Prevatte v. Prevatte , 104 N.C. App. 777 ( 1991 )

411 S.E.2d 386 (1991)

Janie Whitmer PREVATTE, Plaintiff,
v.
Lloyd Lawrence PREVATTE, Defendant.
Lloyd Lawrence PREVATTE, Plaintiff,
v.
Janie Whitmer PREVATTE, Defendant.

No. 9116DC48.

Court of Appeals of North Carolina.

December 17, 1991.

McLean, Stacy, Henry & McLean by William S. McLean, Lumberton, for plaintiff-appellee.

Britt & Britt by Evander M. Britt, III, Lumberton, for defendant-appellant.

WELLS, Judge.

As his first two assignments of error, husband contends the trial court erred by ruling that certain property acquired during the marriage was subject to equitable distribution. First, husband specifically argues that since the trial court found the Virginia antenuptial agreement valid and enforceable in North Carolina, it was error to further find that property acquired by the parties during the course of the marriage was subject to equitable distribution. Second, husband argues it was error for the trial court to grant wife's request for equitable distribution since wife waited more than five years after her initial request and after the absolute divorce to pursue her claim. We agree with husband's first assignment of error and therefore decline to address his second assignment of error.

The trial court concluded that the antenuptial agreement was valid in Virginia and thus enforceable in North Carolina under the full faith and credit clause, but nevertheless concluded that the agreement did not operate to bar wife's interest in property acquired while the parties were North Carolina residents and that such property was subject to North Carolina's equitable distribution law.

"A man and woman, contemplating marriage, may enter into a valid contract before marriage with respect to the property and property rights of either or both after marriage. The term ``antenuptial agreement' or ``marriage settlement' is often applied to such agreements." 2 R. Lee, North Carolina Family Law § 179 (4th ed.1980). Antenuptial agreements have long been recognized as valid in North Carolina. The legislature has enacted several statutory provisions recognizing their validity. See, e.g., N.C.Gen.Stat. § 50-20(d) (1987 & Supp.1991), N.C.Gen.Stat. § 52-10 (1991) and N.C.Gen.Stat. §§ 52B-1 to -11 (1987). The courts favor antenuptial agreements which determine only the property rights of the parties because they tend to encourage domestic peace and happiness. 2 R. Lee, supra, § 179. "Antenuptial agreements are not against public policy, and if freely and intelligently and justly made, are considered in many circumstances as conducive to marital tranquility and the avoidance of unseemly disputes concerning property." Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245 (1955).

This Court has held that § 50-20(d) of the Equitable Distribution Act mandates that the "policy favoring property settlements continue so that a prior settlement of spousal property rights would also constitute a plea in bar to the equitable distribution of ``marital property' under Section 50-20." Small v. Small, 93 N.C.App. 614, 379 S.E.2d 273 (1989). This is true even if the property agreement was executed prior to the enactment of the Equitable Distribution Act. Small, supra; (Citations omitted). While the agreement at issue in Small was a postnuptial agreement, generally speaking, the principles which apply to postnuptial agreements also apply to antenuptial agreements. 2 R. Lee, supra, § 186. Both are forms of property settlements. Accordingly, we find that the rationale of Small is equally applicable to the case at bar. In Small, this Court held that a valid postnuptial agreement will serve as a bar to equitable distribution. We conclude that a valid antenuptial agreement may serve as a plea in bar to the equitable distribution of property acquired during the marriage.

Husband plead the agreement in defense of wife's claims and alleged that the agreement disposed of all their property rights which they acquired due to their marriage. Thus, the question becomes whether the agreement disposed of the wife's right to equitable distribution. The right to equitable distribution is a statutory property right. Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987) (citing N.C.Gen. Stat. § 50-20(k) (1987) and Wilson v. Wilson, 73 N.C.App. 96, 325 S.E.2d 668 (1985)). This right may be waived by a complete property settlement which contains a general release of spousal property rights. Small, supra. In construing the meaning of an antenuptial contract, if the agreement is not ambiguous, "it should be construed in accordance with its wording to effectuate the intention of the parties as it existed at the time of the execution of the agreement." Stewart v. Stewart, 222 N.C. 387, 23 S.E.2d 306 (1942). "In arriving at this intent words are prima facie to be given their ordinary meaning." Id. (citing R.R. v. R.R., 147 N.C. 368, 61 S.E. 185 (1908)).

The pertinent provisions of the agreement in question provide:

WHEREAS, it is the desire of each of said parties to waive, relinquish, and renounce any and all property rights, statutory or otherwise, that may arise or result from the said marriage, in the property of the other.

. . . . .

1. Said party of the second part [Janie Whitmer] covenants and agrees that she shall, after the marriage, have no claim, demand, dower, alimony, support payments, statutory rights, or other right, title, claim or demand of, in or to the property, real, personal and mixed, now owned, or hereafter acquired by the party of the first part.

The party of the second party [sic] does hereby sell, assign, transfer and set over unto the party of the first part, his [sic] personal representative, heirs and assigns, any claim that she, after becoming his wife or widow, may be entitled to in the property, real, personal and mixed, which the party of the first part now owns or which he [sic] may hereafter acquire.

The above language of the antenuptial agreement clearly and unambiguously reflects the wife's intention to relinquish all of her property rights, both real and personal, which would arise out of her marriage to husband. Thus, we agree that the agreement released all the wife's property rights which arose out of the marriage and also operated to release her statutory right to equitable distribution. We hold that the antenuptial agreement was a valid bar to wife's claim and the trial court erred in concluding the property acquired during the marriage was subject to equitable distribution.

As his final assignment of error, husband contends the trial court erred in finding that he had not shown sufficient changed circumstances to justify the termination of alimony.^[1] After careful review of the lengthy record in this case, we have been unable to find any order which has finally determined the issue of wife's entitlement to an award of permanent alimony. "[O]rders and awards pendente lite are interlocutory decrees which necessarily do not affect a substantial right from which lies an immediate appeal pursuant to G.S. § 7A-27(d)." Stephenson v. Stephenson, 55 N.C.App. 250, 285 S.E.2d 281 (1981). Accordingly, we dismiss husband's last assignment of error as it is premature.

Reversed in part; dismissed in part.

PARKER and WYNN, JJ., concur.

NOTES

[1] We note that wife did purport to release her claims to alimony in the antenuptial agreement. We are aware that under the Uniform Premarital Agreement Act, N.C.G.S. § 52B-4(a)(4) (1987), parties to a premarital agreement can modify or eliminate spousal support. However, the Act became effective on July 1, 1987 and is applicable to premarital agreements executed on or after that date. 1987 N.C.Sess.Laws ch. 473, § 3. Therefore, the Act is not applicable to the agreement at issue in this case because it was executed in 1968, and the agreement did not bar wife's claim for alimony. See, Howell v. Landry, 96 N.C.App. 516, 386 S.E.2d 610 (1989), cert. denied, 326 N.C. 482, 392 S.E.2d 90 (1990), decided under law in effect prior to enactment of Chapter 52B.