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GOLEMBIEWSKI v. GOLEMBIEWSKI




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GOLEMBIEWSKI

v.

GOLEMBIEWSKI


COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and McClanahan

Argued at Chesapeake, Virginia

Record No. 2993-02-1

WALTER THOMAS GOLEMBIEWSKI

v.

GAE SUSAN GOLEMBIEWSKI

 

MEMORANDUM OPINION[1]
BY JUDGE ELIZABETH A. McCLANAHAN

OCTOBER 7, 2003

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.[2] 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.

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.

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."

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

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

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]."[3]

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

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.

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.

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.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]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.

 

[3]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,

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.


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