In re Marriage of Pendleton & Fireman

• Citation: 24 Cal.4th 39,5 P.3d 839,99 Cal.Rptr.2d 278
• Decision Date: 21 August 2000
• Docket Number: No. S070018.,S070018.
• Court: United States State Supreme Court (California)
• Parties: In re Marriage of Candace PENDLETON and Barry I. FIREMAN. Candace PENDLETON, Respondent, v. Barry I. FIREMAN, Appellant.

99 Cal.Rptr.2d 278

24 Cal.4th 39

5 P.3d 839

In re Marriage of Candace PENDLETON and Barry I. FIREMAN.

Candace PENDLETON, Respondent, v. Barry I. FIREMAN, Appellant.

No. S070018.

Supreme Court of California.

August 21, 2000.

Rehearing Denied November 1, 2000.

Lascher & Lascher, Wendy C. Lascher, Ventura; Wasser, Rosenson & Carter and John Foley, Los Angeles, for Appellant.

Kolodny & Anteau, Ronald W. Anteau, Peter Hermes, Beverly Hills, and James L. Keane, Los Angeles, for Respondent.

BAXTER, J.

We are asked to decide whether a premarital agreement in which the parties to be married waive the right to spousal support in case of dissolution is enforceable.¹ The Court of Appeal held that such agreements are enforceable. It is not necessary to decide in this case whether all such agreements are enforceable regardless of the circumstances of the parties at the time enforcement is sought. We conclude that no policy of this state makes an agreement like that entered into by the parties to this action per se unenforceable, and affirm the judgment of the Court of Appeal.

I Background

Candace Pendleton and Barry I. Fireman married on July 13, 1991. On July 1, 1991, they had executed a premarital agreement which provided, inter alia: "[B]oth parties now and forever waive, in the event of a dissolution of the marriage, all rights to any type of spousal support or child support from the other; ..." The agreement acknowledged that each party had been represented by independent counsel in the negotiation and preparation of the agreement, that counsel had advised each of the meaning and legal consequences of the agreement, and that each party had read and understood the agreement and its legal consequences. Their respective counsel certified that this had been done and that their clients understood the meaning and legal consequences of the agreement and executed it freely and voluntarily.

The couple separated in 1995, and on April 3, 1996, Candace filed a petition for dissolution of the marriage and subsequently sought spousal support. Candace acknowledged the existence of a premarital agreement in a declaration that accompanied her request for spousal support, stating that she was then investigating its validity. At the time the dissolution petition was filed, each party had a net worth of approximately $2.5 million. Candace, who had two children from a prior marriage, held a master's degree and was an aspiring writer. Barry, who held a doctorate in pharmacology and a law degree, was a businessman with ownership interests in numerous companies and business ventures. Candace declared that her monthly gross income was $5,772, consisting of $1,352 in Social Security benefits for two children from a prior marriage, $2,000 from a brokerage account, and $2,420 in rental income. Her net monthly income was $4,233.

Barry sought to strike the pleading seeking support or to have a separate trial on the validity of the prenuptial agreement. The court denied the motion for separate trial, concluding that discovery on the issue of validity would overlap that on other issues and would not result in saving time or litigation costs. The court ruled that the waiver of spousal support was against public policy and thus was unenforceable,² noted that the couple had maintained a lifestyle in the high $20,000 to $32,000 per month range, and ordered Barry to pay temporary spousal support of $8,500 per month.

On Barry's appeal, the Court of Appeal reversed the order for temporary spousal support. The Court of Appeal acknowledged that the Legislature had deleted subdivision (a)(4) from section 3, subdivision (a)(4) of the Uniform Premarital Agreement Act (Uniform Act) prior to adopting the act in 1985.³ The omitted subdivision would have expressly permitted the parties to a premarital agreement to contract with respect to modification or elimination of spousal support. (See 9B West's U. Laws Ann. (1987) U. Premarital Agreement Act, § 3 (1983) pp. 373-374.) The Court of Appeal concluded, however, that the Legislature intended to leave the question of whether spousal support waivers in premarital agreements violate public policy to the courts and that there was presently no authority governing the public policy question. In reaching the latter conclusion, the court reasoned that the question had not been reconsidered after the adoption of the Family Law Act of 1969 (Civ.Code, former § 4000 et seq.) which repealed the law permitting divorce only on a showing of fault, or in light of current law that gives both spouses equal control over management and control of community property (Fam.Code, §§ 1100-1103) and mandates equal division on dissolution (Fam.Code, § 2550). In the view of the Court of Appeal, the current state of family law is one that "should not per se prohibit premarital spousal support waivers or limitations. All the protection the parties need is expressly provided by the California [version of the Uniform] Act." The Court of Appeal therefore remanded the matter to the trial court which, in the belief that such waivers were per se unenforceable, had not determined whether this agreement was enforceable under the rules set forth in section 1615 and the policies underlying the Uniform Act and the California version thereof.⁴

II Discussion

Article 2 of the California Uniform Premarital Agreement Act (§ 1610 et seq.) governs premarital agreements. A premarital agreement is "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." (§ 1610, subd. (a).) Section 1612 specifies the permissible objects of a premarital agreement:

"(a) Parties to a premarital agreement may contract with respect to all of the following:

"(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.

"(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.

"(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event. "(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.

"(5) The ownership rights in and disposition of the death benefit from a life insurance policy.

"(6) The choice of law governing the construction of the agreement.

"(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

"(b) The right of a child to support may not be adversely affected by a premarital agreement."

As noted, ante, the California version of the Uniform Act omits subdivision (a)(4) of section 3 of the Uniform Act (subdivision (a)(4)). When first introduced on March 7, 1985, Senate Bill No. 1143 (1985-1986 Reg. Sess.) (Senate Bill 1143), the California version of the Uniform Act, included subdivision (a)(4), and thus listed among the permissible subjects of a premarital agreement "the modification or elimination of spousal support." The spousal support waiver provision was deleted by amendment. (Assem. Amend. to Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Aug. 28,1985.) The amendment of Senate Bill 1143 that deleted subdivision (a)(4) simultaneously deleted a provision in subdivision (b) of section 3 of the Uniform Act, which provided: "If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility." (Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Mar. 7, 1985; Assem. Amend, to Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Aug. 28, 1985.) As enacted, Senate Bill 1143 became Civil Code former section 5315, now Family Code section 1612.

The Court of Appeal held that neither the Legislature's deletion from the legislation of express authorization for premarital waivers of spousal support, nor past cases refusing to enforce waivers of spousal support, preclude such waivers today. The court reasoned that the legislative history of section 1612 suggested that, in omitting subdivision (a)(4) of the Uniform Act, the Legislature intended to leave the enforceability of spousal support waivers to the courts. It found support for that conclusion in two reports by the Assembly Subcommittee on Administration of Justice. The first was prepared for an August 19, 1985, hearing on Senate Bill 1143. Senate Bill 1143 repealed prior statutory law governing premarital agreements and enacted the Uniform Act. In the first report staff advised that California courts did not permit enforcement of premarital agreements on spousal support and recommended deletion "to allow California case law to continue to prevail on the issue of spousal support in premarital agreements." (Assem. Subcom. on Admin, of Justice, Rep. on Sen. Bill No. 1143 (1985-1986 Reg. Sess.) for Aug. 19, 1985, hearing, p. 3.)

The second report, prepared after the amendment passed, stated that as a result of the amendment "California case law would ... prevail on the issue of spousal support in premarital agreements, [¶] There is a split in authority among the states as to whether a premarital agreement may control on the issue of spousal support. Some states, such as California, do not permit a premarital agreement to control this issue. See In re Marriage of Dawley, 17 Cal.3d 342, 131 Cal.Rptr. 3, 551 P.2d 323 (1976), in which the court notes that the enforcement of provisions in premarital contracts to waive or limit spousal support rights is barred because such provisions are considered promotive of...