Marriage of Leask

Filed 4/9/07 Marriage of Leask CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Jerold L. Turner, Judge.

Law Offices of Katherine E. Donovan and Katherine E. Donovan for Appellant.

Law Offices of Young Wooldridge and Gregory P. Falk for Respondent.

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Appellant, Wallace K. Leask (Husband), and respondent, Lucy Leask (Wife), signed a premarital agreement approximately two weeks before they were married. In this appeal, Husband challenges the trial courts ruling that the agreement is unenforceable because Wife did not enter into it voluntarily. According to Husband, the trial courts findings were insufficient to support the judgment.

Contrary to Husbands position, substantial evidence supports the trial courts determination that Wife did not voluntarily execute the agreement. Accordingly, the judgment will be affirmed.

BACKGROUND

Husband and Wife had planned a wedding for April 27, 1997. Approximately two and one-half weeks before this date, Husband told Wife he wanted to postpone the wedding because he hadnt gotten around to making a pre-nup yet. However, by that time, the plans were in place and everything was paid for. Wife was expecting approximately 80 guests, five of whom were family members coming from out of state. Wife testified that she was shocked and told Husband, sorry buster, youve had plenty of time to come up with a pre-nup if thats what you wanted.

A few days later, on April 14, Husband presented Wife with a form premarital agreement. He also asked her to type an additional two-page agreement from his notes and to fill out her financial information. The agreement provided that the parties earnings and other property acquired during the marriage would be held as separate property.

Husband had made an appointment with a notary public for later that day. The parties went to the notarys office and signed the agreements. Wife did not sign the form agreement but did sign her financial information and the typed agreement. Wife testified that she was pissed and felt like she had been ambushed.

The parties separated in 2004. In the dissolution proceeding, the court tried the issue of the validity of the premarital agreement first. Following a hearing, the court determined that Wifes partial execution of the agreement was not voluntary and therefore the agreement was unenforceable. The court found:

[Husbands] request for the agreement was sprung upon [Wife] literally at the last minute. All of the necessary arrangements for the wedding had been completed. The location had been acquired. The invitations had [been] sent out. The cake was ordered. The guests had made travel arrangements to be present. [Husbands] request for this last minute legal formality is simply unconscionable considering that the parties had lived together for over a year, and [Husband] waited until all of the wedding arrangements had been completed before thrusting this emotional burden of choice upon [Wife]. She was desperate not to suffer the embarrassment of calling the wedding off.

Moreover, [Wife] did not sign all of the operational documents of the agreement. She refused to sign the major document itself. She further stated that she would have liked to consult with an attorney, but given the proximity of the wedding date she was not given the opportunity to do so.

DISCUSSION

Parties contemplating marriage may validly contract as to their property rights, both as to property then owned and as to property and earnings that may be acquired during the marriage. (In re Marriage of Dawley (1976) 17 Cal.3d 342, 349.) However, such an agreement will not be enforced if the party resisting enforcement can demonstrate that he or she did not enter into the contract voluntarily. (Fam. Code,^[1] 1615, subd. (a)(1).) A party may also resist enforcement by demonstrating that the contract was unconscionable when entered into and that he or she did not have actual or constructive knowledge of the assets and obligations of the other party and did not voluntarily waive knowledge of such assets and obligations. ( 1615, subd. (a)(2).)

The involuntariness of a premarital agreement may be demonstrated through a number of factors that are uniquely probative of coercion in the premarital context. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 19.) These factors include: the coercion that may arise from the proximity of execution of the agreement to the wedding, or from surprise in the presentation of the agreement; the presence or absence of independent counsel or of an opportunity to consult independent counsel; inequality of bargaining power; whether there was full disclosure of assets; and the parties understanding of the rights being waived under the agreement or at least their awareness of the intent of the agreement. (Id. at p. 18.) However, these factors are not rigidly separate considerations. (Id. at p. 37.) Moreover, the presence or absence of a particular factor is not dispositive. (Id. at p. 23.)

If the trial courts voluntariness determination is supported by substantial evidence, it will be upheld on appeal. Accordingly, the reviewing court must resolve all conflicts in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the findings if possible. (In re Marriage of Bonds, supra, 24 Cal.4th at p. 31.)

Husband contends the trial courts relevant factual findings regarding whether Wife voluntarily executed the premarital agreement, i.e., it was sprung on her at the last minute; all of the wedding arrangements were made and she did not want to suffer the embarrassment of calling the wedding off; and, she would have liked to consult an attorney but was not given the opportunity to do so, are insufficient to support the judgment. Husband argues there was no evidence that: Wife lacked capacity; Husband failed to fully disclose his assets; Husband perpetuated a fraud in the inducement; Wife was coerced; or Husband placed any undue influence on Wife. According to Husband, the only threat to Wife was that the wedding would have to be postponed.

Contrary to Husbands position, the circumstances surrounding the execution of the premarital agreement support a finding that Wife was coerced into signing that agreement. Husband insinuates that the threat of a postponement was insignificant. However, in light of the unique context of a pending marriage, that simply is not true. By the time Husband presented the agreement to Wife, concrete wedding plans were in place, guests had committed to airline flights from out of state, and the cost of the wedding and reception had been incurred. Thus, a cancellation or postponement of the wedding would have caused not only social embarrassment and humiliation, but also a monetary loss. Accordingly, it was reasonable for the trial court to conclude that Wifes execution of the agreement was involuntary due to this emotional burden of choice that Husband thrust upon Wife and her desperation to avoid embarrassment. That Husbands timing withdrew the opportunity for Wife to consult with an attorney further supports this determination.

Husbands additional assignments of error are also without merit. Husband argues the trial court erred in finding that the premarital agreement was unconscionable. However, the court did not make that finding. Rather, the court merely used the term unconscionable to describe Husbands conduct. Further, contrary to Husbands position, the court did not rule that the agreement was unenforceable because it was only partially executed by Wife.

In sum, the court found that the premarital agreement was unenforceable under section 1615^[2]on the ground that Wife did not execute the agreement voluntarily. This finding is supported by substantial evidence. Accordingly, the judgment will be affirmed.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent.

_________________________

Levy, Acting P.J.

WE CONCUR:

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Gomes, J.

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Hill, J.

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^[1] All further statutory references are to the Family Code.

^[2] Section 1615 was amended effective January 1, 2002, to add specific prerequisites for a finding of voluntariness, certain of which are not present here. The parties disagree on whether the amendments should apply retroactively to this 1997 premarital agreement. However, that issue need not be decided. The trial courts ruling was based on the prior law.