore to pay Mr. Gilmore the sum of $2,069,000.00. As noted
above, Ms. Truman-Gilmore appealed this decision to the Circuit Court of Kanawha County.
Following the circuit court’s denial of the appeal, she sought relief in this Court.

              Our standard of review for matters arising in divorce cases was set forth in the
syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), as follows:

                     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.


       7
       The prenuptial agreement states, in pertinent part: “Any assets or investments of any
kind that might be held by the other spouse for any reason must be returned to the other
spouse or heirs.”
       8
         It appears that the insurance proceeds resulted from a claim Mr. Gilmore filed after
a fire occurred at one of his rental properties.

                                              4

                In this appeal, Ms. Truman-Gilmore challenges the validity of the prenuptial
agreement based upon its content and the circumstances surrounding its execution. With
regard to prenuptial agreements, we have held that “[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[.]” Syl. Pt. 2, in part, Gant v. Gant, 174 W.Va. 740, 329 S.E.2d 106
(1985), overruled on other grounds by Ware v. Ware, 224 W.Va. 599, 687 S.E.2d 382
(2009). More recently, we explained that “[w]hile the terms of a postnuptial agreement need
not achieve a fair or equal division of the parties’ assets and liabilities, it is imperative that
the parties to such an agreement fully disclose the nature and the value of their property that
is the subject of the postnuptial agreement.” Morris v. Morris, No. 13-0742, 2014 WL
1272517, at *5 n.10 (W.Va. March 28, 2014) (memorandum decision).

               Upon review, we find that the prenuptial agreement fails to disclose the nature
and value of the assets that are purported to be subject to its provisions. While a “Treasury
Direct Account” is listed as property owned by Mr. Gilmore, no value is given for this asset.
The same is true with regard to all assets that are listed in the agreement as belonging to Mr.
Gilmore. As for assets belonging to Ms. Truman-Gilmore, the prenuptial agreement
indicates that the only property she owned at the time the document was executed was a
“Ford Escort 1995” even though evidence in the record indicates the parties resided in a
home owned by Ms. Truman-Gilmore after they married. In Morris, we found the circuit
court erred by reversing the family court’s decision that invalidated the parties’ postnuptial
agreement “based upon misrepresentations of the character and value of the parties’ property
at the time the parties entered into said agreement.” Morris, 2014 WL 1272517, at *1. We
explained that

               the parties’ prenuptial agreement [was] not valid as a means of
               distributing the parties’ property in their divorce action because
               it misrepresented the character and the value of the parties’
               property that was purportedly subject to the agreement and
               failed to include all of the parties’ assets and liabilities within its
               terms . . . the subject postnuptial agreement reveals that it is
               fraught with glaring omissions and gross inaccuracies.

Id. at *4. We reach the same conclusion in this case. Not only were the value of the assets
listed as being subject to the prenuptial agreement not disclosed, certain assets like Ms.
Truman-Gilmore’s home were omitted from the document. Furthermore, while the
prenuptial agreement states that the parties shall be liable for their own premarital debts,
there is no indication of what those debts were as they were not set forth in the document
either.

                                                 5

                While the family court considered most of the factors that are determinative
of the validity of a prenuptial agreement, the fact that the subject agreement failed to disclose
the nature and value of the parties’ assets and liabilities was either overlooked or simply
disregarded. As explained above, fully disclosing the nature and value of the property
subject to such an agreement is essential to finding the document is valid and free of
misrepresentation. Consequently, based on all the above, we conclude that the family court
erred by declaring the prenuptial agreement valid and enforceable.9 Therefore, the final order
of the Circuit Court of Kanawha County entered on January 28, 2014, denying Ms. Truman­
Gilmore’s appeal of the December 11, 2013, order of the family court is reversed. Because
we have found the prenuptial agreement to be unenforceable, it can no longer serve as a basis
to distribute the parties’ property. Accordingly, this case is remanded to the family court for
further proceedings to determine the proper distribution of the parties’ property.

                                                                      Reversed and remanded.


ISSUED: May 13, 2015

CONCURRED IN BY:

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

CONCURRING AND WRITING SEPARATELY:

Justice Brent D. Benjamin




       9
       Having found the prenuptial agreement invalid based upon the misrepresentations
contained therein, we need not address Ms. Truman-Gilmore’s other assignments of error.

                                               6

BENJAMIN, Justice, concurring:


               I agree with the majority’s resolution of the case. I write separately on the
matter of Boyd Gilmore’s repeated execution of sworn pauper’s affidavits to avoid having
to pay filing fees and costs, during a period of time when he was purported to have over
$2,000,000.00. Mr. Gilmore’s use of these affidavits of indigency at the same time he claims
to own this amount of money appears to be fraudulent, and should be referred to the county
prosecuting attorney’s office.




                                             7

