No. 13-0467 - Mark B. Owen, Respondent Below, Petitioner,
              v. Tina M. Owen, Petitioner Below, Respondent
                                                                             FILED
                                                                          June 4, 2014
                                                                          released at 3:00 p.m.
                                                                          RORY L. PERRY II, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                            OF WEST VIRGINIA
Ketchum, Justice, dissenting:

       I dissent from the holding of the majority which affirms the decisions of the family

court and the circuit court invalidating the Owens’ December 8, 1981, prenuptial agreement.



        The family court judge found that the prenuptial agreement was executed by Ms.

Owen “voluntarily and under circumstances free from fraud, duress or misrepresentation.”

Although the agreement was prepared by Mr. Owen’s counsel, Ms. Owen elected not to

consult with independent counsel prior to signing the document. Nevertheless, the family

court judge invalidated the prenuptial agreement because Ms. Owen did not have “adequate

knowledge” of the agreement’s contents or its legal consequences. In so ruling, the family

court made clear that its decision was not based on a finding that the agreement was

unconscionable or involuntarily executed by Ms. Owen.



       In affirming the decision to invalidate the prenuptial agreement, the circuit court stated

that it could not find that the family court committed clear error or abused its discretion. The

majority now affirms the circuit court and states that Mr. Owen failed to meet his burden of

establishing the agreement’s validity.


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       The standards of review applied by the circuit court and the majority to the decision

of the family court judge, while helpful, are no substitute for the true facts surrounding the

signing of the prenuptial agreement. Both Mr. Owen and Ms. Owen had previous marriages

to other individuals and had gone through previous divorces. Thus, Ms. Owen necessarily

had some knowledge of the landscape of marriage with the possibility of divorce at the time

she signed the agreement with Mr. Owen. She also knew that a prenuptial agreement

concerned the distribution of property. Moreover, Ms. Owen was aware of Mr. Owen’s

financial condition and his reluctance to experience another divorce proceeding similar to his

first divorce which cost him a great deal of money.



       Most important, Ms. Owen voluntarily chose not to read the December 8, 1981,

prenuptial agreement before she signed it. A review of the record reveals that the brief filed

by Mr. Owen is accurate when it states:


                      Multiple people, including her father and sister, did not want
              her to sign the prenuptial agreement. Despite this, through her own
              choice and four days prior to the wedding, Ms. Owen chose not to
              retain or consult with an attorney of her choosing and signed the
              agreement, without bothering to extensively read it. . . . She knew
              it benefitted Mr. Owen, dealt with distribution, and was to make sure
              it would not be so costly for him to dissolve a future marriage with
              her as it was for him to dissolve his first marriage. Even without
              reading the agreement, she had this knowledge.




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       Recently, in New v. Gamestop, Inc., 232 W.Va. 564, 753 S.E.2d 62, 76 (2013), we

confirmed the following principle: “A court can assume that a party to a contract has read

and assented to its terms, and absent fraud, misrepresentation, duress, or the like, the court

can assume that the parties intended to enforce the contract as drafted.” See also Reddy v.

Community Health Foundation, 171 W.Va. 368, 373, 298 S.E.2d 906, 910 (1982) (“[T]he

failure to read a contract before signing it does not excuse a person from being bound by its

terms.”).



       In this action, the prenuptial agreement was found to have been executed by Ms.

Owen “voluntarily and under circumstances free from fraud, duress or misrepresentation.”

Ms. Owen had a responsibility to read the agreement before signing it and consenting to be

bound by it. The majority’s holding to affirm the decisions invalidating the prenuptial

agreement is incorrect.



       Therefore, I dissent.




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