BLACK v. POWERS




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BLACK

v.

POWERS


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Hodges

Argued at Chesapeake, Virginia

Record No. 2022-02-1

BENITA FRANCES BLACK

v.

WILLIAM V. POWERS, JR.

 

MEMORANDUM OPINION[1]
BY JUDGE ROBERT J. HUMPHREYS

NOVEMBER 4, 2003

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH

James A. Cales, Jr., Judge

Samuel R. Brown, II (Samuel R. Brown, II, P.C., on briefs), for

appellant.

William V. Powers, Jr., pro se (Robert S. Ricks, on
brief), for

appellee.

In this pending suit for divorce a vinculo matrimonii, Benita
Frances Black appeals a

preliminary ruling of the chancellor that the parties’
pre-nuptial agreement is governed by the law

of the Commonwealth of Virginia and is valid and enforceable
under Virginia law. Specifically,

Black contends the chancellor erred in finding that the
pre-nuptial agreement is not governed by

the law of the United States Virgin Islands, and contends that
under such law the agreement is

"unenforceable as unconscionable and demonstrably
unfair." In the alternative, Black contends

the chancellor erred in "finding that the pre-nuptial
agreement [is] []enforceable" under Virginia

law. Because we find that we are without jurisdiction to
consider this interlocutory issue, we

dismiss this appeal.

I. BACKGROUND

On August 22, 2001, Black filed a bill of complaint for divorce
with the Circuit Court of

the City of Portsmouth, seeking a divorce from her husband,
William V. Powers, Jr. Black

alleged that the parties separated on June 4, 1994 and remained
physically separated since that

date, with the intent to "discontinue permanently the
marital cohabitation." Thus, Black

requested a divorce a vinculo matrimonii, as well as
equitable distribution of the parties’ marital

property, pursuant to Code ? 20-107.3.

Powers filed an answer and cross-bill on October 24, 2001,
alleging that Black had

committed "and continue[d] to commit adultery numerous
times with numerous individuals"

within the preceding five-year period. Powers stated that Black
"willfully deserted the

[marriage] to continue these affairs." Powers further
alleged that the parties had entered into a

pre-marital agreement (hereinafter "Agreement"),
"as defined in Virginia Code 20-148 and

recognized under section 20-149 and 20-154," prior to their
marriage that, as a "matter of law

define[d] their property rights and bar[red] the equitable side
of the court from deciding those

rights" pursuant to Code ? 20-107.3. Thus, Powers
requested that the court grant him an

absolute divorce on the grounds of adultery and willful
desertion and that the court sitting in

equity defer to the court sitting in law and enforce the
Agreement.

The Agreement, which was attached to Powers’ answer and cross
bill, provided as

follows in relevant part:

Whereas, a marriage is intended to be solemnized between the

parties . . . and in anticipation thereof they desire to fix and

determine the rights and claim that will accrue to each of them
in

the property and the estate of the other by reason of the
marriage,

and to accept the provisions of this agreement in full discharge
and

satisfaction of such rights.

Whereas, each of the parties hereto has given a full and frank

disclosure to the other the full amount of all property owned by

each of 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 entering
into

this agreement they may receive as the widow of each other

substantially less than the amount they would otherwise be
entitled

to receive if they died intestate or if they elected to take
against

their Last Will and Testament pursuant to statute and each has

carefully weighed all the facts and circumstances, and desires
to

marry each other regardless of any financial arrangements made

for their benefits and each is entering into this agreement
freely

and voluntarily, on competent independent legal advice and with

full knowledge of their rights.

Now, therefore, In consideration of the promises and of the

marriage and in further consideration of the mutual promises and

undertakings hereinafter set forth the parties agree:

* * * * * * *

3. Each party hereby waives, releases and relinquishes any and
all

claim and rights of every kind, nature or description that he or
she

may acquire by reason of the marriage in the other’s property or

estate under the present or future laws of the state of Virginia
or

any other jurisdiction.

* * * * * * *

5. This agreement contains the entire understanding of the
parties.

There are no representations, warranties or promises other than

those expressly set forth herein.

The Agreement was dated July 12, 1983, signed by both parties,
and notarized.

On January 14, 2002, the chancellor held a hearing concerning
the "validity" of the

Agreement. Evidence presented during the proceeding established
that the parties, both residents

of Virginia, signed the Agreement on July 12, 1983 while
vacationing on the island of Saint

Croix, in the United States Virgin Islands. The parties were
married in Saint Croix the next day.

At the close of the evidence, Black argued that the Agreement
was invalid because it

contained no "fair and reasonable provision" for
Black, because there was no "full and frank

disclosure" of Powers’ worth before she signed the
Agreement, and because she did not sign the

Agreement "freely and voluntarily on competent, independent
advice, with full knowledge of her

rights."

The trial court stated as follows:

I think your only hope is to find out that Saint Croix law or
Virgin

Island law or they had to apply the federal law down there on
these

cases, and I don’t know the answer to that.

* * * * * * *

Now, given the fact that [Powers and Black] had business
dealings

together, given the fact that it was clear at least for three or
four

months before they entered into this agreement there was going
to

be a prenupt. [sic] – there is some dispute about whether the
actual

prenupt. [sic] was handed over, but given all this – this was
an

arm’s length contract that should stand on its face, absent –
there is

no evidence of fraud. There is no evidence of deceit.

The court further found no "fraud in the inducement,"
and stated, "I think the Saint Croix law is

the law that should apply here, unless I can hear some argument
to the contrary," and set the

matter for further argument on the choice of law issue.

On March 28, 2002, after reviewing briefs filed by the parties
addressing the choice of

law issue, the trial court heard further argument on the matter.
In addition to arguing the choice

of law issue, Black informed the trial court that
"[f]ederal law preempts [s]tate law under

retirement plans, recent retirement plans. And prenuptial
agreements cannot waive one’s rights."[2]

Relying on 29 U.S.C. ? 1056, Black therefore requested
discovery concerning any such items

held by Powers. Powers’ attorney agreed that Black should be
entitled to any "URISA [sic]

retirements," "those retirements that are not allowed
to be addressed in the prenuptial."

Accordingly, the trial court ordered Powers to provide Black
with information concerning

"[e]very retirement plan" in which he participated
during the marriage.

Regarding the choice of law issue, the court found as follows:

[G]iven this contract, I am going to rule that Virginia law
applies,

number one, and that, under Virginia law, it is valid. I will
also

state that, in my opinion, under Virgin Islands law, it is
valid.[3]

It is this ruling that Black now appeals. The record reflects
that no children were born of the

marriage and that no decree of divorce has been entered.

II. ANALYSIS

Prior to oral argument on this appeal, Powers filed a Motion to
Dismiss Interlocutory

Appeal. In his motion, Powers contends the appeal is
interlocutory and should be dismissed,

because the issue that is the subject of the appeal "does
not adjudicate the principles of a cause as

required by the provisions of Section 17.1-405(4)." We
consider this motion before addressing

the merits of the appeal.

"The Court of Appeals of Virginia is a court of limited
jurisdiction. Unless a statute

confers jurisdiction in this Court, we are without power to
review an appeal." Canova Electric

Contracting v. LMI Ins., 22 Va. App. 595, 599, 471 S.E.2d 827,
829 (1996) (citations omitted).

This Court has appellate jurisdiction over final decrees of a
circuit

court in domestic relations matters arising under Titles 16.1 or
20,

and any interlocutory decree or order involving the granting,

dissolving, or denying of an injunction or "adjudicating
the

principles of a cause." Code ? 17.1-405(3)(f) and (4),
recodifying

Code ? 17-116.05(3)(f) and (4). A final decree is one
"which

disposes of the whole subject, gives all the relief that is

contemplated, and leaves nothing to be done by the court."

Erikson v. Erikson, 19 Va. App. 389, 390, 451 S.E.2d 711, 712

(1994) (internal quotation marks and citations omitted).

Wells v. Wells, 29 Va. App. 82, 85-86, 509 S.E.2d 549, 551
(1999).

The parties here agree that the trial court’s order declaring
the Agreement valid pursuant

to Virginia law is a non-final, interlocutory order. Therefore,
unless it constitutes an

interlocutory order that "adjudicates the principles of the
cause," we do not have jurisdiction to

consider this appeal.

For an interlocutory decree to adjudicate the principles of a
cause,

the decision must be such that "’the rules or methods by
which the

rights of the parties are to be finally worked out have been so
far

determined that it is only necessary to apply those rules or
methods

to the facts of the case in order to ascertain the relative
rights of the

parties, with regard to the subject matter of the suit.’"
Pinkard v.

Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991)

(quoting Lee v. Lee, 142 Va. 244, 252-53, 128 S.E. 524, 527

(1925)). An interlocutory order or decree that adjudicates the

principles of a cause is one which must "determine the
rights of the

parties" and "would of necessity affect the final
order in the case."

Pinkard, 12 Va. App. at 851, 407 S.E.2d at 341. An interlocutory

order that adjudicates the principles in a divorce case must

"respond to the chief object of the suit which was to
secure a

divorce." Id. at [8]52, 407 S.E.2d at 341-42. "’[T]he
mere

possibility’ that an interlocutory decree ‘may affect the final

decision in the trial does not necessitate an immediate
appeal.’"

Polumbo v. Polumbo, 13 Va. App. 306, 307, 411 S.E.2d 229, 229

(1991) (quoting Pinkard, 12 Va. App. at 853, 407 S.E.2d at 342).

Erikson, 19 Va. App. at 391, 451 S.E.2d at 712-13.

In Erikson, the trial court’s ruling that the parties were
validly married was found to be an

unappealable interlocutory order. The court stated:

Although the factual finding and legal holding that the parties
are

validly married is an essential element of the complainant’s
cause

of action, that ruling is not a legal determination of "the
principles"

that are necessary to adjudicate the cause, and the ruling does
not

"respond to the chief object of the suit which was to
secure a

divorce."

Id. at 391, 451 S.E.2d at 713 (citations omitted). However,
Erikson does not hold that, in any

case in which a divorce is sought, there could be no appealable
interlocutory order that did not

grant the divorce. Indeed, such an interpretation would render
meaningless the limited statutory

grant of jurisdiction to this Court to hear certain
interlocutory appeals. See Code ? 17.1-405(4).

Thus, we have recognized that there are potentially many
"chief objects" in a suit for divorce.

Those objects include determining the status of the parties’
marriage, the distribution of the

parties’ property, the custody of any children, and, if
appropriate, awarding spousal and child

support. Wells, 29 Va. App. at 86, 509 S.E.2d at 552 (divorce
decree and custody

determination); Nenninger v. Nenninger, 19 Va. App. 696, 697,
454 S.E.2d 45, 45 (1995)

(divorce decree and equitable distribution).

In full accord with these principles, in Polumbo, we held that
an order declaring invalid

an antenuptial agreement denying the wife spousal support and a
monetary award did not

adjudicate the principles of the cause. Polumbo, 13 Va. App. at
308, 411 S.E.2d at 230. In

Polumbo, the order did not dispose of any of the "chief
objects" in the case, because it did not

adjudicate the legal principles necessary to adjudicate the
cause. See Erickson, 19 Va. App. at

391, 451 S.E.2d at 713.

In the case at bar, however, the chancellor declared the
Agreement valid and, thus, a

binding instrument necessarily affecting the parties’ property
rights in the matter. Nevertheless,

although the chancellor’s ruling, if unchanged, would
undoubtedly affect the ultimate decision as

to the distribution of the parties’ separate property, the
record reflects that no decree of divorce

has been entered and that the Agreement, by concession of the
parties, may or may not dispose

of all the property acquired by the parties during the marriage.
Specifically, the parties

themselves agreed that distribution of certain retirement assets
may not be governed by the

Agreement.

Accordingly, the chancellor’s ruling here did not necessarily
establish the complete and

final set of rules by which the property rights of the parties
would be determined. Indeed, the

record reflects that the ultimate matter of property
distribution appears to be "still in the breast of

the court and ‘subject to alteration and amendment’ by the judge
before entering an appealable

order." Weizenbaum v. Weizenbaum, 12 Va. App. 899, 903, 407
S.E.2d 37, 39 (1991) (holding

that the legal principles determined in an interlocutory order
substantially dictated the final order

in the case) (quoting Richardson v. Gardner, 128 Va. 676, 685,
105 S.E. 225, 228 (1920)). Thus,

we hold that the order here is interlocutory and does not
sufficiently adjudicate the principles of

the cause. Therefore, we find that we are without jurisdiction
to entertain the merits of the

appeal.

Dismissed.

 

FOOTNOTES:

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

 

[2]The validity
of the legal basis for Black’s argument in this regard was not addressed by

the trial court and is not an issue on this appeal.

 

[3]The trial
court entered a written order to this effect on July 19, 2002. That order was

signed by counsel for both parties, with objections noted by
Black.


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