IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2014 Term 

_______________ 

No. 13-0467 

_______________ 

MARK B. OWEN, 

Respondent Below, Petitioner 

v. 

TINA M. OWEN, 

Petitioner Below, Respondent 

____________________________________________________________ 

Appeal from the Circuit Court of Harrison County 

The Honorable James A. Matish, Judge 

Civil Action No. 11-D-543 

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED 

WITH DIRECTIONS 

____________________________________________________________ 

Submitted: March 25, 2014 

Filed: June 4, 2014 

Debra Tedeschi Varner, Esq. 

Mark E. Gaydos, Esq. 

Allison S. McClure, Esq. 

McNeer, Highland, McMunn 

and Varner, L.C. 

Clarksburg, West Virginia 

Counsel for the Petitioner 

Larry W. Chafin, Esq. 

Debra V. Chafin, Esq. 

Law Offices of Debra V. Chafin 

Clarksburg, West Virginia 

Counsel for the Respondent 

The Opinion of the Court was delivered PER CURIAM. 

JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion. 

FILED 

June 4, 2014 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
i 

SYLLABUS BY THE COURT 

1. “In reviewing a final order entered by a circuit court judge upon a 

review of, or upon a refusal to review, 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 the law to the facts under an abuse of discretion standard. We review 

the questions of law de novo.” Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). 

2. “One attorney may not represent, nor purport to counsel, both parties 

to a prenuptial agreement.” Syl. pt. 4, Ware v. Ware, 224 W. Va. 599, 687 S.E.2d 382 

(2009). 

 3. “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 to a prenuptial agreement 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 (2009). 
1 

Per Curiam: 

 

 This appeal seeks the reversal of the order of the Circuit Court of Harrison 

County, entered March 25, 2013, that affirmed the Family Court of Harrison County’s 

ruling and order that invalidated a prenuptial agreement1

 and further distributed the 

parties’ assets. The petitioner raises two issues in this appeal. The first issue is whether 

the family court improperly invalidated the parties’ prenuptial agreement. The second is 

whether the family court properly distributed the parties’ marital estate, by giving 

appropriate credit to the petitioner for his premarital worth and for the value of his 

inheritance from his family. For the reasons cited herein, we affirm the portion of the 

circuit court’s order that invalidated the prenuptial agreement, we reverse the portion of 

 1

 W. Va. Code § 48-1-203 (2009) defines the phrase “antenuptial agreement” or 

“prenuptial agreement” as follows: 

“Antenuptial agreement” or “prenuptial agreement” 

means an agreement between a man and woman before 

marriage, but in contemplation and generally in consideration 

of marriage, by which the property rights and interests of the 

prospective husband and wife, or both of them, are 

determined, or where property is secured to either or both of 

them, to their separate estate, or to their children or other 

persons. An antenuptial agreement may include provisions 

that define the respective property rights of the parties during 

the marriage, or upon the death of either or both of the 

parties. The agreement may provide for the disposition of 

marital property upon an annulment of the marriage or a 

divorce or separation of the parties. A prenuptial agreement is 

void if at the time it is made either of the parties is a minor. 

See Ware v. Ware, 224 W. Va. 599, 687 S.E.2d 382 (2009). 
2 

the order that affirmed the family court’s distribution of marital assets and we remand 

this case for further proceedings consistent with this opinion. 

I.

FACTUAL AND PROCEDURAL BACKGROUND 

The petitioner, Mark B. Owen (“Husband”), and the respondent, Tina M. 

Owen (“Wife”), were married to each other on December 12, 1981. Prior to this 

marriage, the Husband and Wife had each been married before and both had custody, or 

partial custody, of the children born of these earlier marriages. At the time of their 

marriage the Husband was 38 years of age and the Wife was 23 years of age. Four days 

before the wedding, the parties signed and executed a prenuptial agreement drafted by C. 

David McMunn, an attorney who had previously represented the Husband in other 

matters.2

 At the time of the entry of the agreement, the wedding date had not been 

scheduled. Lawyer McMunn served as the notary public when the prenuptial agreement 

was signed by the parties. The Wife was not presented a copy of the proposed agreement 

prior to signing it. The Husband, however, had the opportunity to and did make changes 

to the agreement. The family court found that at the time of the execution of this 

prenuptial agreement, Lawyer McMunn spoke with the Wife in general terms about these 

 2

 Lawyer McMunn previously drafted a prenuptial agreement for the Husband 

when the Husband was contemplating marrying another woman. The agreement drafted 

for the Husband and Wife’s use was a modification of that previous prenuptial 

agreement. 
3 

types of agreements but did not review the specific terms of the agreement with either 

party. After the agreement was executed, the Wife contends that she did not receive a 

copy of the executed prenuptial agreement until she filed her first petition for divorce in 

2005. 

The prenuptial agreement contained a provision that the Husband and Wife 

would hold all real property they currently possessed free and clear of any claim of dower 

or curtesy on the other’s part. The agreement also stated that the Husband and Wife’s 

personal property holdings would be free and clear of the other’s claims. The prenuptial 

agreement contained a waiver on both the Husband’s and Wife’s parts to waive the right 

to request or receive spousal support. In the event children were born of the marriage, the 

parties agreed to equally support the children and demand no more than one-half of the 

support from the other parent. Consideration for this agreement was stated to be love and 

affection. 

The prenuptial agreement contained a stipulation that the Wife 

acknowledged that the Husband’s net worth had been disclosed to her and was in excess 

of $94,000. The Husband acknowledged that the Wife’s net worth had been disclosed to 

her and was in excess of $7,000. Within this provision was a statement that both the 

Husband and Wife had received the advice of counsel and that the agreement was being 

entered into freely and with a full understanding of its provisions. 
4 

 After the parties were married, they lived together and raised their children 

from previous marriages, as well as the two children born of their marriage to each other. 

In 2005, the Wife filed a petition seeking divorce; however, the parties reconciled and 

continued their marriage. On August 18, 2011, the Wife filed another petition for 

divorce. The Husband and Wife continued to reside in the same home until November of 

2011. In his answer to the divorce complaint, the Husband requested enforcement of this 

prenuptial agreement. It is the contention of the Wife that at the time of the execution of 

this agreement, she did not have knowledge of the extent of the Husband’s assets. 

In the course of the divorce proceedings, the family court held separate 

hearings on the validity of the prenuptial agreement. At the conclusion of these hearings, 

the family court entered an order on January 9, 2012, that invalidated the prenuptial 

agreement, on the grounds that the Wife did not enter into the agreement with full 

knowledge of the contents of the agreement and the legal effect of that agreement. The 

family court found that the prenuptial agreement was executed voluntarily and under 

circumstances free from fraud, duress or misrepresentation. The family court found that 

it was undisputed that the Wife did not have the advice of independent counsel at the time 

she signed the agreement, despite the express language in the agreement stating 

otherwise. It was contested and disputed whether Lawyer McMunn ever conveyed to the 

Wife that he could represent her interests. The family court found that prior to the 
5 

execution of the prenuptial agreement, the Husband told the Wife that Lawyer McMunn 

represented both of their interests. However, the family court found that while “it is 

arguable that the [Wife] has the opportunity to consult with independent counsel prior to 

the signing of the agreement, the Court finds [Wife] to be truthful in her claims that 

respondent assured her that Mr. McMunn represented both of their interests.” 

 The family court order included a section entitled “Additional 

observations.” In this section, the family court stated that it did not base the invalidation 

of the prenuptial agreement on unconscionability, but surmised that if asked to, it would 

likely find the agreement to be unconscionable because it “subverts all of the West 

Virginia statutory and judicial concepts of equitable distribution” by excluding items 

from marital property, by not addressing debts and by eliminating the parties’ rights to 

make claims against the other’s estate. The family court also questioned the provisions 

regarding the payment of child support, noting that West Virginia law assesses child 

support proportionately to each parent depending upon income, so that the children will 

enjoy the standard of living that each parent has. The family court also noted that the 

Husband was a savvy business person who was in the habit of acquiring assets, had a 

higher income potential and had more to gain from excluding all future acquisitions from 

the marital estate. The family court noted that “this one-sidedness coupled with the 

provisions of the Agreement which are contradictory to public policy could potentially 

invalidate the agreement based upon unconscionability.” 
6 

 On January 30, 2012, the Husband sought a stay of the family court’s order. 

The family court declined to issue the stay. On February 6, 2012, the Husband filed an 

appeal of the order that found the prenuptial agreement unenforceable, or, in the 

alternative, sought a writ of prohibition against the family court, claiming that the family 

court committed error when it invalidated the prenuptial agreement. On February 9, 

2012, the circuit court denied the request for a stay of the family court order, denied the 

appeal because the order was not a final order subject to appeal, and instructed the 

Husband to file the petition for a writ of prohibition as a separate civil action. The 

Husband filed this separate action on March 6, 2012.3

After the entry of the order invalidating the prenuptial agreement, the 

family court entered a separate order granting the parties a divorce and distributing the 

marital property. The family court found that the home in which the parties resided, 

which was titled solely in the Husband’s name, had a value of $530,000 and that this 

property was part of the marital estate, because the prenuptial agreement had been 

invalidated. The family court also found that $15,000 in proceeds from the sale of a 

 3

 The circuit court dismissed the petition for writ of prohibition on August 14, 

2012, finding that the Husband had not requested a hearing and that the family court had 

entered a final divorce decree that could still be appealed. 
7 

jointly-held condominium in Canaan Valley had been applied to the purchase price of the 

marital home. 

The family court further found that the Husband had received an 

inheritance in the form of stocks, cash and the proceeds from the sale of his family’s 

home that totaled $142,912. The Husband used some of this money to pay off the 

mortgage on the marital home. The Husband argued that the payment of the mortgage 

indebtedness on the marital home was made with his sole and separate property: the 

proceeds from his inheritance. The family court found that the Husband had failed to 

show that the reduction of the mortgage on the marital residence was made with funds 

that were clearly his separate property. 

The family court ultimately divided the parties’ marital estate equally and 

required the Husband to pay the Wife the sum of $417,273 to accomplish this division.4

 

In addition, the family court awarded attorney fees and costs to the Wife, including 

$3,000 for the cost of defending the writ of prohibition sought by the Husband after the 

prenuptial agreement was deemed unenforceable. 

 4 Additional relief was granted in the family court’s final order, including an 

award of permanent spousal support to the petitioner and distribution of other property. 
8 

The Husband and Wife each pursued appeals of the family court’s orders to 

the circuit court. The Husband argued that the prenuptial agreement was valid, and that 

the family court erred in not giving him credit for using a portion of his $142,000 

inheritance to pay off the marital home. The Husband also argued that the family court 

erred by not giving him credit for his pre-marital worth of $94,000, as reflected in the 

prenuptial agreement.5

 The Wife’s assertions of error before the circuit court included 

the attribution of income in the amount of $1,500 per month and the failure to include the 

debt on her automobile in valuing the marital property. Both parties appealed the award 

of attorney fees. The Husband contested the award of $15,000 in attorney fees to the 

Wife for an appeal, and the award of $3,000 in fees associated with defending the 

Husband’s petition for writ of prohibition. The Wife argued that the family court abused 

its discretion by reducing the amount of non-attorney fees and costs that were submitted 

for reimbursement. 

 5

 Additional grounds for error asserted in the circuit court appeal, but not in the 

present appeal, include the inclusion of four ounces of gold that was the Husband’s sole 

property into the marital estate; the failure of the family court to include the value of the 

liquidated IRA in the Wife’s name into the marital estate; failure of the family court to 

give the Husband credit for a $22,000 loan to the Wife; failure to give the Husband credit 

for payments made on the marital home between the date of separation and the entry of 

the final decree (commonly referred to as Conrad credits); and the award of spousal 

support. 
9 

The circuit court affirmed the majority of the order, reversing only that 

portion of the order that awarded attorney fees to the Wife for defending the writ of 

prohibition filed by the Husband. The circuit court found that the family court did not 

have jurisdiction to award attorney fees for a matter in circuit court and reversed the 

family court order. Regarding the credit for the value of his separate estate, the circuit 

found that the family court did not err by failing to reduce the value marital estate by 

$94,000, which was the Husband’s premarital worth. The circuit court affirmed the 

family court’s ruling that the agreement was unenforceable. The circuit court agreed that 

the Wife did not consult with independent legal counsel prior to signing the agreement. 

From this order the Husband pursues this appeal. 

II.

STANDARD OF REVIEW 

 

This Court’s well-established standard of review was articulated in the sole 

syllabus point in Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004): 

In reviewing a final order entered by a circuit court 

judge upon a review of, or upon a refusal to review, 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 the law to the facts under an 

abuse of discretion standard. We review the questions of law 

de novo. 

III.
10 

ANALYSIS 

This appeal raises two issues: Whether the prenuptial agreement was 

properly deemed to be unenforceable and whether the Husband should have received 

credit for his premarital worth and for the use of his separate property to reduce the 

indebtedness on the marital home. 

A. Prenuptial agreement 

Both the family court and circuit court ruled that the prenuptial agreement 

was unenforceable because although the agreement was executed voluntarily and without 

fraud, duress or misrepresentation, the Wife did not have knowledge of its contents and 

legal effect at the time it was signed. 

In 1985, we addressed the validity of prenuptial agreements. We held that 

prenuptial agreements are presumed to be valid. In syllabus point 1 of Gant v. Gant, 174 

W. Va. 740, 329 S.E.2d 106 (1985), we held that 

[p]renuptial 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. 

We also addressed what is required for a prenuptial agreement to be held valid. 

The validity of a prenuptial agreement is dependent 

upon its valid procurement, which requires its having been 
11 

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 adult and both parties have had the opportunity to 

consult with independent counsel. 

Syl. pt. 2, Gant, 174 W.Va. 740, 329 S.E.2d 106. 

In 2009, we again examined the role of counsel in the preparation and 

execution of these agreements. We held that “[o]ne attorney may not represent, nor 

purport to counsel, both parties to a prenuptial agreement.” Syl. pt. 4, Ware v. Ware, 224 

W. Va. 599, 687 S.E.2d 382 (2009). 

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 to a 

prenuptial agreement 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 (2009). 

The Husband argues that basic contract principles require a reversal of the 

lower courts’ decisions. He submits that because the Wife, whom he deemed a 

“reasonably-intelligent adult,” was capable of understanding what she was signing. He 
12 

argues that the Wife should have read what she was signing and that by signing the 

prenuptial agreement, she is deemed to have read it, understood it and is therefore bound 

by its terms. The Wife argues that our holdings in Gant and Ware support the lower 

courts’ decisions, and that without the opportunity for independent legal counsel, the 

prenuptial agreement cannot be enforced. 

Gant and Ware each acknowledge the role of independent and separate 

legal counsel for all signatories to a prenuptial agreement. In Gant we held that the 

independent advice of an attorney is not a prerequisite to enforcing the agreement, so 

long as the terms of the agreement are understandable to a reasonably intelligent adult 

and both parties have had the chance to speak and consult with independent counsel. Syl. 

pt. 2, Gant. In Ware, we modified that holding to reflect that for the agreement to be 

presumptively valid, both parties to a prenuptial agreement must be represented by 

independent counsel. We further held where one party to the agreement is not 

represented by counsel, that the burden of establishing the validity of a prenuptial 

agreement is on the party who was represented by counsel. Syl. pt. 5, Ware. 

The family court noted and recognized as we do that the events surrounding 

the execution of the subject prenuptial agreement took place 30 years prior to the ruling 

on its enforceability. The memories of the parties could be clouded, so the family court 

relied upon the document itself as the most reliable evidence as it relates to the execution 
13 

of the agreement. Within the prenuptial agreement itself is a statement that the Wife “has 

had the advice of counsel.” It was disputed whether the Husband represented to the Wife 

that his attorney could represented them both. The attorney who prepared the prenuptial 

agreement at the request of the Husband testified that he discussed with the Wife that he 

could not represent her. Despite this knowledge, and this statement by counsel, the 

executed agreement itself still contained the statement that the Wife had been assisted by 

an attorney. 

Regardless of these inconsistencies, it is undisputed that the Wife did not 

have independent legal counsel. Under Ware, the burden shifts to the husband to show 

the agreement was valid. While the lower courts found that the agreement was entered 

into voluntarily, without evidence of fraud, duress or misrepresentations, the lower courts 

also found that the Wife did not sign the agreement with knowledge of its contents and 

legal effect. There was no specific explanation of the rights she was waiving, especially 

those associated with property acquired during the course of the marriage that would be 

deemed marital property, subject to equitable distribution. Lawyer McMunn’s testimony 

that he did not go over the provisions of the agreement in detail with the Wife, but that he 

discussed only the general concepts of a prenuptial agreement, was unrebutted by the 

parties. Applying the principles in Gant and Ware to the case at bar, we find that the 

family court and circuit court properly deemed this prenuptial agreement unenforceable. 

The burden of persuasion below rested with the Husband, the party who was seeking to 
14 

establish the validity of the contract. He failed to meet this burden. We see no abuse of 

discretion on the part of the lower courts in rendering this prenuptial agreement 

unenforceable. 

B. Equitable distribution 

Having affirmed the decision to render the prenuptial agreement 

unenforceable, we turn to the question of whether the family court properly distributed 

the marital estate. The Husband argues that the value of his premarital worth, a fact 

established within the prenuptial agreement, should have been deducted from the marital 

estate. In addition, the Husband argues that he should be entitled to a credit for the 

amount of his inheritance that was utilized to pay off the indebtedness against the marital 

home. 

W. Va. Code § 48-1-237(1)–(2) (2001) defines separate property as (1) 

property acquired by a person before a marriage; and (2) property acquired by a person 

during marriage in exchange for separate property which was acquired before the 

marriage. The family court’s order did not specifically address the premarital worth of 

either party. By failing to do so, the family court did not give credit, where due, for what 

was clearly the separate property of the Husband and the Wife. We find this to be 

reversible error and remand this matter for determination of both the Husband and Wife’s 

pre-marital worth. 
15 

 

Regarding the Husband’s inheritance, W. Va. Code § 48-1-237(4) (2001) 

includes “property acquired by a party during marriage by gift, bequest, devise, descent 

or distribution” as separate property. While acknowledging the inheritance was received 

and was separate property, the lower courts did not credit the amount of the inheritance 

because the Husband failed to provide information about the payoff amount of the 

mortgage and whether the funds had been commingled. Neither did the lower courts 

consider whether payment of the marital home mortgage converted the uncommingled 

inheritance proceeds into marital property. This, too, was error, and requires us to 

remand this matter for such determinations. 

 

 On remand, the family court is directed to determine whether the Husband 

commingled the proceeds of his inheritance. The court is further directed to determine 

what amount of money was utilized from the Husband’s uncommingled inheritance to 

reduce the mortgage indebtedness. Further, the court is directed to give both parties 

credit for their premarital worth, facts to be determined by the court. 

IV.

CONCLUSION

For the foregoing reasons, we affirm that portion of the circuit court’s order 

that ruled that the prenuptial agreement was unenforceable. We reverse the portion of the 
16 

order that affirmed the family court’s failure to give the Husband credit against the 

marital estate for the payment of marital indebtedness with the proceeds of his 

uncommingled inheritance, and remand with directions to determine what if any portion 

of such funds may have constituted marital property. We also reverse the portion of the 

order that affirmed the family court’s failure to give the parties credit for their premarital 

worth. We remand this case for further proceedings related to the equitable distribution 

of the parties’ marital estate, with appropriate credit being given for the reduction of the 

indebtedness on the marital home that was attributable to the inheritance and for the 

parties’ premarital net worth. 

Affirmed, in part; reversed, in part; and remanded, with directions.