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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and McClanahan
Argued at Chesapeake, Virginia
Record No. 2993-02-1
WALTER THOMAS GOLEMBIEWSKI
GAE SUSAN GOLEMBIEWSKI
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 &
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
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.
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
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,
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
whether now owned or hereafter acquired . . . with the same
as if no marriage had been consummated between them; provided,
however, nothing in this paragraph shall prevent either party in
future from voluntarily placing real or personal property in
title, or in the name of the other in which case said property
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
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
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
or in the event that the parties hereto have lived apart . . .
of the parties has no intention of returning, each agrees that
shall be no property settlement or division of property between
them either by equitable distribution or any other form of
rights but, each shall keep and retain sole ownership,
control and power of disposal of all property of every kind in
nature whatsoever now or hereafter acquired by such party in
[sic] name along [sic] . . . free and clear of any interest
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
property settlement (including rights under community property
equitable distribution laws) and each shall retain sole
control, and power of disposal of all property of any kind or
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.
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
is what did the parties agree to as evidenced by their contract.
guiding light in the construction of a contract is the intention
parties as expressed by them in the words they have used, and
courts are bound to say that the parties intended what the
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
an agreement is complete on its face, is plain and unambiguous
its terms, the court is not at liberty to search for its meaning
beyond the instrument itself." A contract is not deemed
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
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
other except as provided in this Agreement or in the other’s
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
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
property rights, but each shall keep and retain sole ownership,
enjoyment, control and power of disposal of all property of
kind in nature whatsoever now or hereafter acquired by such
in their [sic] name along [sic]."
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
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
instrument plainly indicates that they are to be otherwise
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’
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
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.
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
Code ? 17.1-413, this opinion is not designated for publication.
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.
agree that the word "along" contains a typographical error and should
"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
ignore the fact that the parties drafted this agreement prior to
the marriage, with wife using her