Denny Harton v. Terri Harton

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

Spring 2024 Term FILED
____________________________ June 11, 2024
released at 3:00 p.m.
No. 23-ICA-242 ASHLEY N. DEEM, DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
____________________________ OF WEST VIRGINIA

DENNY HARTON,
Respondent Below, Petitioner

v.

TERRI HARTON,
Petitioner Below, Respondent
___________________________________________________________________

Appeal from the Family Court of Wood County
The Honorable Ellen L. Smith, Judge
Civil Action No. FC-54-2020-D-70

REVERSED AND REMANDED
___________________________________________________________________

Submitted: February 7, 2024
Filed: June 11, 2024

Mark W. Kelley, Esq. Katharine L. Davitian, Esq.
Ray, Winton & Kelley, PLLC Davitian & Davitian
Charleston, West Virginia Parkersburg, West Virginia
Counsel for Petitioner Counsel for Respondent

JUDGE LORENSEN delivered the Opinion of the Court.
LORENSEN, JUDGE:

Petitioner Denny Harton (“Husband”) appeals the Family Court of Wood

County’s May 10, 2023, Final Order Regarding the Validity of Premarital Agreement in

favor of Terri Harton (“Wife”). The family court held that the parties’ June 17, 2000,

premarital agreement (the “Agreement”) was invalid and unenforceable. After careful

review of the briefs, the appendix record, the arguments of the parties, and the applicable

legal authority, we disagree with the family court and therefore reverse its order.

I. FACTUAL AND PROCEDURAL HISTORY

Husband and Wife were married on June 17, 2000. Husband had primary

custody of his two children from a prior marriage, and Wife had primary custody of her

two children from a prior relationship. At the time of their marriage, Wife was 34 years

old and a recent graduate of West Liberty College (now University). Husband at that time

was 41 years old and an experienced businessman. Wife and her children moved into

Husband’s Wood County home at the inception of the marriage.

Prior to their marriage, Husband expressed to Wife a desire to enter into a

prenuptial agreement. Husband downloaded a form prenuptial agreement document he

located on the internet which ultimately, after revision, became the Agreement. Neither

party was represented by legal counsel in connection with drafting the Agreement. Several

facts surrounding the execution of the Agreement are contested. Both Husband and Wife

reviewed a draft document together, although precisely when they reviewed the document

1
is in dispute. Husband claims they reviewed the draft several months before the wedding,

while Wife claims they reviewed it two or three weeks before the wedding. According to

Wife, she did not understand the draft document she reviewed but she did not seek legal

counsel or otherwise undertake further inquiry about what she did not understand.

Nevertheless, Wife testified that she understood that a significant and primary purpose of

the Agreement was to protect Husband’s assets he owned prior to their intended marriage

in the case of a subsequent divorce. After initial review, changes were made to the draft

document to add a provision concerning their children.1

According to Wife, the next time she dealt with the Agreement was on their

wedding day when husband presented the Agreement in a sealed envelope and asked Wife

to go to a bank alone2 for signature before a Notary Public. Wife also believed the

Agreement that she signed looked longer than the document they previously reviewed,3 but

she did not read the Agreement that she signed.4 The Agreement reflects that it was signed

1
Husband claims Wife requested changes addressing their children, while Wife
testified that it was Husband who wanted the changes.
2
Husband testified that they went together to the bank and signed the Agreement
simultaneously.
3
Wife states the first document was approximately two or three pages long and on
Husband’s company letterhead. Husband strongly disputes this version of events and
testified that there was never a document on company letterhead and the Agreement was
the same as the earlier draft document with only the provision about children added.
4
The family court found Wife’s account surrounding the execution of the
Agreement to be more compelling than that of Husband. The court found that Wife’s
“testimony that she did not read this second agreement because she read the first agreement
2
by both parties on the same date with signatures notarized by the same notary. Exhibits to

the Agreement, also signed by both parties, reflect financial disclosures of the parties’

premarital assets and liabilities. At no time was legal counsel involved with either party in

drafting, evaluating, or advising either party concerning procurement of the Agreement.

The substantive provisions of the Agreement contain six printed pages with

thirteen numbered paragraphs followed by signature and notary pages and attached

separately signed financial disclosure exhibits, for a total of twelve pages. Specifically

relevant to this case are the following provisions in the Agreement:

1. SEPARATE PROPERTY. Except as otherwise provided in
this Agreement, the following property owned or subsequently
acquired by either party shall remain and be their separate
property:
- All property, including real or personal property, the income
from such property, and the investments and re-investments of
such property.
- All property acquired by either party by gift, devise, bequest
or inheritance.

The property currently owned by each party is described in
Exhibit A and Exhibit B to this Agreement, which by this
reference are incorporated into this Agreement. Such separate
property of each party shall be subject entirely to their own
individual use, control, benefit and disposition. Neither of the
parties shall before or after the contemplated marriage acquire
for themselves individually, assigns or creditors, any interest
in the separate property of the other party nor any right to the
use, control, benefit or disposition of such property.

and did not understood [sic] it, that there really was no point in re-reading what she thought
was the same agreement, with a minor modification relating to her children, is reasonable
and credible.”

3
a. Waiver. Additionally, both parties waive, release and
relinquish any ownership or right in the separate property of
the other and to use, control, benefit or dispose of the other's
separate property….

***

8. DISSOLUTION OF MARRIAGE. Both parties to this
Agreement understand that the Uniform Premarital Agreement
Act and court decisions provide for consideration by the Court
of a premarital agreement if a marriage is dissolved. The
parties to this Agreement understand that some courts have
disregarded provisions in a premarital agreement that provide
for disposition of property in the event of a dissolution.
Without, in any way, anticipating a dissolution or planning for
a dissolution, but recognizing the realities of the world, it is the
express intention of [Husband] and [Wife] that this provision
shall remain in full force and effect in the event of a
dissolution:

a. Each party shall have an equal interest in the property
acquired by the parties during the course of the marriage (and
which is not merely the result of increase in value of any of the
property owned by the parties prior to the marriage, as listed
on the attached schedules of property.)

b. [Wife] shall have a proportionate interest in the increase in
value during the marriage of the homestead real estate,
proportionate to the percentage contribution of the household
expenses, if any, and child care/household duties performed by
[Wife] during the course of the marriage.

c. All savings, investments, retirement accounts, and property
listed on the attached schedules as property owned by a party
prior to the marriage shall remain the property of the person
who brought such property into the marriage. Any
appreciation, income or other increase to such property shall
remain the property of the person who brought such property
into the marriage….

9. SUPPORT. Each of the parties has income from property
interest sufficient to provide for his or her respective support.
Each has been self-supporting for a period of time prior to the

4
contemplated marriage. Both parties feel that they are capable
of future self-support and of maintaining themselves on a self-
supporting basis. Therefore, in the event of a marital separation
or dissolution of marriage, it is agreed and understood that
neither party shall seek or obtain any form of alimony or
support from the other, or seek any relief other than a
distribution of their joint property interests or those property
interests acquired during the course of their marriage, in any
manner other than as provided by this Agreement.

Wife filed a divorce petition in February 2020. In Husband’s answer and

counter-petition, Husband sought enforcement of the Agreement. The family court held an

extensive evidentiary hearing solely on the issue of the legal validity of the Agreement.

After the hearing and the parties’ submission of dueling proposed orders, the family court

adopted the proposed order drafted by Wife’s counsel with very few changes. The family

court’s order found that the Agreement’s provisions addressing how property will be

distributed upon divorce (Paragraph 8) and the provision about spousal support (Paragraph

9) were “relatively straightforward.” However, the family court’s order found it to be

“inconceivable to charge [Wife] with knowledge of the contents of the [Agreement] and

the legal effect of those contents when the [A]greement itself does not clearly define the

parties’ rights or accurately state the marital rights the parties are waiving….”5

Additionally, the family court found that Wife had some opportunity to consult with a

lawyer, but that the opportunity was “not reasonable under the circumstances.”

5
The family court noted that the term “marital property” is not found in the
agreement, that the agreement confuses terms joint property and marital property, and that
the agreement failed to address marital debt.

5
The family court made the following conclusions in its order:

1. There is no legal presumption that the [Agreement] is valid
and enforceable given that the parties did not have legal
counsel.
2. [Husband] procured the [Agreement] from [Wife] under
circumstances of duress.
3. [Wife] did not have an understanding of the content and
legal effect of the [Agreement]. [Husband] did not have an
understanding of the content or terms used in the
[Agreement].
4. The content and legal effect of the [Agreement] would not
be understandable to an adult of reasonable intelligence.
5. As in Owen, the [Agreement] fails to provide a specific
explanation of the rights [Wife] is waiving, especially those
associated with property acquired during the course of the
marriage that would be deemed marital property, subject to
equitable distribution.
6. The [Agreement] is invalid and unenforceable.

It is from this order that Husband appeals.

II. STANDARD OF REVIEW

In appeals from family court proceedings, our standard of review is as

follows:

In reviewing . . . a final order of a family court judge, we review
the findings of fact made by the family court judge under the
clearly erroneous standard, and the application of law to the
facts under an abuse of discretion standard. We review
questions of law de novo. Syl. Pt., [in part,] Carr v. Hancock,
216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. 2022);

accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review

of family court order).

6
III. DISCUSSION

A. Jurisdiction

This Court, as a court of limited jurisdiction, has a “responsibility sua sponte

to examine the basis of [our] own jurisdiction.” James M.B. v. Carolyn M., 193 W. Va.

289, 292, 456 S.E.2d 16, 19 (1995). The West Virginia Appellate Reorganization Act vests

this Court with jurisdiction over most6 final judgments or orders of a family court. See W.

Va. Code § 51-11-4(b)(2) (2022).7 The Supreme Court of Appeals of West Virginia has

held that “[t]he usual prerequisite for our appellate jurisdiction is a final judgment, final in

respect that it ends the case.” Coleman v. Sopher, 194 W. Va. 90, 94, 459 S.E.2d 367, 371

(1995) (citation omitted). The requirement of finality is “mandatory and jurisdictional.”

James M.B., 193 W. Va. at 292, 456 S.E.2d at 19. The “‘rule of finality’ is designed to

prohibit ‘piecemeal appellate review of trial court decisions which do not terminate the

litigation[.]’” National Union Fire Insurance Company of Pittsburgh, PA v. Westlake

Chemical Corp., 900 S.E.2d 1, 6 (W. Va. 2024) (citations omitted). Generally, “[a] case is

final only when it terminates the litigation between the parties on the merits of the case and

leaves nothing to be done but to enforce by execution what has been determined.” Id. at 7.

6
We have no jurisdiction concerning final family court orders in any domestic
violence proceeding.
7
Interlocutory appeals are expressly excluded from our jurisdiction except in
narrow circumstances involving certain temporary family court orders concerning child
custody. See W. Va. Code § 51-11-4(d)(8) (2021) and W. Va. Code § 48-9-203(f) (2022).
7
In the instant case, the family court plainly labeled the order as a “final order”

and included language notifying both parties of the family court appeal rights under Rule

22 of the West Virginia Rules of Practice and Procedure for Family Court. The parties

appear to agree that the family court’s order is final in nature and effect as to the issue of

the validity and enforceability of the Agreement. However, the family court’s order does

not terminate the litigation on its merits as it does not dispose of issues concerning division

of the parties’ property or spousal support.8 While there is no published West Virginia

opinion designating a family court’s order solely resolving the validity and enforceability

of a prenuptial agreement as an appealable final order, the Supreme Court of Appeals of

West Virginia in a 2017 memorandum decision found an otherwise interlocutory order

regarding a limited postnuptial agreement to be a “final order.” Amber J. v. Shannon J.,

2017 WL 2229978, at * 4 (W. Va. May 22, 2017) (memorandum decision). Recognizing

that this memorandum decision is legal precedent (though of lesser weight than a published

opinion) at least in the domestic law context, we find that the family court’s May 10, 2023,

8
Moreover, our review of the issues in this appeal would be enhanced if the matter
had proceeded to conclusion, minimizing appellate interference and limiting our role to
one of review rather than one of intervention. Furthermore, a fully developed record and
complete decision (rather than a piecemeal, facial challenge to the Agreement) would
enable our consideration of the parties’ adherence to (or disregard of) the provisions of the
Agreement during their marriage, our consideration of the full context of property (and
debt) and support-related facts considering the applicability (or inapplicability) of the
Agreement, and enable us to go beyond this facial challenge to a short document the parties
signed (and to which they presumably agreed to be bound). For example, we are forced to
speculate about how Paragraphs 1 and 8 of the Agreement would alter the ultimate
equitable distribution of property and to what extent, absent the Agreement, increased (or
decreased) value of separate property owned and disclosed by Husband prior to the
marriage increased (or decreased) in value during the marriage as a result of Husband’s
active efforts. See, e.g., Mayhew v. Mayhew, 205 W. Va. 490, 519 S.E.2d 188 (1999).
8
Final Order Regarding the Validity of Premarital Agreement constitutes a sufficient final

order of the family court in this matter and is not an interlocutory appeal beyond this

Court’s jurisdiction. See W. Va. Code § 51-11-4(d)(8).

B. Validity and Enforceability of the Agreement

Having disposed of this jurisdictional issue, we now consider Husband’s

assignments of error. Husband specifies three assignments of error. One of Husband’s

assignments of error—that the family court erred when it found the Agreement was signed

under duress—is now conceded in Wife’s response brief to this Court. Accordingly, we

will not further address this assignment of error and will proceed with the understanding

that the parties agree that the Agreement was not signed under duress despite the family

court’s contrary holding.

Two assignments of error remain. First, Husband argues that the family court

erred in finding that Wife did not understand the content and legal effect of the Agreement

when Wife testified that she understood that the purpose of the Agreement was to protect

Husband’s premarital assets and that she did not read the Agreement prior to signing it.

Second, Husband argues that the family court erred in finding that the content and legal

effect of the Agreement would not be understandable to an adult of reasonable intelligence.

After briefly discussing relevant West Virginia authority pertaining to the Agreement, we

will address these issues in turn.

9
At the time Husband and Wife were married in 2000, prenuptial agreements

were specifically recognized by statute. W. Va. Code § 48-2-1(b) (1984), repealed and

replaced by W. Va. Code § 48-1-203 (2001). Then, the only statutory grounds for voiding

a prenuptial agreement were that, upon execution, the female party to the agreement was

pregnant or either party was a minor.9 Also, by that time, the Supreme Court of Appeals of

West Virginia had decided Gant v. Gant, 174 W.Va. 740, 329 S.E.2d 106 (1985), overruled

in part by Ware v. Ware, 224 W. Va. 599, 687 S.E.2d 382 (2009). In 1985, Gant established

the following syllabus points:

1. Prenuptial agreements that establish property settlements
and support obligations at the time of divorce are
presumptively valid in West Virginia; the burden of proving
the invalidity of such an agreement is upon the person who
would have the agreement held invalid.

2. The validity of a prenuptial agreement is dependent upon its
valid procurement, which requires its having been executed
voluntarily, with knowledge of its content and legal effect,
under circumstances free of fraud, duress, or
misrepresentation; however, although advice of independent
counsel at the time parties enter into a prenuptial agreement
helps demonstrate that there has been no fraud, duress or
misrepresentation, and that the agreement was entered into
knowledgeably and voluntarily, such independent advice of
counsel is not a prerequisite to enforceability when the terms
of the agreement are understandable to a reasonably intelligent

9
The successor to the 1984 statute eliminated pregnancy of the female party to the
prenuptial agreement at time of signing as a statutory ground to invalidate the agreement.
See W. Va. Code § 48-1-203 (2001). In 2023, the Legislature adopted the Uniform
Premarital Agreement Act which now governs the validity and enforceability of prenuptial
agreements in West Virginia for agreements executed on or after July 1, 2023. W. Va. Code
§ 48-1A-1001(b) (2023). Accordingly, the West Virginia Uniform Premarital Agreement
Act does not apply here, as the parties signed the Agreement twenty-three years earlier.

10
adult and both parties have had the opportunity to consult with
independent counsel.

Syl. Pts. 1 & 2, Gant v. Gant, 174 W. Va. 740, 329 S.E.2d 106 (emphasis in original).

Twenty-four years after Gant was decided (and nine-and-a-half years after

Husband and Wife signed the Agreement), the Supreme Court of Appeals of West Virginia

overruled Syllabus Point 1 in Gant presuming a prenuptial agreement’s validity.10 In 2009,

the Court established the following new syllabus point:

For the presumption of validity to apply to a prenuptial
agreement, both parties to that agreement must be represented
by independent counsel. Moreover, where one party . . . is
represented by counsel while the other is not, the burden of
establishing the validity of that agreement is on the party
seeking its enforcement. To the extent that Gant v. Gant, 174
W. Va. 740, 329 S.E.2d 106 (1985), and its progeny hold
otherwise, they are overruled.

Syl. Pt 5, Ware v. Ware, 224 W. Va. 599, 687 S.E.2d 382. The major focus in Ware

concerned the role of legal counsel representing or purporting to represent one or more

parties in connection with the procurement of a prenuptial agreement. Id. at Syl. Pt. 4.

10
When the Agreement was signed, the settled law in West Virginia was clear:
prenuptial agreements were presumptively valid. A party seeking to avoid enforcement of
a prenuptial agreement bore the burden of invalidating it. We are aware of no challenges
to the retroactive application of the Ware rule concerning presumptive validity of
prenuptial agreements but note that, while a judicial holding overruling settled law is
presumed to be retroactive (subject to several exceptions that might be applicable here), a
legislative enactment is normally afforded prospective-only application. Compare
Caperton v. A.T. Massey, 225 W. Va. 128, 690 S.E.2d 322 (2009), and Bradley v.
Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979), with W. Va. Code § 2-
2-10(b)(6).
11
Courts, in evaluating the validity of prenuptial agreements after 2009, have applied Ware

in scenarios where lawyers were involved in the drafting and review of these documents.

See Teed v. Teed, 2013 WL 2149857 (W. Va. May 17, 2013) (memorandum decision)

(prenuptial agreement valid where both parties have independent counsel even though wife

did not understand details); Owen v. Owen, 233 W. Va. 521, 759 S.E.2d 468 (per curiam)

(prenuptial agreement invalid where one party’s counsel drafted and other party not

represented); and Gochenour v. Gochenour, 2023 WL 152171 (W. Va. Ct. App. January

10, 2023) (memorandum decision) (same). Other than limiting Gant’s presumption of

validity where separate independent counsel are present, Ware does not directly deal with

a scenario where, as here, neither party is represented by counsel in connection with the

procurement of the Agreement.11 Moreover, Ware does not create a presumption of

invalidity (especially where both parties are self-represented).

Accordingly, operating without the presumption and burden addressed in

Ware, we focus on Syllabus Point 2 of Gant (which survives Ware) to determine whether

the Agreement was validly procured in connection with this facial challenge to the

Agreement. To be valid, Gant requires a prenuptial agreement to have been “executed

11
Lee v. Lee, 228 W. Va. 483, 721 S.E.2d 53 (2011) (per curiam) is the first
prenuptial agreement case published after Ware. In that case, husband and wife executed
an internet downloaded form prenuptial agreement without the involvement of counsel.
The lower court and Supreme Court of Appeals of West Virginia, reflecting general
freedom to contract principles, did not invalidate the document, but instead applied contract
law standards to deal with any ambiguities in the prenuptial agreement in the overall
context of a divorce action.
12
voluntarily, with knowledge of its content and legal effect, under circumstances free of

fraud, duress, or misrepresentation.” Syl. Pt. 2, in part, Gant v. Gant, 174 W. Va. 740, 329

S.E.2d 106. The parties disagree about several specific events preceding the execution

(procurement) of the Agreement. However, several facts are clear. Wife voluntarily signed

the Agreement. There is now no dispute that the circumstances were free of fraud, duress,

or misrepresentation. Accordingly, the remaining “valid procurement” issue concerns

Wife’s knowledge of the content and legal effect of the Agreement.

Husband argues that the family court erred in its conclusion that the

procurement of the Agreement was invalid because Wife did not understand the content

and legal effect of the Agreement. Husband’s argument concerning Wife’s subjective

understanding of the Agreement before its execution is two-fold. Husband argues that Wife

in fact had a sufficient understanding of the content and legal effect of the Agreement as

reflected by her testimony, and to the extent her understanding of the content and legal

effect of the Agreement was insufficient, Wife should not now benefit by asserting that she

did not understand the words in a document she voluntarily chose not to read before

signing.

In terms of Wife’s understanding of the content and legal effect of the

Agreement, Husband points to Wife’s testimony of her knowledge that Husband had been

previously married and harbored bitterness about it. Wife had knowledge of Husband’s

13
desire to have her execute the Agreement before they were married, and she understood

that Husband wanted to protect his premarital assets, including his business interests, from

claims by Wife in the event of divorce. Additionally, Wife separately signed Husband’s

disclosure of financial information listing premarital assets, including closely held business

interests indicating at least a clear opportunity to review this disclosure. Wife testified that,

while she reviewed an earlier draft of the document (that was to be amended amicably to

address a party’s request) weeks before the wedding, she did not understand the draft and

did not undertake to seek or engage independent legal counsel for advice or any further

inquiry about it despite her awareness of the Agreement’s importance to Husband. There

is no evidence that Husband did anything to prevent Wife from having the document

reviewed or consulting with legal counsel. A thirty-four-year-old college graduate, Wife

admitted that she did not read the Agreement she signed on the morning of her wedding,

conceding on the record “I never looked at it. I know it’s stupid, but I never looked at it.”

It is well-settled law in West Virginia that, in all other contexts, “in the

absence of extraordinary circumstances, the failure to read a contract before signing it does

not excuse a person from being bound by its terms.” Reddy v. Cmty. Health Found. of Man,

171 W. Va. 368, 373, 298 S.E.2d 906, 910 (1982). Further, “[a] court can assume that a

party to a contract has read and assented to its terms, and absent fraud, misrepresentation,

duress, or the like, the court can assume that the parties intended to enforce the contract as

drafted.” New v. GameStop, Inc., 232 W. Va. 564, 578, 753 S.E.2d 62, 76 (2013) (citation

14
omitted). In light of West Virginia law pertaining to the enforceability of unread contracts

and Wife’s basic understanding of the purpose and effect of the Agreement reflected in the

record, we believe that the family court’s finding that Wife “did not understand the content

and legal effect” of the Agreement cannot alone invalidate the Agreement, and to hold

otherwise would be an abuse of discretion in applying the law to the facts.

The valid procurement inquiry of Gant goes further: “although advice of

independent counsel at the time parties enter into a prenuptial agreement helps demonstrate

that there has been no fraud, duress or misrepresentation, and that the agreement was

entered into knowledgeably and voluntarily, such independent advice of counsel is not a

prerequisite to enforceability when the terms of the agreement are understandable to a

reasonably intelligent adult and both parties have had the opportunity to consult with

independent counsel.” Syl. Pt. 2, in part, Gant v. Gant, 174 W. Va. 740, 329 S.E.2d 106

(emphasis in original). Accordingly, we now examine the other finding and conclusion of

the family court raised as a separate assignment of error by Husband. The family court

found that the content and legal effect of the Agreement would “not be understandable to

an adult of reasonable intelligence.”

In its order, the family court reviewed and made specific findings about the

substantive provisions in the Agreement expressly dealing with post-divorce property

distribution, Paragraph 8, and spousal support, Paragraph 9, matters that are the primary

15
substantive provisions in the Agreement Husband would seek to apply to the facts in the

parties’ divorce. The operative part of Paragraph 8 presumably relevant to this facial

challenge to the Agreement follows:

a. Each party shall have an equal interest in the property
acquired by the parties during the course of the marriage (and
which is not merely the result of increase in value of any of the
property owned by the parties prior to the marriage, as listed
on the attached schedules of property.)

b. [Wife] shall have a proportionate interest in the increase in
value during the marriage of the homestead real estate,
proportionate to the percentage contribution of the household
expenses, if any, and child care/household duties performed by
[Wife] during the course of the marriage.

c. All savings, investments, retirement accounts, and property
listed on the attached schedules as property owned by a party
prior to the marriage shall remain the property of the person
who brought such property into the marriage. Any
appreciation, income or other increase to such property shall
remain the property of the person who brought such property
into the marriage….

The family court expressly determined that the language in Paragraph 8 “appears relatively

straightforward.” We agree with the family court in this regard. The family court also found

that Paragraph 9, concerning spousal support, was “straightforward.” These provisions—

which constitute the core of any prenuptial agreement—are straightforward and would be

understandable to a reasonably intelligent adult. These provisions are also on their face not

overbearing or unconscionable.

16
Despite finding the key operative provisions of the Agreement to be

straightforward, the family court’s order finds fault with the Agreement as drafted.12 For

instance, the family court stated that a reasonable person would not understand she would

be “waiving all claims to marital property in the event of divorce.” This is a misreading of

Paragraph 8 of the Agreement and its application to property acquired during the marriage.

Paragraph 8 largely effectuates Husband’s desire to shield pre-marriage assets (including

a closely held business) and limit awards concerning his home into which Wife was

moving. Wife testified that she understood this. By executing the Agreement, Wife did not

waive claims to property acquired during the marriage, and Paragraph 8 does not appear

on its face to conflict with equitable distribution principles in the context of property

acquired during the marriage, so there is simply no waiver of all claims in the plain text of

the Agreement.

The family court found that “[i]t is inconceivable to charge [Wife] with

knowledge of the contents of the [Agreement] and the legal effect of those contents when

the [Agreement] does not clearly define the parties’ rights or accurately state the marital

rights the parties are waiving….” However, from our review on appeal of this facial

challenge to the Agreement, we find the Agreement to be written in plain English and

12
The family court finds fault in the Agreement’s imprecise legal terminology (e.g.,
use of the phrase “joint property” but not “marital property”) preferring more precise
language tracking Chapter 48 of the West Virginia Code. These failings do not render the
document unintelligible. Nor do failures of the Agreement to address all potential issues
(e.g., marital debts) render the Agreement deficient. If the Agreement is underinclusive,
general domestic relations law will apply.
17
generally understandable to a person of reasonable intelligence. There was, at the time the

Agreement was drafted, and there is now no requirement that the text of a prenuptial

agreement must identify and explain all existing marital rights or all rights that may be

altered by executing a prenuptial agreement. Surely such a document would not be simple,

short, and understandable to reasonably intelligent people contemplating marriage later in

life arranging their affairs without consulting legal counsel. Accordingly, we find that the

family court’s conclusion to the contrary is reversible error.

IV. CONCLUSION

For the foregoing reasons, we find that that the family court erred by

invalidating the Agreement under the limited facts of this case. Accordingly, we reverse

the May 10, 2023, Final Order Regarding the Validity of Premarital Agreement and remand

this case for further proceedings.

Reversed and Remanded.

18