IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
CHAD MICHAEL GOCHENOUR, January 10, 2023
Respondent Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-22 (Fam. Ct. of Berkeley Cnty. No. 21-D-732)
LEANNE MICHELE GOCHENOUR,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Chad Gochenour (hereinafter “husband”) appeals the “Order Granting
Petitioner’s Motion for Remand Order for Appeal Purposes” entered by the Family Court
of Berkeley County on July 15, 2022. 1 Mr. Gochenour asserts that the family court
erroneously held that an ante-nuptial agreement was invalid and unenforceable. His wife,
Respondent Leanne Gochenour (hereinafter “wife”), responds in support of the family
court’s ruling. Husband did not file a reply brief.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). This Court has considered the parties’ briefs and the record on appeal. 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 family court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Prior to the parties’ marriage, husband owned a motorcycle racing business and had
approximately $1,900,000 in assets. Wife had no assets and approximately $18,000 debt.
The parties were set to be married on January 21, 2007, out-of-state. On January 8, 2007,
thirteen days before the wedding, husband presented an ante-nuptial agreement to wife,
which was prepared by husband’s attorney, and told wife that he would not marry her
unless she signed it.
Husband presented testimony in family court that the parties discussed the ante-
nuptial agreement several times throughout the relationship and wife was agreeable with
it. However, wife testified that the agreement was never brought up until thirteen days
Petitioner is represented by Alyson A. Dotson, Esq., and Michelle L. Bechtel, Esq.
1
Respondent is represented by Christopher D. Janelle, Esq.
1
before the wedding. Wife further testified that she was upset and did not understand the
legalese in the agreement; because she did not understand the legal wording, she only
skimmed the agreement. When asked in family court whether she knew the purpose of the
agreement, wife stated, “so that I could not take his business.” Nonetheless, wife filled out
her portion of the agreement and signed before a notary. Wife did not obtain independent
counsel and was not verbally instructed to do so.
The parties were married as planned on January 21, 2007. Husband continued to
grow his business and earned approximately $200,000 per year. Wife completed her
teaching degree shortly after the parties married and earned approximately $50,000 per
year. The parties had two children, now ages fifteen and nine. Wife filed for divorce in
October of 2021 and husband sought to enforce the ante-nuptial agreement. The ante-
nuptial agreement, if valid, would prevent wife from claiming equitable distribution or
survivor rights of any kind.
The family court determined that the ante-nuptial agreement was unenforceable and
invalid because husband failed to prove the agreement was signed by wife voluntarily, with
knowledge of its content and legal effect, and free from duress. See Owen v. Owen, 233 W.
Va. 521, 759 S.E.2d 468 (2014). Husband appealed the family court’s decision to the
Berkeley County Circuit Court, which refused the appeal and remanded the case back to
family court for further proceedings. Husband then filed a Notice of Intent to Appeal with
the Supreme Court of Appeals of West Virginia. The Supreme Court refused the appeal
because the circuit court’s order called for further proceedings on remand. Husband then
filed a “Motion for Remand Order for Appeal Purposes” with the family court, asking the
court to enter an order allowing an appeal solely on the ante-nuptial issue. The family court
granted the motion. Husband now appeals the family court’s ruling holding the ante-nuptial
agreement invalid and unenforceable. Our standard of review is as follows:
“In reviewing . . . 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. Pt., [in part,] Carr v.
Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).
Amanda C. v. Christopher P., No. 22-IA-2, __ W. Va. __, __ S.E.2d __, 2022 WL
17098574, at *3 (Ct. App. 2022); accord W. Va. Code § 51-2A-14(c) (2005) (specifying
standards for appellate court review of family court order). 2
2
We have two concerns surrounding the timing of this appeal. First, the only issue
the family court has resolved is the validity of the ante-nuptial agreement. Addressing the
validity of the agreement is a preliminary step in the equitable distribution process; other
aspects of equitable distribution remain to be decided by the family court. To the extent
2
Husband argues that wife signed the agreement voluntarily, with knowledge of its
content and legal effect, and free from duress. Specifically, husband argues that wife signed
the agreement voluntarily because she completed approximately five pages of handwritten
information about her debts and assets and had the agreement signed by a notary at her
bank. Husband argues that wife had knowledge of the agreement because she testified that
it made her upset, and she understood that its purpose was “so that [she] could not take
[husband’s] business.” With regard to duress, husband argues that feeling upset does not
constitute duress. Husband represents that he paid for all wedding expenses. The only harm
that would have come from the failure to sign the agreement was that the parties would not
have gotten married. Husband contends that his actions were not unlawful, threatening, or
coercive.
Wife argues that the agreement was prepared by husband’s attorney, with no cover
letter, nor any other communication advising her to seek independent counsel. Both parties
testified that neither of them discussed the terms of the agreement, nor did they understand
them. As to the issue of voluntariness, wife argues that the agreement was given to her less
than two weeks prior to their out-of-state wedding. She was faced with the ultimatum of
signing it or not getting married after she had already invited family and friends to the
event. With regard to wife having knowledge of the agreement’s content and legal effect,
she testified that she skimmed the agreement because she did not understand it. Further,
husband’s attorney did not advise her to seek independent counsel. Last, with regard to the
that this issue might be described as an interlocutory ruling, West Virginia Code § 51-11-
4(d)(8) specifies that this Court lacks jurisdiction over interlocutory appeals. Second, the
circuit court already heard an appeal regarding the ante-nuptial agreement and remanded
the case back to the family court. See Syl. Pt. 2, Paxton v. Crabtree, 184 W. Va. 237, 400
S.E.2d 245 (1990) (recognizing that order of intermediate appellate court remanding case
to lower court is not ordinarily appealable to higher appellate court so long as judicial
action in lower court is required).
Nonetheless, we are constrained to apply the law as explained by the Supreme Court
of Appeals of West Virginia. In Amber J. v. Shannon J., No. 16-0289, 2017 WL 2229978,
at *4 (W. Va. May 22, 2017) (memorandum decision), the Supreme Court treated the
appeal of an order addressing the validity of an ante-nuptial agreement as a final, non-
interlocutory appeal. The Supreme Court explained that although the family court’s “order
regarding the parties’ postnuptial agreement was not the last order regarding the parties’
divorce, it [wa]s, nonetheless, a final order” because it “disposed of the litigation as to the
validity of the parties’ postnuptial agreement” and “[t]he rest of the parties’ divorce
proceeding could not proceed without the family court’s determination regarding the
postnuptial agreement[.]” Moreover, the family court entered a new order on July 15, 2022,
declaring this to be a final appealable issue, and this Court, and not the circuit court, has
jurisdiction over final orders in family court cases entered after June 30, 2022. See W. Va.
Code § 51-11-4(b)(2). Accordingly, we proceed to consider the parties’ arguments.
3
issue of duress, wife argues that the parties had disparate financial situations. The parties
had been engaged for months, with husband paying for all expenses, and wife had no means
to live on her own or hire a lawyer to review the agreement. Wife testified that she felt like
she had no choice but to sign the agreement.
The Supreme Court has addressed the issue of the validity and enforceability of
ante-nuptial agreements as follows.
The validity of a prenuptial agreement is dependent upon its valid
procurement, which requires its having been 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 knowingly 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 v. Gant, 174 W. Va. 740, 329 S.E.2d 106 (1985), overruled on other
grounds by Ware v. Ware, 224 W. Va. 599, 687 S.E.2d 382 (2009); see also Owen, 233 W.
Va. at 525-26, 759 S.E.2d at 472-73. Ware addresses the required burden of proof when
one party is not represented by counsel:
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.
Ware, 224 W. Va. at 600, 687 S.E.2d at 384, Syl. Pt. 5, in part.
After review of the record, the facts demonstrate that husband failed to meet his
burden of proving that wife signed the ante-nuptial agreement with knowledge of its
content and legal effect. Husband’s attorney drafted the agreement and did not encourage
wife to seek independent counsel. Both parties testified that they did not understand the
legalese within the agreement. The family court found wife’s testimony to be credible.
The requirement that husband prove the agreement was signed voluntarily was
satisfied, as wife completed approximately five pages of handwritten information about
her debts and assets and had the agreement signed by a notary. Additionally, husband met
his burden of proving there was no duress, as the only harm that would have come to wife
4
was that the wedding would not have taken place. However, because husband failed to
prove the agreement was signed with knowledge of its content and legal effect, we
conclude the family court did not abuse its discretion when finding that the ante-nuptial
agreement is unenforceable.
Accordingly, we affirm.
Affirmed.
ISSUED: January 10, 2023
CONCURRED IN BY:
Judge Thomas E. Scarr
Judge Charles O. Lorensen
DISSENTING:
Judge Daniel W. Greear
Greear D., dissenting:
The majority decision affirms the ruling of the Family Court of Berkeley County
(“family court”) that the Ante-nuptial Agreement was invalid and unenforceable. While I
do not disagree with substantive merits of the majority’s decision, I dispute that this Court
has jurisdiction to hear this matter as an intermediate court has already weighed in on the
question of validity. Wherefore, I respectfully dissent.
This matter was first ruled upon by the family court by final order entered on
February 25, 2022. Counsel for husband appealed that ruling to the Circuit Court of
Berkeley County. 3 By order entered on April 22, 2022, the circuit court upheld the ruling
of the family court and remanded the matter for further proceedings. The ruling of the
intermediate court was appealed by counsel for husband to the West Virginia Supreme
Court of Appeal on May 20, 2022.
1
Prior to July 1, 2022, the court with intermediate appellate jurisdiction over this
matter was the Berkeley County Circuit Court.
5
By order entered on June 6, 2022, the West Virginia Supreme Court of Appeals
denied the appeal on the basis that the matter was on remand and that the appeal was an
interlocutory appeal, which is not appealable at this time. Following the denial of appeal
before the West Virginia Supreme Court of Appeals, counsel for husband moved the family
court for an order on remand declaring that the February 25, 2022, order is a final order for
purposes of appeal. On July 15, 2022, an order was entered by the family court granting
the motion. An appeal to this Court followed. 4
Based on the procedural posture of the matter, a few issues are abundantly clear.
First, this matter has previously been considered, affirmed, and remanded by the circuit
court. The entry of an order by the family court affirming its own ruling, and doing nothing
more, for the sole purpose of having this Court complete a second intermediate appellate
review of the validity of the ante-nuptial agreement again is nothing but an attempt to
circumvent the previous ruling of the circuit court, acting as an intermediate appeals court.
This matter has been ruled on appeal and a second bite at the apple should not be afforded.
Second, it is apparent from the procedural history that the family court was given
explicit direction from not only the intermediate court, but the West Virginia Supreme
Court of Appeals, to go forward in the proceedings and rule upon matters of equitable
distribution, with the understanding that the ante-nuptial agreement was invalid. This was
not done.
I believe the procedural history of this matter shows that the first layer of appellate
review has been afforded. Wherefore, I respectfully dissent.
2
The West Virginia Intermediate Court of Appeals was created on July 1, 2022,
and took jurisdiction over most family court appeals.
6