*1 rulе, records exception hearsay and that evi- credible dence before the trial court was to convict appellant sufficient grand larceny larceny with the intent to sell or distrib- property. ute stolen we judgment affirm the the trial court.
Affirmed.
Record No. 1544-05-1. Appeals Court of of Virginia, Chesapeake. April 25, 2006. *5 (Kaufman Brown, Canoles, P.C., briefs), Samuel R. II & on Beach, for appellant. *6 Jr., (Robert Powers, Epstein, William V. se pro Epstein; Flora, P.C., brief), Sandler and on for appellee. FELTON,* C.J., and
Present: HUMPHREYS and HALEY, JJ.
HUMPHREYS, Judge. (“wife”) Appellant Benita Frances Black appeals ruling a from validity the trial court the upholding prenuptial her Powers, (“husband”). with appellee William V. Jr. Wife that trial in holding contends the court erred that Virginia governs law validity agreement, the reasoning court the trial have applied should law of the United Islands, States Virgin jurisdiction parties signed where the the agreement, instead. Wife also that the trial court argues held erroneously even under the Virgin law of the Islands, prenuptial agreement is and enforceable. valid Finally, argues, alternative, -wife in the that if the trial court correctly that Virginia held law determines the validity prenuptial agreement, court erred in concluding that the аgreement is valid and Virginia enforceable under For law. follow, reasons that we hold that trial court erroneous- ly held Virginia governs law prenuptial agreement. However, because, according to the law the Islands, the prenuptial agreement is valid and enforce- able, we further hold that this error is harmless. Accordingly, we affirm the judgment Also, below. deny we husband’s request for an award of the attorneys’ fees associated with this appeal.
I. BACKGROUND appeal, On we view light the evidence in the most favorable husband, to the party prevailing Congdon Congdon, below. 1, 2006, April Judge *On Judge Fitzpatrick Felton succeeded as chief judge. (2003). 258, viewed, 578 S.E.2d So Va.App. following. in this the evidence case establishes the time, At the wife began dating and wife in 1979. Husband firm, husband, a at a a secretary as law employed practitioner. lawyer, parties was a solo Both were In late husband and wife residents. November buy together. Although parties closed decided house on the house wife informed husband December move house with him unless married she would not into the he Husband, however, told that he repeatedly her wife first. marry sign would unless shе agreed prenuptial never her agreement. Although belong- wife then moved some her residence, she did not into ings jointly-owned into the move Rather, mother. herself. she went to live with her house later, they marry, Several months decided *7 of in selected the island Croix the United States St. ceremony. wedding the location of the At some Islands as copy a of point during spring gave the of husband wife Wife, however, not the did proposed prenuptial agreement.1 legal seek advice about the terms and conditions independent agreement. of the proposed 10, 1983, Croix, they the flew to and July parties
On St. 13, 1983. time, on At the neither July to be married arranged agreement. the On 12—the party signed prenuptial July had copy the wife another day wedding—husband gave before the cursory a of the terms of After review agreement. Neither ex- agreement, signed party wife the document.2 consistently copy she not receive a 1. Wife testified that did Husband, contrast, agreement wedding. day until before the in copy agreement "for in ad- that wife had a months testified Although expressly conflict- court did not resolve this vance.” trial light tо ing testimony, we evidence most favorable must view the husband, prevailing party below. agree- signatures prenuptial public notary acknowledged A on the Virginia. parties agree, howev- The ment when returned er, and, thus, unnecessary prenuptial that notarization signed, time not at the time agreement became effective at the it was signatures acknowledged valid. were as their returns, statements, tax bank or other financial docu- changed prior agreement. ments to the execution of the The prenuptial provides, pertinent part, as follows:
Whereas, marriage is intended to be solemnized between parties, and in view of the fact that marriage, after their in the of any agreement contrary, absence their legal relations powers and with reference to their property may, by change reason some in their or domicile other than those which they applied desire to have to their relationship, power capacities, and in anticipation they thereof desire to fix and rights determine the and claim that will [sic] accrue to each of proрerty them the and the estate of the other by marriage, reason and to accept provi- sions of this in full discharge and satisfaction of rights. such
Whereas, each the parties given hereto has full disclosure to the other the amount all property frank full owned each the parties and each acknowledges that they are fully acquainted with the business and resources of each and each understands that the other is a person of possible substantial wealth. And each has answered all the questions each has about their income and assets and each understands that by into this entering agreement they may receive as the widow of substantially each other less than they the amount would otherwise if be entitled receive they died they intestate or if elected to against take their Last Will and Testament pursuant statute and each has *8 carefully circumstances, all weighed the facts and and de- sires to marry each other regardless any of financial ar- rangements made for their entering benefits and each is into this agreement freely and voluntarily, competent on independent legal advice and with knowledge their full of rights.
Now, Therefore, In consideration of promises and of the marriage and in further consideration of prom- the mutual ises and undertakings hereinafter set forth the parties agree: that party hereby agrees,
1. Each covenants and declares that proposed marriage, ... in view and consideration of the by private so far as it is their act and legally possible belonging all the to either of them agreement, property or marriage acquired by commencement of the or marriage, of them shall be held coming during either her, subject him to his or her enjoyed by and or and be separate property as his or her in the manner as disposition marriage if the had never been consummated.....
2. and covenant parties expressly agree The hereto further other, either, upon to and with each the death of claim, any and not assert survivor shall not have will interest, any or title under the state because estate laws real, in or to the or survivorship property, personal of such mixed, insurance, party or of which the deceаsed die life survivor possessed, hereby relinquishes seized or and such heirs, devisees, administrators, and assigns executors claim, party any of the deceased and all of his or her share, interest, estate or title that he or she distributive would entitled to as the husband or wife surviving respectfully.... shall as a waiver provision
This is intended to and serve accor- rights and release of each of election in [sic] (1950 Virginia dance with the Code requirement 64.1-13 amended), or any amendatory supple- as and law thereof mental or similar thereto. waives, party hereby relinquishes
3. Each releases kind, or every all claim and nature any rights may acquire by that he or she reason of the description property present in the other’s or estate under the marriage any jurisdic- or other or laws the state future tion. in this shall be deemed Nothing contained any by party bequest
constitute a waiver either him her or by choose to make to or will party may other no However, promises parties acknowledge codicil. them to the other made either of any kind have been such respect any bequest. with *9 5. This the entire agrеement understanding contains parties. representations, prom- There are no warranties or other than forth expressly ises those set herein. added).
(Emphases ceremony, After the wedding parties Virginia, they returned to where through- continued reside out the duration of their marriage.
In June of and separated. August husband wife On 22, 2001, a divorce complaint, seeking wife filed bill of vinculo matrimonii “on the ground physical continuous (12) separation parties for a than period more twelve months without any cohabitation whatsoever.” further Wife requested equitable distribution the marital estate “under § 20-107.3 of the Code of ... Virginia such other and [ ] further relief as the nature of may this case or as to require equity shall seem meet and appropriate.” 24, 2001,
On bill, October husband filed an answer and cross alia, inter asserting, that parties “the entered into a pre- agreement marital as defined in Code 20-148 and recognized under section 20-149 and 20-154.” Husband fur- ther alleged “said as a matter law defines their property rights and equitable bars the side of the court from deciding rights those under section 20-107.3.” 14, 2002, January
On trial court conducted a heаring resolve the of the prenuptial agreement. During case-in-chief, husband’s both testified that the signa- tures on the prenuptial agreement were valid. At the conclu- evidence, sion of evidence, husband’s wife moved to strike the arguing that there no evidence that the parties made a “full situation, and frank disclosure” of their financial there was no evidence that signed wife “freely voluntarily,” and that there was no evidence that wife “entered into this competent, with independent, legal advice.” The trial court overruled the motion to strike. rebuttal,
During stopped wife testified that she as a working legal secretary two and a half years before the parties’ marriage. Wife also stated although she knew was, what a prenuptial agreement she never assisted in the preparation of during one the course of her seven-month As to of her
employment legal secretary. specifics as a husband, prenuptial agreement with wife testified neither *10 their financial of the party prior signing disclosed assets and she further stated that she had “less than an agreement, wife, to According hour” to review the document. husband her, not to she did not “take explain agreement [the] did it, to not anybody” signing document before and husband did that else look at “advise should have someone [her] [she] [the] document.” Wife also said that she did not have “full knowl- edge rights” signed agreement, stating when she [her] get that “all knew is had to if wanted to sign [she] [she] [she] that, signed married.” further testified she Wife before will, drawing up told her “that he was agreement, husband me,” on leaving everything and he was to and she “reified] agreement. she to sign statement” when decided that “it an emotional as Finally, agreed expense wife was to that was involved” if wife did not opposed expense a fiscal and, result, wedding ceremony as a did sign agreement not take place.
Husband, however, that wife “knew what [his] testified at time of he marriage financial situation was” because her the loan during discussed his financial situation with of 1982. hus application process Specifically, November parties orally discussed their assets with band stated both officer, loan “and we both had to tell her what application and we had to tell her what debts we had.” making, we were admittеd, however, not recall ever that he could Husband of his tax returns or financial giving copy” wife “her own that, also the time the statements. Husband testified whether agreement signed, he did not know prenuptial attorney an the document. Husband wife had consulted about said, however, of the copy agreement that he wife a gave Croix, her to St. that he had advised trip “months” before get to attorney, trying an and that he “had been speak with left” for St. Croix.3 sign agreement] [they] her to before [the that, they although were brother and sister-in-law also testified 3. Wife’s Croix, they husband and wife parties in St. never heard with the cross-examination, raised, the trial court sua During wife’s Islands sponte, the issue of whether the law noting govern prenuptial agreement, should took the contract was executed marriage place “[t]he hearing proceed, there.” The court allowed the noted but ... “certainly require that resolution of this issue would briefs point; may require on sides at this and it also further both evidence, time, on what the law was at the because depending in ... we’re with what the law was 1983 St. Croix.” dealing hearing, At the conclusion of the the triаl court opined that, law, under “is valid on its face.” The court reasoned because “it was clear at least for three or four into this they months before entered going there was a prenupt,” opportu wife “did have the *11 nity Because, to at least it attorney.” discuss with an in the deceit,” court’s “there is no opinion, evidence of fraud ... [or] the trial court concluded that “this an length arm’s contract that should stand on its face.”4 The trial court also that, held if even husband “told he was going [wife] leave everything her in a will if she that signed agreement,” statement did not constitute fraud in the Noting, inducement. however, it that believed is “Saint Croix law the law that here,” should apply the trial court did not on expressly rule validity agreement at that time. Following briefing and oral on arguments the issue what law should govern validity prenuptial agreement, the trial court noted that Virginia “there is no case in legally However, right point.” that, on the court also observed parties sign jurisdiction “where the a contract in one but clearly expect it to be performed validity another and the discussing prenuptial agreement, they signing nor did witness the
the document. note, however, Virginia clearly provides "[plarties 4. We that law engaged dealing length,” Carpenter to be married are not at arm’s v. 147, 152, (1994), Carpenter, Va.App. 449 S.E.2d because other,” they "occupy relationship a confidential toward each Batleman Rubin, 156, 160, (1957). 199 Va. 98 S.E.2d another,” by then the law of the governed designated be Thus, 19, 2002, jurisdiction apply. July should order dated case, the court “that should to this Virginia apply ruled law law; that the contract is Pre-Nuptial Virginia valid under Virgin Pre-Nuptial that even under Island law the Contract would valid.” the trial court no ordered “that shall Pre-Nuptial decree be entered inconsistent with this Contract.”5 1, 2005, trial
By order dated June court entered a final wife a divorce a vinculo matrimo- awarding decree of divorce nii. The trial court, however, request equi- denied wife’s for distribution, table that the reasoning parties “waived the same in paragraph 3 of the prenuptial agreement July dated 1983.” This appeal follows.
II. ANALYSIS related, On wife raises three appeal, separate, assign- but First, ments of error. wife contends the trial court should applied have the lаw of the Islands when Virgin Second, determining of the prenuptial agreement. wife argues erroneously that the trial court held under Islands, the law of the is valid Third, alternative, in the if argues, enforceable. wife applies, law the trial court erred in that the holding is valid under For the reasons that Virginia law. follow, we affirm the judgment below.
A. issue, whether, As a threshold we must determine rules, under choice-of-law of a Virginia validity prenuptial 19, July entry attempted appeal 5. Wife 2002 to order before of the July Reasoning final decree divorce. that the 19 order constituted order, interlocutory non-appealable this Court held that we lacked and, therefore, jurisdiction appeal to consider wife's first dismissed Powers, adjudicating appeal without the merits of the case. See Black v. No.2022-02-1, 22478605, (Nov. 4, Va.App. 2003 WL 2003 LEXIS 549 2003). jurisdiction where the governed by is the law of the agreement (the contractus), or loci whether agreement was executed lex from jurisdiction it is the law of the where relief governed (the ).6 represents is lex This agreement sought fori See, law, on pure appeal. which we review de novo question Airlines, Inc., 1272, 1296 Cоrtes v. Am. 177 F.3d e.g., Piamba (11th Cir.1999) (“A court’s resolution of a conflict-of- [trial] novo.”); de legal question laws issue is a that we review (10th Co., 602, Gschwind v. Cessna 161 F.3d Aircraft Cir.1998) (“We novo."); review choice of law decisions de Cir.1998) Div., 546, (5th Denman v. Snapper 131 F.3d (‘We review the court’s conflict-of-law determination de [trial] novo.”). that, hold parties clearly
We
unless the
intended for
prenuptial agreement
to
the laws of a
governed by
specific jurisdiction,
validity
of that agreement—as with
any
governed by
jurisdiction
other contract—is
where the
executed,
agreement was
unless the substantive law of that
jurisdiction is
contrary
public policy
the established
of the
clearly
Commonwealth. Because the
did not
intend
for
Virginia
govern
validity
agreement,
law
party argues
because neither
the substantive law of the
Virgin Islands regarding prenuptial agreements
contrary
is
Virginia’s
public policies,
established
we hold that
the trial
court erred in applying Virginia
law to resolve the
agreement.7
concurrence,
Contrary
position
it is
clear
not
that this
Rubin,
agreement
satisfy
would
the test enunciated in Batleman v.
(1957),
Va.
signed
1. It is a long-standing Virginia rule that “[t]he nature, validity interpretation and of contracts governed are ” by place the law of the where contract made.... [the was] v. Corp. Guy, C.I.T. 16, 22, 659, (1938); 170 Va. 195 S.E. 661 Ins., see also Lexie v. Farm State Mut. Auto. 390, 394, 251 Va. Co., 61, Mut. Ins. (1996); 469 S.E.2d Woodson Celina 63 423, 426, Boulware v. 610, (1970); 211 Va. 177 S.E.2d 613 Newton, (18 Gratt.) 708, Fant v. Miller & (1868); 59 Va. 711 (17 Gratt.) 47, Mayhew, 58 (1866); Freeman’s Bank v. 59 Va. Ruckman, (16 Gratt.) 126, Nelson v. (1860); 57 Va. 127 Fotterall, (7 Banks v. Green 179, (1836); 34 Leigh) Va. 201 (6 Call.) (1799).8 leaf, Va. 271, Thus, 10 273 determining when contract, validity courts Virginia generally apply will (the the law of lex place where the contract was executed contractus). loci are, however, exceptions
There tо this rule. general First, if the evidence indicates the parties expressly intended for specific jurisdiction the law of a to govern the contract, validity of the designated jurisdiction law the See, e.g., Guy, 22, applied will be instead. Va. S.E. (“The nature, at 661 validity interpretation of contracts apply. argues lodge timely Husband further that wife did not specific objection ruling to the trial court’s law should govern prenuptial agreement. Accordingly, husband procedurally arguing concludes that wife is barred from this issue on appeal. disagree. During arguments See Rule 5A:18. We oral before court, clearly argued Virgin the trial wife that the law of the Islands Moreover, apply. objected July should wife to the 19 order on the grounds finding that the trial court "erred in [ ] that the Islands govern agreement....” Accordingly, law did not we hold that this sufficiently preserved purposes appeal. issue is for Although verything relating making to be "[e] to the of the contract is made; by governed place everything the law of the where it was relating performance to the of the contract is to be controlled the law Co., place performance.” Mfg. Arkla Co. v. W. Va. Timber 641, 650, (1926) (emphases original); Va. 132 S.E. see also Baldwin, (1929) ("The Norman v. 152 Va. 148 S.E. general according is rule that while contracts are to be construed contractus, they according fori.”). lex are to be enforced to the lex loci made, unless the place the law of the where governed by are parties.” intention contrary express appears *14 added)). sign the Second, parties merely if the (emphasis execution, but, of the at the time jurisdiction, contract one in anoth fully performed to for the contract parties intend performance the place law of er, the specific jurisdiction, solutionis) than the law of (the rather applied will be lex loci executed. See formally the contract was the place where Co., 641, 650, 132 v. 146 Va. Mfg. Arkla W. Va. Timber Co. Perkins, 331, 126 840, (1926); see Poole v. Va. also S.E. 842 (1919). Third, if 337, 101 240, applicable 242 the substan S.E. is the contract was executed jurisdiction tive law the where will not public Virginia courts contrary Virginia policy, to rule of Willard v. Aetna Cas. & apply foreign the law. See (1973) Co., 483, 193 481, 776, (“Comity S.E.2d 778 Sur. 213 Va. another law application does not state’s substantive rеquire state.”). forum contrary policy if it is the public is, basic, most a prenuptial agreement A at its Keck, 457, 460, 559 simple Pysell contract. See v. 263 Va. (2002) agreements, like marital (“Antenuptial S.E.2d 678 settlements, the subject are contracts to rules of property ”); generally to .... see also applicable construction contracts Rowan, 510, 516, Dowling v. 621 S.E.2d 399 Va. (2005) (same). validity of a prenuptial agree the by place ment must tested the laws the where it is “be Gratt.) Ruckman, (16 (1) made,” at unless: the Va. their expressly apply manifested intent the law parties have (2) the jurisdiction, sign prenuptial of another but, jurisdiction one at the time the contract was different, executed, in a fully perform intend (3) or law of the specific jurisdiction, applicable substantive Virginia foreign jurisdiction contrary public policy. is case, parties signed of this Under the circumstances both Thus, the last Virgin in the Islands. prenuptial agreement agreement—specifically, accep- act to effectuate the necessary by performed tance of contractual terms offeree—was Co., v. Mfg. in the Dehler O’Ryan Islands. See (E.D.Va.2000) (“The F.Supp.2d 714, 718 рlace of contracting is by place determined act necessary where final to make occurs.”); binding Farm, the contract Madaus Nov. Hill Inc., (W.D.Va.1986) (“[T]he 630 F.Supp. place of proposal place made, is the a acceptance where contract is acceptance by since the offeree completes the contracting process.”). Accordingly, we hold that the prenuptial agree and, Virgin Islands, ment was “made” unless one of the exceptions applies, above-described the law of the Virgin governs Islands agreement. Guy, See 22, 195 Va. at S.E. 661. Court,
As noted Supreme “the true for the test determination of the law of contract proper is *15 ” Hain, parties.... 402, the intent of the Tate v. 410, 181 Va. (1943) curiam) (internal 321, 324 (per quotations S.E.2d omitted). “may This intent be in the expressed contract or itself’ from “may surrounding inferred the circum (internal omitted); stances.” Id. quotations see also Thornhill Inc., (4th Cir.1987) Donnkenny, v. (“Virginia F.2d conflicts of law rules honor generally contractual choice of law Thus, whether, provisions.”). we must first consider at the executed, time the contract was parties clеarly the intended for Virginia govern validity law the of prenuptial the reasons, agreement. For the that following we hold the that, evidence fails to establish at the time the parties execut ed the agreement, they clearly intended for law to Virginia apply. the
Initially, prenuptial agreement itself does not clearly parties’ manifest the intent law Virginia that should validity the contract. govern Although the the contract law, Virginia mentions it also the references law other jurisdictions. agreement Specifically, paragraph three the provides parties relinquish any they may the claims in each or acquire property present other’s “under the future or other Virginia any jurisdiction.” laws the state added). Moreover, agreement the does not contain (Emphasis any stipulation expressly clause or other forum selection con- validity of the governs law the providing Virginia that, not contract does establish Accordingly, the itself tract. executed, clearly the parties was time the agreement at the validity of the contract. Virginia govern law to the intended for the execu surrounding Nor the circumstances do evidence the clear intent agreement parties’ tion of the At the the of the contract. Virginia govern validity law would executed, parties the resided agreement time the was However, Virginia. owned residence Virginia jointly at was is no evidence the time there executed, domi permanently intended to remain parties And, impor more Virginia.9 ciled in the Commonwealth Virgin in the tantly, marriage place because the itself took Islands, in the actually performed, part, the contract was Virgin Islands.10
Thus,
parties
significant
had
contacts
although
executed,
time the
Virginia
with
clearly
fails to
intended
parties
evidence
demonstrate that the
validity
law
contract.11
govern
for
Indeed,
clearly
opening paragraph
agreement,
9.
in the
potential change
contemplated a
in domicile.
Accordingly, barring
Virginia’s
public
a conflict with
established
govern
validity
policy,
law of
Islands
would
Ranney Ranney,
Va.App.
marriage itself.
47 n.
See
(2005) ("[I]ssues relating
S.E.2d
500 n. 12
*16
voidability
marriage
generally
determined based on the law
are
celebrated,
marriage
barring
jurisdiction
the
was
a conflict
the
where
Farah,
public policy.”);
Virginia’s
see also
v.
16
with
established
Farah
329,
Veruki,
(1993);
Va.App.
Va.App.
429
626
v.
7
S.E.2d
Kleinfield
183,
(1988).
traditional which permits choice-of-law application parties clearly forum law if the govern intended for that law to contract, validity of is inapplicable under the circum- stances of case. this correctly noted,
As the parties merely trial court if the sign jurisdiction, but, execution, the contract in one at the time of intend for contract fully performed to in be another, jurisdiction, specific place the law of the of perform- ance will applied be rather than the the place law of where the Arkla, contract formally 650, executed. See 146 atVa. 842; 132 S.E. at see Erie Ins. v. also Exch. 248 Shapiro, Va. 638, (1994) 640, (“ 144, 450 a general S.E.2d 145 ‘It is rule that every nature, validity, contract as to its interpretation and ... made, effect is law of governed by the where it is place unless it is to be in performed another ...’” place. (quoting (16 Gratt.) Ruckman, 127) (omissions 57 Va. in original) (emphasis added)); v. People’s Building, Nickels Loan & (“ Ass’n, (1896) Saving 380, 387-88, 8, 11 93 Va. 25 S.E. “When State, a contract is made or entered into in per- one to be another, is, rule, it general formed as a governed by place the laws of the performance, regard without written, dated, at which it was place signed, or respect its ” nature, validity, interpretation, and effect.’ Nat’l (quoting Ashworth, 712, & v. Building 706, Mut. Loan Ass’n 91 22 Va. (1895))). 521, The exception S.E. 522-23 rationale this behind parties sign is where the an agreement jurisdic- in one Assocs., 3, 5, (1993); & Va.
Jones R.S. Jones 431 S.E.2d Commonwealth, 370, 376, (1986); Frye v. 231 Va. 345 S.E.2d McMillan, 1127, 1130, (1979). McMillan v. 219 Va. S.E.2d Court, Virginia Supreme application As noted of this "more uncertainty invariably flexible rule” would "creat[e] and confusion in McMillan, application [Virginia’s theory.” choice-of-law] 219 Va. at equally applicable at 664. this is S.E.2d Because rationale dispute, adopt the context of contract we decline to the "most significant relationship” place Virginia's test in traditional choice-of- law rules.
133 in a different performed it to intend for fully tion but of the is, the minds “in performance place jurisdiction, 650, 132 Arkla, S.E. 146 atVa. contractus.” the locus parties, (7 (“[E]very one Nelson, at Leigh) 842; Va. at see also he in which place to have contracted is understood (internal omit quotations pay.” that he would himself bound ted)). agree- prenuptial however, signing in addition to
Here, performed Islands, parties partially Virgin ment in the to terms according jurisdiction. Specifically, in that contract from certain to refrain contract, agreed the parties of the By marriage.” of “the in consideration conduct postnuptial Islands, Virgin in the vows wedding exchanging consideration, thereby performing required tendered the Thus, because obligations. of their contractual portion Islands, agree- prenuptial Virgin in the ocсurred marriage in that performed partially executed and ment was both exception we hold that second jurisdiction. permits rules—which choice-of-law traditional Virginia’s if place performance of the law of the application different inapplicable of formal execution—is place from the law of the of this case. under the circumstances Court, “[cjomity Virginia Supreme as noted Finally, law another state’s substantive application of require does not forum state.” of the public policy contrary if it is 778; Toler v. see also Willard, at 213 Va. at S.E.2d 425, 435, 4 S.E.2d Corp., 173 Va. Smokeless Coal Oakwood (1939) Virginia law when apply West (declining performed bigamous marriage of a determining repugnant law “is reasoning that West Virginia, West would be statutes, for our statutes and its substitution to our Tate, State”); see also of this sovereignty an of the invasion that the law (noting at 325-26 S.E.2d 181 Va. it is “different merely because applied forum should not be or making performance” place from that of the that the law contract). Here, however, argues party neither Islands, pertains as it to prenuptial agreеments, *18 contrary is to Virginia’s public policies. established Accord- the ingly, third to exception Virginia’s traditional choice-of-law
rules, permits application which Virginia of when the law law foreign contrary is to Virginia’s public policy, established is inapplicable likewise under the circumstances of this case. reasons,
For these we hold that the trial court erred concluding that law the of governs validity pre- the nuptial agreement. Regardless, because the trial court cor- that, rectly Islands, determined under the law of the Virgin enforceable, is valid and we hold that further this is error harmless. we affirm Accordingly, judgment below.
B.
The Code of the Virgin
statutory
Islands contains no
provisions
setting
by
validity
forth
standards
which
of
a prenuptial agreement should
legisla
be determined.12 The
the Virgin
however,
ture of
Islands has expressly provided,
law,
rules of
expressed
The
the common
in the restate-
as
of
approved
Institute,
ments
law
the American Law
and
the extent not so expressed, as generally understood
applied
States,
and
in the United
shall
rules
decision in the
courts
Islands in
Virgin
cases which
they apply, in the absenсe of local laws to the contrary.
(2005).
1, §
law,”
V.I.Code Ann. tit.
4
“Local
as used
this
statute,
statute[s],
“is not limited to
Island
Virgin
but also
Islands,
Indies,
Virgin
formerly
12. The
known as
Danish West
is an
organized, unincorporated territory
United
an
of the
States with
inde-
branch,
pendent
legislature,
judiciary,
executive
and code
laws. See
Islands,
83-517,
Organic
Virgin
Revised
Act
Pub.L. No.
Stat.
(1954) (codified
U.S.C.)
as amended
in scattered sections of
executive,
(establishing
legislative,
judicial
govern-
branches
ment);
Denmark,
see also Convention
United
Between the
States and
Indies, U.S.-Denmark,
Aug.
Cession
the Danish West
Stat.
Riise
v. A.H.
law.” Moore
case
Island
Virgin
includes
Gift
(D.Vi.1987).
1417, 1423
F.Supp.
Shops,
substantive
applicable
determine
from the courts
case law
law,
look to decisional
must first
we
Virgin
Islands
If the case law
Islands.
prenuptial
of this
as to
provide guidance
fails to
law rule as
the common
next consider
we must
agreement,
Re
if the
Finally,
Restatement.
applicable
expressed
governing
statement of the
not
a clear
provide
statement does
law as
the common
law,
apply
ascertain and
rule of
we must
in the United States.”
applied
understood
“generally
Christian, 958
4;
§
see alsо Miller
Ann. tit.
V.I.Code
Cir.1992)
(3d
there is no
1234, 1237
(noting
“[w]here
F.2d
the law
applying
a court
precedent,”
local law or
governing
“
*19
law
as
the common
Islands must
‘examine
Virgin
the
first
under
Restatements,
generally
and then as
in the
expressed
”
v.
Polius
(quoting
in the
States’
applied
stood and
United
(3d Cir.1986))
Co.,
(emphases
802 F.2d
Equip.
Clark
added)).
(2002),
118,
In v. 45 V.I. Dysart of that the issue of the Islands noted Virgin a territorial court and enforceable agreement “is valid prenuptial whether a in any reported ... not addressed Islands has been Virgin court Id. at 125. The observed jurisdiction.” decision in this have that, antenuptial agreements or general, prenuptial “[i]n recognized binding and as in favorable terms regarded been Id. at agreement.” contractual any as other upon parties of interpretation The court further noted “[t]he 126.13 prin- standard contract governed is prenuptial agreements enjoy pre- a agreements both ciples” “[p]renuptial as to their terms construction validity of and liberal sumption After may be realized.” Id. that the intent of the so test from the relationship” significant the “most applying Dysart, majority longer of states “no 13. We consistent with note void, only inhеrently invalidating agreements premarital [that are] hold Roy, Robert execution or result.” agreements those found defective in agreements contem- premarital views as to Modem status of of cases). (1987) (citing separation, plating or 53 A.L.R.4th divorce (Second) Laws,14 of however, Restatement Conflict of Dysart applied court Arizona law to resolve the validity of prenuptial agreement. (reasoning contested See id. at 126-27 apply Arizona law should it was of place because “the negotiation Agreement, and execution ... the intended residence of the ... location of parties, and the the separate community parties”). assets other than setting general forth rule that a prenuptial agree- valid, ment presumed is see id. at the Dysart opinion provides guidance whether, no as to under the law Islands, Virgin at issue this case is valid. Because the law Islands does not directly speak to the circumstances under which a prenuptial agree valid, ment will be considered next we must consider the (Second) common expressed law rule as Restatement id.; Inc., Contraсts. see also Alejandro See L.S. Holding, (D.Vi.2004) (“The 310 F.Supp.2d 748 n. 2 Virgin Islands (Second) have adopted the Restatement Contracts as law, definitive source of decisional contract absent local any contrary.”); laws to the Tourism v. Hourigan, Indus. 31 V.I. 91, — (1995) (“In jurisdiction, this the common as law stated (Second) in the Restatement of Contracts controls in absence of local contrary.”).15 law the (Sec
According to section 124 Restatement ond) Contracts, promise for all or part “[a] which consideration marriage promise marry is either or is *20 10, supra. 14. See note (Second) published
15. The American Law Institute the Restatement of 1981, years prenuptial agreement Contracts in two before the Accordingly, executed. we need not whether the address courts of (First) Virgin apply the to Islands would Restatement of Contracts prenuptial agreement prior resolve the of a executed 1981. to Sullivan, (1981) (choosing apply Remole v. 17 V.I. 197 Cf. common law as (Sec expressed recently-adopted in the Restatement ond) of than Contracts rather "an anachronism from the 1932 Restate Parts, Inc., Contracts”); ment of Clarenbach v. Consolidated 17 V.I. (1980) 130 (noting that Islands "does nоt strict mandate longer accurately adherence to old Restatements which no reflect law”). state of the common
137 ” enforceable, a Thus, to be Frauds.... of within the Statute by the signed and writing must be prenuptial agreement that meets these A contract See id. to be bound. parties valid, Dysarb, see presumed is preliminary requirements grounds attacked on 126, and, thus, only be may atV.I. like. duress, unconscionability, or the fraud, mistake, mutual (Second) § 152 See, (providing of Contracts Restatement e.g., mistake); (misrepresentation); §at mutual id. defense of (du- (fraudulent inducement); §§ 174-75 id. § 164 id. at (vio- (undue influence); §§ id. at 189-91 ress); §at id. Burnett, see also V.I. lates Govia public policy); (“Because (2003) agreement the parties’ [ ] 2003 WL contract, only the existence enforceable binding is a mistake, duress, deceit, or fraud, misrepresentation, mutual merit the Court reconsider- legal another basis will compelling agreement.”). an otherwise valid ing setting [ ] or aside in writing is both Here, agreement concedes that the wife bound. signed by Dysart, is valid. See presumptively prenuptial agreement however, that the trial court erred argues, V.I. at 126. Wife demonstrat successfully she the contract because upholding (Sec 190(2) of the Restatement ed to section pursuant ond) Contracts, public policy. violates surrounding Moreover, that the circumstances wife contends unenforce render the contract the execution of the follow, disagree. able. For the reasons we here, section 190 of the Restatement pertinent As (Second) that tends promise provides “[a] of Contracts or is unenforce unreasonably encourage separation divorce (Second) Restatement public policy.” on grounds able 190(2).16 of this purpose provi- § underlying The Contracts 190(1) prom- provides that Similarly, "[a] of the Restatement section marriage unenforceable on person contemplating ... is ise change essential incident of grounds public policy if it would some relationship way public interest in a detrimental the marital comments, publisher's relationship.” According to the marriage 190(1) marriage contemplating ... prevent persons section "does not disposition prop- for the making contracts between themselves from *21 138
sion is public based on the in interest the continuation of the See id. at marriage 190, relationship. Thus, § cmt. c. “[al- though free, parties choose, are if they to terminate their relationship under the law providing for divorce or separation, a commitment unreasonably tends in this direction will Id. So, not be enforced.” for example, B, if “A and who are married, about to be make an antenuptial agreement in which A promises divorce, case of $1,000,000 he will settle on B,” may decide, the court after all considering of the circum- stances, that, “in view of large sum promised, promise A’s tends unreasonably to encourage divorce and is unenforceable on grounds Id. public policy.” 190, § illus. 5.17
Wife, citing the above-quoted example, contends that a “[i]f sum large promised divorce, would encourage a zero sum erty, ordinarily since regarded this is not as an essential incident of the (Second) 190, relationship.” marital § Restatement of Contracts cmt. does, however, a. It "preclude changing way them from in a detrimen- public tal to the relationship duty interest in the imposed law on spouse support one Regardless, the other.” Id. argue wife does not prenuptial agreement that the changes at issue in case this an "essential incident of the relationship,” contending marital instead that the con- unreasonably tract encourage "tends separation." divorce or rule, applying 17. For general cases Marriage Noghrey, this see re In 326, 153, (1985) Cal.App.3d 169 Cal.Rptr. (invalidating on public policy grounds that, premarital a agreement clause in a essence, promise by a give very “constitute^] the husband to the wife a money property, only substantial amount of upon but the occur- divorce," reasoning rence a encouraged by very that wife "is dissolution, terms of the seek and with all deliberate demise, speed, untimely lest the husband suffer an nullifying the con- tract, right money and the wife's property” (emphasis Matthews, original)); N.C.App. Matthews v. 162 S.E.2d (1968) that, (refusing antenuptial agreement providing to enforce an if wife, husband "ever left” property, she would receive all of his both separate, valid, reasoning marital and if the contract were "it goad would induce the wife to separating the husband into from her in order put that the could be strip into effect and she could Gross, property”); him of all his Gross v. 11 Ohio St.3d 464 N.E.2d (Ohio 1984) (noting prenuptial agreement that a violates public policy “provides if significant by way the contract sum either divorce, property alimony settlement or at the time of a and after the lapse period of an undue short one time abandons the vows”). marriage disregards marriage or otherwise The mutual elimination disagree. so as well.” We would do *22 affirmatively encourage parties not rights does property may simpli- agreement such an separate Although or divorce. divorce, it falls assets in the event of fy parties’ division of the marital financial incentive to end the providing far short of a Restatement, Indeed, prom- as noted in the relationship. “[a] in the property rights event merely disposes ise unreasonably does not of itself tend separation divorce or hold § Id. cmt. c. we encourage either.” in this does not at issue case prenuptial agreement the therefore, and, separation divorce or unreasonably encourage in marital public maintaining does not violate thе interest the Neilson, 780 P.2d relationship. Neilson v. Cf.
(Utah Restatement view and invalidat- Ct.App.1989) (adopting that, in clause in the event ing prenuptial agreement providing divorce, in a wife would receive one-half husband’s stock that, this is particular corporation, reasoning “[b]ecause lasted, term of regardless long marriage result of how this $400,000profit a incen- parties’ agreement provides [wife] marriage tive ... to seek dissolution of the at the earliest date”). possible however, also that “the manner which argues,
Wife it un agreement] was executed unenforceable [the render[s] Specifically, der Islands law.” wife contends “[i]n enforceability of a review of determining Agreement, Agreement the fairness of the and the fairness of the circum surrounding Agreement stances the execution of the is neces lack of “access to sary.” alleged independent Wife cites of the contract” and prior counsel to consent to an execution from the time that wife saw period” elapsed the “short agreement marriage “for the first time and her day.” following (Second) specifically
The Rеstatement
of Contracts does not
invalidated
prenuptial agreement may
discuss whether
than
forth in its
specifically
for reasons other
the defenses
set
Govia,
provisions.18
at 242 (denying
V.I.
motion to set
Cf.
aside
contract where
plaintiff “signed
the agreement
any
without
reservations or compunction” and the evidence
“fraud, deceit,
did not
coercion,
establish
misrepresentation,
mistake,”
duress or mutual
reasoning that the plaintiff was not
entitled to rescission where she “has simply reevaluated the
terms of the
[ ]
found them to
[and]
be unsatisfac
tory”).
assuming
Even
that a court
in the Virgin Islands
would consider the circumstances surrounding execution of the
however,
agreement,
arguments
wife’s
would fail. The evi
dence, when
light
husband,
viewed
most favorable to
establishes that
copy
wife received a
of the proposed prenup
tial
Moreover,
well
advance of
marriage.
evidence,
when viewed in the light most favorable to
husband, establishes
that husband affirmatively encouraged
*23
wife to obtain independent
legal advice about
proposed
Wife, then,
prenuptial agreement.
both knew that she should
obtain independent
legal advice about the terms of
con
tract and had ample
during
time
which to obtain that advice.19
support
argument
18. In
her
majority
jurisdictions
that a
consider
surrounding
the
ment,
premarital agree-
circumstances
execution
Roy, Enforceability
wife cites to Robert
premarital agreements
governing support
property rights upon
separation
or
divorce or
as affect-
execution,
by
(1987)
surrounding
ed
circumstances
For these we hold that the trial court did not err concluding that the is prenuptial agreement valid and enforce- Islands, able under the law the and we affirm the judgment below.
C. Finally, husband has an award of the requested attorneys’ fees incurred on appeal. Initially, we note that husband’s arguments of his for support request an award of attorneys’ primarily fees focus on wife’s prior, interlocutory appeal, which this Court for lack jurisdiction. dismissed 5, See note supra. Unquestionably, this may, Court its discretion, attorneys’ award generated during fees an appeal See, Gottlieb, to this e.g., Court. Gottlieb 19 Va.App. (1994); Robinson, S.E.2d see also Robinson v. 652, 671, (2005) (en Va.App. banc). 621 S.E.2d How ever, we decline to attorneys’ award fees merely because an appellant earlier, raised identical issues in an interlocutory appeal that was dismissed this jurisdic Court for lack of tion. Had husband believed that interlocutory appeal frivolous, he should have an requested attorneys’ award of fees
Rudbeck,
330,
(Minn.Ct.App.1985)
(invalidating pre-
365 N.W.2d
332
nuptial agreement where the "first time
saw
[wife]
the contract was ...
document”);
sign
when she
Tiryakian
Tiryakian,
[]was
asked to
the
v.
128,
852,
(1988)
N.C.App.
91
(invalidating agreement
370 S.E.2d
853
where the husband did not tell the wife that he wanted to execute a
prenuptial agreement
day
wedding,
until the
before the
when "husband
called
attorney's
the wife and asked her to meet him at his
office to
document,”
legal
signed
agreement
execute a
and wife
the
without
it);
Matson,
660,
817,
reading
Marriage
Wash.App.
In re
41
705 P.2d
(1985) (invalidating prenuptial agreement
where the
re-
"sample” agreement
wedding
viewed a
one week before the
the
and
d,
advice),
encouraged
independent
legal
wife was never
to seek
aff
479,
(1986).
Wash.2d
at that time. because issues,” party gener- substantial and “neither appropriate and interests,” in delay expense pursuit or of its unnecessary ated Hackler, 75, 44 Va.App. Estate Hackler v. 602 S.E.2d (2004), for deny attorneys’ we husband’s request during appeal. fees he incurred this
III. CONCLUSION reasons, erroneously For these we hold that the trial court validity applied Virginia determining law when because, However, law of under the prenuptial agreement. enforceable, Islands, we agreement is valid and Virgin we further hold that this error is harmless. deny request judgment affirm the below. We also husband’s attorneys’ appeal. for an award of the fees he incurred on Affirmed.
FELTON, C.J., concurring. majority antenuptial agreement
I concur with the that the however, view, In my is valid enforceable. at issue and in that law of Islands majority holding only errs validity enforceability and applicable determining is I evidence in the agreement. would hold credible Virginia the trial court’s law supports judgment record enforceability governs agreement controlling law is valid under signed.20 at the time the was Virginia
I.
notes,
traditional
majority
pursuant
Virginia’s
As the
making
principles, “[everything relating
choice of law
place
the law of the
where
governed by
of the contract is to be
v.
Mfg.
it
made.” Arkla Lumber &
Co. West
(1926).
Co.,
641, 650,
132 S.E.
Timber
Va.
Rubin,
1985).
(enacted
§
See also Batleman
20. See Code
20-149
(1957).
Viewing light husband, the the to evidence most favorable below, prevailing party the record that agree- reflects prepared provided ment was to in in Virginia, wife well marriage; advance encouraged husband wife to it it; signing have reviewed before and that husband read the agreement aloud to wife before she it. signed agreement The 12, 1983, itself reflects at the time of its on July signing parties in Portsmouth, both resided the City Virginia. parties Both in employed were had Virginia, recently pur- chased their marital in residence Virginia, intended to immediately jobs return their to and families in Virginia following the The wedding. agreement text of the made specific references to law as the law to be primary in applied, reciting expressly paragraph three the relin- quishment any claims either in party might acquire property governed other’s be the present would “under or laws Virginia, any jurisdiction.” state or other future added). (Emphasis The agreement specific also made refer- 64.1-13, to Virginia § ence regarding Code waiver each to claim an elective share the deceased spousе’s augmented Moreover, estate. on their return to Virginia following the trip brief Islands for wedding, parties their acknowledged their signatures before a agreement Virginia notary public, thereby ratifying I Virginia. would hold that credible evidence the record demonstrates intended for the governed by Virginia law.
II. *26 in signed the parties At the time agreements governing premarital Virginia generally law Rubin, 156, in Batleman v. Va. was as articulated Batleman, (1957). also prenuptial agreement, In a S.E.2d Agree- enactment of the Premarital prior into entered 164, Id. at invalid. Act in was declared Virginia, ment Batleman, noted: Supreme In Court at 525. S.E.2d valid, must be a an there ante-nuptial agreement To render wife, therein for the or—in and reasonable provision fair full and frank must be provision—there absence of such signs worth before she to her of the husband’s disclosure on freely voluntarily, must and sign and she agreement, advice, knowledge and with full independent competent rights. her Agree-
Id. at 158, (citing Lindley, Separation at 521 98 S.E.2d Annotated, Contracts, Edi- Revised Ante-Nuptial ments and Batleman, days to the wed- tion, prior § In two p.794). business, concerning him asked wife to meet ding, husband $20,000, they and that needed give to her told her he wanted Id. When papers. to some lawyer’s sign to his office go to office, a was handed lawyer’s wife arrived at husband’s Id. they testified sign and asked to it. She document minutes, her only “[n]either in the office few were or ex- attorney the contract husband nor the read intended her,” it because signed to and that she provisions its plained I the utmost marriage our and had before days “it was two 161-62, Id. at at 523. 98 S.E.2d [husband].” confidence “never agreement and signed not given copy was Wife Id. at at 98 S.E.2d until died.” again it [husband] saw antenuptial agreement parties signed At time the Batleman, value, husband while property had little wife income. $250,000 had substantial nearly worth then was that the The court determined Id. at 522. 98 S.E.2d antenuptial agreement in the for wife provided consideration to the value of the unreasonably proportion small was by proof then her husband and that property owned intended know, presumption of those factors created a that she did not “fully by and was not informed” her intended frankly by husband of the owned him. Id. at property 98 S.E.2d at 524. The noted that is no in the Court evidence “[t]here any record made to his showing disclosure [husband] intended as then property wife value owned him, or that she knew the value such Id. It property.” found that husband presumption failed rebut the that he had not made full or property disclosure his “that had [wife] knowledge the value of such property.” Id.
In case, party current each fully aware of the other’s property prior assets and signing agree- Indeed, ment. the very terms of the agreement acknowledge *27 as much. The record demonstrates that neither the parties any had appreciable at assets the time of their At marriage. the time that signed, prac- was husband’s law just tice was beginning and little producing income. Wife’s was, most, Moreover, income moderate. parties dis- closed respective their financial circumstances to each other when, a few months to prior they the time signed agree- ment, they completed joint application a loan mortgage to purchase finance the of their marital residence. Husband’s finances were such that he was unable to obtain loan to purchase the residence based on his financial standing alone.
The trial court found that wife proposed pre- received the nuptial agreement Virginia in in “months advance” of the actual signing Islands; of the document in the Virgin she had assisted her brother an preparing antenuptial agree- ment; and that she had worked in law office which regularly cases, handled divorce lawyers where one of the was a divorce commissioner. The record reflects that wife had ample opportunity independent seek legal advice concerning the agreement prior signing it and that husband read the agreement aloud to immediately prior wife to her signing it. party Each fully aware of the other, assets mutually each promised to relinquish any other rights property of the other acquired during marriage. Accord- law effect when the
ingly, I would hold consistent with is valid and agreement, parties signed the law. under enforceable
CONCLUSION reasons, I that the trial court did not For these would hold antenuptial agreement that the executed judgment err its under binding agreement was a valid and Virginia law.