Allen Burke Easterly v. Pamela Jo Easterly ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
ALLEN BURKE EASTERLY
MEMORANDUM OPINION *
v. Record No. 1607-02-4 PER CURIAM
OCTOBER 29, 2002
PAMELA JO EASTERLY
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
(Albert H. Jacoby, on briefs), for appellant.
(Lorraine M. Koury, on brief), for appellee.
Allen Burke Easterly (husband) appeals the decision of the
circuit court awarding Pamela Jo Easterly (wife) a portion of the
proceeds from the sale of property paid for, in part, with marital
assets. On appeal, husband contends the trial court erred by
finding wife did not waive her right to the assets in the parties'
prenuptial agreement. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
PROCEDURAL BACKGROUND
Prior to their May 11, 1990 marriage, the parties signed a
prenuptial agreement. In pertinent part, the agreement states:
Should the marriage fail, the parties
surrender all right, title and interest to
the assets brought into the marriage by each
party. Similarly, neither party shall be
liable or in any sense responsible for the
debts or liabilities of the other party
incurred prior to the marriage. Marital
property, or that acquired independent of
the assets or proceeds of the assets, that
each party brings into the marriage, will be
divided in an equitable manner based on the
laws of the jurisdiction in which the
parties reside at the time of divorce.
On March 13, 1989, husband purchased a lot in Hickory Landing
subdivision in Louisa County. He executed a purchase money deed
of trust at that time and made all payments towards the deed of
trust between the date of purchase and the date of the parties'
marriage. Thereafter, husband used money from the parties'
joint checking account to pay the balance of the deed of trust
payments. Husband sold the property in August 1997, prior to
the parties' final separation. At the time of the sale, the
deed of trust had been paid in full. Husband placed the
proceeds from the sale of the property into an account jointly
owned by the parties.
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The commissioner found that wife, by signing the prenuptial
agreement, did not waive her interest in the portion of the
asset paid for with marital funds.
ANALYSIS
"Antenuptial agreements, like marital property settlements,
are contracts subject to the rules of construction applicable to
contracts generally, including the application of the plain
meaning of unambiguous contractual terms." Pysell v. Keck, 263
Va. 457, 460, 559 S.E.2d 677, 678 (2002). "Courts cannot read
into contracts language which will add to or take away the
meaning of words already contained therein." Southerland v.
Southerland, 249 Va. 584, 590, 457 S.E.2d 375, 378 (1995).
Further, "[a] waiver must be express, or, if it is to be
implied, it must be established by clear and convincing
evidence." McMerit Constr. Co. v. Knightsbridge Dev. Co., 235
Va. 368, 374, 367 S.E.2d 512, 516 (1988).
Wife clearly waived all right, title and interest to the
assets "brought into the marriage by each party." However, she
did not, expressly or impliedly, waive her interest in the
marital funds husband used to pay off the lien on the property.
The agreement between the parties specifically provides that
marital property "will be divided in an equitable manner . . .
at the time of a divorce." The trial court did not award wife
any portion of the value of the lot prior to the marriage nor
any portion of the increase in value of the lot during the time
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of the parties' marriage. The court merely provided wife with
her share of the marital assets used to pay off the lien on the
premarital property. The trial court equitably divided the
marital funds and did not err in awarding wife her share of the
funds diverted to the property.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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