J-S31012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BARBARA B. VIRANY IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
LESLIE R. VIRANY
Appellant No. 1785 WDA 2016
Appeal from the Decree November 15, 2016 In the Court of Common Pleas of Washington County Civil Division at No(s): 2013-1828
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JUNE 27, 2017
Before they were married, Appellant Leslie R. Virany (“Husband”) and
Appellee Barbara B. Virany (“Wife”) executed a pre-nuptial agreement (“the
Agreement”) with the intent to preserve their existing property as
nonmarital. In this appeal, we are asked to review the trial court’s decision
to ratify the equitable distribution1 master’s application of the Agreement to
assets owned by the parties. After careful review, we affirm.
Neither Husband nor Wife argues that the Agreement is invalid. The
only issues on appeal involve reviewing the master’s application of the
____________________________________________
1 As discussed below, there was no equitable distribution in this case. However, the matter was heard by the equitable distribution master to determine what property was subject to equal distribution under the Agreement. J-S31012-17
Agreement to specific assets. Furthermore, neither party contests the
conclusion that under the Agreement, marital property is to be split equally,
not equitably.
As we are not presented with an equitable distribution order, we need
not address equitable principles. However, the hearings underlying this
appeal were before an equitable distribution master. In such instances,
it is within the province of the trial court to weigh the evidence and decide credibility and this Court will not reverse those determinations so long as they are supported by the evidence. We are also aware that a master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.
Childress v. Bogosian, 12 A.3d 448, 455 (Pa. Super. 2011) (citations and
quotation marks omitted).
We construe prenuptial agreements in accordance with standard
contract principles, with exceptions not relevant here. See Estate of
Kendall, 982 A.2d 525, 534 (Pa. Super. 2009). Thus, the paramount
concern is to give effect to the intent of parties. See Raiken v. Mellon, 582
A.2d 11, 13 (Pa. Super. 1990). Consequently, terms in the agreement that
are clear and unambiguous are to be given effect without reference to
matters outside the contract. See id. “[A]bsent fraud, misrepresentation or
duress, spouses should be held to the terms of their agreements.” Lugg v.
Lugg, 64 A.3d 1109, 1112 (Pa.Super.2013) (citations omitted).
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The Agreement in this matter provides that the parties waived any
claim they might have in each other’s “Separate Property.” Agreement,
7/15/97, ¶ 2.A. Thus, anything deemed to be “Separate Property” is
nonmarital property and not subject to equitable distribution. “Separate
Property” is defined as
all of such party’s right, title and interest, legal or beneficial, in and to any and all property and interests in property, real personal or mixed, wherever situate and regardless of how titled, in which each of the parties owned or had a beneficial or legal interest at the time of their marriage as well as any property, real, personal or mixed obtained at any time by inheritance, devise, bequest, or assets acquired by gift by either party to this Prenuptial Agreement at any time from a third person.
Id., at ¶ 2.B. Furthermore, “Separate Property” includes “all increase or
appreciation in value of all property defined in this sub-paragraph, whether
… due in whole or part to … the services, skills or efforts of either of the
parties or as the result of additional capital contributions.” Id., ¶ 2.C. The
proceeds of any sale or transfer of assets from Separate Property is also
included as “Separate Property.” See id.
Husband first claims2 that the master erred in concluding that five
accounts held by Wife are Separate Property. Husband asserts that Wife
2 Husband concedes that while he identifies six separate challenges to the trial court’s decree, his argument can be condensed into two broad issues. See Appellant’s Brief, at 10. Our review of the brief reveals that Husband’s appellate counsel has accurately and succinctly identified his two broad arguments. We further conclude that none of the separate issues raised by Husband are meaningfully distinguishable from these broad issues. We (Footnote Continued Next Page)
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opened these accounts during the marriage. Therefore, he contends that the
accounts are subject to equal distribution pursuant to Paragraph 3 of the
Agreement: “Except as set forth in this Prenuptial Agreement, any property
acquired by either [Wife] or [Husband] after the date of their marriage shall
be considered marital property as defined in the Pennsylvania Divorce Code,
as amended.”
Essentially, Husband argues that Wife’s earned income during the
marriage was marital property under Paragraph 3 of the Agreement. As a
result, he contends, these five accounts, funded by Wife’s income during the
marriage, were marital property. While there is logic behind Husband’s
argument, the process by which Wife received her income transmuted it into
Separate Property under Paragraph 2.C.
Wife testified that her earned income was directly deposited into her
Community Bank checking account. See N.T., Hearing, 3/26/16, at 58-59;
N.T., Hearing, 12/21/15, at 76. She further testified that she had owned this
checking account prior to her marriage to Husband. See id. Furthermore,
this account is listed as Wife’s Separate Property in Exhibit A to the
Agreement.
The master found that “[d]uring the marriage Wife deposited her
income into this account[.]” Master’s Report and Reccomendation, 6/16/16, _______________________ (Footnote Continued)
therefore will address the broad arguments without focusing on the specifics of each individual issue identified by Husband.
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at ¶ 28. Husband does not point to any evidence to demonstrate that Wife’s
testimony on this issue was false. Nor does he make any serious argument
on appeal that this testimony was false. Finally, he makes no argument that
some portion of Wife’s earned income did not travel through the Community
Bank checking account.
Given our standard of review, we conclude that this finding is
supported by the record and cannot be disturbed. As a result, we conclude
that Husband’s claims that the master and the trial court erred in finding
that the five identified accounts are marital property merit no relief.
Husband also argues that the business goodwill earned by Wife during
the marriage is a marital asset subject to equal distribution. Prior to
marriage, Wife was an investment advisor working in her mother’s group for
Legg Mason. See N.T., Hearing, 9/21/15, at 13. This group was purchased
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J-S31012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BARBARA B. VIRANY IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
LESLIE R. VIRANY
Appellant No. 1785 WDA 2016
Appeal from the Decree November 15, 2016 In the Court of Common Pleas of Washington County Civil Division at No(s): 2013-1828
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JUNE 27, 2017
Before they were married, Appellant Leslie R. Virany (“Husband”) and
Appellee Barbara B. Virany (“Wife”) executed a pre-nuptial agreement (“the
Agreement”) with the intent to preserve their existing property as
nonmarital. In this appeal, we are asked to review the trial court’s decision
to ratify the equitable distribution1 master’s application of the Agreement to
assets owned by the parties. After careful review, we affirm.
Neither Husband nor Wife argues that the Agreement is invalid. The
only issues on appeal involve reviewing the master’s application of the
____________________________________________
1 As discussed below, there was no equitable distribution in this case. However, the matter was heard by the equitable distribution master to determine what property was subject to equal distribution under the Agreement. J-S31012-17
Agreement to specific assets. Furthermore, neither party contests the
conclusion that under the Agreement, marital property is to be split equally,
not equitably.
As we are not presented with an equitable distribution order, we need
not address equitable principles. However, the hearings underlying this
appeal were before an equitable distribution master. In such instances,
it is within the province of the trial court to weigh the evidence and decide credibility and this Court will not reverse those determinations so long as they are supported by the evidence. We are also aware that a master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.
Childress v. Bogosian, 12 A.3d 448, 455 (Pa. Super. 2011) (citations and
quotation marks omitted).
We construe prenuptial agreements in accordance with standard
contract principles, with exceptions not relevant here. See Estate of
Kendall, 982 A.2d 525, 534 (Pa. Super. 2009). Thus, the paramount
concern is to give effect to the intent of parties. See Raiken v. Mellon, 582
A.2d 11, 13 (Pa. Super. 1990). Consequently, terms in the agreement that
are clear and unambiguous are to be given effect without reference to
matters outside the contract. See id. “[A]bsent fraud, misrepresentation or
duress, spouses should be held to the terms of their agreements.” Lugg v.
Lugg, 64 A.3d 1109, 1112 (Pa.Super.2013) (citations omitted).
-2- J-S31012-17
The Agreement in this matter provides that the parties waived any
claim they might have in each other’s “Separate Property.” Agreement,
7/15/97, ¶ 2.A. Thus, anything deemed to be “Separate Property” is
nonmarital property and not subject to equitable distribution. “Separate
Property” is defined as
all of such party’s right, title and interest, legal or beneficial, in and to any and all property and interests in property, real personal or mixed, wherever situate and regardless of how titled, in which each of the parties owned or had a beneficial or legal interest at the time of their marriage as well as any property, real, personal or mixed obtained at any time by inheritance, devise, bequest, or assets acquired by gift by either party to this Prenuptial Agreement at any time from a third person.
Id., at ¶ 2.B. Furthermore, “Separate Property” includes “all increase or
appreciation in value of all property defined in this sub-paragraph, whether
… due in whole or part to … the services, skills or efforts of either of the
parties or as the result of additional capital contributions.” Id., ¶ 2.C. The
proceeds of any sale or transfer of assets from Separate Property is also
included as “Separate Property.” See id.
Husband first claims2 that the master erred in concluding that five
accounts held by Wife are Separate Property. Husband asserts that Wife
2 Husband concedes that while he identifies six separate challenges to the trial court’s decree, his argument can be condensed into two broad issues. See Appellant’s Brief, at 10. Our review of the brief reveals that Husband’s appellate counsel has accurately and succinctly identified his two broad arguments. We further conclude that none of the separate issues raised by Husband are meaningfully distinguishable from these broad issues. We (Footnote Continued Next Page)
-3- J-S31012-17
opened these accounts during the marriage. Therefore, he contends that the
accounts are subject to equal distribution pursuant to Paragraph 3 of the
Agreement: “Except as set forth in this Prenuptial Agreement, any property
acquired by either [Wife] or [Husband] after the date of their marriage shall
be considered marital property as defined in the Pennsylvania Divorce Code,
as amended.”
Essentially, Husband argues that Wife’s earned income during the
marriage was marital property under Paragraph 3 of the Agreement. As a
result, he contends, these five accounts, funded by Wife’s income during the
marriage, were marital property. While there is logic behind Husband’s
argument, the process by which Wife received her income transmuted it into
Separate Property under Paragraph 2.C.
Wife testified that her earned income was directly deposited into her
Community Bank checking account. See N.T., Hearing, 3/26/16, at 58-59;
N.T., Hearing, 12/21/15, at 76. She further testified that she had owned this
checking account prior to her marriage to Husband. See id. Furthermore,
this account is listed as Wife’s Separate Property in Exhibit A to the
Agreement.
The master found that “[d]uring the marriage Wife deposited her
income into this account[.]” Master’s Report and Reccomendation, 6/16/16, _______________________ (Footnote Continued)
therefore will address the broad arguments without focusing on the specifics of each individual issue identified by Husband.
-4- J-S31012-17
at ¶ 28. Husband does not point to any evidence to demonstrate that Wife’s
testimony on this issue was false. Nor does he make any serious argument
on appeal that this testimony was false. Finally, he makes no argument that
some portion of Wife’s earned income did not travel through the Community
Bank checking account.
Given our standard of review, we conclude that this finding is
supported by the record and cannot be disturbed. As a result, we conclude
that Husband’s claims that the master and the trial court erred in finding
that the five identified accounts are marital property merit no relief.
Husband also argues that the business goodwill earned by Wife during
the marriage is a marital asset subject to equal distribution. Prior to
marriage, Wife was an investment advisor working in her mother’s group for
Legg Mason. See N.T., Hearing, 9/21/15, at 13. This group was purchased
by Smith Barney, and Wife continued in the same role after the purchase.
See id. Smith Barney was subsequently purchased by Morgan Stanley. See
id. Wife’s role remained the same under Morgan Stanley until her mother
retired, at which time she became the head of the group. See id., at 12-13,
84.
Wife also testified that she has no right to transfer her book of clients
to a third party; Morgan Stanley, as her employer, retains the right to assign
advisors to its clients. See N.T., Hearing, 3/28/16, at 53-54. The master
found that
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Wife’s interest, assuming there is an interest, in [her group at Morgan Stanley,] is not subject to equal distribution under the Prenuptial Agreement. Wife’s employment now is the same as when the parties married; the increase, if any, in the value of the book of business would be her separate property; there exists no separate business entity; and neither party produced any evidence as to the value of Wife’s book of clients either at the time of marriage or at present. Consequently, [there] is no value for equal distribution in Wife’s book of business.
Master’s Report and Recommendations, 6/16/16, at ¶ 24. The master’s
findings are supported by the record and we will not disturb them.
Based upon these facts, we also agree with the trial court that the
master’s conclusion that any intangible interest Wife has in the business of
her group at Morgan Stanley is Separate Property is reasonable. While the
name of the business has changed over the years due to mergers and
acquisitions, Wife continued working for her mother until her mother retired.
Wife’s role as an investment advisor remained the same as it was prior to
the marriage. Thus, any intangible property interest was Separate Property
under Paragraph 2.B. of the Agreement. Furthermore, any increase in the
value of that intangible property interest was due, in whole or in part, to the
services, skills, efforts, or additional capital contributions of Wife. Such
increase in value would therefore be Separate Property pursuant to
Paragraph 2.C. of the Agreement.
As neither of Husband’s broad arguments on appeal merit relief, we
affirm the decree in divorce.
Decree affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/27/2017
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