COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick Argued at Alexandria, Virginia
DONALD C. McINTYRE
v. Record No. 0167-95-4 MEMORANDUM OPINION * BY JUDGE JERE M. H. WILLIS, JR. GARNET M. McINTYRE OCTOBER 3, 1995
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge Mary M. Benzinger (Raymond B. Benzinger, on brief), for appellant.
Marcia M. Maddox (Heather A. Dipoma, on brief), for appellee.
On appeal from the trial court's decree of December 22,
1994, granting him a divorce from Garnet M. McIntyre, Donald C.
McIntyre contends the trial court erred (1) in holding the
premarriage agreement void as against public policy, (2) in
refusing to sever the offending language from the premarriage
agreement, (3) in using the date of the equitable distribution
hearing as the valuation date for his pension and cash assets,
(4) in computing the marital share of his pension, (5) in
including the Met Whole Life Policy, and NCSC-IRA and NFCU 005
accounts in the marital estate, and (6) in awarding Ms. McIntyre
permanent spousal support. We find no error and affirm the
judgment of the trial court.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I. PREMARRIAGE AGREEMENT
Mr. and Mrs. McIntyre were married in September 1978. Five
days prior to their marriage, Mr. McIntyre asked Ms. McIntyre to
sign a premarriage agreement. The premarriage agreement provided
the following: 1. SHE shall continue to use her maiden name, Garnet Marie Taylor.
2. HE only shall be responsible for any and all financial liabilities that HE had before the marriage, and for which HE becomes liable during the marriage. 3. SHE only shall be responsible for any and all financial liabilities that SHE had before the marriage, and for which SHE becomes liable during the marriage.
* * * * * * *
5. SHE shall totally support HERSELF.
6. HE shall have total ownership of all properties, real, personal and intangible that are titled or registered in HIS name, and SHE shall not make claim against such.
9. SHE shall not claim that HE owes HER anything of value at any time.
11. Should HE or SHE want to dissolve this marriage, the parties shall cooperate to expediciously [sic] dissolve the marriage and HE and SHE shall not seek alimony.
Ms. McIntyre brought no significant assets to the marriage.
The premarriage agreement was drafted by Mr. McIntyre. He did
not disclose his assets or their value to Ms. McIntyre before she
- 2 - signed the agreement. She had no legal advice before signing,
and she was not aware of her rights.
On December 20, 1991, Ms. McIntyre left Mr. McIntyre. On
June 18, 1993, Mr. McIntyre filed for divorce. On September 27,
1993, Ms. McIntyre filed a motion denying the validity of the
premarriage agreement and seeking equitable distribution and
spousal support. The trial court held the premarriage agreement
to be void. It stated, "I believe that if you read the agreement
as a whole it is void as being against public policy. I think
also that there is a real question here of the disclosure as to
whether or not it is adequate." We find no error in this
holding. To render an ante-nuptial agreement valid, there must be a fair and reasonable provision therein for the wife, or -- in the absence of such provision -- there must be full and frank disclosure to her of the husband's worth before she signs the agreement, and she must sign freely and voluntarily, on competent independent advice, and with full knowledge of her rights.
Batleman v. Rubin, 199 Va. 156, 158, 98 S.E.2d 519, 521 (1957).
We followed the holding of Batleman in Carpenter v. Carpenter, 19
Va. App. 147, 449 S.E.2d 502 (1994).
The premarriage agreement made no provision for Ms.
McIntyre. She relinquished all her rights in her future
husband's property. Because she had no knowledge of her future
husband's assets, no independent legal advice, and no knowledge
of her rights before signing, the agreement is void under
- 3 - Batleman.
The trial court did not err in refusing to sever the
provision contained in Number 11 of the premarriage agreement.
The agreement was not severable because as a whole it was void as
against public policy.
II. VALUATION DATE OF PENSION AND CASH ASSETS
The trial court did not err in valuing Mr. McIntyre's
pension and cash assets as of the date of the equitable
distribution hearing. On August 9, 1994, Mr. McIntyre filed a
motion to set the valuation date of the property as the date of
separation based on Code § 20-107.3(G)(1). Code § 20-107.3(A) provides upon decreeing a divorce from the bond of matrimony . . . the court . . . shall determine the legal title as between the parties, and the ownership and valuation of all property . . . . The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. Upon motion of either party made no less than twenty-one days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used.
Va. Code Ann. § 20-107.3(A).
Mr. McIntyre's motion met the twenty-one day time
requirement. However, Mr. McIntyre failed to show good cause why
the valuation date should be the date of separation rather than
the date of the evidentiary hearing. "The value of the assets
determined as near as practicable to the date of trial will
- 4 - usually be the most current and accurate value available."
Gaynor v. Hird, 11 Va. App. 588, 593, 400 S.E.2d 788, 791 (1991)
(quoting Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d
18, 21 (1987)).
III. COMPUTATION OF MARITAL SHARE OF PENSION
The trial court did not err in computing Ms. McIntyre's
marital share of Mr. McIntyre's Air Force pension based on the
ratio of years of marriage during service to years of total
service. He testified that the Air Force used a point system
rather than a length of service system in determining the accrual
of a pension. Code § 20-107.3(G)(1) defines marital share as "that portion
of the total interest, the right to which was earned during the
marriage and before the last separation of the parties . . . ."
The trial court properly determined the marital share based on
the ratio of years of marriage during service to years of total
service. See Mosley v. Mosley, 19 Va. App. 192, 450 S.E.2d 161
(1994).
IV. DETERMINATION OF MARITAL ESTATE
The trial court did not err in including in the marital
estate, the Met Whole Life Policy, the NCSC-IRA account, and the
NFCU 005 account, which Mr. McIntyre asserts are his own separate
property. He argues that the life insurance policy is separate
property because it was acquired prior to the marriage and no
marital funds were used to pay for it. The court however, found
- 5 - that payments totaling $2,274.05 were made on the policy during
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick Argued at Alexandria, Virginia
DONALD C. McINTYRE
v. Record No. 0167-95-4 MEMORANDUM OPINION * BY JUDGE JERE M. H. WILLIS, JR. GARNET M. McINTYRE OCTOBER 3, 1995
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge Mary M. Benzinger (Raymond B. Benzinger, on brief), for appellant.
Marcia M. Maddox (Heather A. Dipoma, on brief), for appellee.
On appeal from the trial court's decree of December 22,
1994, granting him a divorce from Garnet M. McIntyre, Donald C.
McIntyre contends the trial court erred (1) in holding the
premarriage agreement void as against public policy, (2) in
refusing to sever the offending language from the premarriage
agreement, (3) in using the date of the equitable distribution
hearing as the valuation date for his pension and cash assets,
(4) in computing the marital share of his pension, (5) in
including the Met Whole Life Policy, and NCSC-IRA and NFCU 005
accounts in the marital estate, and (6) in awarding Ms. McIntyre
permanent spousal support. We find no error and affirm the
judgment of the trial court.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I. PREMARRIAGE AGREEMENT
Mr. and Mrs. McIntyre were married in September 1978. Five
days prior to their marriage, Mr. McIntyre asked Ms. McIntyre to
sign a premarriage agreement. The premarriage agreement provided
the following: 1. SHE shall continue to use her maiden name, Garnet Marie Taylor.
2. HE only shall be responsible for any and all financial liabilities that HE had before the marriage, and for which HE becomes liable during the marriage. 3. SHE only shall be responsible for any and all financial liabilities that SHE had before the marriage, and for which SHE becomes liable during the marriage.
* * * * * * *
5. SHE shall totally support HERSELF.
6. HE shall have total ownership of all properties, real, personal and intangible that are titled or registered in HIS name, and SHE shall not make claim against such.
9. SHE shall not claim that HE owes HER anything of value at any time.
11. Should HE or SHE want to dissolve this marriage, the parties shall cooperate to expediciously [sic] dissolve the marriage and HE and SHE shall not seek alimony.
Ms. McIntyre brought no significant assets to the marriage.
The premarriage agreement was drafted by Mr. McIntyre. He did
not disclose his assets or their value to Ms. McIntyre before she
- 2 - signed the agreement. She had no legal advice before signing,
and she was not aware of her rights.
On December 20, 1991, Ms. McIntyre left Mr. McIntyre. On
June 18, 1993, Mr. McIntyre filed for divorce. On September 27,
1993, Ms. McIntyre filed a motion denying the validity of the
premarriage agreement and seeking equitable distribution and
spousal support. The trial court held the premarriage agreement
to be void. It stated, "I believe that if you read the agreement
as a whole it is void as being against public policy. I think
also that there is a real question here of the disclosure as to
whether or not it is adequate." We find no error in this
holding. To render an ante-nuptial agreement valid, there must be a fair and reasonable provision therein for the wife, or -- in the absence of such provision -- there must be full and frank disclosure to her of the husband's worth before she signs the agreement, and she must sign freely and voluntarily, on competent independent advice, and with full knowledge of her rights.
Batleman v. Rubin, 199 Va. 156, 158, 98 S.E.2d 519, 521 (1957).
We followed the holding of Batleman in Carpenter v. Carpenter, 19
Va. App. 147, 449 S.E.2d 502 (1994).
The premarriage agreement made no provision for Ms.
McIntyre. She relinquished all her rights in her future
husband's property. Because she had no knowledge of her future
husband's assets, no independent legal advice, and no knowledge
of her rights before signing, the agreement is void under
- 3 - Batleman.
The trial court did not err in refusing to sever the
provision contained in Number 11 of the premarriage agreement.
The agreement was not severable because as a whole it was void as
against public policy.
II. VALUATION DATE OF PENSION AND CASH ASSETS
The trial court did not err in valuing Mr. McIntyre's
pension and cash assets as of the date of the equitable
distribution hearing. On August 9, 1994, Mr. McIntyre filed a
motion to set the valuation date of the property as the date of
separation based on Code § 20-107.3(G)(1). Code § 20-107.3(A) provides upon decreeing a divorce from the bond of matrimony . . . the court . . . shall determine the legal title as between the parties, and the ownership and valuation of all property . . . . The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. Upon motion of either party made no less than twenty-one days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used.
Va. Code Ann. § 20-107.3(A).
Mr. McIntyre's motion met the twenty-one day time
requirement. However, Mr. McIntyre failed to show good cause why
the valuation date should be the date of separation rather than
the date of the evidentiary hearing. "The value of the assets
determined as near as practicable to the date of trial will
- 4 - usually be the most current and accurate value available."
Gaynor v. Hird, 11 Va. App. 588, 593, 400 S.E.2d 788, 791 (1991)
(quoting Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d
18, 21 (1987)).
III. COMPUTATION OF MARITAL SHARE OF PENSION
The trial court did not err in computing Ms. McIntyre's
marital share of Mr. McIntyre's Air Force pension based on the
ratio of years of marriage during service to years of total
service. He testified that the Air Force used a point system
rather than a length of service system in determining the accrual
of a pension. Code § 20-107.3(G)(1) defines marital share as "that portion
of the total interest, the right to which was earned during the
marriage and before the last separation of the parties . . . ."
The trial court properly determined the marital share based on
the ratio of years of marriage during service to years of total
service. See Mosley v. Mosley, 19 Va. App. 192, 450 S.E.2d 161
(1994).
IV. DETERMINATION OF MARITAL ESTATE
The trial court did not err in including in the marital
estate, the Met Whole Life Policy, the NCSC-IRA account, and the
NFCU 005 account, which Mr. McIntyre asserts are his own separate
property. He argues that the life insurance policy is separate
property because it was acquired prior to the marriage and no
marital funds were used to pay for it. The court however, found
- 5 - that payments totaling $2,274.05 were made on the policy during
the marriage, making a portion of the policy marital property.
The record supports this finding.
Mr. McIntyre argues that the increase in the NCSC-IRA
account was not marital property because the increase was due to
income derived post-separation. However, the trial court found
that the increase in the shared savings account could be traced
to dividend reinvestment. It ruled that "[t]he increases in
value of the marital assets that were built up during the
marriage should accrue to the benefit of both parties up to the
time of the distribution." Mr. McIntyre argues that the NFCU 005 account is separate
property. He contends the account contains the proceeds from the
sale of a house owned by him and his first wife. He contends
these funds were always maintained separately and as such are
separate property under Code § 20-107.3(1)(iii).
The trial court found that the account does contain the
proceeds from the sale of Mr. McIntyre's first residence.
However, Mr. McIntyre testified that the account was established
during his second marriage and that he made mortgage payments on
the house during his second marriage. This supports the trial
court's finding that the NFCU 005 account is a marital asset.
V. SPOUSAL SUPPORT
The court did not err in awarding $1,500 a month permanent
spousal support to Ms. McIntyre. "[I]n awarding spousal support,
- 6 - the trial court 'must consider the relative needs and abilities
of the parties.'" Mosley, 19 Va. App. at 197, 450 S.E.2d at 164
(quoting Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827,
829 (1986)). "When a [trial] court awards spousal support based
upon due consideration of the factors enumerated in Code
§ 20-107.1, as shown by the evidence, its determination 'will not
be disturbed except from a clear abuse of discretion.'" Huger v.
Huger, 16 Va. App. 785, 791, 433 S.E.2d 255, 259 (1993) (quoting Poliquin v. Poliquin, 12 Va. App. 676, 679, 406 S.E.2d 401, 403
(1991)). The trial court found (1) Ms. McIntyre had a high
school equivalency degree (GED), while Mr. McIntyre had a
master's degree and credits toward a doctorate, (2) Ms. McIntyre
had numerous physical ailments for which she had undergone
surgery, (3) Ms. McIntyre's monthly income was $414 from her
civil service pension, of which the court awarded Mr. McIntyre
50% of the 97% marital share; Ms. McIntyre had contributed
substantially to Mr. McIntyre's career, placing her career
second; and Mr. McIntyre had a monthly income of $6,746. This
supports the award of spousal support under Code § 20-107.1.
We affirm the judgment of the trial court. Affirmed.
- 7 -