Cary v. Cary

Decision Date03 June 1996
Citation937 S.W.2d 777
PartiesCharles M. CARY, Jr., Plaintiff-Appellant, v. Cathy Ann CARY, Defendant-Appellee.
CourtTennessee Supreme Court

Cathy Ann Cary, Bells, pro se.

OPINION

ANDERSON, Chief Justice.

We granted this appeal to determine whether a provision in an antenuptial agreement by which a prospective spouse waives alimony is void because it violates public policy. The trial court held that such a provision in an antenuptial agreement, which waived alimony, was valid and enforceable and, therefore, denied the spouse's application for alimony. The Court of Appeals however, reversed, holding that the waiver of alimony provision was void as against public policy, and remanded to the trial court to consider whether to award alimony.

We have determined that a voluntary and knowing waiver or limitation of alimony in an antenuptial agreement is not void and unenforceable as contrary to public policy. Such provisions will be fully enforced unless enforcement will render the spouse deprived of alimony a public charge. Accordingly, that portion of the Court of Appeals' judgment which holds the waiver of alimony provision void is reversed and that aspect of the judgment of the trial court is affirmed.

BACKGROUND

The plaintiff, Charles M. Cary, Jr., and the defendant, Cathy Ann Cary, were married June 23, 1990. It was the first marriage for Charles Cary, a 42-year-old practicing attorney, and the second marriage for Cathy Cary, a 30-year-old school teacher with a Master's degree and 11 years teaching experience. Joining their household was her son from her first marriage.

Four days before their wedding, Charles and Cathy Cary executed an antenuptial agreement, in which each agreed to waive and release "any and all rights and claims of every kind to alimony." 1

After approximately two years of marriage, Charles Cary filed for divorce, alleging inappropriate marital conduct, but further asserting that the parties were "equally at fault" and could be declared divorced pursuant to Tenn.Code Ann. § 36-4-129(b) (1991 Repl.). Cathy Cary filed a counter-complaint for divorce alleging inappropriate marital conduct and irreconcilable differences and requesting alimony.

Following a hearing, the trial court declared the parties divorced pursuant to Tenn.Code Ann. § 36-4-129. Concluding that the antenuptial agreement was "in all respects valid and enforceable," the trial court denied Cathy Cary's request for alimony, and enforced the terms of the antenuptial agreement governing the division of marital property. 2

On appeal, Cathy Cary argued that the entire antenuptial agreement should be declared void due to her husband's lack of disclosure, overreaching, and undue influence. In the alternative, she contended that the provision in the agreement purporting to waive alimony in the event of separation or divorce was contrary to public policy and unenforceable.

The Court of Appeals rejected Cathy Cary's first argument and approved the trial court's findings of fact with regard to adequate disclosure, lack of undue influence, and overreaching. It concluded that the agreement was entered into freely and knowledgeably. Relying upon earlier intermediate court decisions, however, the Court of Appeals, in a two to one decision, concluded that provisions in antenuptial agreements waiving or limiting alimony tend to promote divorce and, as such, are contrary to public policy and unenforceable. The Court of Appeals majority then voided the waiver of alimony provision of the antenuptial agreement and remanded the cause to the trial court to consider the appropriateness of an award of alimony.

Thereafter, we granted this appeal to determine whether provisions in antenuptial agreements limiting or waiving alimony violate the current public policy of this State.

WAIVER OF ALIMONY

Although this Court has not previously considered the validity of a provision in an antenuptial agreement limiting or waiving alimony, 3 the issue is not new to this State and has resulted in conflicting intermediate Court of Appeals opinions. Over 30 years ago, in Crouch v. Crouch, 53 Tenn.App. 594, 385 S.W.2d 288 (1964), our intermediate Court of Appeals considered the question and determined that such provisions promote divorce and are violative of public policy. The Court of Appeals predicted that such provisions "could induce a mercenary husband to inflict on his wife any wrong he might desire with the knowledge his pecuniary liability would be limited." Id. 385 S.W.2d at 293. See also Duncan v. Duncan, 652 S.W.2d 913 (Tenn.App.1983) ("We are of the opinion ... that a provision in an antenuptial agreement which purports to limit a spouse's liability for alimony is conducive to divorce and therefore, void."). But see Gross v. Gross, No. 0257, 1989 WL 51535 (Tenn.App. May 17, 1989) (holding such a provision waiving alimony valid).

At the time of its adoption in Crouch, the rule declaring antenuptial provisions waiving or limiting alimony void as against public policy was widely accepted. See e.g. Norris v. Norris, 174 N.W.2d 368 (Iowa 1970); Fricke v. Fricke, 42 N.W.2d 500 (Wis.1950); see also Klarman, Marital Agreements in Contemplation of Divorce, 10 U.Mich.J.L.Ref. 397, 398 (1977); Annot. 57 A.L.R.2d 942 (1958). Generally, two basic public policy considerations were advanced to support the rule requiring invalidation of such provisions. First, they were considered inimical to marriage and conducive to divorce. Arranging in advance the financial contingencies of divorce was viewed as causing discord and instability. Because a divorce could only be obtained by a showing of fault in most states, these provisions were believed to allow "mercenary" spouses to inflict abuse with little concern for the financial consequences when the abused spouse sought a divorce. Indeed, this is the specific reason cited by the Crouch court. Id., 385 S.W.2d at 293.

Second, antenuptial provisions waiving or limiting alimony were deemed contrary to the State's interest in assuring that a divorced spouse is adequately supported and does not become a public charge. Frey v. Frey, 298 Md. 552, 471 A.2d 705, 708 (1984); Gross v. Gross, 11 Ohio St.3d 99, 464 N.E.2d 500, 505 (1984); Ferry v. Ferry, 586 S.W.2d 782, 785-86 (Mo.App.1979).

As a result of societal and legislative changes, many state courts have revisited the common-law rule and the rationale invalidating such agreements. As a result, a line of authority representing the majority rule now has emerged upholding the validity of provisions in antenuptial agreements which waive or limit alimony. 4

Widely recognized as leading the departure from the old common-law position is Posner v. Posner, 233 So.2d 381 (Fla.1970). Noting the increased frequency of divorce and remarriage and the advent of no fault divorce, the Florida Supreme Court in Posner held that public policy no longer requires a per se rejection of antenuptial agreements settling alimony and property rights upon divorce. The Court observed:

With divorce such a commonplace fact of life, it is fair to assume that many prospective marriage partners whose property and familial situation is such as to generate a valid antenuptial agreement settling their property rights upon the death of either, might want to consider and discuss also--and agree upon, if possible--the disposition of their property and the alimony rights of the wife in the event their marriage, despite their best efforts, should fail.

Id., 233 So.2d at 384.

The Colorado Supreme Court agreed, openly rejecting the idea that antenuptial provisions waiving or limiting alimony foster divorce. In fact, that court affirmatively found it reasonable "to believe that such planning brings a greater stability to the marriage relation by protecting the financial expectations of the parties, and does not necessarily encourage or contribute to dissolution," and further observed that "some marriages would not come about if antenuptial agreements were not available." Newman, 653 P.2d at 732.

Legislative change prompted the Maryland Supreme Court to abandon the old common-law rule. That court viewed the adoption of no fault divorce statutes throughout the country as undermining the original justification for the rule of invalidating antenuptial provisions waiving or limiting alimony. Frey, 471 A.2d at 709. Indeed, the Frey court recognized "the old view's fear that spouses could induce a divorce through fault, without consequence, because the terms of divorce were settled in advance is no longer persuasive...." Id.

Finally, as they altered the old common-law rule to reflect contemporary society, many courts have highlighted the change in society's view of the roles of men and women generally, and specifically, the roles of husband and wife. For example, the Illinois appellate court noted in Volid v. Volid, supra, that

[w]hen the rules regarding the husband's duty of support were first enunciated, the roles of a husband and wife were more rigid and defined. The husband worked and brought income into the family while the wife maintained and managed the household. The woman generally did not seek outside employment partly because "her place was in the home," and partly because few opportunities for meaningful employment were available. Married women nowadays are increasingly developing career skills and successfully entering the employment market. Where a woman is trained, healthy, and employable, and where a woman's efforts have not contributed to her husband's wealth or earning potential, the necessity for an alimony award upon breakup of the marriage is not great.

Id., 286 N.E.2d at 46. Elaborating on the theme of the modern roles of men and women, Pennsylvania's intermediate court stressed, "both parties to an antenuptial agreement, regardless of gender, stand on equal ground in the bargaining posture.... The law has advanced to recognize the equal status of men and women in...

To continue reading

Request your trial
42 cases
  • BellSouth Telecommunications, Inc. v. Greer
    • United States
    • Tennessee Court of Appeals
    • 1 d3 Outubro d3 1997
    ...The General Assembly has the prerogative, within constitutional boundaries, to fashion this State's public policy. See Cary v. Cary, 937 S.W.2d 777, 781 (Tenn.1996). Accordingly, the courts consistently decline to inquire into legislative motivations, see Memphis Publishing Co. v. City of M......
  • Marriage of Pendleton, In re, B113293
    • United States
    • California Court of Appeals
    • 26 d4 Março d4 1998
    ...v. Gilley (1997) 327 S.C. 8, 488 S.E.2d 310, 312); South Dakota (S.D. Codified Laws §§ 25-2-18, 25-2-24 (1991)); Tennessee (Cary v. Cary (Tenn.1996) 937 S.W.2d 777); Texas (Tex. Fam.Code § 4.003); Utah (U.C.A.1953 § 30-8-4); Virginia (Va.Code Ann. § 20-150 (1950)); West Virginia (Gant v. Ga......
  • Dove v. Dove
    • United States
    • Georgia Supreme Court
    • 15 d1 Junho d1 2009
    ...See, e.g., Ex parte Walters, 580 So.2d 1352, 1354 (Ala.1991); Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162, 165 (1990); Cary v. Cary, 937 S.W.2d 777, 782 (Tenn. 1996). 30. Mallen, 280 Ga. at 47, 622 S.E.2d 812 (2005). 31. Id. 32. See Scherer, 249 Ga. at 637-641, 292 S.E.2d 662 (trial court......
  • Blackwell v. Sky High Sports Nashville Operations, LLC
    • United States
    • Tennessee Court of Appeals
    • 9 d1 Janeiro d1 2017
    ...statutes, judicial decisions and applicable rules of common law.’ " In re Baby, 447 S.W.3d 807, 823 (Tenn. 2014) (quoting Cary v. Cary, 937 S.W.2d 777, 781 (Tenn. 1996) ). "Primarily, it is for the legislature to determine the public policy of the state, and if there is a statute that addre......
  • Request a trial to view additional results
6 books & journal articles
  • Marriage & Divorce
    • United States
    • Georgetown Journal of Gender and the Law No. XXIII-2, January 2022
    • 1 d6 Janeiro d6 2022
    ...(citing ILL. REV. STAT., 1984 Supp., ch. 40, par. 401(a)(2)); see also Joy v. Joy, 734 P.2d 811 (N.M. Ct. App. 1987); Cary v. Cary, 937 S.W.2d 777 (Tenn. 1996); Haumont v. Haumont, 793 P.2d 421 (Utah Ct. App. 1990); Grosskopf v. Grosskopf, 677 P.2d 814 (Wyo. 1984). 176. See McLendon v. McLe......
  • § 4.03A Points of Disagreement and Other Concerns
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 4 Marital Agreements
    • Invalid date
    ...Rhode Island: R.I. Gen. L. § 15-17-3. South Carolina: Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003). Tennessee: Cary v. Cary, 937 S.W.2d 777 (Tenn. 1996). Utah: Utah Code Ann. § 30-8-4. Virginia: Davis v. Davis, 239 Va. 657, 391 S.E.2d 255 (1990); Va. Code Ann. § 20-150. West Virgin......
  • Marriage and divorce
    • United States
    • Georgetown Journal of Gender and the Law No. XXIV-2, January 2023
    • 1 d0 Janeiro d0 2023
    ...(citing ILL. REV. STAT., 1984 Supp., Ch. 40, par. 401(a)(2)); see also Joy v. Joy, 734 P.2d 811 (N.M. Ct. App. 1987); Cary v. Cary, 937 S.W.2d 777 (Tenn. 1996); Haumont v. Haumont, 793 P.2d 421 (Utah Ct. App. 1990); Grosskopf v. Grosskopf, 677 P.2d 814 (Wyo. 1984). 190. See McLendon v. McLe......
  • 5 Spousal Support
    • United States
    • Premarital Agreements: Drafting and Negotiation (ABA)
    • Invalid date
    ...Ct. App. 1964).[2] . See Lane v. Lane, 202 S.W.3d 577 (Ky. 2006); Austin v. Austin, 445 Mass. 601, 839 N.E.2d 837 (2005); Cary v. Cary, 937 S.W.2d 777 (Tenn. 1996); Howell v. Landry, 96 N.C. App. 516, 386 S.E.2d 610 (1989); see also Chapter 12, Paragraph 49, regarding severability.[3] . UPA......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT