Ferry v. Ferry

• Decision Date: 04 September 1979
• Docket Number: No. KCD,KCD
• Citation: 586 S.W.2d 782
• Parties: Rita J. FERRY, Appellant, v. Nelson E. FERRY, Respondent. 30073.
• Court: Missouri Court of Appeals

Page 782

586 S.W.2d 782

Rita J. FERRY, Appellant, v. Nelson E. FERRY, Respondent.

No. KCD 30073.

Missouri Court of Appeals, Western District.

Sept. 4, 1979.

R. M. Gifford, Green City, for appellant.

Joseph M. Ellis, Macon, for respondent.

Before SHANGLER, P. J., WASSERSTROM, C. J., and CLARK, J.

CLARK, Judge.

In this appeal from the judgment entered in a marriage dissolution case, appellant wife asserts error in decretal provisions for division of marital property and denial of maintenance pursuant to terms of an antenuptial agreement. An extended recitation of the facts, essentially undisputed, is necessary to place the controversy in appropriate context.

The parties first became acquainted some six months prior to the marriage while respondent was engaged in farming leased acreage near appellant's then place of residence. Each had prior marriages terminated by divorce and each had one child born of such earlier unions. During their courtship a mutual interest in farming was a factor of attraction and appellant worked helping respondent in the fields almost every day.

The date of the marriage was January 4, 1973. Some weeks earlier, in anticipation of the marriage, respondent had suggested and the parties had discussed the desirability of a formal agreement to settle property matters upon termination of the marriage by death or divorce. Appellant prior to the marriage owned some personal property of insignificant value. Respondent's assets consisted of farm machinery, motor vehicles, livestock, crops and cash. Appellant's motivation for entering into the agreement establishing future restrictions on property and economic claims was her mistaken opinion that without such an agreement respondent or his family would share in an inheritance in prospect for appellant's son by a prior marriage from the estates of appellant's mother and stepfather.

Respondent had the antenuptial agreement drawn by his attorney. A copy was supplied to appellant a few days before the marriage. Appellant neither sought nor received legal advice as to the effect of the document before she accompanied respondent to his attorney's office on January 2, 1973 for the purpose of signing the agreement. While there, the terms of the agreement were discussed. Appellant noted some changes she wanted made, but because of the press of time, the agreement was signed without change but subject to subsequent modifications to conform to appellant's wishes. These changes were not, however, made and the effective agreement is that in the form as originally prepared.

The antenuptial agreement provided for retention by the parties of their separate property during and subsequent to the marriage and for the release of any future claim to homestead, family allowance or any other marital rights on death and for the release of any future claim for support, alimony, attorney fees and costs on separation or divorce. Appellant, however, was to receive the household furnishings, an automobile and.$1000.00 should she survive respondent after remaining married to and residing with him to his death or, in the event of divorce, appellant was to receive the household goods and the automobile.

A schedule of assets owned by respondent was attached to the agreement as an exhibit. Farm equipment, vehicles, livestock and cash were listed, but no values were shown, except as to the cash, and no debts or encumbrances appear. Some assets were omitted including some bonds and life insurance. No assets of appellant were listed, apparently because of the nominal worth attached. Neither party owned any real estate and none was acquired during the marriage.

The separation of the parties occurred April 27, 1977 and appellant commenced her action for dissolution May 20, 1977. Irretrievable breakdown of the marriage was alleged and was not contested. No allegations of marital misconduct were made and no evidence on the subject was offered at trial. Appellant's day-to-day participation in the family farming venture was undisputed, the evidence being that appellant operated farm machinery, drove trucks and otherwise worked in crop production and in farrowing and finishing hogs and feeder pigs.

The extent of appellant's education was not disclosed. She had, however, been employed from time to time before the marriage as a practical nurse and returned to this occupation after the separation. At the time of trial she was earning $130.00 to $140.00 a week. Respondent remained on the farm continuing his agricultural pursuits as before.

As noted above, the value of assets brought by appellant to the marriage was nominal, such property having consisted of personal effects, some household goods and an automobile which appellant later assigned to her mother in repayment of a debt. The net worth of respondent cannot be calculated as of the date of the marriage because of the omissions from the agreement exhibit of values, debts and some assets. At trial, appellant offered and the court received as exhibits a financial statement of the parties prepared as of January 1977 and an income tax return. Such exhibits were not filed with this court and the data therein which would cast some light on this subject is therefore unavailable. It can be concluded, however, that respondent's personal property at the time of the marriage was of significant value. At the time of the separation the same types of assets were owned but, by reason of four years' farming activity some vehicles and machinery had declined in value, some had been replaced by newer equipment or additions and livestock and crops were those of the current season.

The court in its decree ordered the marriage dissolved and, after finding the antenuptial agreement to be controlling as to division of property, award of maintenance and allowance of fees and costs, granted appellant the household furnishings and automobile and set all other property over to respondent subject to any debts owed thereon. Appellant's request for maintenance and an allowance of attorney fees was denied.

On this appeal appellant challenges the efficacy of the antenuptial agreement to strip her of her share in marital property and of her claim to maintenance on the grounds that such agreements are against public policy and that the agreement was an overreaching by respondent and fundamentally unfair to appellant. Also implicit in consideration of these issues is the effect of the Dissolution of Marriage Act, Sections 452.300 to 452.415, ¹ which, pursuant to Section 452.415, controls this proceeding, although the antenuptial agreement and the marriage predated the Act.

Appellant's first point, the rejection of antenuptial agreements on grounds of public policy, requires examination both as a general concept and as expanded or modified by the Dissolution of Marriage Act. Appellant cites no Missouri authority supporting the contention that public policy in this state disapproves of antenuptial agreements. Decisions from a number of other jurisdictions do, however, indicate a consistent historical pattern of judicial opposition to agreements contingent on divorce. A typical statement of the rule so evolved is, "Any antenuptial agreement that looks forward, provides for, facilitates, or tends to induce a separation or divorce after marriage is contrary to public policy and void." Evans, Antenuptial Contracts, 47 UMKC Law Review 31, 45 (1978), quoting 2, A. Lindey, Separation Agreements and Antenuptial Contracts § 90-27 (1964).

The decisions express a different attitude toward antenuptial agreements contingent on death, an arrangement which finds favor premised in part on an assumption that such agreements promote domestic harmony. In fact, Missouri has by statute expressly approved marriage settlement contracts to take effect on death. Section 474.120. Although the subject agreement also provided for restriction of death benefits, that aspect of the antenuptial agreement treating inheritance and survivorship rights is not within the scope of this case.

In those cases which attempt justification for general opposition to antenuptial agreements contingent on divorce, the reasons most frequently given are (1) contracts are not compatible with and denigrate the status of the marital relation, (2) such agreements tend to facilitate and provide an inducement for divorce, and (3) a contract waiving or minimizing alimony may cast an indigent spouse on public charity. Examples of cases adopting these views are: Norris v. Norris, 174 N.W.2d 368 (Iowa 1970); Crouch v. Crouch, 53 Tenn.App. 594, 385 S.W.2d 288 (1964), and Fricke v. Fricke, 257 Wis. 124, 42 N.W.2d 500 (1950), in which it was stated that such an agreement "invites dispute, encourages separation and incites divorce."

More recently, however, a line of authority supporting antenuptial agreements contingent on divorce has emerged. Foreshadowing this development were comments by the Missouri Supreme Court in Mathis v. Crane, 360 Mo. 631, 230 S.W.2d 707, 712 (1950). Although disposition of the case resulted in rejection of the premarital contract on the ground that the husband had failed to disclose fully the extent of his assets, the court noted by general observation that marriage settlements are not against public policy in Missouri.

The case most frequently cited as the leading departure from the former rule condemning antenuptial agreements contingent on divorce is Posner v. Posner, 233 So.2d 381 (Fla.1970), which recognized dilution of the state's opposition to divorce and held that public policy no longer justified a per se rejection of contracts settling alimony and property rights. ² Two conditions were imposed by the Posner court, the first being that the agreement be fair between the parties, a subject to be examined in each case by the court, and the second that the agreement be applicable only as to conditions existing at the time the agreement was made. Subsequent cases which have...