|In re the Marriage of SUSANN MARGRETH and BARRY LAMAR BONDS.|
SUSANN MARGRETH BONDS,
BARRY LAMAR BONDS,
(San Mateo County
Prenuptial agreements have become common, but there is little case law setting forth standard requirements to assure the enforcement of such contracts. Despite adoption of the Uniform Premarital Agreement Act (UPAA) by many states, uniform standards regarding enforcement have yet to be universally realized. Accordingly, analyses of the enforceability of premarital contracts by the courts have, thus far, continued to be ad hoc, often inconsistent, and sometimes contradictory. In this opinion we consider the prerequisites to the enforceability of such agreements and offer guidance to the parties and practitioners who seek to employ them.
Judicial review of these agreements, undertaken in the difficult circumstances of marital dissolution and under greatly changed circumstances, sometimes results in judges' enforcing or voiding such contracts based on their personal assessments of the prudence of the parties who made them. Such results are too often dependent upon a particular judge's value judgments rather than upon uniform rules of law. Other judges have attempted to achieve more uniform results by simply applying the general law governing commercial contracts to all premarital agreements, thus ignoring the public policy concerns particular to family law matters. Neither approach has proved satisfactory.
The desire for uniformity in the enforcement of these agreements should not obscure society's paramount interest in contracts governing families and the institution of marriage. For it cannot be forgotten that the consequences of premarital agreements profoundly effect not only the bride and groom, but also all members of their prospective family. The state has a stake in such arrangements, especially when enforcement of such an agreement can result in one spouse's financial dependence on public assistance. Accordingly, these unusually important contracts should rightly be governed by uniform rules which are sufficiently flexible to deal with varied factual patterns and which also further the goals of public policy, not the least of which is to ensure a fair process when parties seek to limit their own legal rights and duties. Only in this way can the desires of the interested individuals be secured in a fashion that also will serve the interests of society as a whole.
In this dissolution action between Susann Margreth Bonds (Sun) and Barry Lamar Bonds (Barry), the trial court ruled that their premarital agreement, which waived all statutory rights to community property, was enforceable because it was executed "voluntarily." Barry had his professional financial advisor and two attorneys advising him and devising the agreement. At her side, Sun had only a visiting Swedish friend who had no legal training or expertise in negotiating contracts. The trial court found Sun's waiver of her rights to be enforceable, principally because Barry's attorneys attempted to explain to her the legal ramifications of the agreement. We conclude that the trial court not only failed to give evidence of this unequal bargaining power the proper weight when considering the issue of voluntariness, but also that the court improperly determined that Sun's lack of representation was inconsequential.
We hold that when a party challenging a premarital agreement establishes that he or she did not have legal counsel while the other party had such assistance, and the unrepresented party did not have the opportunity to obtain legal counsel or did not knowingly refuse legal counsel, the court must strictly scrutinize the totality of the circumstances involved in the execution of the contract.
Here, close scrutiny of the undisputed evidence reveals the following: Barry's attorneys cobbled together an agreement that was riddled with typographical errors, that was missing important exhibits, that had no page numbers, and that ended abruptly with a detachable signature page which included no other text. As Sun arrived at the law office, on her way to the wedding, she was greeted by Barry's agent, who threatened that there would be "no wedding" if she did not sign the agreement. Barry's attorneys answered her questions about the agreement and also attempted to explain to her each provision in the contract. Sun signed the document a short time later, after seeing it for the first time at the meeting in the law office. After the meeting with Barry's attorneys, Barry and Sun went directly to the airport to catch a plane for Las Vegas to attend the wedding scheduled for the following day. We conclude that under these circumstances, elaborated further below, the premarital agreement is void.
Both Barry and Sun were 23 years old when they met in Montreal in August 1987. At that time, Barry earned $106,000 a year as a major league baseball player for the Pittsburgh Pirates.
Sun had been in Montreal since the spring of 1985, when, at the age of 21, she left her native home in Sweden to live with her father in Canada and work in his small restaurant. She attended classes to become a cosmetologist or an aesthetician, and hoped someday to have her own business serving celebrity clients.
After they met for the first time in August, Sun and Barry spent two days together in Montreal. Subsequently, Sun visited Barry in Arizona for 10 days and returned to Montreal to attend beautician school. On November 7, 1987, Sun moved to Phoenix to live with Barry. Seven days later Barry proposed to Sun. The parties set their wedding date for February 7, 1988.
According to Barry, they frequently discussed their intent to keep their finances separate. Sun assured Barry that she did not want any of his money or to be dependent upon anyone.
At the end of December 1987, Sun and Barry had an argument and Sun departed for a brief stay in Sweden. After reconciling, Sun returned, and Barry made it clear that they would have to sign an agreement prior to marriage. Sun agreed to this condition.
The wedding was to occur in Las Vegas, and Barry's godfather, Willie Mays, secured hotel rooms there for the wedding party. Sun invited her Swedish friend Margareta Forsberg (Forsberg), who currently lived in Montreal, to attend the wedding, and she arrived in Phoenix on January 29, 1988. She stayed with Sun and Barry until after the wedding.
Barry's banker and financial advisor, Mel Wilcox (Wilcox), referred him to Arizona attorneys Sabinus Megwa (Megwa) and Leonard Brown (Brown) to prepare a prenuptial agreement for him. Wilcox, and Barry's agent, Rod Wright, worked with Megwa and Brown to develop the premarital agreement. According to Barry, Sun and he had frequently discussed their plans and had agreed that, after their marriage, they would keep their careers and their "financing" separate.
In late January 1988, Barry, Sun, Wilcox, Megwa, and Brown met for about 20 minutes regarding the preparation of lists specifying each party's assets. Brown believed that both Barry and Sun wanted an agreement waiving each of their community property rights under Arizona law. Brown told Sun that he represented only Barry and that she "may" want to consult independent counsel.
Brown, who had been practicing law for about seven years, assigned to Megwa the task of preparing the premarital agreement. Megwa had been admitted to the Arizona Bar10 months earlier, and had no experience in drafting premarital agreements.
On February 3, 1987, Wilcox visited Barry and Sun at home, and obtained information from each of them concerning their assets.
Barry, Sun, and Forsberg had reservations to fly from Phoenix to Las Vegas in the early afternoon of February 5, 1987. Barry and Sun planned to get married on February 6, but needed to obtain their marriage license and select a wedding chapel once they arrived in Las Vegas.
On the morning of February 5, just prior to their scheduled flight departure, Barry and Sun, as well as Sun's friend Forsberg, met with Megwa and Brown in their law office for two to three hours. Wilcox met them as they entered the building and told Sun that there would not be a wedding if she did not sign the premarital agreement.
At the meeting, Megwa and Brown provided Barry and Sun with copies of the premarital agreement. Neither Sun nor Barry had an opportunity to review the agreement before the February 5 meeting. Brown and Megwa informed Sun that she "may" want to seek counsel. At trial, Brown stated he did not believe that he "ever made an affirmative declaration to Sun that she should seek counsel . . . ." Rather, he told her that "she may want to do that." Brown told Sun that he represented Barry, but he also told both Barry and Sun that they each had a right to consult "private" or "additional" counsel to review the agreement.
Both Sun and Barry testified that Sun did not want a lawyer. Barry testified: "Sun said she didn't want a lawyer. Sun didn't have anything. I paid for everything. Sun said, what do I need a lawyer for? I don't have anything. I mean, I know exactly what she said in that conversation." Sun stated: "My recollection is that we were there together, and the attorneys were there just to help us out with this. And I didn't have any__I didn't think that I needed to have somebody else there. It wasn't like they were__they were there to help us out with this agreement, and then we were going to get married." When asked why she did not believe she needed another attorney, Sun responded: "Because Barry__Barry and I were there together, and they were attorneys. And they didn't come out and, you know, in the sense that they were not here for you. I don't recall them ever coming out to me that way. I didn't know anything about attorneys. I didn't know how it worked with attorneys, that you have one and I have one."
The agreement presented at trial contained numerous typographical errors, and a portion of one provision was typed twice. Moreover, the pages were not numbered and none of the pages contained the parties' initials. The agreement also appeared to be incomplete. It ended abruptly with the statement "OTHER PROVISIONS AS FOLLOWS:"; and the immediately following page contained only the signature block and signature lines for the parties and their attorneys and a notarization block. Barry and Sun had signed above their names, but Brown had signed only the notary subscription. Brown did not sign the signature line indicating he was Barry's attorney.
Although the agreement referred to schedules of the parties' separate property, no schedules were attached. This was despite a provision which provided: "Both parties have initialed each page of the attached lists as evidence that they have read and concur with the classification of each item on each list." Inexplicably, a handwritten list of such properties, used at the meeting for discussion purposes, was not attached. Brown testified that he "believed" both parties were aware of the other's assets.
A heading in the agreement stated "SPOUSAL MAINTENANCE AND CHILD SUPPORT." Following that heading, the agreement contained an illegal provision regarding the parties' contributions for child support, but stated nothing regarding spousal support.
After the parties read the agreement to themselves, Megwa read aloud each provision in the agreement, line by line (apparently oblivious to the numerous errors); and Brown then attempted, after a fashion, to explain each provision's meaning. Brown testified that he believed Sun understood his explanations and that, although Swedish is her first language, she never indicated that she was having any difficulty understanding English.
Brown specifically remembered explaining the provision regarding earnings during marriage entitled, "CONTROL AND EARNINGS OF BOTH HUSBAND AND WIFE DURING MARRIAGE." This provision provided the following: "We agree that all the earnings and accumulations resulting from the other's personal services, skill, efforts and work, together with all property acquired with funds and income derived therefrom, shall be the separate property of that spouse. [¶] The earnings from husband and wife during marriage shall be: [¶] separate property of that spouse. . . ." Barry also testified that the attorneys explained the agreement. However, at trial, both Barry and Sun had difficulty recalling Brown's explanation. When asked to explain the provision which states that appreciation of separate property by personal effort should remain separate, Barry testified that he believed this meant: "That we were going to have, that it was going to remain separate property and in protection to both parties that if Sun was to get it through her career and make it, I had to put in just as much effort into that, or financial, as she was for it to be community property because we did it jointly, or it would remain separate in protection to her or in protection to myself. That's why it says we, for the both of us." Sun recalled even less about what the attorneys said regarding this provision.
After the parties signed the agreement they left the originals with the attorneys.
After the marriage, Sun did not work outside the home. Barry and Sun had two children during their marriage.
Barry and Sun briefly separated in January 1989, but reconciled after Barry filed for divorce. Barry filed a petition for legal separation on May 27, 1994. Sun responded by requesting custody of the parties' two children, child and spousal support, attorney's fees, and determination of property rights. By the time of the dissolution proceeding, Barry was earning $8,000,000 per year.
The case was first heard before Commissioner George Taylor, who later recused himself sua sponte after the media reported that he had requested an autograph from Barry. The case was transferred to the Honorable Judith W. Kozloski. The legal separation action was later converted to one for divorce, and a status-only dissolution judgment was entered on December 8, 1994.
Prior to trial, the court considered whether Arizona or California law should be applied to the agreement. The agreement contained an obscure provision entitled "Situs," which stated the following: "This Agreement shall be subject to and governed by the laws of the state set forth as the effective place of this Agreement." Although it is undisputed that the agreement took place in Arizona, the agreement itself never defined "effective place" within the meaning of its own language. Nevertheless, the court ruled that the parties could not have anticipated that they were going to live in California, and that it would therefore not use California law. The court also stated that it was inappropriate to use the "significant relationship" approach in deciding the choice of law question, and ultimately ruled that Arizona law applied.
The parties stipulated to Sun's having the burden of proof to establish the invalidity of the prenuptial agreement. They also stipulated to bifurcate the trial to determine the agreement's validity prior to the determination of other issues.
During this first phase of the trial, two copies of the prenuptial agreement were presented: exhibit A and exhibit 1. Exhibit A and exhibit 1 were substantially the same except that Barry's last name was incorrectly spelled "Bond" on the first page of exhibit A and was correctly spelled "Bonds" on exhibit 1. It was never explained how literally identical copies of the same signature page could be attached to both proffered exhibits.
Counsel for Sun objected to admitting the prenuptial agreement based on the best evidence rule, but the court overruled the objection and admitted exhibit 1 (the one that spelled Barry's last name correctly) into evidence. At the end of the first phase of the trial, in its statement of decision dated April 30, 1996, the court ruled that the prenuptial agreement was valid.
After the second phase of the trial, which related to the interpretation and enforcement of the prenuptial agreement, the court entered judgment on all issues except duration of spousal support. Sun filed a notice of intention to move for a new trial or to vacate the prematurely entered judgment on June 10, 1996, and then filed the motion five days later. A one-day hearing on the duration of spousal support occurred on September 9, 1996, and the court issued a minute order terminating spousal support on December 30, 1998.
Sun filed a timely notice of appeal from both the judgment and the minute order regarding the duration of spousal support.
In her appeal, Sun challenges the trial court's determination that the prenuptial agreement was valid, as well as its refusal to permit her to present evidence that Barry should be estopped from enforcing the agreement, its interpretation and implementation of the prenuptial agreement, its award of child support, the duration of spousal support, and its ruling that Sun must provide reimbursement for an insurance cash-out. After filing their briefs, the parties settled the matter of the insurance cash-out; and we therefore need not reach this issue. For the reasons set forth below, we will reverse the trial court's ruling that the prenuptial agreement is valid. Accordingly, the question of estoppel and the disputes over interpreting the contract are also moot.
The trial court applied Arizona law, and neither party challenged this ruling on appeal. We, however, requested supplemental briefs from both parties to address the choice of law question. Sun argued that the trial court did not err in using Arizona law, but added that, under either Arizona or California law, the court should have found the prenuptial agreement void. In contrast, Barry contended that the court should have applied California law, but that he should prevail in having the contract enforced no matter which state's law is used.
Choice of law is an issue in this case because at the time Barry and Sun signed the prenuptial agreement only California had adopted a form of the UPAA. (We will refer to California's version of the UPAA as the UPA.) California adopted the UPA (Fam. Code, §§ 1600-1617; former Civ. Code, §§ 5300-5317) in 1985 and it became effective in 1986. (All further unspecified code sections refer to the Family Code.) Arizona did not adopt the UPAA until 1991 (A.R.S. §§ 25-201 to 25-205), four years after the signing of this premarital agreement.
At all relevant times under California law, Sun had the burden of proving the agreement was invalid (§ 1615). She could avoid the agreement by establishing that "(a)(1) she did not execute it voluntarily" or that "(2) [t]he agreement was unconscionable when it was executed and, before execution of the agreement all of the following applied [to Sun]:" "(A) [She] was not provided a fair and reasonable disclosure of the property or financial obligations . . . [of Barry.]" "(B) [She] did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations [of Barry.]" "(C) [She] did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations. . . [of Barry.]" (§ 1615, subd. (a).)
In 1987, Arizona's statute on premarital contracts provided only that "[p]arties intending to marry may enter into agreements not contrary to good morals or law. . . ." (Former A.R.S. § 25-201, subd. (A).) Case law interpreting this repealed statute would have placed the burden on Barry by requiring the party attempting to enforce the agreement to prove its validity by clear and convincing evidence. (Spector v. Spector (1975) 23 Ariz.App. 131, 140 [531 P.2d 176, 185] (Spector).) The standard for determining validity under Arizona case law was that the agreement be "free from any taint of fraud, coercion or undue influence; the prospective [spouse] must have acted with full knowledge of the property involved and [his or her] rights therein, and the agreement must have been fair and equitable." (Ibid., italics added, citing In re Estate of Harber (1969) 104 Ariz. 79, 88 [449 P.2d 7, 16].) Arizona courts were expected to balance the above three factors to determine the agreement's validity, but the presence of any one of the above factors could invalidate the contract.
California and Arizona law therefore differed in their allocation of the burden of proof and applied different tests for validity. Sun contends Arizona law should apply because the agreement specified that Arizona law should govern the contract, and because California generally permits parties to provide for a choice of law provision in an arm's-length contract (Nedlloyd Lines B.V. v. Superior Court (Seawinds Limited) (1992) 3 Cal.4th 459, 464-465 [section 187 of the Restatement Second of Conflicts of Laws applies to arm's-length contracts]). Barry responds that the agreement merely stated that the contract ". . . shall be subject to and governed by the laws of the state set forth as the effective place of this agreement" and it never specified any state as the "effective place."
By its failure to define "effective place," the choice of law provision__like so many of the provisions in this contract__is both incomplete and ambiguous. Sun responds that, although the provision is unclear, it should be interpreted against Barry, since his attorneys told the parties the contract was subject to Arizona law and "they should know" because they wrote the contract.
Even presuming that this ambiguous provision sufficiently established that the parties selected Arizona law, we conclude that the court should still have applied California law to the issue of enforcement. Under California's UPA, "Parties to a premarital agreement may contract with respect to . . . : [¶] . . . [¶] . . . The choice of law governing the construction of the agreement. [¶] . . . [As well as any] other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty." (§ 1612, subd. (a), italics added.)
No California case has addressed the meaning of "construction of the agreement," See footnote 1 but the recorded proceedings of the commissioners at the National Conference of Commissioners on Uniform State Law, which drafted the UPAA, make it clear that the commissioners intended this provision to refer to the interpretation of, or the definitions used in, the contract rather than to the issue of validity. While discussing the choice of law provision in the UPAA, one commissioner explained the meaning of this section: "First of all, on [the] subsection . . . involving choice of law, remember that they are talking here about construction, and the kinds of things that could be spelled out, and you want to distinguish that from validity and enforcement. [¶] A forum will not enforce a contract and provide a remedy which is contrary to its local public policy. But, on the other hand, if it's simply a matter of using the law of another state as a dictionary for construction, you really don't need a substantial relationship." (Proceedings in Committee of the Whole Uniform Antenuptial Agreements Act, July 23, 1983, p. 40 (hereafter Proceedings).)
Public policy also dictates the same result. The Prefatory Note to the UPAA states as follows: "The number of marriages between persons previously married and the number of marriages between persons each of whom is intending to continue to pursue a career is steadily increasing. For these and other reasons, it is becoming more and more common for persons contemplating marriage to seek to resolve by agreement certain issues presented by the forthcoming marriage. However, despite a lengthy legal history for these premarital agreements, there is a substantial uncertainty as to the enforceability of all, or a portion, of the provisions of these agreements and a significant lack of uniformity of treatment of these agreements among the states. The problems caused by this uncertainty and nonuniformity are greatly exacerbated by the mobility of our population. Nevertheless, this uncertainty and nonuniformity seem reflective not so much of basic policy differences between the states but rather a result of spasmodic, reflexive response to varying factual circumstances at different times. Accordingly, uniform legislation conforming to modern social policy which provides both certainty and sufficient flexibility to accommodate different circumstances would appear to be both a significant improvement and a goal realistically capable of achievement." (9B West's U. Laws Ann. (1987 ed.) UPAA, Prefatory Note, pp. 369-370.) This goal of uniformity would be undermined by our attempting to apply the few Arizona cases that have interpreted a repealed Arizona statute to the question of the contract's validity.
Further, as Barry points out, the official comments to section 1615 of the UPAA make it clear that for public policy reasons the enforcement provision is the "key operative section of the Act." If we refused to use a version of the UPAA to interpret this "key" section, we would completely undermine the UPAA's primary goal of uniformity. We therefore conclude that the trial court erred in applying Arizona law when determining the agreement's validity.
Sun claims that the trial court abused its discretion by admitting the premarital agreement into evidence because it violated the best evidence rule. According to Sun, Barry failed to authenticate the copy of the prenuptial agreement, and therefore its admission into evidence violated the best evidence rule (former Evid. Code, § 1500 et seq.).See footnote 2
Although trial counsel frequently misconstrue this rule, and consequently make frivolous objections (to proffered photocopies, for example) that serve no purpose other than to irritate the trial judge, here the best evidence rule objection was well taken. However, because of our deferential standard of review__abuse of discretion__we will not disturb the trial court's ruling on this basis.
The best evidence rule states: "Except as otherwise provided by statute, no evidence other than the original of a writing is admissible to prove the content of a writing." (Former Evid. Code, § 1500.) A duplicate is admissible "to the same extent as an original unless (a) a genuine question is raised as to the authenticity of the original or (b) in the circumstances it would be unfair to admit the duplicate in lieu of the original." (Former Evid. Code, § 1511.) "A 'duplicate' is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original." (Evid. Code, § 260.) Under former Evidence Code section 1511, the duplicate is admissible without demonstrating the unavailability of the original. (See also Evid. Code, § 260; People v. Garcia (1988) 201 Cal.App.3d 324, 327-330.)
Here, a duplicate was admitted, and Barry asserts it was admissible pursuant to former section 1511 of the Evidence Code. To establish the first criterion set forth in this section, authenticity, the party introducing the writing must introduce "evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is" or establish "such facts by any other means provided by law" (Evid. Code, § 1400). This does not require the court to determine conclusively that a writing is authentic. ". . . A finding by the trial judge that a writing is 'authenticated' merely means that enough evidence has been presented relative to its genuineness that the writing becomes admissible into evidence. . . ." (2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 30.1, pp. 1051-1052; see also People v. Morris (1991) 53 Cal.3d 152, 205 ["The trial court was required to admit the document into evidence if the trier of fact was presented with sufficient evidence to support a finding of authenticity. [Citations.]"]; People v. Garcia, supra, 201 Cal.App.3d at p. 329 [conflicting inferences relate to weight rather than admissibility of duplicate].)
Sun claims that Barry failed to present sufficient evidence to establish the prenuptial agreement was what he claimed it to be, and that the purported copy was a true copy of the original. She asserts that the facts here closely resemble those in Osswald v. Anderson (1996) 49 Cal.App.4th 812 (Osswald). In Osswald the court held that there were genuine questions regarding the authenticity of a deed admitted into evidence because "[i]t would [have been] a simple matter to transfer the signatures and notary block to a different property description and with a good photocopy machine create what appeared to be a copy of a valid deed." (Id. at pp. 819-820.)
Similarly, here, Sun maintains, the existence of two different "copies" of the agreement, which could not have both been made from the same original, raised questions of authenticity. A photocopy which had been received from an attorney in Pennsylvania was introduced as exhibit 1, while another copy, exhibit A, was also presented at trial, but it incorrectly spelled Barry's last name as "Bond" on its first page. This difference was particularly consequential, Sun asserts, because neither document had page numbers or initials on the pages. Furthermore, since an identical copy of the same original signature page had been attached to both exhibits, there was an inference of obvious tampering. Because Sun and Barry testified that they had only signed one draft, someone must have improperly attached a copy of the signature page to at least one of the alleged duplicates of the original.
The differences in the exhibits also must be considered, Sun maintains, because both drafts were obviously incomplete. The agreement ended with the statement "OTHER PROVISIONS AS FOLLOWS:"; but the following page only contained the signature block and the signature lines for the parties and their attorneys, followed by a notarization block. Brown did not sign the line provided for Barry's attorney.
Inexplicably, the agreement referred to schedules of the parties' separate property, but no such schedules were attached. The agreement also referred to a listing of the community property, but no such listing was attached. The absence of these schedules contradicted another provision in the agreement which stated: "Both parties have initialed each page of the attached lists as evidence that they have read and concur with the classification of each item on each list."
The agreement also seemed to indicate that Barry had waived his right to counsel, when it stated the following: "By execution of this Agreement this date, we waive that right and willingly forego benefit of independent legal counsel as regards this Agreement, or represent that we have conferred with independent legal counsel before signing this agreement." It is undisputed, however, that Barry's attorneys prepared the agreement and explained it to Sun.
Another problem, according to Sun, is that although Barry identified exhibit 1 as the premarital agreement, and identified the signatures as being Sun's and his, he never actually testified that the exhibit was an accurate and complete copy of the agreement signed by the parties. Both Barry and his attorney, Brown, testified that they could not recall whether the original document had numbered pages. Brown stated: "I notarized an agreement, a prenuptial agreement that Barry and Sun executed. I cannot tell you that this physical document in front of me marked Exhibit A is the agreement that I notarized, and I cannot tell you that this particular physical representation of an agreement marked as Exhibit 1 to these proceedings is the agreement I notarized. [¶] Both of these are copies. I don't know where either one of them came from. It's my understanding that you requested these documents, I know that my ex-partner, Mr. Megwa, produced a copy of a prenuptial agreement. I can't tell you sitting here now if__if Exhibit A or Exhibit 1 was the document that he presented to you."
Barry responds that Megwa explained that one draft of the premarital agreement had misspelled "Bonds" and his secretary later corrected this misspelling, but Megwa could not explain why the identical signature page was fastened to the back of both exhibit 1 and exhibit A. Despite these problems, Sun has pointed out no significant differences between the two exhibits other than misspelling Barry's last name.
Although our assessment of the evidence in the record might differ from the trial court's, we conclude that the trial court was presented with "sufficient evidence to support" its ruling of authenticity (People v. Morris, supra, 53 Cal.3d at p. 205). Despite the otherwise suspicious circumstances, Sun never claimed that either exhibit contained provisions or language that had been altered. Also, exhibit 1 was not recovered from an unknown source, but came from an attorney's file in Pennsylvania. Furthermore, Megwa testified that the parties signed exhibit 1.
The above factors distinguish this case from Osswald. Not only was it uncertain whether the deed ever existed in Osswald, but the proponent's counsel also could not explain how he received the copy of the deed and why he did not produce it until shortly after the trial started. (Osswald, supra, 49 Cal.App.4th at pp. 819-820.) In contrast, Sun has always admitted that she signed a premarital agreement, and has never asserted that any particular provision in the agreement had been altered, replaced, or omitted.
Sun also contends that the prenuptial agreement failed to meet the alternate requirement of former Evidence Code section 1511, subdivision (b), because it is unfair to admit a copy that may not be identical to the original. It is true that any missing provisions or pages at the end of the document may have impacted the rights of the parties by modifying or explaining the many cryptic or confusing provisions which appear earlier in the document. However, Sun presented no evidence that other provisions, more favorable to her, were omitted. She argues, without citing any authority, that she should not have the burden of proving the content of any possibly missing provisions, since she did not devise the agreement and she was never provided a copy of the agreement. However, in the absence of any evidence that such provisions were included in the original, we cannot conclude that admitting the prenuptial agreement was unfair.See footnote 3
Prior to 1970, no state enforced prenuptial agreements providing for the disposition of assets upon divorce. (Note, Planning for Love: The Politics of Prenuptial Agreements (1997) 49 Stan.L.Rev. 887, 897 (hereafter The Politics of Prenuptial Agreements).) The only exception to this rule was that courts did uphold such agreements if they addressed property rights of a surviving spouse after the other spouse died. (Ibid.) Prenuptial agreements were generally disallowed because of the belief that they encouraged divorce and permitted husbands to avoid providing financial support to their wives. (Ibid.)
In 1970, the Florida Supreme Court held in Posner v. Posner (Fla. 1970) 233 So. 2d 381, 385, that prenuptial agreements providing for the division of property in the event of divorce "should no longer be held to be void ab initio as 'contrary to public policy.'" Since then, almost all states have enforced such agreements, recognizing that they may be the optimal method for dealing with more diverse marriage customs and modern models of intimacy. In 1973, the California Supreme Court held that such agreements, as long as they did not attempt to regulate spousal support, See footnote 4 were actually favored. (In re Marriage of Higgason (1973) 10 Cal.3d 476.)
The National Conference of Commissioners on Uniform State Laws approved of the UPAA in 1983. (9B West's U. Laws Ann., supra, UPAA, Historical Notes, at p. 369.) Promoting uniformity in the enforcement of prenuptial agreements in all states was the clear objective of the commissioners who approved the UPAA, as evidenced by the Prefatory Note to the UPAA. At the time, uniform enforcement of such agreements was still an uncertain proposition.
A review of the limited case law concerning premarital agreements establishes that the ideal of uniformity has yet to be achieved; and thus, the cloud of uncertainty still surrounds these agreements. Although all states require "voluntary" execution of such contracts, jurisdictions vary significantly in the standards used to review the validity of prenuptial agreements. As one legal scholar points out: "Courts often reach different conclusions on similar facts for no easily identifiable reason, so results in any particular case are difficult to predict. Compare In re Marriage of Adams, 240 Kan. 315, 729 P.2d 1158 (1986) (no overreaching where husband presented wife with agreement one hour before wedding), with Lutgert v. Lutgert, 338 So.2d 1111 (Fla.Dist.Ct.App. 1976) (husband guilty of overreaching where he presented wife with contract on the day of the wedding when they were at jewelers to pick up rings)." (Antenuptial Agreement (1997) 14 No. 7 Equitable Distribution J. 73, 76.)
Courts have often reviewed prenuptial agreements for "substantive unfairness." (See, e.g., Greenwald v. Greenwald (1990) 154 Wis.2d 767, 784-788 [454 N.W.2d 34, 40-42].) Other courts, such as the Pennsylvania Supreme Court, hold that traditional principles of contract law should apply to prenuptial contracts (see, e.g., Simeone v. Simeone (1990) 525 Pa. 392 [581 A.2d 162] (Simeone)).See footnote 5 The Simeone court reasoned that it is paternalistic, and therefore archaic, to more carefully scrutinize the capabilities of the parties to marital agreements and the reasonableness of their bargains. (Id. at pp. 399-400 [p. 165].) According to the concurrence in Simeone (Papadakos, J.), the policy of not enforcing premarital contracts probably reflected a paternalistic presumption about women's incapability to negotiate a contract, but the refusal to scrutinize such contracts more closely than any arm's length agreement is no better because it "smack[s] of male chauvinism." (Id. at p. 405 [p. 168].)
We need not engage in the debate regarding paternalism and chauvinism in order to observe that women still have not achieved economic parity in the workplace and frequently have greater responsibility for sustaining the home; it is also undisputed that women generally earn less income than men. For the purposes of our discussion here, it is obvious that enforcing agreements that waive community property rights will often disadvantage women, as well as men, and may ignore the contributions of both spouses to the marriage, whether or not they are employed outside the home. The foundational principle of community property, which recognizes the multiple ways a spouse may contribute to the marriage, is a more significant policy consideration than any social debate over paternalism and chauvinism. We expect the principles of community property to be applied evenly to both genders.
Another criticism of the majority opinion in Simeone stems from its refusal to acknowledge the state's paramount interest in regulating prenuptial contracts and its disregard of the significant differences between premarital and commercial contracts. (See, e.g., Family Law, Prenuptial Agreements (1990) 104 Harv.L.Rev. 1399, 1402.) The state's own interests are involved in all matters related to family law and the state may limit the freedom of the parties to create contractual rights (see In re Marriage of Benson (1985) 171 Cal.App.3d 907, 913). The government does not allow parties unlimited freedom of choice when devising prenuptial agreements; people in California, for example, cannot contract regarding child support. (§ 1612, subd. (b) ["The right of a child to support may not be adversely affected by a premarital agreement."].) Moreover, as even the majority opinion in Simeone recognized, premarital agreements differ from other contracts in that they require a full and fair disclosure of the parties' financial positions prior to any enforceable agreement (Simeone, supra, 525 Pa. at p. 402 [581 A.2d at p. 167]). Such full disclosure is obviously not required, and rarely given, in business negotiations (see also the Simeone dis. [McDermott, J.] id. at p. 406 [pp. 168-169] [the parties "'stand in a relation of mutual confidence and trust that calls for the highest degree of good faith. . . .' [Citations.]"). These differences were also articulated by a drafter of the UPAA when the commissioner made the following comment: "And it seems to me that there is no particular reason why you should have the same contract rules applying to the sale of a hundred pounds of . . . beans that you do to a marital relationship." (Proceedings, Aug. 3, 1982, p. 51.)
Another legal scholar has commented, "'The features of antenuptial contracts that justify greater state supervision than is ordinarily exerted over commercial contracts include the special legal status of the marriage relationship in our society, the trust and confidence the law expects of marriage partners, the emotional intensity surrounding the desire to marry, the common belief that the marriage will last forever, and the potential lack of understanding of the economic rights that are being waived. This coalescence of factors, when viewed against the backdrop of persistent gender inequality in the marketplace, warrants a relaxation of the rules of contract to accommodate other social values.'" (The Politics of Prenuptial Agreements, supra, 49 Stan.L.Rev. at p. 899, fn. omitted.) We note further that it would be in the interest of society as a whole to have the parties to a marital contract anticipate and provide for various changed circumstances such as having children, illnesses, or changes in careers and jobs; all of which may precipitate calls for state assistance.
Although public policy dictates that prenuptial agreements warrant more careful review than commercial transactions, we also are mindful of the UPAA's policy of encouraging these agreements and promoting predictability. We therefore do not agree with those jurisdictions that invalidate otherwise lawful contracts based on evaluations of their perceived "fairness." We conclude that the effort to assure uniformity while at the same time preserving freedom of contract must focus upon procedural, rather than substantive fairness. The courts must apply a test for "voluntariness" that advances the purpose of promoting predictability while ensuring that the process of executing the agreement comports with traditional principles of fundamental fairness.
The notion of fairness and equity is the primary cornerstone of family law. California courts already review marital settlement agreements for procedural fairness (see, e.g., In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1043), and such concerns regarding equity and fairness apply with equal force to settlement agreements made by prospective spouses. "[I]n few other fields do the equities scream quite so loudly as they do in family law." (In re Marriage of Benson, supra, 171 Cal.App.3d at p. 913.)
It is also undisputed that the first and best safeguard of such procedural fairness is the advice of competent counsel. Within the family law context, "'ready and available access to legal representation'" has long been considered to be one of the most important safeguards in ensuring fair settlements (In re Marriage of Ward (1992) 3 Cal.App.4th 618, 623). Questions of fundamental fairness arise most particularly in the premarital contract context when the agreement is between two people with unequal bargaining power and business expertise. Nothing raises the warning flag of unfairness more often than when an unrepresented party contracts with another party who is represented by an attorney and the unrepresented party waives statutory rights.
The dissenting opinion never sets forth its definition of "voluntary," but it deflates the role of the attorney by ignoring counsel's significance as both an advocate and advisor for his or her client. It also ignores California's legislative history and case law related to family law that has stressed the role of an attorney in securing fair post-dissolution settlements. Although not explicitly admitted, the dissenting opinion appears to limit its conception of "voluntary" to simply guarding against physical intimidation or fraudulent conduct. If this is the sole purpose of an attorney in these circumstances, a professional wrestler or an armed guard could probably serve as well as a lawyer. With such a limited and misguided definition of "voluntary"__one that has rightly never been used by any other court__it is obvious why the dissenting opinion so easily determined that substantial evidence supported the trial court's ruling. However, if the concept of voluntary requires the prospective spouse to intelligently sign an agreement, it is clear that the trial court erred. The absence of legal counsel must figure prominently in any assessment of whether a party has intelligently signed a contract.
We agree that no courts require the parties to a premarital agreement to have legal representation when executing the agreement, and we are not so holding. However, courts in various jurisdictions have given great weight to this factor and have uniformly applied a test that more closely scrutinizes situations where all the legal artillery and negotiation skills are arrayed on one side (see, e.g., Matter of Marriage of Foran (1992) 67 Wash.App. 242 [834 P.2d 1081] (Foran)). These courts' holdings accord with the policies underlying California's statutes and case authorities in the area of family law. Accordingly, we conclude that courts must more carefully scrutinize the process when the bargaining relationship is so unequal that only one party has legal representation and the party without representation does not have any particular legal skills or business acumen and agrees to forego his or her statutory rights. Here, the trial court erred in refusing to give this factor proper consideration.
B. California Law and the Trial Court's Findings
As already discussed, the trial court applied Arizona rather than California law. In Arizona, at that time, Barry had to show by clear and convincing evidence that the agreement was valid (Spector, supra, 23 Ariz.App. at p. 140 [531 P.2d at p. 185]), while California places the burden of proof on the party "against whom enforcement is sought" (§ 1615, subd. (a)).
Although Arizona law placed the burden on Barry, the trial court here appeared to rule that Sun had the burden because of a pretrial stipulation between the parties that stated Sun had the burden of proof. We do not agree that parties can stipulate to the burden of proof (see American Dredging Co. v. Miller (1994) 510 U.S. 443, 454 [burden of proof is substantive rather than procedural]), since the burden of proof is a question of law that is to be determined by the court (Linsk v. Linsk (1969) 70 Cal.2d 272, 276 [counsel may not impair client's substantial rights]; see also Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473, 477). However, despite our disagreement with the trial court's reasoning, we do agree with the result of the trial court's decision, which was to place the burden on Sun, because it accords with California law (§ 1615, subd. (a)). (The statement of decision also indicated that, even if Barry had the burden of proof, the trial court found that he had met his burden by clear and convincing evidence.)
As already noted, California courts have not specifically addressed the issue of how to determine the validity of such an agreement. However, California's version of the uniform act provides: "(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following: [¶] (1) That party did not execute the agreement voluntarily. [¶] (2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party: [¶] (A) That party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party. [¶] (B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. [¶] (C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. [¶] (b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law." (§ 1615.)
When applying the above provision to the situation here, we can quickly dispose of the second requirement, unconscionability. The trial court found that Sun "knew what assets were possessed by Petitioner . . . ." It is undisputed that schedules of the parties' separate property were not attached to the agreement, but a handwritten list of the properties was available at the meeting in Brown and Megwa's office. Further, Brown testified that he believed both parties were aware of the other's assets. Sun complains about Barry's failure to attach the proper documents to the agreement, but she has failed to point to any assets or debts that were hidden, which would have impacted her decision to sign the agreement. We therefore conclude that substantial evidence supported the trial court's finding that Sun had adequate knowledge of Barry's property and financial obligations.
The question whether Sun executed the agreement voluntarily under the first prong of the validity test is not as easily settled. Although we have concluded that the trial court improperly applied Arizona law, the trial court did consider the issue of voluntariness since all states require this as a prerequisite for enforcement. The trial court found the following: "Respondent signed the Agreement knowingly and voluntarily. Respondent knew Petitioner wished to protect his present property and future earnings. . . . Respondent is an intelligent woman and though English is not her native language, she was capable of understanding the discussion by Attorney Brown and Attorney Megwa regarding the terms of the agreement and the effect of the agreement on each parties' [sic] rights.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Both the Agreement and the execution of same was [sic] free from the taint of fraud, coercion and undue influence. Respondent was not forced to execute the document, nor did anyone threaten Respondent in any way. Respondent never questioned signing the agreement or requested that she not sign the agreement. Respondent's refusal to sign the Agreement would have caused little embarrassment to her. The wedding was a small impromptu affair that could have been easily postponed.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Respondent had sufficient awareness and understanding of her right to, and need for, independent counsel. Respondent also had an adequate and reasonable opportunity to obtain independent counsel prior to execution of the Agreement. Respondent was advised at a meeting with Attorney Brown at least one week prior to execution of the agreement that she had the right to have an attorney represent her and that Attorneys Brown and Megwa represented Petitioner, not Respondent. On at least two occasions during the February 5, 1988 meeting, Respondent was told that she could have separate counsel if she chose. Respondent declined. Respondent was capable of understanding this admonition. The wedding was a small impromptu affair that could have been easily postponed."
Although the trial court stated it was considering the question of voluntariness, we conclude that the trial court, as a matter of law, did not properly give the absence of legal representation the proper weight when determining this issue.
C. The Significance of Legal Counsel
Premarital agreements reflect the sentiments and desires of both parties only when the process itself is conducted in a fundamentally fair manner. Courts have a responsibility to make sure that the agreement reflects both parties wishes and not just those of the economically dominant party. As discussed ante, in no situation does the court have a greater responsibility to ensure procedural fairness than in the context of family law.
No court in California has addressed the issue of voluntariness in the premarital context, but the relationship between legal representation and enforcement has been continually emphasized in California's case law regarding marital property and support rights. California authorities have particularly encouraged trial courts to uncover inequities through careful inspection of agreements in this latter context when they are made without the advice of independent counsel. (In re Marriage of Moore (1980) 113 Cal.App.3d 22, 27; Adams v. Adams (1947) 29 Cal.2d 621, 628 [court in divorce action will carefully scrutinize agreements, especially where parties did not have advice of counsel].) It is safe to conclude that only fairly negotiated agreements regarding family law matters are entitled to the benefit of California's policy favoring settlement; and we conclude that this caveat should extend to settlements made before marriage as well as to those reached after marriage.
The Legislature has enacted statutes to promote access to counsel in post-marital agreements. Section 2030 (former Civ. Code § 4370) permits the court in a dissolution proceeding to order the economically dominant spouse to pay the attorney's fees of the economically subservient spouse. The purpose of the fee-award statute is to insure that each party has equal access to legal representation in order to preserve all of his or her rights. (In re Marriage of Ward, supra, 3 Cal.App.4th at p. 623.) As Sun points out, the Ward court expressly tied the court's ability to award fees to the effectuation of California's policy favoring settlements that reflect a fundamentally fair process. "Indeed, within the family law context, 'ready and available access to legal representation . . . [promotes] the amicable settlement of dissolution and custody disputes, discourage[s] unfair settlements prompted by unequal bargaining power of the litigants, and afford[s] a necessary benefit to the litigants, their children, and to society.' [Citations.]" (Ibid.)
We agree with Sun's contention that the principles developed in the context of post-marital settlement agreements, and founded upon sound public policy, should have equal application to premarital agreements. Moreover, it may be even more important in this latter context because a prospective spouse may be reluctant to raise questions about what will happen in the event of divorce when contemplating marriage or when the prospective spouse presently has few resources to protect. Discouraging the practice of legal advice being provided only to the more affluent prospective spouse cannot be directly effectuated through the court's award of attorney's fees in the premarital context, because these are out-of-court contracts. Although it is impractical to order the economically superior party in such cases to pay the attorney's fees of the other party, we can set forth a rule that will discourage the parties from signing agreements when only one of the prospective spouses has the advantage of legal advice and representation. The court's refusal to more carefully review premarital contracts between a represented and an unrepresented spouse would contravene California's public policy of discouraging marital property settlements that violate notions of fundamental fairness.
Barry contends that the undisputed policy of encouraging legal representation for both parties to dissolution settlements does not apply to premarital agreements. Settlements after dissolution, Barry argues, involve a confidential relationship between the spouses because the parties are giving up property interests they already own. Prospective spouses, under the holding of In re Marriage of Dawley (1976) 17 Cal.3d 342, 355, are not presumed to be in such a confidential relationship. We, however, find this distinction to be untenable under these circumstances.
The Supreme Court decided In re Marriage of Dawley prior to the enactment of the UPAA and it has yet to examine the question of the prospective spouses' relationship in light of California's adoption of the uniform act. The UPAA requires a full disclosure of assets and debts, which obviously presumes a relationship more confidential than one at arm's length. Furthermore, as discussed ante, the enactment of the UPA acknowledged this state's paramount interest in the marriage relationship and restated the principles of equity underlying all areas of family law. This suggests the need for a standard that will promote fairness when executing a premarital as well as a post-marital agreement.
Closely scrutinizing the circumstances surrounding the execution of the contract when only one party has legal counsel (or when there is clear and substantial unequal bargaining power) has already been the standard of review adopted by many jurisdictions. (See, e.g., Fletcher v. Fletcher (1994) 68 Ohio St.3d 464 [628 N.E.2d 1343] [when party has no meaningful opportunity to consult with independent counsel and agreement provides disproportionately less to the unrepresented party, burden shifts to the party claiming validity of contract to show it was entered into voluntarily]; Gant v. Gant (1985) 174 W.Va. 740, 749 [329 S.E.2d 106, 116] [independent advice is not a prerequisite when terms of agreement are understandable to a reasonably intelligent adult and both parties had opportunity to consult with independent counsel]; Matter of Estate of Lutz (N.D. Sup. Ct. 1997) 563 N.W.2d 90, 95-101 [lack of legal counsel is significant factual factor in weighing voluntariness of premarital agreement under North Dakota's version of the UPAA] See footnote 6; Foran, supra, 67 Wash.App. 242 [834 P.2d 1081].)See footnote 7
The dissenting opinion criticizes our reliance on non-UPAA cases and dismisses our analysis of the one UPAA case (Matter of Estate of Lutz, supra, 563 N.W.2d at pp. 95-101), and claims that no UPAA state has adopted the test applied here. The dissenting opinion at page 9, footnote 7, contends that Lutz is unavailing simply because the posture of the case was that it was reviewing a summary judgment motion and the court was remanding because there was conflicting evidence related to whether the unrepresented party received any advice to obtain counsel. The court therefore, according to the dissenting opinion, never considered whether the lack of legal counsel was a particularly significant factor. The dissenting opinion overlooks the fact that such inconsistent evidence would have been inconsequential if the lack of any legal advice was not an especially significant factor. Moreover, the dissenting opinion appears to ignore the Lutz court's express statement that the "lack of adequate legal advice to a prospective spouse to obtain independent counsel is a significant factual factor in weighing the voluntariness of a premarital agreement." (Id., at p. 98, italics added.) The Lutz court continued: "Indeed, adequate legal representation will often be the best evidence that a spouse signed a premarital agreement knowledgeably and voluntarily." (Ibid.)
Furthermore, the dissenting opinion neglects to point out that there are almost no UPAA cases on point other than Matter of Estate of Lutz, supra, 563 N.W.2d at pages 95-101. The non-UPAA cases we have cited have all considered the issue of voluntariness, and are therefore relevant. We also note that the application of the standard we use, unlike the reasoning of the dissenting opinion, can be reconciled with the California cases determining the validity of dissolution settlements.
The issue of voluntariness was extensively analyzed by the court in Foran, supra, 67 Wash.App. at page 253 [834 P.2d at p. 1088], which noted that the premarital agreement was actually a form of settlement. The Foran court ruled that the premarital agreement was invalid when the unrepresented wife signed it a day prior to the parties' departure for their wedding trip. The wife had been advised of her right to seek independent legal counsel, but the Foran court held that the waiver was not voluntary because she never was advised of the reason she needed an attorney. (Ibid.) The court explained: "That which is obvious to attorneys and judges may not be obvious to the unrepresented and economically subservient party. Every marriage eventually will terminate by one of two means: by marital dissolution or by the death of a spouse during marriage. What is indeed being sought is a divorce settlement and a death settlement . . . ." (Id. at p. 254, fn. omitted [pp. 1088-1089].)
"An appellate court will not enforce a patently unfair prenuptial contract unless it can reasonably conclude that an unrepresented party, who was not dealing at arms['] length and whose relationship with the represented party was one of mutual trust and confidence, entered into the contract with a full understanding of the legal consequences of the contract. One who does not have that understanding has not 'voluntarily and intelligently' entered into the contract as required by Matson." (Foran, supra, 67 Wash. App. at p. 257 [834 P.2d at p. 1090].)
Barry contends that the facts in Foran are significantly different because the husband in Foran physically abused the wife (although there was not sufficient evidence of this to support a claim of coercion), and the wife had worked with, and grown to trust, her husband's attorney, who only explained the provisions in a manner that furthered his client's interests. (Foran, supra, 67 Wash.App. 242 [834 P.2d 1081].) In contrast, Barry asserts, his attorneys accurately explained the provisions in the agreement to Sun and he never physically abused Sun.
This attempt to distinguish the instant facts from Foran is unavailing. Brown's explanation to Sun was necessarily impaired because of his loyalty to his client, Barry. (See People v. Mroczko (1983) 35 Cal.3d 86, 111 (Mroczko).) More significantly, here, as in Foran, the unrepresented spouse had no advocate and received no explanation of the legal consequences to her ensuing from signing the contract. The record is clear that Brown never apprised Sun that her interests may conflict with Barry's interests. Brown actually testified that at the time Sun and Barry were executing the contract he believed that two people requesting an antenuptial agreement did not necessarily have a conflict of interest between them. He further testified that he did not believe any conflict of interest existed between Sun and Barry, although he later testified that he recognized there was a "potential" conflict of interest. Barry, too, testified that he did not believe there was any conflict of interest; it is obvious, therefore, that he could not have told Sun that their interests might conflict. In fact, there was no evidence that anyone ever provided this crucial information to Sun. The record certainly suggests she was clueless as to any conflict of interest.
Finally, the Comment to section 6 of the UPAA makes it clear that the absence of legal counsel can be considered when determining whether to enforce an agreement, but it provides no other instruction on its significance or, more particularly, the significance of only one party's having legal assistance. The Comment provides that "[n]othing in Section 6 makes the absence of assistance of independent legal counsel a condition for the unenforceability of a premarital agreement. However, lack of that assistance may well be a factor in determining whether the conditions stated in Section 6 may have existed (see, e.g., Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962))." The Act does not discuss the weight to be given to this factor, and the case cited, Del Vecchio, provides no further guidance and merely states: "If the provision made by the agreement is not fair and reasonable then it should be made to appear that the wife, when she signed, had some understanding of her rights to be waived by the agreement. In any event she must have signed freely and voluntarily, preferably, but not necessarily a required pre-requisite, upon competent and independent advice." (Del Vecchio v. Del Vecchio (Fla.Sup.Ct. 1962) 143 So.2d 17, 20, abrogated on another issue in Fla. Stats., § 732.702(2).)
The importance of having legal counsel was expressly recognized by the commissioners drafting the UPAA. Originally, the UPAA contained the following provision regarding enforcement: "(a) An antenuptial agreement is enforceable unless the court finds that: [¶] (1) a fair and reasonable disclosure of the property and financial obligations of the party seeking enforcement was not provided to the party against whom enforcement is sought before the execution of the agreement; or [¶] (2) the party against whom enforcement is sought was not represented by independent counsel at the time of execution. [¶] (b) Except as provided in subsection (c), an antenuptial agreement which is not enforceable under subsection (a) is enforceable if the court finds that: [¶] (1) the agreement at the time of execution made a fair and reasonable disposition of the rights and obligations of the party against whom enforcement is sought and the party against whom enforcement is sought understood the effect of and voluntarily executed the agreement; or [¶] (2) the party against whom the agreement is sought to be enforced had, or reasonably should have had, an adequate knowledge of the property and financial obligations of the other party and understood the effect of and voluntarily executed the agreement. [¶] (c) If, after considering all relevant facts and circumstances, the court finds that enforcement of an antenuptial agreement pursuant to subsection (b) would be unconscionable under the existing facts and circumstances, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of the unconscionable provisions to avoid any unconscionable result." (Proceedings, Aug. 3, 1982, pp. 31-32, italics added.)
Review of later discussion among the commissioners reveals that they deleted this section requiring legal counsel, not because they devalued the importance of independent legal advice in determining the validity of any agreement, but because they did not believe "that the legislatures of the states ought to be making the rights of people dependent upon whether or not they have lawyers." (Proceedings, July 23, 1983, p. 61.) Additionally, the commissioners wanted to permit parties to void agreements even when they had legal counsel if their attorneys turned out to be unethical or incompetent. (Id. at p. 62.) One commissioner explained: "[R]epresentation would be a factor in determining whether the party acted voluntarily and knowingly. We do not believe, however, that legal representation alone would be a desirable basis for enforcement." (Id. at pp. 3-4.) We also do not believe legal representation should be the only factor examined by a court to determine validity of the agreement.
Barry and the dissenting opinion maintain, somewhat hyperbolically, that "requiring" both parties to have legal counsel will spawn numerous legal malpractice lawsuits because courts will automatically invalidate agreements involving an unrepresented spouse. We are not holding that such agreements should result in automatic invalidation. We agree with Barry and other jurisdictions that have held that an unrepresented spouse may voluntarily sign a premarital agreement (Spector, supra, 23 Ariz.App. at p. 140 [531 P.2d at p. 185] [wife's representation by counsel is one factor to consider when determining the absence of fraud and undue influence]; In re Estate of Henry (1967) 6 Ariz.App. 183, 186 [430 P.2d 937, 940] [court refused to void property settlement agreement simply because party did not have legal representation]; Nanini v. Nanini (1990) 166 Ariz. 287, 290-291 [802 P.2d 438, 441-442] [Arizona court applying Illinois law concluded that advice of counsel is not a prerequisite to upholding a premarital agreement]). Rather, we conclude that when the party challenging the agreement waives a statutory right in the contract, and this person does not have any legal or business sophistication and does not have an advocate with legal skills while the other prospective spouse does have legal assistance, the validity of the agreement requires closer scrutiny.
The claim that this holding jeopardizes existing agreements perpetuates the myth that presently there is no uncertainty regarding the enforcement of prenuptial agreements. No such certainty currently exists. No responsible attorney could have reasonably predicted and assured Barry that a trial court would have enforced his prenuptial agreement. Courts in other jurisdictions (as already noted, California courts have not yet addressed this issue) have indicated that an agreement involving one unrepresented party will be invalidated if any one of the following factors is present: The unrepresented party waived his or her community property rights or was provided disproportionately less than the represented party (Fletcher v. Fletcher, supra, 68 Ohio St.3d 464 [628 N.E.2d 1343]); the terms of the agreement were not understandable to a reasonably intelligent adult (Gant v. Gant, supra, 174 W.Va. 740 [329 S.E.2d 106]); or the unrepresented party was presented with the agreement too soon before the wedding (Lutgert v. Lutgert (Fla.App. 1976) 338 So.2d 1111).
Not only are all of the above factors present here, but we have the additional factors that no original agreement was presented at trial; that someone had tampered with the agreement, since identical signature pages were attached to copies of differing documents; that the agreement is patently incomplete and filled with mistakes; and that Sun was told there would be "no marriage" if she did not immediately sign the agreement. Accordingly, the enforcement of these agreements generally, and this one in particular, has always been in jeopardy. The only question has always been whether a particular trial judge, often informed by little more than his or her own personal values, would or would not find the agreement to be fair and therefore valid. Rather than permit such unpredictability to continue, and preferring not to abdicate our role of interpreting and reconciling the law as a reviewing court, we have set forth a holding which we believe will promote uniform standards of enforcement.
The dissenting opinion's countervailing alarm that we are creating a new rule and imposing new standards on practitioners has no support. Practice guides for California family law attorneys have for many years clearly alerted practitioners about the danger that a reviewing court will refuse to enforce a prenuptial agreement involving one unrepresented party. This is especially true when the attorney on the scene has not required the unrepresented party to sign a written statement or advisement regarding the potential conflict of interest. William P. Hogoboom and Donald B. King provide the following practice pointer in their California practice guide on family law: "[C]ounsel involved in the negotiation and drafting of an agreement between spouses or prospective spouses should follow these fundamental guidelines:
"If the other spouse does not have a lawyer, recommend in writing that he or she obtain independent legal advice before signing. [¶] (On this point, however, do not personally refer the pro per spouse to a particular lawyer. If he or she does not have a referral source, suggest the spouse contact a local bar association for an appropriate recommendation.)
"If the other spouse declines your suggestion and wants to go forward without independent legal representation, have that spouse sign an acknowledgment clause in the agreement. This clause should reflect the pro per spouse's informed understanding that the drafting attorney represented only the other party and advised the pro per party to obtain separate legal advice before signing, but that such advice was declined. [¶] (Do not attempt to avoid an improper 'dual representation' problem by substituting the pro per client's acknowledgment with your own attorney declaration of full disclosure, advice and consent; see Estate of Butler, [(1988) 205 Cal.App.3d 311].)
"Also, if your advice is declined, it is advisable to have your own client acknowledge in a signed writing his or her understanding that absence of separate counsel for the pro per spouse might affect enforceability of the agreement. But use a separate acknowledgment letter for this purpose (including this language in the agreement itself might invite later attack)." (Hogoboom & King, Cal. Practice Guide: Family Law (Rutter 1997) § 9:114, pp. 9-29 to 9-30 rev. #1, 1997, italics added.) See footnote 8
Moreover, the practice guides already have warned attorneys that certain types of agreements will be subjected to closer scrutiny. Hogoboom and King, supra, California Practice Guide: Family Law, section 9:90, at pages 9-23 to 9-24 (rev. #1, 1997) warns: "Although premarital and marital agreements may be binding with minimal ('mutual consent') or no consideration (above), courts are likely to strictly scrutinize provisions under which one party gives up valuable marital property and/or inheritance rights without receiving anything of value in return. These contracts may raise a suspicion of fraud, duress, or undue influence. [See, e.g., Estate of Cover (1922) 188 Cal. 133, 143, 204 P. 583, 588; Estate of Nelson (1964) 224 Cal.App.2d 138, 143, 36 Cal.Rptr. 352, 354]."
We are obviously not citing these practice guides as authority; they merely illustrate that practitioners have long been well-aware of the fragility of such agreements when only one party has legal representation and the other, unrepresented, party is not informed of the importance of having separate representation. We recognize our holding may invalidate some agreements involving one unrepresented party when the agreements are also found to be unfair, but such disproportionate agreements should be invalidated, because overreaching and sharp practices have never been countenanced in marital matters. It cannot reasonably be disputed that some prenuptial agreements are so unjustly asymmetrical that a reviewing court should not hesitate to reverse a trial court's finding of validity. It is difficult to imagine an agreement process involving a represented and unrepresented prospective spouse that could be more flawed and uneven in its particulars than the one before us.
We also believe the "danger" that some agreements may be found unenforceable must be balanced by the salutary effect of a rule that presumes the primacy of an informed decision over an ignorant one. A rule which encourages, but does not require, both parties to any marital agreement to seek professional legal advice can arguably go further than any other safeguard to assure the parties that their wishes will be enforced, and their rights protected. No sound argument can be made against the idea that agreements of such social importance should be entered into intelligently rather than unadvisedly. We have endeavored to provide clear guidelines for practitioners to follow so that they can more confidently assure their clients that their premarital agreements will later be enforced and so that the courts can be assured that such agreements reflect both parties' wishes.
We also recognize that sometimes the unrepresented, but well-informed, party to the negotiation of a prenuptial agreement may intelligently refuse legal assistance, and that in such cases the absence of legal counsel would not necessarily suggest any attempt to take unfair advantage of the unrepresented party. Thus, when the unrepresented party (1) has the opportunity to seek legal advice and (2) knowingly refuses such assistance, the closer scrutiny test we have enunciated should not be applied. The facts of this case illustrate the application of our holding.
In the case before us, Brown merely told Sun that she "may want" to seek counsel a week before the meeting and twice at the meeting. The trial court concluded that__despite Sun's complete lack of income and dependence upon Barry after moving to the United States and no evidence of any offer to pay for her counsel__she had a "reasonable opportunity" to obtain independent counsel. Even if we concurred with this finding, we cannot agree with the court's additional finding that Sun "had sufficient awareness and understanding of her right to, and need for, independent counsel." The trial court thus ruled that merely being told she could have separate counsel was the equivalent of telling her why she needed counsel. This was error; merely being told one may seek counsel does not establish any understanding of the need for counsel. Furthermore, it is by no means clear from this record that Sun was advised of the nature of her relationship with the attorneys who were present. We can give no effect to the attorneys' statements to Sun that they represented Barry because their actions at the meeting contradicted this assertion and actually conveyed an impression that they were independent counsel. It almost goes without saying that Sun was not advised of the obvious conflicts of interest; the attorneys themselves admitted they were unaware of the conflicting interests of the parties when they proceeded to provide Sun with legal advice.
The dissenting opinion asserts that there are ethical constraints preventing attorneys from informing the unrepresented party about the potential conflict. We disagree. We do not suggest, as the dissenting opinion indicates, that the attorney must provide the unrepresented party with legal advice. Indeed that is precisely what happened in this case and remains one of its most troubling aspects. Rather, we are merely requiring the attorney to tell the unrepresented party that the prospective spouses' interests may not be identical. Otherwise, the unrepresented party may incorrectly assume that the attorney is not actively, and zealously, pursuing potentially antithetical interests. Rule 3-310(C) of the California State Bar Rules of Professional Conduct requires an attorney representing more than one client to accept representation of clients with a potential conflict of interest only after an informed written consent by each client. Such an acknowledgment of a potential conflict does not require the disclosure of any confidential information or the providing of any legal advice. Moreover, such full disclosure better serves the represented client, since it helps to ensure that the agreement will later be enforceable.
Although California courts have not addressed what is required to establish a refusal of counsel in the premarital context, the extensive law discussing waiver in other contexts provides guidance as to when legal assistance may be "knowingly and intelligently" refused. "Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences. [Citations.]" (In re Marriage of Moore, supra, 113 Cal.App.3d at p. 27 ["The burden is on the party claiming a waiver to prove it by evidence that does not leave the matter doubtful or uncertain and the burden must be satisfied by clear and convincing evidence that does not leave the matter to speculation. [Citation.]"].)
Similarly, in the criminal context, a defendant waives counsel only if "'made aware of the dangers and disadvantages of self-representation.'" (People v. Lopez (1977) 71 Cal.App.3d 568, 572-574.) In discussing a valid waiver of the potential conflict when an attorney represents codefendants, the Supreme Court in Mroczko, supra, 35 Cal.3d at page 110 stated: "No particular form of inquiry is required, but, at a minimum, the trial court must assure itself that (1) the defendant has discussed the potential drawbacks of joint representation with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of joint representation in his case, (3) that he knows of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that right. [Citations.] Any waiver must be unambiguous and 'without strings.' [Citations.]"
Applying these principles in the premarital contract context does not require significant variance from the existing guidelines regarding the attorney's role in devising a premarital agreement already suggested in the leading family law practice guides (see, e.g., Hogoboom & King, Cal. Practice Guide: Family Law, supra, pp. 9-29 to 9-30 rev. #1, 1997). Counsel, at a minimum, must explain to the unrepresented party: (1) that the attorney's responsibility is to pursue and protect only the interests of his or her client; (2) that spousal interests are probably not identical and are likely to conflict; (3) that the spouses' interests will change over time and the attorney will not be concerned with providing for all the changed circumstances that could possibly impact the unrepresented spouse; and (4) that signing this agreement will eliminate or modify his or her statutory rights. (Presumably premarital agreements of this sort would be unnecessary when statutory rights are not being modified.) We conclude that although no specific language must be used, a valid waiver of counsel in this context must be based upon an advisement which fairly states the above reasons for the desirability of obtaining the advice of an attorney.
The dissenting opinion exclaims that this requirement "will come as a surprise to the family law bar." (Dis. opn. at p. 13, fn. 9.) Yet, in the post-dissolution context, the court requires that any waiver must be done with the "actual or constructive knowledge of the existence of the right to which the person is entitled. [Citation.]" (In re Marriage of Moore, supra, 113 Cal.App.3d at p. 27; see also City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107 ["'Waiver is the intentional relinquishment of a known right after knowledge of the facts.' [Citation.]"].) The Moore court admonishes that this "rule particularly applies to cases involving a right favored in law such as, in this case, the right to retain lawful property entitlements and support." (Moore, supra, at p. 27.) Thus the importance of establishing waiver in cases such as this one__where an unrepresented prospective spouse is foregoing his or her community property rights in a contract devised by the other party's attorneys__will not come as a shock to any competent family law practitioner.
If the attorney provides such an advisement, and the unrepresented spouse persists in the desire to proceed without an attorney, the spouse will have effectively waived the right to later complain of involuntariness as it pertains to the need for counsel. (The attorney should not then offer any legal advice to the unrepresented spouse, but rather permit the spouse sufficient time to read the contract and discuss its provisions with anyone else.) Under such circumstances, when a person so advised voluntarily foregoes the assistance of counsel, later challenges to any resultant agreement would not require the special scrutiny applied here.
Here, it is undisputed that Sun was never provided this crucial information. Brown informed Sun that she could see another attorney but he never encouraged her to do so. Brown testified that he said the following: ". . . I don't think I ever made an affirmative declaration to Sun that she should seek counsel, what I said to her is that she may want to do that. If she wanted to do that, there was no problem in doing that. [¶] I think that was the gist of my presentation in that regard."
Barry's own testimony indicated that Sun did not understand why she needed an attorney. Barry testified: ". . . Sun said she didn't want a lawyer. Sun didn't have anything. I paid for everything. Sun said, what do I need a lawyer for? I don't have anything. I mean, I know exactly what she said in that conversation." This is precisely the problem: Sun thought she did not have anything and did not need a lawyer, and no one disabused her of that incorrect perception. The fact was that she did have something: she had the potential legal right to community property. The whole purpose of the agreement was to divest her of rights which would accrue to her as a matter of law unless she waived them before the wedding.
In this context, the comment that Sun "may want" to obtain an attorney was worse than worthless; it was misleading. There was not even a superficial attempt to explain to Sun the reasons for needing an attorney, and attorneys cannot avoid their ethical obligation to avoid conflicts of interest by merely telling the unrepresented party that he or she may obtain an attorney. Not only did Brown fail to identify any conflict of interest, but, as discussed more fully below, he frequently acted in a manner that made him appear to be an independent legal advisor rather than Barry's advocate.
Additionally, even if Barry's attorneys had provided Sun with the proper admonitions, these admonitions could have been obviated by subsequent behavior that indicated that, rather than solely representing Barry, they were independent advisors. By explaining the "legal ramifications" of each provision in the premarital agreement, Brown further contaminated the process by making it appear that he was acting on Sun's behalf. Although both Brown and Megwa repeatedly stated that they were representing Barry, See footnote 9 Brown also admitted in his testimony that he gave both parties legal advice. Both Brown and Megwa attempted to explain each provision to Sun, even though they were actually representing only Barry's interests.
Both Brown and Barry testified that the attorneys offered Barry the confusing advice that he could also seek other counsel, which helped to convey the message that Brown was a disinterested "authority-in-law" and that both Barry and Sun could choose to seek advice from an advocate. Brown responded "no" when asked whether he explained to Sun "that there was a distinction between her seeing a counsel in order to make sure she understood what was going on, as distinct from Barry seeing another counsel in order to confirm what you had told him."
The confusion regarding Brown's role was exacerbated by the contract itself. The agreement stated: "Each of us has been informed of our respective right to benefit of an independent attorney to counsel us. By execution of this Agreement this date, we waive that right . . . or represent that we have conferred with independent legal counsel before signing this agreement." However, Barry obviously never waived this right, since both Brown and Megwa represented him at all stages of the preparation of the agreement. Further, the agreement's signature line for Barry's attorney remained blank, and Brown only signed the signature line provided for the notary.
Brown and Megwa quite possibly violated Arizona's ethical rules which provide: "In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." (17A. A.R.S. Sup. Ct. Rules, Rules of Prof. Conduct, Rule 42, E.R. 4.3.) The behavior of Barry's counsel could have lulled any lay person into a false sense of security, even if we did not take into account that Sun had been in the United States only one month and had no prior experience in negotiating a legal contract.
Barry and the dissenting opinion complain that substantial evidence supported the trial court's ruling and cite the following evidence: Barry and Sun had frequently discussed their intent to keep their money separate. Sun knew that Barry would not marry her unless she signed an agreement that contained a provision to keep their income separate. The meeting with the attorneys was not rushed and Sun could have postponed the wedding since only a few people had been invited. However, none of these facts bears on Sun's awareness of her need for counsel. Neither Barry nor the dissenting opinion can cite any evidence in the record to indicate that Sun was ever advised of the potential conflict of interest and the concomitant reasons why she should seek counsel.
Barry also argues that he would not have married Sun had she refused to sign the agreement. Therefore, even if she had counsel, the agreement would have remained the same. This argument merits little discussion. There is no way to know whether legal counsel for Sun could have persuaded Barry to modify the agreement in order to provide Sun with an interest in all or a portion of the community property, or to provide for such contingencies such as Sun's staying at home to raise the children. It is equally impossible to determine whether Barry and Sun would have come to an impasse and not married, which could have resulted in Sun's pursuing her own independent career and foregoing the luxurious lifestyle she enjoyed while married to Barry. Such speculation over what might have happened had Sun retained an attorney is idle speculation; the crucial inquiry is whether Sun voluntarily signed the agreement. She could not have done so without possessing more information than appears in this record.
Furthermore, other courts have considered a threat to cancel the wedding under such circumstances as evidence of coercion. One Florida Court of Appeal has opined: "Surely, particularly at the last moment, a prospective wife ought not be forced into a position of being 'bought' at the price of losing all if she does not agree to a grossly disproportionate benefit to the husband should she leave him under any and all circumstances, any more than she should be permitted to 'sell' herself at zero hour for an agreement resulting in a grossly disproportionate gain to her upon the same eventuality. Along with public policy considerations this is the very reason why 'fairness' is the polestar in these agreements; and fairness would certainly include an opportunity to seek independent advice and a reasonable time to reflect on the proposed terms." (Lutgert v. Lutgert, supra, 338 So.2d at p. 1116.)
Accordingly, we conclude that the trial court erred in failing to give the proper weight to the factor of Sun's not having any legal counsel while Barry had two attorneys and his agent advising him. As with settlement agreements in divorce actions, the court should "carefully scrutinize the agreements" when the party challenging the agreement did not have the advice of counsel (Adams v. Adams, supra, 29 Cal.2d at p. 628).
D. Scrutinizing the Totality of the Circumstances
Not only did the absence of trial counsel fail to trigger closer scrutiny by the trial court, but the trial court compounded its error by giving this factor almost no weight. The trial court dismissed this factor when it concluded that Sun understood her community property rights and had agreed that both Barry and she should not have an interest in the other's income after marriage. The trial court therefore effectively concluded that Sun did not need legal counsel.
Sun understood the agreement, Barry asserts, because Brown and Megwa read aloud each provision in the contract and then "clarified" its meaning. Brown and Barry testified that Sun asked relevant questions and never indicated that she did not understand what she was signing.
It is clear from the testimony, however, that even Barry, who spoke English as his first language and had prior experience negotiating legal contracts, did not leave the meeting with an accurate understanding of the provisions of the contract. At trial, Barry was asked to read the following provision in the contract: "We recognize that community property law generally specifies that appreciation from separate property shall remain separate property except for that appreciation which comes about from the direct efforts of a spouse during marriage." When asked to explain this section, Barry testified that he believed this meant: "That we were going to have, that it was going to remain separate property and in protection to both parties that if Sun was to get it through her career and make it, I had to put in just as much effort into that, or financial, as she was for it to be community property because we did it jointly, or it would remain separate in protection to her or in protection to myself. That's why it says we, for the both of us."
Barry was also asked the meaning of "consideration" in the following provision in the prenuptial agreement: "As consideration for the promise of marriage, one to the other and for other valuable consideration." Barry responded: "It means if I__if__in this statement, 'consideration' can mean whatever statement or sentence it is put in. Whatever, if I am considering her needs or wants, am I considering other things in this sentence."
Although Barry was confused about the meaning of the above provisions, he nevertheless maintains that Brown clearly explained the provisions to Sun and that she understood them. Barry testified that Brown "attempted to explain the legal ramifications as he [explained the provisions]."
Specifically, Barry contends that Sun understood that she was waiving her statutory rights to community property. The critical provision regarding the community property waiver was paragraph 10 in the agreement, which provided, in pertinent part, as follows: "CONTROL AND EARNINGS OF BOTH HUSBAND AND WIFE DURING MARRIAGE. We agree that all the earnings and accumulations resulting from the other's personal services, skill, efforts and work, together with all property acquired with funds and income derived therefrom, shall be the separate property of that spouse. [¶] The earnings from husband and wife during marriage shall be: [¶] separate property of that spouse."
Nothing in this paragraph explained that such earnings would ordinarily be community property. "[N]o waiver of right can be inferred from a written stipulation except where an intentional relinquishment of the known right is explicit, the terms and scope of the waiver are spelled out and the express reason for the waiver set forth . . . . [Rights strongly favored in our law] 'will not be held to have been waived or relinquished except where the language relied upon clearly and explicitly manifests that intention.'" (In re Marriage of Moore, supra, 113 Cal.App.3d at p. 28, citing City of Ukiah v. Fones, supra, 64 Cal.2d at p. 109; see also In re Marriage of Vomacka (1984) 36 Cal.3d 459, 469.)
Although the contract did not explain that Sun was entitled to community property under Arizona law, Barry claims that Brown sufficiently explained this to her. In fact, Brown testified that he provided the following explanation of community property: "That the State of Arizona is a community property state; that the effect of the prenuptial agreement would be to disavow that community property regime between hers [sic] and Barry. That what they were doing was creating a different community regime, one of separate property. That if they did not do the prenuptial agreement all of the community, all of the property that they each generated would be community property and they each would have an interest in the other's property. That would be property, income, anything of value that was generated by their efforts once they were married. And the agreement was going to eliminate the effect of that community property regime.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"That at the execution of the prenuptial agreement Barry's income would be Barry's, Sun's income would be Sun's. That the prenuptial agreement would not result in a mingling of their assets as joint owner.
"That the agreement would exclude the effect of community property laws, that Barry's income and property would remain separate from Sun's income and property. That the only way that they could change that would be by some affirmative act in writing."
Later, Brown testified about using a hypothetical to explain the agreement's impact on community property. He explained: "I think I did essentially what I just illustrated, that is, talk about the fact if Barry makes so much money it will remain his, and if you make so much money it's going to remain yours, it's not going to become a part of the community or part of a community property regime."
Even if we were to agree with the trial court that Brown adequately explained to Sun, a lay person, her right to community property, that does not mean that she voluntarily executed the agreement. Brown's attempt to explain community property rights to her exemplified just one aspect of the need for legal counsel. Besides equalizing the bargaining process, the presence of independent counsel functions to ensure that the contract addresses and explains the possible situations and contingencies that may occur during the marriage. "It is wholly unrealistic to expect 'the parties to a marital settlement agreement [to] anticipate and provide for unexpected changes of circumstances which may invalidate the expectations reflected in the agreement.' [Citation.]" (In re Marriage of Benson, supra, 171 Cal.App.3d at p. 913.) This is true for settlement agreements at dissolution and, perhaps even more true for agreements made before marriage that prospectively alter or eliminate statutory rights to property and income accumulated during the marriage. It is obvious that the heightened emotions and optimism which often precede marriage may hinder people from considering what may be in their long-term best interests. After all, marriage itself has been referred to as the "triumph of hope over experience."
Thus the problem is not simply that Sun did not have her own counsel explaining the legal concepts to her and that she never received an adequate explanation of those concepts. She also did not have an attorney advocating on her behalf and explaining the agreement's impact upon her if she were to become disabled or never succeeded in a career. As Sun points out, the record is devoid of any evidence that Sun was told that given Barry's current profession and income and her lack of skills and employment, Barry would disproportionately benefit even if Sun were to find employment. Further, no one discussed with her that she would not be entitled to any money, or property purchased by Barry's income, if she stayed home to raise the children and sustain the family home.
Barry, who had negotiated legal contracts before, had his attorneys Brown and Megwa and his financial agent Wilcox at the meeting as his advocates. Sun only had her Swedish friend, Forsberg, and herself. Neither Sun nor Forsberg had any special legal knowledge or business experience in negotiating contracts. "The purpose of independent counsel is more than simply to explain just how unfair a given proposed contract may be; it is for the primary purpose of assisting the subservient party to negotiate an economically fair contract." (Foran, supra, 67 Wash.App. at p. 254, italics added [834 P.2d at pp. 1088-1089].)
One of the commissioners that drafted the UPAA explained that parties need their own attorneys to "trot out the parade of horribles to their clients . . . . Many of these changed circumstances of the petitioner can be addressed through properly drafted provisions in the antenuptial agreements themselves. And if you are going to have a marriage which appears to be on sound ground, I would suggest that a person would not be doing [his or her] duty as an independent counsel for a party without suggesting that they have specific agreements in the contract that would specify what would happen in some of these contingencies." (Proceedings, Aug. 3, 1982, pp. 52-53; see also Lutgert v. Lutgert, supra, 338 So.2d at p. 1116 [immaterial that agreement was clear on its face because unrepresented spouse was not provided with enough information to make execution voluntary].)
The court therefore should have scrutinized the other factors related to duress, coercion, and fraud. As we have already stressed, not only did Sun lack any legal counsel, but Barry's attorneys actually gave her legal advice and acted in a manner that contaminated the entire process. Moreover, Sun was neither given a copy of the agreement to review prior to the meeting nor given a copy of the agreement even after she signed it. Any delay would have resulted in a postponement of the wedding. The wedding may have been planned as a "small affair," but guests such as Willie Mays, Bond's relatives, and Sun's friend who had traveled from Canada had made special arrangements to be there. Finally, as already noted, as she arrived at the attorneys' office, Wilcox aggressively threatened Sun with "no wedding" if she did not sign the agreement.
Another factor to consider when scrutinizing the totality of the circumstances, which reflects the hastiness of the entire process, was the large number of typographical errors (and the repeated paragraph) in the contract, making many of the sentences confusing if not incomprehensible. For example in paragraph 19, the last sentence stated, "These gifts shall become the sole and separate property of the done spouse." Brown (who is a lawyer and presumably a native speaker of English) first testified that it should have read "donor spouse," and after further questioning, recognized that it should have stated "donee spouse." In paragraph 21, the first sentence states, "The debts contracted by each party prior to their marriage shall be paid sully by the party who incurred that debt." Brown testified that the word should have been "solely." At times, the contract almost appears to have been a poor translation from another language. We are left to wonder not only how Brown's verbatim recital of such garbled provisions could have assisted the parties' understanding, but also how such errors could have persisted after such a careful reading.
Brown stated that when the agreement was read aloud to Sun, the typographical errors were corrected, but the trial court also found this testimony incredible. The court stated: "One of the things that I'm having trouble recognizing in my mind is, if the attorneys have such a detailed memory of what occurred on that date, I'm talking about Brown and Megwa, how could they produce such a sloppy work product as that contract? [¶] How could they read through it and explain it paragraph by paragraph as they said they did, and still allow it to come off the press in the fashion that it has? [¶] It doesn't seem to me to make logical sense that you would be so meticulous in your oral presentation of the contract, and so sloppy in your written presentation. I can't reconcile the two.
"But if they were so meticulous in explaining this to her, they would have been meticulous in their authorship of this, and cleaning it up and producing an agreement that made sense; not one that referred to schedules that didn't exist, that repeated paragraphs, that had important typographical errors. ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
" . . . I'm just saying that, how can you expect me to believe that these attorneys were meticulous in their oral presentation, careful, logical in explaining it all to her when their written product is a shambles?"
A further problem with the prenuptial agreement was its incompleteness. The agreement stated that a schedule of separate property would be attached, but it is undisputed that no such schedule was attached. Sun maintains that the disclosure of the community property affected by the agreement was equally incomplete. The agreement stated that household furnishings would be community property, but it also provided that other property would be community as set forth in the schedule to be attached. No such schedule was attached. Additionally, the agreement contained the heading "SPOUSAL MAINTENANCE AND CHILD SUPPORT," but the text following it was an unenforceable provision regarding child support and stated nothing about spousal support.
Where it appears from the record as a matter of law that there is only one proper judgment on undisputed facts, we may direct the trial court to enter that judgment. (Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 440.) Here it is undisputed that Sun had no legal representation and was not advised about any potential conflict of interest between Barry and her; that Barry's attorneys devised the agreement and played a confusing and misleading role when explaining the agreement; that Sun felt pressure to sign because of the pending marriage and was under the threat of "no marriage" if she did not sign; that Sun did not have even a day to review the agreement, but merely a couple of hours in the attorney's office; that there appeared to be some tampering with the agreement by Barry or his agents and the original contract was never provided to the court; and that the agreement was filled with errors and was patently incomplete. We conclude that, under the totality of the circumstances, Sun did not execute the prenuptial agreement voluntarily.See footnote 10 Because no factual issues remain to be determined after a reversal of the judgment, and we conclude the errors of the trial court were of law only, remand would serve no purpose. Accordingly, we shall reverse with directions to enter judgment that the agreement is invalid.
The trial court awarded Sun $10,000 per month in child support for each of the Bonds' two children, and it awarded Sun an additional $10,000 per month as spousal support, which was to be terminated December 30, 1998. Sun contends that the amount of support was too little and the spousal support should not end by this specific date. We are not persuaded by Sun's first argument, and, given the change in Sun's fortunes likely to result from this opinion, we remand for the trial court to review the issue of spousal support and its duration.
A. Combining Child and Spousal Support
Sun asserts that the trial court abused its discretion in its determination of child and spousal support. Under California law, both parents are mutually responsible for the support of their children, and each parent should pay according to his or her ability. (§ 4053, subds. (b) & (d).) A parent should provide support according to the parent's circumstances and station in life, and children should share in the standard of living of both parents.
A decision not to order the guideline amount pursuant to section 4055 is legal error, unless the trial court finds that a special circumstance is present. (In re Marriage of Carter (1994) 26 Cal.App.4th 1024, 1028-1029.) The trial court can deviate from the guideline where the supporting parent has an extraordinarily high income, and the guideline amount would exceed the needs of the children. (§ 4057, subd. (b)(3); Estevez v. Superior Court (1994) 22 Cal.App.4th 423, 428-431.) In this latter situation, the court has the discretion to order whatever amount it decides will meet the reasonable needs of the children, consistent with the basic principles of section 4053. (McGinley v. Herman (1996) 50 Cal.App.4th 936, 941-943.)
Barry stipulated to having, and the trial court found that he had, an extraordinarily high income. Barry's 1996 pre-tax salary was $8,000,000; thus, guideline support would have been $67,043 per month for both children. Sun does not argue that a special circumstance did not exist, but she complains that the court abused its discretion in determining the amount.
Sun's principal argument is that the court improperly determined child support based on a "bare necessities" theory. Barry's expert accountant, Paul White (White), recommended $29,454 per month in combined child and spousal support. Sun objects that he predicated this sum on a "bare necessities" marital lifestyle.
Child support, Sun contends, is not limited to the living standards established during marriage (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 551; see also § 4053 subds. (a), (c), (d), & (f)), and children of a wealthy parent are entitled to more than the bare necessities (Catalano, supra, at p. 551; Singer v. Singer (1970) 7 Cal.App.3d 807, 813). When making his calculations, White, according to Sun, mistakenly excluded the expenditures for establishing a retirement account, charitable contributions, life insurance, a $20,000 expense for the Giants' luxury box, and purchasing a car or other assets. Sun protests that the resulting support award "requires" Sun and the two children to live on "only" 4.5 percent of Barry's monthly income.
Under the custody order, the children will spend 20 percent of their time with Barry. Thus Sun is arguing that $20,000 per month for 80 percent of the time with the children will only cover the bare necessities. This argument is remarkable for its lack of merit. Sun cannot seriously argue that $20,000 a month would only provide for her children's bare necessities. Moreover, since we are reversing the trial court's ruling that the prenuptial agreement was valid, and Sun will now receive her share of the community property, she will have significantly more assets of her own to help her provide for the children beyond their "bare necessities."
B. Spousal Support
Sun also challenges the award of $10,000 in spousal support for four and one-half years. Her argument is twofold: procedural errors should result in a reversal, and terminating the award after only four and one-half years is an abuse of discretion.
1. Procedural Errors
The trial court first heard the issue of the validity of the premarital agreement in March and April of 1995. The court issued its tentative ruling on this issue; Sun requested a statement of decision, which was issued on July 20, 1995. Trial recommenced on the remaining issues. On March 7, 1996, the trial court issued its tentative decision and stated that it needed more information from Sun's expert to determine the duration of spousal support. It therefore ruled that this issue would be tried later, at a separate hearing. Sun again requested a statement of decision, which was issued on April 30, 1996.
Prior to hearing the evidence on the duration of spousal support, the trial court issued its judgment on May 29, 1996. Judgment was entered on June 5, 1996. The judgment reserved jurisdiction over the duration of support.
On June 20, 1996, Sun filed a notice of intention to move for a new trial or to vacate the prematurely entered judgment. Five days later Sun filed her motion for new trial or to vacate, objecting to the violation of the final judgment rule (see, e.g., Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 966-967).
On September 9, 1996, the court heard evidence regarding the duration of spousal support. By minute order dated September 25, 1996, the court set December 30 as the termination date for spousal support.
Sun contends that the court's premature entry of judgment deprived her of the opportunity to request a statement of decision on duration of spousal support; and thus, we should automatically reverse the trial court's decision. Sun argues that California Rules of Court, rule 232.5 provides that, after issuing a tentative decision and statement of decision on a bifurcated issue, ". . . no proposed judgment shall be prepared until the other issues are tried . . . ." Sun asserts that the court violated this rule by entering judgment on the spousal support amount before the trial on duration had occurred. This, she maintains, foreclosed her opportunity to request a statement of decision, because the time to make such a request is triggered by the tentative decision. This, she argues, is per se reversible error (Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129).
Barry contends that this procedure is permissible. A trial court is allowed to reserve jurisdiction over certain issues that cannot be resolved at the main trial in a family law matter without violating the one final judgment rule. (§ 2550; In re Marriage of Kilbourne (1991) 232 Cal.App.3d 1518, 1524-1525 (Kilbourne); In re Marriage of Munguia (1983) 146 Cal.App.3d 853, 858-859 (Munguia).) In addition, a final judgment can make a spousal support order that is subject to review after either spouse's employment situation is clarified. (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1215-1216 (Padilla).)
The court may reserve jurisdiction over issues regarding the division of property, but, as Sun points out, duration of permanent spousal support is not a division of property. Thus section 2550 and the cases of Kilbourne, supra, 232 Cal.App.3d 1518 and Munguia, supra, 146 Cal.App.3d 853 have no application because they permit the trial court to divide community property on a date subsequent to the trial if the court expressly reserves jurisdiction. Additionally, as Sun argues, Padilla is unavailing. Padilla, supra, involved the subsequent motion to modify child support that was filed three years after permanent child support had been awarded in the judgment. (38 Cal.App.4th at pp. 1214-1215.)
Barry also contends that Sun's motion for a new trial was untimely. The notice of entry of judgment was mailed on June 5, 1996. Code of Civil Procedure section 657 requires a motion for new trial to be filed within 15 days from notice of entry of judgment. Since Sun did not file her motion until June 26, 1996, it was a nullity. The augmented record, however, establishes that Sun filed her notice of intention to move for a new judgment and for a new trial on June 20, 1996. Therefore it was timely.
In addition, Barry claims that the motion for a new trial was premature under California Rules of Court, rule 232.5 (see also Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal.App.3d 933, 937 [motion for new trial cannot be made until all issues in bifurcated case have been determined]). Rule 232.5 provides, in pertinent part: ". . . Any motion for a new trial following a bifurcated trial shall be made after all the issues are tried . . . ." Here, however, the issue of duration of spousal support was not a bifurcated issue. Given the trial court's improper procedure and violation of the final judgment rule, Sun's motion was not premature.
Barry also contends that the hearing on spousal support was concluded in one day, and pursuant to Code of Civil Procedure section 632, Sun was required to request a statement of decision prior to the submission of the matter. Sun did not do this; thus, he claims, she was not entitled to a statement of decision. Barry argues that duration was a separate issue, as the minute order was separately appealable as a post-judgment order. (Code Civ. Proc., § 904.1, subd. (a)(2).)
Code of Civil Procedure section 632 provides, in pertinent part: ". . . The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. . . ."
It is true that the issue of duration of support was heard on one calendar day, but the issue of duration was really just a continuation of the second phase of the trial which decided, among other things, the amount of spousal support. Once the court issued the minute order, Sun should have requested a statement of decision within 10 days of that order. Sun had never specifically requested a statement of decision on the issue of duration, and thus did not satisfy the requirements of Code of Civil Procedure section 632. The fact that the court's minute order was not labeled a "tentative decision" is not dispositive. If Sun had requested a statement of decision, the court would have been compelled to issue one, and the minute order would have functioned as a tentative decision.
2. Abuse of Discretion
We need not consider Sun's second contention, that the trial court abused its discretion in terminating spousal support, because, in light of our conclusion that the prenuptial agreement was invalid, Sun's economic status may be substantially changed since the trial court last heard evidence concerning her economic situation. We will therefore remand the matter for the trial court to redetermine the question of when spousal support should end in light of the parties' new circumstances.
We reverse that part of the judgment which upheld the validity of the prenuptial agreement, and instruct the trial court to enter judgment that the prenuptial agreement is invalid. We affirm the judgment regarding child support and we remand for the trial court to divide the community property consistent with this opinion and to redetermine the issue of the duration of spousal support. Sun is awarded costs on appeal.
Kline, P. J.
RUVOLO, J., Concurring and Dissenting:
I concur with the majority's conclusion that the trial court did not abuse its discretion by admitting Exhibit 1 into evidence, and awarding child and spousal support. However, I respectfully dissent from the majority's determination that the premarital See footnote 1 agreement was invalid and unenforceable under California law. See footnote 2
The majority begins by recognizing the need for greater uniformity and predictability in the judicial treatment of premarital agreements (maj. opn. of Lambden, J. at p. 1), a proposition with which I agree, as did our duly-elected Legislature in enacting the UPAA. Yet the majority ironically contributes to the veritable judicial lottery it suggest exists in the law by importing elastic, judicially-created standards into the plain language of the statute adopted by the Legislature 14 years ago. In doing so, the majority has abandoned the statutory test requiring a party resisting the enforcement of a premarital agreement under section 1615, subdivision (a)(1) to prove the agreement was entered into involuntarily. In its place the majority poses a new test, quilted together predominantly by reference to appellate opinions from states where the UPAA has not been adopted, requiring "strict scrutiny" of "the totality of circumstances" (maj. opn. at p. 3) pertaining to premarital agreements entered into where one party lacks legal representation.
Not only does the "strict scrutiny" test depart from the statutory calculus we are obliged to apply, but it subverts the UPAA's express dual purposes of enhancing the certainty that premarital agreements will be enforced, and ensuring that these agreements will receive uniform treatment by the courts. Moreover, it improperly elevates the importance of both parties securing independent legal counsel despite the explicit legislative rejection of this proposition.
Although the majority acknowledges that strict scrutiny is not required when the unrepresented party has effectively waived his or her right to independent counsel, it proceeds to establish a four-part test for determining the effectiveness of such a waiver that is unprecedented in the annals of California civil law. This new test is undeservingly analogized to the standards required for the waiver of criminal constitutional rights and the waiver of statutory rights in postmarital agreements. It also unrealistically requires counsel for the represented party to engage in potentially unethical behavior in order to ensure the waiver will be upheld.
Despite the majority's desire to provide guidance to the trial courts, quite the contrary will be achieved. These new legal standards are so ambiguous and ill-defined that they will only serve to induce unwarranted confusion and inconsistent results. At the same time, they threaten the continued viability of thousands of existing premarital agreements entered into in reliance on the clear, plain mandate of the statute in question.
Equally troublesome is the majority's refusal to accord appropriate deference to the factual findings of the trial judge. In this case, the trial court issued lengthy and detailed findings that were well-supported by the record. Instead of accepting these findings, the majority has assumed the role of a trier of fact and reweighed the evidence to reach its own contrary results. Moreover, after conceding that it is setting forth a new legal standard for assessing the validity of premarital agreements in California, the majority has opted to reverse the trial court without remand, in derogation of well-established principles of appellate review.
For these reasons, I am compelled to dissent.
In California, the enforceability of premarital agreement is governed by statute. (Fam. Code, § 1615.) Our Legislature has adopted the UPAA, which sets forth comprehensive standards for testing the validity of premarital agreements. The statute provides: "(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following: [¶] (1) That party did not execute the agreement voluntarily. [¶] (2) The agreement was unconscionable when it was executed and, before the execution of the agreement, all of the following applied to that party: [¶] (A) That party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party. [¶] (B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. [¶] (C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. [¶] (b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law." (§ 1615.)
Given the 200-year history of United States jurisprudence, premarital agreements are a relatively au courant development of common and statutory law. As the majority points out, the seminal case of Posner v. Posner (Fla. 1970) 233 So.2d 381 appears to be the first appellate decision ending the drought against the enforcement of premarital agreements on the ground that they are contrary to public policy. (Id. at p. 385.). California joined those states permitting enforcement of such agreements three years later in In re Marriage of Higgason (1973) 10 Cal.3d 476 overruled on other grounds in In re Marriage of Dawley (1976) 17 Cal.3d 342, 352. Yet the standards of enforceability which developed during the first decade of judicial acceptance of premarital agreements were diverse, inconsistent and unpredictable.
In 1983, the National Conference of Commissioners on Uniform State Laws (the Commission) approved and published the final version of the UPAA (9B U. Laws Ann. (1987) Uniform Premarital Agreement Act, Historical Note, p. 369). The majority agrees the mission of the drafters of the UPAA was to bring order to the chaos surrounding enforcement of premarital agreements. The "Prefatory Note" recited the drafters' view that the uncertainty and lack of uniformity of enforcement was a result of a "spasmodic, reflexive response to varying factual circumstances at different times." (Id. at p. 369.)
The publication of the UPAA came after more than a year of meetings and drafting by the Commission. (See the Commission's proposed drafts (1982-1983).) As with a number of enforceability issues, See footnote 3 the Commission's position on the impact independent legal representation should have on the validity of premarital agreements evolved significantly during its work. An early draft considered by the Commission proposed to invalidate agreements where one of the parties was not represented by counsel, unless the unrepresented party nevertheless had knowledge of the financial obligations and property of the represented party, the agreement was substantively fair when executed, the party against whom enforcement was sought understood the effect of the agreement, and it was executed voluntarily. (See draft presented at meeting of the Commission held July 30-August 6, 1982, § 7, subds. (a)(2) and (b).) Furthermore, notwithstanding the above, the draft empowered the court to refuse to enforce any part or all of an agreement if it was necessary in order to avoid an unconscionable result. (Id. at § 7, subd. (c).)
By the time of the Commission's final hearing in July 1983, this draft enforcement provision had changed considerably. The final draft deleted the language requiring independent counsel, See footnote 4 and eliminated substantive unfairness as a ground for invalidating agreements. The chairman noted the deletion was made with the expectation that representation would only be "a factor in determining whether the party acted voluntarily and knowingly." (See transcript of National Conf. of Commissioners on Uniform State Laws, Committee Proceedings re Uniform Antenuptial Agreements Act (July 1983), pp. 3-4 (hereafter Proceedings).)
There is little doubt that by this time the Commission's focus was on increasing the certainty that premarital agreements would be enforced where execution of the agreement was not the product of coercion, duress, or fraud, and the parties' respective assets and liabilities were fully disclosed. As expressed by the Commission's chairman, Bion M. Gregory of Sacramento: "If you have a fair and reasonable disclosure, we feel you ought to have a contract which is enforceable, even though it's a contract that a hundred other people would not have entered into." (Id. at p. 54.)
The final version of the uniform law adopted by the Commission removed many of the obstacles that traditionally prevented premarital agreements from being enforced. Under the UPAA, courts were only permitted to invalidate premarital agreements in two limited situations: (1) where the resisting party proves the agreement was executed involuntarily, or (2) where the agreement was unconscionable when made and the resisting party did not either possess adequate knowledge of the prospective spouse's property or financial obligations of the party asserting the agreement, or waive the right to obtain such financial disclosures.
The final draft was criticized both within and outside the Commission. During the last hearing, the following comment was made by one Commission member: "MR. MILLER: But that in a premarital agreement unconscionability alone will not preclude enforcement. On the other hand, a lack of voluntariness in execution under either Act would preclude enforcement. But assuming it is voluntary, and assuming that we are dealing with an antenuptial agreement, the language that we have here with the 'and' in it would require that all of those conditions exist before a voluntary agreement would be rejected. [¶] Now, that seems too harsh a position, because the party would have the burden of proving all of those four conditions: that he got no notice, that he didn't waive notice, that he had no knowledge of the financial condition, and that it was unconscionable. That seems too drastic a burden to impose on a party who has entered into a premarital agreement voluntarily." (Proceedings, supra, July 1983 at pp. 108-109.) Other Commission members expressed similar misgivings. (Id. at pp. 120-123.)
Some legal commentators have criticized the UPAA as being an unjustified elimination of protections against the enforcement of "unfair" premarital agreements which existed under common law. "In pursuit of this goal of making the enforcement of premarital agreements more certain, the [UPAA] sacrifices virtually all principles that have been created by the common law to prevent the enforcement of unfair agreements. . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"[¶] Under the [UPAA] it is possible for an unrepresented, prospective wife to make a binding premarital agreement that is so one-sided as to be unconscionable. Such an agreement would be binding if it includes a written waiver of her right to disclosure or if the circumstances suggest that she had reason to know of his financial means (even absent actual knowledge)." Brod, Premarital Agreements and Gender Justice (1994) 6 Yale J.L. & Feminism 229, 276, 278 (Premarital Agreements and Gender Justice).See footnote 5 Similar criticisms have been voiced by others. (See Marston, Planning for Love: The Politics of Prenuptial Agreements (1997) 49 Stan.L.Rev. 887, 899 (Planning for Love).)
Despite these reservations, California was one of the first states to adopt the UPAA.See footnote 6 Opposition to the bill came from the Women Lawyers' Association of Los Angeles, who warned "[t]he bill specifies extremely high standards for voiding an agreement." (See Mary-Lynne Fisher, Member, Women Lawyers' Assn. of L.A. Legislation Committee, letter to Sen. Robert G. Beverly re S.B. No. 1143 (1985-86 Reg. Sess.) June 6, 1985, p. 1.)
For better or for worse, this is the statute we are compelled to apply to the evidence adduced at trial. The majority is correct that it is our lot to apply the UPAA without attempting to advance the "social debate over paternalism or chauvinism" (maj. opn. of Lambden, J. at p. 20) that characterizes many of the legal decisions setting the standard of enforceability in other jurisdictions. While commentators have not been shy to marshal the social, political and cultural arguments both favoring and disfavoring premarital agreements (see Planning for Love, supra, 49 Stan. L.Rev. 887; Premarital Agreements and Gender Justice, supra, 6 Yale J.L. & Feminism 228; Younger, Perspectives on Antenuptial Agreements (1988) 40 Rutgers L.Rev. 1059), once all the conflicting viewpoints have been considered and definitive legislation has been passed, it is a debate in which the courts cannot engage.
"[I]n construing a statute, the duty of the court 'is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted.' (Code Civ. Proc., § 1858.) 'It is . . . against all settled rules of statutory constructions that courts should write into a statute by implication express requirements which the Legislature itself has not seen fit to place in the statute.' [Citations.]" (In re Rudy L. (1994) 29 Cal.App.4th 1007, 1011.)
Under subdivision (a)(1) of Family Code section 1615, a premarital agreement may be invalidated when the party resisting enforcement proves that he or she "did not execute the agreement voluntarily." This subdivision presents a narrow exception to the general rule favoring the enforcement of premarital agreements. (See § 1612; In re Marriage of Higgason, supra, 10 Cal.3d at p. 485 [premarital agreements favored as long as they do not regulate spousal support].) As previously discussed, the Commission considered and rejected an earlier version of the UPAA which contained language that would have exalted the importance of each party having obtained the advice of independent legal counsel. Under the final version of the UPAA, independent representation was relegated to one factor out of many that might effect the voluntary nature of the premarital agreement. (Proceedings, supra, July 1983 at pp. 3-4.) Similarly, by enacting the UPAA's enforcement section without modification, the California Legislature left it to the trier of fact to consider any and all factors relevant to voluntariness and accord them their proper weight.
Rather than adhere to the plain language of the statute, the majority has in reality chosen to reinsert the requirement that each party obtain independent legal counsel. The majority further reaches beyond the law by imposing "strict scrutiny" review of the "totality of the circumstances" (maj. opn. of Lambden, J. at pp. 3, 44, 49, 51) on cases that fail to meet this new requirement. Support for this nascent rule has been patched together from a handful of out-of-state cases. Yet these cases either originate from jurisdictions that never adopted the UPAA (Fletcher v. Fletcher (1994) 68 Ohio St.3d 464 [628 N.E.2d 1343]; Matter of Marriage of Foran (1992) 67 Wash.App. 242) [834 P.2d 108], or had not yet adopted the UPAA at the time the opinion was issued (Gant v. Gant (1985) 174 W.Va. 740, 749 [329 S.E.2d 106, 116]).See footnote 7 Until today, no UPAA state has adopted the expansive rule proposed by the majority.
Although the UPAA was designed to enhance the certainty that premarital agreements would be enforced by making it more difficult for parties resisting enforcement to void such agreements, the majority has adopted a rule that subverts this statutory purpose. Under the UPAA, the burden of proving that the premarital agreement was involuntarily executed rests squarely on the party resisting enforcement. By adopting the strict scrutiny test, the majority reverses this burden of proof when the party resisting enforcement was not represented by independent counsel. In such instances, the majority has not only relieved the resisting party of its statutory burden of proving involuntary execution, it has also instructed trial courts to view evidence that would ordinarily favor enforcement of the agreement through the suspicious lens of "strict scrutiny." Although the majority claims it has stopped short of requiring independent counsel as a prerequisite to a valid premarital agreement, the strict scrutiny test imposes such an extraordinary evidentiary burden that it inevitably mandates the same result.
Family law judges in this state estimate that either one or both parties passing through family courts do so without legal representation in 90 percent of their cases. (Judicial Council of California, State Court Outlook (1998) Vol. II, p. 40.) In the relatively less adversarial context of executing a premarital agreement, it is likely that an even greater percentage of parties fail to secure the advice of independent legal counsel. The majority's new rule, which it applies retroactively to invalidate an agreement signed over 10 years ago, places a vast number of extant premarital agreements in jeopardy. Rather than promoting the goals underlying the UPAA, the majority's strict scrutiny rule forces back the hands of time, thereby recreating an epoch of chaos in the law which the UPAA was designed to eliminate. The majority's new rule plunges premarital agreements executed without independent legal representation back into uncertainty. The remote possibility that these agreements could be enforced if they survive a court's strict scrutiny is cold comfort to parties who entered into these agreements in reliance on the plain language of the UPAA.
Not only has the majority managed to undo the Legislature's effort to imbue premarital agreements with certainty, but it has significantly undermined the legislative goal of ensuring that these agreements will be treated uniformly by the courts. The new legal rule announced by the majority is so subjective, imprecise, and poorly defined that it will encourage the very "ad hoc," "inconsistent," and "contradictory" holdings that the majority seeks to eliminate. (Maj. opn. at p. 1.)
First, the majority opinion is peppered with a variety of formulations and explanations of its strict scrutiny rule, each more vague and elusive than the last. The majority announces its holding as follows: "[W]hen a party challenging a premarital agreement establishes that he or she did not have legal counsel while the other party had such assistance, and the unrepresented party did not have the opportunity to obtain legal counsel or did not knowingly refuse legal counsel, the court must strictly scrutinize the totality of the circumstances involved in the execution of the contract." (Maj. opn. at p. 3.) This holding may be broken down into the following elements: There must be a lack of independent counsel resulting either from (a) a lack of opportunity to obtain legal counsel, or (b) a lack of knowing refusal of legal counsel. If so, the totality of the circumstances surrounding execution of the agreement must undergo strict scrutiny.
Part of the difficulty parsing this standard stems from the lack of consistent articulation of it throughout the majority opinion. For example, the majority later reformulates its holding as follows: "[w]hen the party challenging the agreement waives a statutory right in the contract, and this person does not have any legal or business sophistication and does not have an advocate with legal skills while the other prospective spouse does have legal assistance, the validity of the agreement requires closer scrutiny." (Maj. opn. at p. 33.) Thus, we are left to wonder whether the majority is setting forth a rule that applies to all unrepresented parties to premarital agreements, or just parties without "any legal or business sophistication." Moreover, this inherently ambiguous phrase is never defined.
The same can be said of the reference to a lack of opportunity to consult with counsel. Although lack of opportunity is stated to be an integral part of its rule, the majority never explains what evidence would be required to satisfy this standard. The majority then criticizes the trial court for "conclud[ing] that__despite Sun's complete lack of income and dependence upon Barry after moving to the United States and no evidence of any offer to pay for her counsel__she had a 'reasonable opportunity' to obtain independent counsel." (Maj. opn. at p. 38.) Yet, its lengthy opinion provides no insight into the proper basis for such a finding. Is the represented party required to volunteer to advance the costs of providing the unrepresented party with independent counsel where that party expresses no interest in having legal representation? This critical question is raised, but never answered.
The majority at least attempts to clarify that portion of its holding as to what constitutes a knowing waiver of counsel. However, in so doing, it adopts a novel rule that requires counsel for the represented party to deliver a four-part admonition designed to ensure that the unrepresented party understands the need for independent counsel.See footnote 8 This admonishment basically explains to the unrepresented party that the attorney represents an adverse interest and that potential negative consequences could result from entering into the premarital agreement without independent representation. The majority opinion indicates that "[u]nder such circumstances, when a person so advised voluntarily foregoes the assistance of counsel, later challenges to any resultant agreement would not require the special scrutiny applied here." (Maj. opn. at p. 41.)
Presumably, the majority recognizes that imposing a duty on family law practitioners to ensure the unrepresented party "understands the conflict" before counsel can be effectively waived signals a significant change in procedure for members of the bar involved in securing premarital agreements for their clients. Until today, there was no reported decision in any UPAA state allowing the party opposing the validity of a premarital agreement to prove "involuntariness" by demonstrating he or she was not informed by the other party's counsel why they should have counsel, even though he or she was advised of the right to counsel and waived it. The majority also breaks new ground as being the first case, to my knowledge, to borrow principles from criminal law governing an accused's knowing and intelligent waiver of separate counsel in cases involving multiple representation of codefendants with conflicting interests (People v. Mroczko (1983) 35 Cal.3d 86, 109-110) and importing these principles into the realm of premarital agreements. While the majority acknowledges "no specific language must be used," it holds that each of the reasons for needing an attorney set forth in its series of admonitions must be specified. (Maj. opn. at p. 40.) This unusual and highly complicated definition of a knowing waiver is certain to encourage endless litigation over the sufficiency of waivers that heretofore have been routinely accepted by family law practitioners and trial courts in this state.See footnote 9
The majority's allusion to standards for the enforcement of post-marital agreements is equally unhelpful. Postmarital agreements are treated in a manifestly different way than are premarital agreements under California law. By statute, spouses who enter into property disposition agreements after a marriage commences are in a confidential and fiduciary relationship with one another. (§ 721.) By contrast, no statute imposes such a fiduciary relationship on prospective spouses, and our Supreme Court has squarely held that "Parties who are not yet married are not presumed to share a confidential relationship [citations]; . . ." (In re Marriage of Dawley, supra, 17 Cal.3d at p. 355.) Furthermore, we cannot agree with the majority's unsupported assertion that the passage of the UPAA justifies a wholesale departure from the binding precedent set forth in Dawley. Neither the majority's reliance on the UPAA's asset disclosure provisions, nor its belief that "the UPA acknowledged this state's paramount interest in the marriage relationship and restated the principles of equity underlying all areas of family law" (maj. opn. at p. 28) are a sufficient basis for the majority's utter disregard of our Supreme Court's holding in Dawley.See footnote 10 (Ibid.)
The majority fails also to recognize that its four-part disclosure requirement creates an irreconcilable tension with the ethical constraints that prevent an attorney from giving legal advice to an unrepresented party if the unrepresented party's interests are or have a reasonable possibility of being in conflict with the interests of the attorney's client. The duty outlined by the majority directly conflicts with the caution given in the comment to Rule 4.3 of the American Bar Association Model Rules of Professional, See footnote 11 which states that "[d]uring the course of a lawyer's representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel." (ABA Ann. Model Rules Prof. Conduct (2d ed. 1992), rule 4.3.)
Citing the same ethical considerations, California courts have consistently held there is no duty to protect or advise the interests of unrepresented nonclients who are having arm's-length dealings with the attorney's clients. As distinctly noted in Fox v. Pollack (1986) 181 Cal.App.3d 954, "an attorney has no duty to protect the interests of an adverse party [citations] for the obvious reasons that the adverse party is not the intended beneficiary of the attorney's services, and that the attorney's undivided loyalty belongs to the client." (Id. at p. 961, fn. omitted [attorney for parties to real estate transaction had no duty to unrepresented parties who met at the attorney's office to execute an exchange agreement].) The court explained: "The effect of such a duty on respondent would be the eradication of confidentiality [citations], the creation of a conflict of interest [citation], and the consequent destruction of the attorney-client relationship between respondent and his clients. The strong public policy in maintaining and enforcing the fidelity and duty of the attorney toward the client militates against the imposition of a duty to nonclients under these circumstances. [Citations.]" (Id. at p. 962.) As the court observed in Burger v. Pond (1990) 224 Cal.App.3d 597: " 'It is fundamental to the attorney-client relationship that an attorney have an undivided loyalty to his clients. [Citation.] This loyalty should not be diluted by a duty owed to some other person, such as [a future spouse].' [Citation.]" (Id. at p. 605, quoting Mason v. Levy & Van Bourg (1978) 77 Cal.App.3d 60, 66; see also Flatt v. Superior Court (1994) 9 Cal.4th 275, 289 [attorney is precluded from giving prospective client advice which could potentially compromise existing client's position].)
In spite of the wealth of authority indicating that an attorney should not give legal advice, beyond the advice simply that one has the right to independent counsel, the majority has taken the opposite approach, assigning to the attorney an affirmative duty to delineate the disadvantages of entering into the premarital agreement to an adverse party who has chosen to proceed without the assistance of counsel. The majority opinion even goes so far as to announce that an attorney has an "ethical obligation" to do so. (Maj. opn. at p. 42.) To mandate such excessive duties towards an adversary in a transaction once he or she has decided to proceed without counsel unwittingly forces attorneys, at least partially, to disregard their own client's best interests. It is the duty of an attorney to maximize the benefits a client receives from the transaction, and this duty is incompatible with the disclosure requirement imposed on counsel. The majority's new four-part test for effectively waiving independent counsel is seriously flawed because it confronts the bar with an Hobson's choice--compromise your duty to your client and risk running afoul of your ethical obligations by providing legal advice to the unrepresented party, or keep silent and thereby contribute to the uncertainty that your client's premarital agreement will be enforceable.
Part four of the majority's holding establishes the strict scrutiny standard. However, the meaning of this standard, described interchangeably by the majority as "strict scrutiny," and "close scrutiny," is never adequately explained. Although the trial court in this case found that the premarital agreement was valid even if Barry had the burden of proving it was entered into by clear and convincing evidence, the majority rejects the trial court's findings because it never subjected the evidence to "strict scrutiny." Trial courts are left to ponder just what evidentiary showing could ever survive the standard adopted today.
The last part of the majority's holding requires our trial courts to apply this strict scrutiny standard to "the totality of the circumstances involved in the execution of a premarital contract." But what type of examinations by trial courts does this statement portend? The majority does not tell us. Instead, the trial bench, counsel and litigants are left to extract what they can from the critique of the majority which appears to be more concerned with how many typographical errors this premarital agreement contained, than with assessing the knowledge Sun had about the rights she was relinquishing. By importing this expansive test into the UPAA, the majority has reintroduced the very legal ambiguity that led to the "spasmodic, reflexive" judicial decisions based on "varying factual circumstances" that our legislature sought to avoid. (9B U. Laws Ann., supra, Prefatory Note at p. 369.)
The majority agrees that the political and social forces which have led to the current state of the law favoring the validity of premarital agreements cannot and should not insinuate themselves into judicial decisions applying these laws. It is not for us to reject application of a statute because we deem it harmful or promotive to the institution of marriage, or because we believe the law favors the wealthy, or that it favors or disfavors one gender disproportionately. "In the absence of a challenge on constitutional grounds, the courts are not concerned with the wisdom of the legislation nor with measuring the value of its stated objectives against other values based upon economic and social considerations." (Coastal Southwest Dev. Corp. v. California Coastal Zone Conservation Com. (1976) 55 Cal.App.3d 525, 538.) The balancing of such policy matters has been squarely left to the Legislature of each state considering adoption of the UPAA. In adopting the UPAA, our state Legislature has exercised the policy balancing act with finality, leaving members of the judiciary with " 'the sole function' " of enforcing the statute according to its terms. (Leroy T. v. Workmen's Compensation Appeals Bd. (1974) 12 Cal.3d 434, 438.). Yet despite its lip service to this principle, the majority turns its back on the statute and wades into the very policy balancing it claims courts must eschew. This we cannot do.
The appellate standard of evidentiary review has been recited with such frequency that it cannot be easily overlooked. Indeed, the "very well settled" standard of substantial evidence is a core tenet of appellate review "which appellate courts have repeated 'countless times.' " (National Union Fire Ins. Co. v. Nationwide Ins. Co. (1999) 69 Cal.App.4th 709, 712-713, citing Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
This standard, which is not even mentioned in the majority opinion, bears repeating here. "It is a fundamental principle of appellate review that the factual findings of the trial court are presumed correct. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 . . . ; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1747 . . . ." (Construction Financial v. Perlite Plastering Co. (1997) 53 Cal.App.4th 170, 179.) " 'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' " (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, original italics; accord, Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.) "The court is without power to judge the effect or value of the evidence, weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. [Citation.] Unless a finding, viewed in light of the entire record, is so lacking in evidentiary support as to render it unreasonable, it may not be set aside. [Citation.]" (Huang v. Board of Directors (1990) 220 Cal.App.3d 1286, 1293-1294; Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 922.)
By reversing the trial court's finding that Sun executed the premarital agreement voluntarily, the majority has overtly departed from these time-honored standards, forever altering the standard of appellate review applicable to a trial court's findings in cases involving premarital agreements. From this day forward, a reviewing court is not simply permitted to decide if the evidence at trial was legally sufficient to support the decision of the trier of fact, a task which respects the province of the finder of fact to assess credibility and assign weight to the evidence. Instead, the appellate court is now permitted to review and reassess the persuasive value of that same evidence for itself based on trial transcripts, far removed from the courtroom where the evidence was presented and the demeanor of the witnesses observed by the trier of fact, to determine if the appellate court would have reached the same conclusions.
The trial court's findings of fact in this case are the product of weighing and evaluating all of the conflicting evidence presented at trial, and establish beyond peradventure that this premarital agreement was entered into knowingly and voluntarily. Below, I have set forth the trial court's critical factual findings, and a summary of the supporting evidence. I believe that even a cursory comparison of the evidence found credible and persuasive by the trial court with those excerpts selected for inclusion in the majority opinion reveals the majority has overlooked evidence favorable to the judgment, reweighed the evidence, and wrongfully substituted its own conclusions for that of the trier of fact.
The trial court found Sun had sufficient knowledge and understanding of her rights regarding the nature, value and extent of the property affected by the premarital agreement and how the premarital agreement affected those rights. The trial court supported this finding by citing evidence that Sun knew Barry wished to protect his present property and his future earnings. The trial court also noted that the attorneys who prepared the premarital agreement explained to both parties their rights regarding the property affected by the agreement and how the agreement adversely affected those rights. The court observed that Sun never stated she did not understand the meaning of the agreement or the explanations provided by the attorneys prior to her execution of the document. The trial court found that Sun was an intelligent woman; and although English was not Sun's native language, she was capable of understanding the attorneys' explanation of the agreement and its effect on each party's rights.
At the meeting held on February 5, 1988, Sun was told the law in Arizona was community property and that by her execution of the agreement she was waiving her community property rights. The lawyers described what community property was. In their discussion about community property, they talked about the effect of community property, how it was created, and how community property would be distributed in the absence of the premarital agreement. Attorney Brown did a "little illustration in that discussion demonstrating community property, separate property, property flowing in, flowing out, so forth . . . ." Sun stated she understood she was agreeing to a change from the community property laws. Each provision in the agreement was reviewed and the legal ramifications explained to Sun and Barry. The principals and attorneys spent two to three hours discussing this 15-page document. Brown testified that Sun asked many questions, including questions "dealing with property and income after the fact of the execution of the prenuptial agreement." From Sun's questions, which Brown testified "tracked what had been explained to her," it was clear she understood the meaning of community property.See footnote 12
In spite of the trial court's findings, which are amply supported by the evidence, the majority opinion indicates that Sun "received no explanation of the legal consequences ensuing to her from signing the contract." (Maj. opn. of Lambden, J. at p. 31.) In entering into the premarital agreement, Sun "thought she did not have anything and did not need a lawyer, and no one disabused her of that incorrect perception. The fact was that she did have something: she had the potential legal right to community property." (Maj. opn. at p. 41.) The provision-by-provision explanation of the agreement provided by Barry's attorneys is entirely discounted by the majority. The majority opinion indicates, without explanation, that "Brown's explanation to Sun was necessarily impaired because of his loyalty to his client, Barry." (Maj. opn. at p. 31.) But there was no evidence presented at trial that the explanations provided to Sun, which she does not deny were given, were themselves inadequate or inaccurate statements of the legal effect of the agreement on her marital rights.
The trial court also found Sun had sufficient awareness and understanding of her right to, and need for, independent counsel. The court specifically found Sun had an adequate and reasonable opportunity to obtain independent counsel before she executed the agreement. The court credited evidence that Sun was advised at a meeting with Barry's attorney at least a week before the premarital agreement was executed that she had the right to have an attorney represent her. She was also informed that Mr. Brown and Mr. Megwa represented Barry, not her. On at least two occasions during the February 5 meeting, Sun was told she could have separate counsel if she so chose. The trial court explicitly found Sun was capable of understanding this admonition but decided not to obtain counsel.
The record reflects that at the February 5 meeting, Barry's representatives discussed Sun's right to have an attorney. Although he could not recall the precise language used, at a brief meeting with Barry and Sun sometime before the February 5 meeting, Brown told Sun something to the effect that "it might be in her best interests to seek counsel." Megwa testified that at the start of the February 5 meeting he "advised Sun that she has a right to get an attorney to represent her in this matter, to review the documents. [¶] I also indicated that she does not have to sign this agreement." He testified that the subject of taking the agreement to another lawyer was brought up at least three different times during the meeting. Sun was told the lawyers represented Barry, that they did not represent her, and that was the reason they were explaining her right to have independent counsel. She was told she could take the agreement to a lawyer and not sign it that day. She indicated that a lawyer was not necessary.
The majority opinion disregards both the trial court's findings and the evidence underlying them when it states "[w]e can give no effect to the attorneys' statements to Sun that they represented Barry . . . ." The majority opinion states that this is "because their actions at the meeting contradicted this assertion and actually conveyed an impression that they were independent counsel." (Maj. opn. at p. 38.) However, nothing in the trial court's findings indicates Sun was misled or misunderstood the role of Barry's attorneys.
Much is made of the fact that Barry was the "economically superior party" who could afford legal representation and that Sun had comparatively few resources (maj. opn. at p. 27), but there is nothing in the record to indicate that Sun was prevented from seeking independent representation because of a lack of money. Similarly, there is nothing in the record to indicate Sun sought to delay the execution of the premarital agreement so that she could seek independent advice, although she was repeatedly given the opportunity to do so.
The trial court found that "[b]oth the [premarital] [a]greement and the execution of same [were] free from the taint of fraud, coercion and undue influence." The trial court found Sun was not forced to execute the document, nor did anyone threaten her in any way. The trial court concluded that if Sun had refused to sign the agreement, it would have caused her "little embarrassment." The wedding was a small impromptu affair that easily could have been postponed.
Additionally, there was evidence that the idea of executing a premarital agreement was not sprung on Sun on the eve of her marriage. Rather, there was evidence Sun and Barry had periodically discussed the premarital agreement several months before the February 5 meeting took place, and they "understood" what was going to be in the agreement before the meeting even began. There was also evidence that Sun knew "well in advance" of the February 5 meeting that Barry would not marry her unless she executed a premarital agreement. Sun offered no testimony or other evidence that she was involuntarily coerced or felt compelled to execute the agreement.
Notwithstanding this factual record, the majority opinion chastises the trial court for failing to "scrutinize the other factors related to duress, coercion, and fraud." (Maj. opn. at p. 49.) The majority opinion cites evidence below indicating that "[a]ny delay would have resulted in a postponement of the wedding." (Maj. opn. at p. 49.) The majority notes that a threat to cancel the wedding can be found to be evidence of coercion. (Maj. opn. at pp. 43-44.) In support of its ultimate conclusion that Sun did not execute the premarital agreement voluntarily, the majority opinion refuses to credit the trial court's findings and states "that Sun felt pressure to sign because of the pending marriage and was under the threat of 'no marriage' if she did not sign; . . ." (Maj. opn. at p. 51.) Yet as noted, Sun did not testify she signed the agreement because she felt compelled or coerced to do so.
In summary, the trial court's decision sets forth the reasons that, under the evidence presented at trial, this premarital agreement was valid and enforceable in a manner fully adequate to permit appellate review. The decision meticulously describes the evidence upon which it relied, and insofar as conflicting evidence and inferences are concerned, rests its decision upon credibility determinations that are inherently the province of the trier of fact. As a reviewing court, our function is to simply determine whether, upon consideration of the evidence as a whole, the trial court's findings have the requisite measure of support in the record. In utter disregard of the standard of review imposed on this court, the majority, by a process of selection and omission, sifts through the record to construct its own findings to justify arriving at a different decision than the one arrived at by the trial court. Its opinion completely inverts the respective roles of the trial and appellate courts. Because the trial court's findings of fact are supported by substantial evidence, we must affirm.
Furthermore, in reversing the previous judgment entered for Barry and directing the trial court to enter judgment for Sun without further proceedings, the majority has once again departed from its role as a reviewing court. Witkin speaks to the authority of appellate courts to reverse without allowing the parties a complete or partial retrial: "The power to reverse with directions to enter judgment for the appellant will not be exercised where there is a conflict in the evidence and a retrial may develop other important facts. [Citations.]" (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §763, p. 791.) Another appellate treatise states that an unmistakable expression of intent not to allow a retrial after an unqualified reversal "rarely occurs," and then does so only where the facts on the first trial are uncontested and "there would be no new evidence on retrial. . . ." (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs 2 (The Rutter Group 1998) § 14: 145.2 rev. #1, 1998, citing Bank of America v. Superior Court (Kruse) (1990) 220 Cal.App.3d 613, 623.)
The reason offered by the majority in departing from the usual practice of remand is its conclusion, in stark disagreement with the actual evidence and findings of the trial judge, that "Barry's attorneys played a confusing and misleading role; that Sun felt pressure to sign because of the pending marriage and was under the threat of 'no marriage' if she did not sign; that Sun did not have even a day to review the agreement, but merely a couple of hours in the attorney's office; that there appeared to be some tampering with the agreement by Barry or his agents and the original contract was never provided to the court; and that the agreement was filled with errors and was patently incomplete." (Maj. opn. of Lambden, J. at p. 51.) I have already commented on the absence of evidence that Sun was either confused or mislead, or that she felt pressured. To be sure, the writing which memorialized the parties' agreement was not well-drafted. However, we have been called upon to determine whether Sun involuntarily signed the premarital agreement, not to evaluate the drafting skills of Barry's attorneys. Moreover, the majority has affirmed the trial court's decision to admit the copy of the premarital agreement into evidence. Thus, it is inappropriate for this appellate court to base its decision on speculation that "there appeared to be some tampering with the agreement by Barry or his agents." (Maj. opn. at p. 51.) Such subjective conjecture is no more edifying than the majority's additional surmise that Brown and Megwa were engaged in "overreaching and sharp practice." (Maj. opn. at p. 37.)
Certainly it cannot be said that a retrial of this issue would be a waste of time because the facts are uncontested or that there is no further evidence which might be brought to bear on the critical issues as now recast by the majority. I believe it is manifestly unfair to give life to a new legal standard to be applied in determining the validity of premarital agreements without affording the parties the opportunity to present evidence conforming to that standard, and affording the trial court the opportunity to apply the new legal standard to the evidence. If an appeal to judicial restraint is unavailing, then at least adherence to well-established procedural rules governing remand are in order. At a minimum, this case should be remanded to the trial court with directions to retry, in whole or in part, the phase of the case dealing with the voluntariness of Sun's execution of the premarital agreement. For this additional and separate reason I dissent from the reversal with directions contained in the majority opinion.
Last, I cannot end without referring to the majority's incongruous pronouncement that its opinion will "provide clear guidelines for practitioners to follow" (maj. opn. of Lambden, J. at p. 37), and its lament that the majority has been constrained to look to non-UPAA judicial decisions because of the paucity of decisional law in California concerning the enforceability of premarital agreements. (Maj. opn. at p. 27.) If the dearth of law in our state can lead to such a troublesome majority opinion as this, then perhaps the time has come for the Supreme Court to provide the public, bench, and bar with guidance on this issue of increasing public importance.