                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



Amber J.,                                                                          FILED
Respondent Below, Petitioner
                                                                                 May 22, 2017
vs) No. 16-0289 (Kanawha County 15-D-814)                                        RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

Shannon J.,

Petitioner Below, Respondent



                                 MEMORANDUM DECISION

        Petitioner Amber J.1, by counsel Mark W. Kelley, appeals the Circuit Court of Kanawha
County’s February 23, 2016, order validating the parties’ postnuptial agreement. Respondent
Shannon J., by counsel Allyson E. Hilliard, filed a response in support of the circuit court’s order
and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in
reversing the decision of the Family Court of Kanawha County invalidating the parties’
postnuptial agreement.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In March of 2008, the parties were married. Subsequently, in April of 2008, respondent
sustained severe injuries in a workplace accident.2 Following the accident, the parties filed a civil
law suit against respondent’s employer, All Crane & Equipment Rental Corporation.

       In June of 2011, in anticipation of a settlement, the parties entered into a postnuptial
agreement to divide any settlement proceeds. Attorney Scott Kaminsky drafted the agreement for
both parties. The parties met with Mr. Kaminsky on two occasions; once to draft the agreement


       1
          Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
        2
          Respondent sustained a broken forearm, shoulder, collarbone, three broken ribs, three
broken vertebras, two broken femurs, a crushed ankle, and punctured lungs. As a result of his
injuries, respondent is permanently disabled.


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and once to review and sign the agreement. Ultimately, the personal injury case settled for
$2,365,000 and the parties received approximately $1,800,000.

        In June of 2015, petitioner filed for divorce. The family court held an evidentiary hearing
in October of 2015 on the sole issue of the validity of postnuptial agreement. At the hearing,
several witnesses testified regarding the validity of the parties’ postnuptial agreement, including
the parties and Mr. Kaminsky.3 The parties each testified that they jointly desired to enter into a
legally-binding agreement in regard to distribution of the funds received by petitioner in
correlation to the sums received by respondent from his injuries. The parties also testified that
they were referred to Mr. Kaminsky to prepare an agreement outlining the terms previously
agreed to by the parties. Mr. Kaminsky testified that he did not provide legal counsel to either
party but advised them of their right to obtain independent counsel to review the agreement. He
also testified that he did not represent either party in the preparation of a legally-binding
agreement and that no financial statements were prepared or exchanged in relation to the
agreement. By final order entered on October 7, 2015, the family court held that the postnuptial
agreement was invalid, and found that the parties’ representation by Mr. Kaminsky was contrary
to West Virginia law, and that the parties did not exchange any financial disclosures in relation
to the “assets and liabilities . . . which they intended to preserve.”

        In November of 2015, respondent appealed to the circuit court. Petitioner filed a motion
to dismiss respondent’s petition for appeal. The circuit court held a hearing and thereafter
entered an order denying petitioner’s motion to dismiss. Following a hearing on petitioner’s
appeal, the circuit court entered a final order on February 23, 2016. The circuit court found that
the family court misapplied West Virginia law to the relevant facts, reversed the family court’s
ruling, and directed the family court to “completely enforce” the parties’ postnuptial agreement.
This appeal followed.

        Our standard for reviewing a circuit court order in a family court matter was set forth in
the syllabus of Carr v. Hancock, 216 W.Va. 474, 475, 607 S.E.2d 803, 804 (2004):

               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.

With this standard in mind, we review the circuit court and family court orders.

       Petitioner argues that the circuit court erred in reversing the family court’s decision to
invalidate the parties’ postnuptial agreement. Specifically, she argues that because the parties
were represented by the same attorney, the postnuptial agreement is void. Petitioner further
argues that the parties’ postnuptial agreement is per se invalid because “one attorney may not
       3
         According to the record on appeal, the parties’ recorded testimony from this hearing is
not available for unknown reasons.



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represent, nor purport to counsel, both parties to a prenuptial agreement.” Syl. Pt. 4, Ware v.
Ware, 224 W.Va. 599, 687 S.E.2d 382 (2009).4 We note, however, that “no state [including West
Virginia] has instituted a per se rule requiring that parties to a prenuptial agreement must always
obtain independent counsel.” Id. at 607, 687 S.E.2d at 390. While petitioner argues that the “law
is crystal clear” that Mr. Kaminsky’s role as counsel for the parties was improper and, thus, the
postnuptial agreement was void, our previous holding in Ware has established otherwise.
According to our holding in Ware,

               [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; however, although advice of independent counsel at
       the time parties enter into a prenuptial agreement helps demonstrate that there has
       been no fraud, duress or misrepresentation, and that the agreement was entered
       into knowledgeably and voluntarily, such independent advice of counsel is not a
       prerequisite to enforceability when the terms of the agreement are understandable
       to a reasonably intelligent adult and both parties have had the opportunity to
       consult with independent counsel

Id. at 601, 687 S.E.2d at 384, Syl. Pt. 2. (emphasis added).

         In this case, we conclude that the parties’ postnuptial agreement is valid and enforceable.
It is clear from the record on appeal that the parties signed the instant postnuptial agreement in
2011. Both parties later testified that the agreement was not obtained by fraud, duress, or other
unconscionable conduct. Petitioner testified that each party was advised by Mr. Kaminsky of
their right to obtain independent counsel and that she voluntarily chose not to obtain independent
counsel. Additionally, respondent and Mr. Kaminsky both testified that petitioner was the party
“who wanted the postnuptial agreement” and was not “forced into making the agreement.” The
parties and Mr. Kaminsky all testified that Mr. Kaminsky was not hired to represent the parties in
the formation of the postnuptial agreement, but rather Mr. Kaminsky was hired to draft the
agreement because the parties previously agreed upon an allocation of respondent’s settlement
proceeds in the event they divorced. Upon our review, the circuit court did not err in reversing
the family court’s decision.

       Petitioner also argues that the parties’ postnuptial agreement fails for lack of the
provision of filing any financial disclosures. Petitioner asserts that this Court has “repeatedly

       4
        This Court has previously established that prenuptial and postnuptial agreements are
governed by the same case law and statutes. See Morris v. Morris, No. 13-0742, 2014 WL
1272517 (W.Va. March 28, 2014) (memorandum decision) (invalidating a postnuptial agreement
based on misleading financial disclosures and establishing principles for determining the validity
of postnuptial agreements); Truman-Gilmore v. Gilmore, No. 14-0194, 2015 WL 2261665
(W.Va. May 13, 2015) (memorandum decision) (invalidating a prenuptial agreement due to
failure to disclose financial assets and citing to the Morris case and the principles for
determining the validity of a postnuptial agreement).


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held” both prenuptial and postnuptial agreements to be invalid because of a lack of or misleading
financial disclosures. In support of her contention, petitioner relies on our holding in Truman-
Gilmore v. Gilmore No. 14-0194, 2015 WL 2261665 (W.Va. May 13, 2015) (memorandum
decision) wherein we held that a premarital agreement was not a valid means of distributing the
parties’ property in their divorce because the agreement misrepresented the character and value
of their property. Contrary to petitioner’s contention, the facts of her case are inapposite to those
in Truman. In this case the parties jointly mediated, negotiated, and settled their tort claims
resulting from respondent’s workplace accident and resulting injuries. As the circuit court
recognized in its order, the parties had the “same level of knowledge and participation” in the
settlement process. The record on appeal reflects that there was no evidence of any
misrepresentation of the value or character of the property that was the subject of the parties’
postnuptial agreement. The only property addressed in the postnuptial agreement is the
settlement proceeds and the agreement is very specific and confined to the specific settlement
amount received from respondent’s personal injury claim and petitioner’s loss of consortium
claim. Further, West Virginia Code § 48-7-102 governs the validity of postnuptial agreements
and

          permits parties to a divorce action to enter into a separation agreement to
          effectuate a distribution of their property as a result of their impending divorce: In
          cases where the parties to an action commenced under the provisions of this
          chapter have executed a separation agreement, then the court shall divide the
          marital property in accordance with the terms of the agreement, unless the court
          finds: That the agreement was obtained by fraud, duress or other unconscionable
          conduct by one of the parties; or That the parties, in the separation agreement,
          have not expressed themselves in terms which, if incorporated into a judicial
          order, would be enforceable by a court in future proceedings; or That the
          agreement, viewed in the context of the actual contributions of the respective
          parties to the net value of the marital property of the parties, is so inequitable as to
          defeat the purposes of this section, and such agreement was inequitable at the time
          the same was executed.

As such, we find no error in the circuit court’s order reversing the family court’s decision
invalidating the parties’ postnuptial agreement.

        Petitioner next argues that the circuit court erred in considering respondent’s appeal
because the family court’s order was an interlocutory order. Petitioner contends that the family
court order was erroneously labeled as a “final order” because the order dealt only with the
validity of the postnuptial agreement and not the entirety of the parties’ divorce. Petitioner also
contends that respondent’s appeal “lacks a final, appealable order” which, according to her,
precluded the circuit court’s jurisdiction pursuant to West Virginia § 51-2A-11(a).5 After a
thorough review of the record, we disagree.



5
    West Virginia § 51-2A-11(a) provides that

                                                                                         (continued . . . )
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        The record on appeal reflects that the family court entered a “Final Order Regarding
Antenuptial Agreement” in October of 2015. It is also clear from the record that the family court
plainly labeled the order as a final order and included language notifying both parties that the
family court considered the order a final order pursuant to Rule 22(c) of the Rules of Practice
and Procedure for Family Court.6 It is clear that the family court notified both parties that the
order was indeed a final order that could be appealed to the circuit court, as respondent did, or to
this Court. While petitioner is correct that the order regarding the parties’ postnuptial agreement
was not the last order regarding the parties’ divorce, it is, nonetheless, a final order. The family
court’s order disposed of the litigation as to the validity of the parties’ postnuptial agreement.
The rest of the parties’ divorce proceeding could not proceed without the family court’s
determination regarding the postnuptial agreement because, according to the record on appeal,
the parties disputed what was marital and separate property. Respondent filed a timely appeal
with the circuit court from the family court’s final order. As such, the circuit court did not err in
considering respondent’s appeal.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 23, 2016, order is hereby affirmed.


                                                                                          Affirmed.


ISSUED: May 22, 2017




               [w]ithin thirty days following the entry of a final order of a family court
       judge or the entry of a final order of any senior status circuit judge, circuit judge
       or other judicial officer appointed to serve pursuant to the provisions of section
       nineteen of this article, any party may file a petition for appeal with the circuit
       court. No appeal may be had under the provisions of this article from any order of
       a family court judge or from any order of another judicial officer temporarily
       serving as a family court judge other than a final order.
       6
           Rule 22(c) of the Rules of Practice and Procedure for Family Court provides that

               [a] family court final order shall contain language explicitly informing the
       parties (1) that it is a final order; (2) that any party aggrieved by the final order
       may take an appeal either to the circuit court or directly to the supreme court of
       appeals; (3) that a petition for appeal to the circuit court may be filed by either
       party within thirty days after entry of the final order; and (4) that in order to
       appeal directly to the supreme court both parties must file, either jointly or
       separately within fourteen days after entry of the final order, a joint notice of
       intent to appeal and waiver of right to appeal to circuit court.


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CONCURRED IN BY:

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




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