Edwardson v. Edwardson

• Decision Date: 08 November 1990
• Docket Number: No. 89-SC-389-DG,89-SC-389-DG
• Citation: 798 S.W.2d 941
• Parties: Marcella EDWARDSON, Appellant, v. Arthur EDWARDSON, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 941

798 S.W.2d 941

Marcella EDWARDSON, Appellant, v. Arthur EDWARDSON, Appellee.

No. 89-SC-389-DG.

Supreme Court of Kentucky.

Nov. 8, 1990.

Scott A. Simon, Alfred J. Simon, Jr., Louisville, for appellant.

Raymond J. Naber, Jr., Naber, Joyner and Schardein, Louisville, for appellee.

LAMBERT, Justice.

Almost seventy-five years ago this Court declared "the law will not permit parties contemplating marriage to enter into a contract providing for, and looking to, future separation after marriage." Stratton v. Wilson, 170 Ky. 61, 185 S.W. 522, 523 (1916). In subsequent decisions we have adhered to the foregoing rule, although a fine distinction was drawn in Jackson v. Jackson, Ky., 626 S.W.2d 630 (1981), wherein the Court enforced an antenuptial agreement in a divorce action which required the husband to furnish the wife "a decent support during his natural life." See also Sousley v. Sousley, Ky., 614 S.W.2d 942 (1981). This Court granted appellant's motion for discretionary review to reconsider the position taken in Stratton and its progeny to determine whether the underlying policy is still valid; if not, whether other policy considerations have emerged making it desirable to retain the Stratton rule; or whether societal changes render its modification appropriate.

Prior to their marriage to each other, both parties had been married previously. In the divorce decree dissolving her prior marriage, appellant was awarded the sum of seventy-five dollars ($75.00) per week as maintenance, the payment of which was to be terminated upon her remarriage. Appellant and appellee executed an agreement prior to the time their marriage was solemnized which contained, inter alia, the following provision:

"In the event that the marriage of the parties shall be dissolved or the parties become legally separated, to the extent permitted under Kentucky law or the state of residence where said action is filed, the Party of the First Part shall receive SEVENTY-FIVE DOLLARS ($75.00) per week as maintenance (alimony) from the Party of the Second Part for her life, or until her remarriage. Furthermore, Party of the Second Part shall maintain medical/hospitalization insurance for the Party of the First Part for her life or her remarriage, which insurance program shall have benefits substantially similar to those presently held by the Party of the First Part through the ROTHROCK INSURANCE SERVICE. Other than as provided in this paragraph, neither party shall have any obligation to the other for alimony or support, and neither party shall have any claim against the property of the other nor any claim thereto by reason of the marriage or the manner or cause thereto by reason of the marriage or the manner or cause of dissolution thereof, it being the intent hereof that the parties, each having adequate separate estates on the date of marriage, shall each retain their separate estates, any increase in the value thereof and accretions thereto, free of any and all claims or interest in property or other rights which may come into existence or arise by reason of the marriage of the parties hereto, except as stated herein."

After about two and a half years of marital turbulence, the parties finally separated. In the divorce action which followed, appellant sought enforcement of the agreement. Enforcement was denied in the trial court and on appeal the judgment of the trial court was affirmed. The courts below relied upon the principles set forth in Stratton v. Wilson, supra, for their decisions.

From the facts just stated, the precise issue which emerges is whether parties may enter into an enforceable agreement in advance of their marriage for the amount of maintenance to be paid by one to the other in the event the marriage is dissolved. The larger issue before the Court is whether any antenuptial agreement which contemplates divorce and provides for the payment of maintenance and the disposition of property upon subsequent dissolution of the marriage is enforceable.

We begin our discussion by observing that Stratton v. Wilson contains many facts in common with the case at bar and as such, note that the courts below were bound by its holding. SCR 1.030(8)(a) and SCR 1.040(5). Thus, our decision to review this case and our decision on the merits implies no criticism of the decisions of the lower courts.

In unmistakable terms, the Court in Stratton held the portion of the agreement which provided for payment of alimony in the event of separation or divorce to be void. The decision was based on the view that such an agreement was destabilizing to the marital relationship and might promote or encourage marital breakup.

It is an indisputable fact that since rendition of our decision in Stratton, the incidence of divorce in Kentucky has followed the national experience and risen steadily. Further, the Kentucky General Assembly has abandoned the fault-based system of allowing dissolution of marriage which prevailed prior to 1972 and adopted portions of the Uniform Marriage and Divorce Act which is substantially a "no-fault" marriage dissolution system. A legislative determination has been made that abandoning the necessity of proving fault would, inter alia, "[s]trengthen and preserve the integrity of marriage and safeguard family relationships." KRS 403.110(1). While the rising incidence of divorce and the existence of profound legislative changes do not per se render the Stratton rule invalid, neither do they support its continuation. Unless the continued validity of this rule of law which restricts the rights of parties and is subject to change without disrupting settled expectations ¹ can be demonstrated or reasonably assumed, it should not be blindly followed. In view of the foregoing, it is appropriate to re-examine Stratton to determine whether such a broad restriction is necessary to promote the substantial state interest in marital stability. KRS 403.110.

A number of other jurisdictions have confronted the question before this Court and abandoned or modified the prohibition against enforcement of antenuptial agreements which contemplate divorce. In a leading decision, Posner v. Posner, 233 So.2d 381 (Fla.1970), the Supreme Court of Florida reviewed a number of authorities and noted a "clearly discernible" trend in favor of enforcing antenuptial agreements. The Court observed that in some circumstances, the existence of an antenuptial agreement might actually promote the continuation of marriage rather than its dissolution and further noted the widespread enforcement of antenuptial agreements to settle property rights upon the death of a spouse. Abandoning its prior rule, the Court held that such agreements should no longer be void ab initio, but should be measured by the stringent standards prescribed in Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962), for agreements which settle property rights on the death of a spouse, and the additional requirement that it not appear the agreement promoted procurement of the divorce. In another leading case, Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982), the Supreme Court of Georgia overruled its prior decisions holding antenuptial agreements in contemplation of divorce invalid. As grounds for its decision, the Court recognized that divorce is a commonplace fact of life, that state law and public policy permit married persons to obtain divorces, and the absence of empirical evidence to show that antenuptial agreements in contemplation of divorce actually encourage or incite divorce. Decisions from other jurisdictions relying upon the reasons set forth in Posner and Scherer and upholding the validity of antenuptial agreements which contemplate divorce include Marriage of Dawley, 17 Cal.3d 342, 131 Cal.Rptr. 3, 551 P.2d 323 (1976), Buettner v. Buettner, 89 Nev. 39, 505 P.2d 600 (1973), Barnhill v. Barnhill, 386 So.2d 749 (Ala.Civ.App.1980), Volid v. Volid, 6 Ill.App.3d 386, 286 N.E.2d 42 (1972), Tomlinson v. Tomlinson, 170 Ind.App. 331, 352 N.E.2d 785 (1976), In Re Marriage of Ingels, 42 Colo.App. 245, 596 P.2d 1211 (1979), and Parniawski v. Parniawski, 33 Conn.Supp. 44, 359 A.2d 719 (1976).

While the foregoing cases present differing factual circumstances and subtle differences in the legal issues addressed and answered, a common theme may be found throughout. The notion that divorce is promoted by an antenuptial agreement which contemplates such a possibility has been rejected and the right of parties to enter into appropriate agreements has been upheld. We concur with this view.

Finally, we observe that the legal status of marriage partners is vastly different today than it was when Stratton v. Wilson was decided. At that time the Nineteenth Amendment to the Constitution of the United States had not yet been ratified, married women's property acts were not yet in existence or were in their infancy, and in general the status of women in this society was decidedly second class. In 1916 it may have been entirely logical to restrict the nature of agreements available to persons contemplating marriage in an effort to avoid marital instability. Subsequent changes in society and seventy-five years of experience have rendered such restrictions inappropriate. The words of Justice Holmes are appropriate here:

"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." Holmes, The Common Law (1881); Harvard Univ. Press (1963).

From the foregoing, we are unable to conclude that the ratio decidendi for Stratton remains valid.

It may be argued that despite the invalidity of the...