Alexander v. Alexander

• Decision Date: 07 March 2005
• Docket Number: No. S04F1512.,S04F1512.
• Parties: ALEXANDER v. ALEXANDER.
• Court: Georgia Supreme Court

610 S.E.2d 48

279 Ga. 116

ALEXANDER v. ALEXANDER.

No. S04F1512.

Supreme Court of Georgia.

March 7, 2005.

Reconsideration Denied March 28, 2005.

Frederick Vonne Massey, Hicks, Massey & Gardner, LLP, Winder, for Appellant.

Thomas A. Camp, Thomas A. Camp, P.C., Athens, for Appellee.

HINES, Justice.

Jerome Brantley Alexander, III appeals from the trial court's entry of a final judgment and decree of divorce ending his marriage to Kimberly J. Alexander, and asserts that the trial court erred in refusing to enforce an antenuptial agreement. Finding no error, we affirm.

On February 14, 1997, the couple became engaged to be married and set a wedding date of February 24, 1997. On February 20, 1997, Mr. Alexander presented Ms. Alexander with an antenuptial agreement, saying that he would not marry her unless she signed it, and that his parents would not allow them to marry without it. Ms. Alexander signed the agreement. No attorney reviewed it for her, and Mr. Alexander informed her that such was unnecessary. They married as scheduled, four days later.

The agreement states that each party waives alimony and any rights in the property of the other spouse. A section headed "Full Disclosure by Parties" states, in toto, that: "Each of the parties has made a full disclosure to the other party of all property owned or otherwise held by each respective party as is showing in Exhibits A and B attached hereto." Nonetheless, no such exhibits were attached. At that time, Mr. Alexander owned a house; he sold it shortly after the marriage and bought another home in which the couple resided. Mr. Alexander also had an investment account worth approximately $40,000; he did not disclose it on any exhibit to the agreement, or otherwise.

In 1998, the couple had a child and Ms. Alexander stayed home to care for her. The antenuptial agreement is silent concerning the possibility of children. After an argument in 1998, Mr. Alexander transferred the title to the house in which the couple lived to his mother.¹

After Ms. Alexander filed for divorce, Mr. Alexander moved to enforce the agreement. The trial court denied his motion and refused to incorporate the terms of the agreement into the final judgment and decree of divorce. The final judgment and decree made dispositions of property and alimony which differed from that set forth in the antenuptial agreement.

As a matter of public policy, antenuptial agreements made in contemplation of divorce are not absolutely void in Georgia. Scherer v. Scherer, 249 Ga. 635, 640(2), 292 S.E.2d 662 (1982). When a trial court in a divorce case is faced with such an agreement,

the trial judge should employ basically three criteria in determining whether to enforce such an agreement in a particular case: (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) is the agreement unconscionable? (3)[h]ave the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

Id. at 641(3), 292 S.E.2d 662. Whether an agreement is enforceable in light of these criteria is a decision made in the trial court's sound discretion. See Adams v. Adams, 278 Ga. 521, 522-523(1), 603 S.E.2d 273 (2004).

The trial court determined that it would not enforce the agreement, and cited three of the bases set forth in Scherer, supra: Ms. Alexander's assent to the agreement was procured by duress; Mr. Alexander failed to disclose the material fact that he owned a $40,000 investment account; and, that facts and circumstances had changed since the agreement was signed, by virtue of the birth of the minor child. Mr. Alexander asserts that the trial court abused its discretion as to each of these grounds. The text of the trial court's order makes it clear that it believed that each of the cited bases gave independent justification for not enforcing the agreement. Accordingly, it is not necessary for this Court to address each of the three grounds that Mr. Alexander advances if any one supports the trial court's decision.

It is undisputed that prior to the marriage, Mr. Alexander owned an investment account worth approximately $40,000, and that he did not disclose this to Ms. Alexander by the method set forth in the antenuptial agreement, or in any fashion. Nonetheless, Mr. Alexander contends...