Patricia Bradley Pitrolo v. James Pitrolo, Jr.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Patricia Bradley Pitrolo, FILED Petitioner Below, Petitioner October 17, 2014 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS vs) No. 13-1309 (Kanawha County 10-D-2236) OF WEST VIRGINIA

James Pitrolo Jr., Respondent Below, Respondent

MEMORANDUM DECISION Petitioner Patricia Bradley Pitrolo, by counsel Mark A. Swartz and Mary Jo Swartz, appeals the Circuit Court of Kanawha County’s order entered November 26, 2013, denying petitioner’s appeal of a family court order modifying a final divorce decree. Respondent James Pitrolo Jr., by counsel James Wilson Douglas, filed a response in support of the circuit court’s order to which petitioner replied.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner Wife and Respondent Husband were married on December 29, 1990. On February 18, 2010, the parties entered into a postnuptial agreement, which stated, in pertinent part, that “[a]ll assets owned by either party are hereby and forever considered jointly owned and cannot be sold or disposed of without dual signatures.” At trial, both parties acknowledged that the agreement was authentic and that both had signed in the presence of a notary. The agreement was originally Petitioner Wife’s idea, but Respondent Husband sought to have it reduced to writing. Petitioner Wife wrote the agreement without the assistance of an attorney and gave it to Respondent Husband so that he could have it reviewed by an attorney. Respondent Husband alleges that at the time the agreement was signed, Petitioner Wife had been living outside the marital home and claimed that she would only return to the marital home if Respondent Husband signed the agreement.

After the agreement was signed, Respondent Husband contends that Petitioner Wife told him that the agreement did not properly provide for her two children from a prior marriage and allegedly told Respondent Husband that she destroyed the agreement. Petitioner Wife then filed for divorce on November 15, 2010. Respondent Husband contends that Petitioner Wife did not

reference the postnuptial agreement until March 22, 2012, in response to requests for admission, including that she made no reference to the same during her April 28, 2011, deposition. Petitioner Wife states she lost her copies of the agreement and only found the same in March of 2012. Petitioner Wife moved for partial summary judgment on the basis of the postnuptial agreement on May 21, 2012.

Prior to the marriage, Respondent Husband owned 40,565 shares of Heritage Bancshares, Inc. stock. He was also a member of the board and the executive committee of Heritage Bank. Respondent Husband contends that all of the appreciation during the marriage was passive, so there was no marital component to equitably divide in the divorce action. The parties did own other properties and investments which were each classified, valued, and distributed.

The parties were divorced by a final order dated September 27, 2012. The family court issued its “Final Order Granting Motions for Reconsideration Modifying Corrected Final Divorce Decree” on September 13, 2013. This Order equitably distributed all property deemed by the court to be marital property and found that the postnuptial agreement had been rescinded by both parties. Petitioner filed an appeal to the Circuit Court of Kanawha County on October 18, 2013, which was denied on November 26, 2013.

We review a circuit court’s denial of an appeal from a family court order under the following standard:

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 law to the facts under an abuse of discretion standard. We review questions of law de novo.

Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

On appeal, Petitioner Wife asserts five assignments of error. First, she asserts that the family and circuit courts erred in failing to apply West Virginia Code § 48-29-301 and in failing to enforce the written post-nuptial agreement. She argues that the circuit court erred in finding that the post-nuptial agreement was voided by her conduct, and argues that any repudiation of the written agreement must be made in writing. We disagree. West Virginia Code § 48-29-301 states:

A contract between a husband and wife shall not be enforceable by way of action or defense, unless there is some writing sufficient to indicate that a contract has been made between them and signed by the spouse against whom enforcement is sought or by his or her authorized agent or broker.

There is no requirement that the agreement be rescinded in writing. We agree with the family court’s detailed analysis as to how Petitioner Wife’s actions in this case repudiated the written post-nuptial agreement.

Alternatively, Petitioner Wife argues her other four assignments of error. She argues error with respect to the following: (1) the manner the family court distributed appreciation in the value of Respondent Husband’s bank stock; (2) denying Petitioner Wife’s alimony claim; (3) the manner in which the family court distributed the marital estate and accounted for post-filing/separation credits and debits; and (4) failing to order Respondent Husband to contribute to Petitioner Wife’s fees and costs. This Court finds no error in the family court’s order nor in the circuit court’s denial of the appeal of that order.

This Court agrees with the reasoning of the family court in the equitable distribution of the estate herein and relies upon the family court’s well-reasoned order regarding appreciation of stock and the allocation of credits and debits. As to the alimony claim, this Court agrees with the family court’s analysis regarding the cause of the dissolution of the marriage and notes that Petitioner Wife enjoys a high earning capacity based on her education and previous work experience, and affirms the denial of an award of alimony. Finally, this Court agrees that neither party is entitled to an award of attorney’s fees based on Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996) and Landis v. Landis, 223 W.Va. 325, 674 S.E.2d 186 (2007).

Having reviewed the circuit court’s “Order” entered on November 26, 2013, and the family court’s “Final Order Granting Motions for Reconsideration Modifying Corrected Final Divorce Decree” entered on September 13, 2013, we hereby adopt and incorporate the circuit court’s and family court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal.1 The Clerk is directed to attach a copy of the circuit court and family court’s orders to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed. ISSUED: October 17, 2014

CONCURRED IN BY: Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II

DISSENTING: Chief Justice Robin Jean Davis

DISQUALIFIED: Justice Brent D. Benjamin 1 The Court has redacted the “Final Order Granting Motions for Reconsideration Modifying Corrected Final Divorce Decree” due to the sensitive nature of the proceedings. In addition, the Court removed the exhibits to that order, as they contain addresses and financial information that are not necessary for purposes of this decision.