In re Marriage of Thomas

• Court: Missouri Court of Appeals
• Writing for the Court: Robert S. Barney
• Citation: In re Marriage of Thomas, 199 S.W.3d 847 (Mo. App. 2006)
• Decision Date: 12 July 2006
• Docket Number: No. 27146.,No. 27155.,27155.,27146.
• Parties: In re The MARRIAGE OF Bud Harrison THOMAS and Alice Carolyn Thomas. Bud Harrison Thomas, Appellant, v. Alice Carolyn Thomas, Respondent, and Twin Willow Farms, L.L.C., Third-Party Respondent, and Twin Willow Equine Center, L.L.C., Third-Party Respondent.

Page 847

199 S.W.3d 847

In re The MARRIAGE OF Bud Harrison THOMAS and Alice Carolyn Thomas Bud Harrison Thomas, Appellant, v. Alice Carolyn Thomas, Respondent, and Twin Willow Farms, L.L.C., Third-Party Respondent, and Twin Willow Equine Center, L.L.C., Third-Party Respondent.

No. 27155.

No. 27146.

Missouri Court of Appeals, Southern District, Division Two.

July 12, 2006.

Motion for Rehearing or Transfer Denied August 2, 2006.

Application for Transfer Denied September 26, 2006.

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Richard L. Schnake & Paul G. White, Neale & Newman, L.L.P., Springfield, for appellant.

Susan S. Jensen & Lisha A. Masters, Pratt, Fossard, Jensen & Masters, L.L.C., Springfield, for respondent.

ROBERT S. BARNEY, Judge.

Appellant Bud Harrison Thomas ("Husband") appeals the trial court's third amended judgment dissolving his marriage to Respondent Alice Carolyn Thomas ("Wife"). In its judgment, the trial court invalidated the parties' antenuptial agreement; alternatively determined Husband had transmuted his interest in a certain corporation designated as non-marital property under the terms of the antenuptial agreement; granted wife modifiable maintenance of $12,178.00 per month; and awarded Wife attorney's fees in the amount of $63,437.00. Additionally, in its final division of net marital properties, the trial court awarded Wife assets worth approximately $1,681,542.72 (inclusive of a monetary award from Husband of $503,314.85); awarded Husband assets valued at $1,681,542.72; and divided the parties' marital and non-marital property.¹ Husband brings seven points on appeal.

In a dissolution proceeding, the appellate court must affirm the trial court's decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Rivers v. Rivers, 21 S.W.3d 117, 121 (Mo.App.2000). The trial court is given broad discretion in dividing property and we will interfere with its decision only if the division is so unduly weighted in favor of one party that it amounts to an abuse of discretion. Kirkwood v. Kirkwood, 77 S.W.3d 675, 680 (Mo.App.2002). The trial court abuses its discretion only when its ruling is "clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration." In re Marriage of Holden, 81 S.W.3d 217, 225 (Mo.App.2002). We review the evidence and inferences in the light most favorable to the trial court's decision and disregard all contrary evidence and inferences. See Kirkwood, 77 S.W.3d at 680. "Judging credibility and assigning weight to evidence and testimony are matters `for the trial court, which is free to believe none, part, or all of the testimony of any witnesses.'" Love v. Love, 72 S.W.3d 167, 171 (Mo.App.2002) (quoting In re Marriage of Haugh, 978 S.W.2d 80, 82 (Mo.App.1998)). The party challenging the trial court's judgment in a dissolution has the burden of demonstrating error. Kirkwood, 77 S.W.3d at 680.

Husband's first three points on appeal all relate to alleged trial court errors involving an antenuptial agreement executed by the parties. For the sake of judicial economy and clarity, we shall review these points conjunctively. In his first point, Husband maintains the trial court erred in declaring the antenuptial agreement to be invalid and unenforceable because such a ruling was against the weight of the evidence. He maintains the parties entered into the antenuptial agreement "freely, fairly, knowingly, understandingly, and in good faith with full disclosure . . ." in that Wife "admitted that her lawyer explained [the agreement] and that she understood her rights with and without the agreement and that she still deliberately executed it. . . ." Further, Husband maintains the agreement was "not unconscionable, since it was essentially mutual . . ." and Wife "gave up no interest in her own separate property." In his second point, Husband asserts the trial court erred in declaring the parties' antenuptial agreement to be invalid and unenforceable because "the court properly declared that the fairness of a[n] [ante]nuptial agreement must be judged as of the date of its execution, but it nevertheless relied upon post-execution events in determining the fairness of the agreement." In Husband's third point of trial court error, he asserts the trial court erred in its characterization of Infinite Innovations, Inc. ("the Corporation") as marital property, because the Corporation should have been declared to be Husband's separate property per the terms of the antenuptial agreement, which the trial court should have enforced. Husband also takes umbrage at the trial court's division of marital property based on the classification of the Corporation as marital property, and in its award of maintenance and attorney's fees to Wife because under the terms of the antenuptial agreement Wife was not entitled to either maintenance or attorney's fees.

At the outset, we note that it is well-settled law that an antenuptial agreement contemplating the dissolution of a parties' marriage is "not against public policy and can be valid." In re Marriage of Lewis, 808 S.W.2d 919, 922 (Mo.App. 1991). "`In Missouri, to be valid and enforceable an antenuptial agreement must be entered into freely, fairly, knowingly, understandingly, and in good faith with full disclosure.'" Kester v. Kester, 108 S.W.3d 213, 218 (Mo.App.2003) (quoting Rivers, 21 S.W.3d at 122). This requirement "has been interpreted by the courts to involve a subjective evaluation of the fairness surrounding the execution of the agreement." Miles v. Werle, 977 S.W.2d 297, 301 (Mo.App.1998). "Factors which courts have considered relevant include the signatories' access to independent counsel, the amount of time available to revise the agreement, the bargaining positions of each spouse in terms of age, sophistication, education, employment, and experience, and whether their assets were fully disclosed." Id. "The fairness of the agreement must be determined as of the date of the agreement." Hosmer v. Hosmer, 611 S.W.2d 32, 35 (Mo.App.1980).

Additionally, antenuptial agreements will be upheld and will dispose of issues of property division unless found to be unconscionable. McGilley v. McGilley, 951 S.W.2d 632, 637 (Mo.App.1997). "An agreement is unconscionable when the `inequality is so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation at the inequality of it.'" Id. (quoting McMullin v. McMullin, 926 S.W.2d 108, 110 (Mo.App.1996)). "Conscionability . . . mean[s] protection against onesidedness, oppression or unfair surprise." Ferry v. Ferry, 586 S.W.2d 782, 786 (Mo.App.1979). Binding parties to the "provisions of an ante-nuptial agreement only if the agreement was conscionable and fairly made, `afford[s] protection to the unwary and ill-informed spouse.'" In re Estate of Robertson, 60 S.W.3d 686, 691 (Mo.App.2001) (quoting Ferry, 586 S.W.2d at 786).

"At trial, the burden of proof on the issue of the validity of the antenuptial agreement rests with the party seeking to invalidate the agreement." McGilley, 951 S.W.2d at 637. The "validity of an ante-nuptial agreement is governed by rules that `are unique and are distinct from the requirements for the execution of an ordinary contract.'" In re Estate of Robertson, 60 S.W.3d at 689 (quoting Hosmer, 611 S.W.2d at 35). "This is particularly true in terms of consideration, where an ante-nuptial agreement requires more than that necessary for a simple contract, in `that the consideration moving to the spouse or prospective spouse surrendering marital rights is to be fair and equitable in the particular circumstances.'" Id. (quoting Hosmer, 611 S.W.2d at 35).

In situations where "there is a[n] [antenuptial] agreement, the character of the property as community/marital or separate is not determined by the presumptions set forth by statute or case, but by the terms of the contract."² Dardick v. Dardick, 948 S.W.2d 268, 270 (Mo.App. 1997). "An antenuptial agreement must . . . be read as a whole in order to determine its purpose and meaning." Hawley by Cordell v. Hawley, 904 S.W.2d 584, 586 (Mo.App.1995).

Viewing the record in the light most favorable to the trial court's judgment, Kirkwood, 77 S.W.3d at 680, the record reveals that the parties were married on August 27, 1988, and that Husband filed his amended petition to dissolve the marriage on July 28, 2003. At the time of trial, Husband was forty-three years old and Wife was forty-one years old.

Wife testified at trial that Husband first mentioned the antenuptial agreement "[t]he week prior to the marriage when [they] were driving to see the pastor for counseling. . . ." According to Wife, Husband told her

that [the agreement] was just merely, you know, to protect the partnership; that it was something that him and his partner agreed upon; that they would have their wives sign a[n] [ante]nuptial so there wouldn't be any problems within the marriage and the partnership, because his partner had actually been married, like, four times, and [she] was [Husband's] third, and so they just felt like that was something — he just told [her] it was a formality that [she] needed to do.

Wife acknowledged that she saw an attorney, David Holden ("Holden"), prior to signing the agreement; that she saw Holden "one time;" and that she signed the agreement during that meeting, although "[she] really [did not] recall . . . [their] actual meeting or anything." She stated that Husband was not present during her meeting with Holden and that she "sign[ed] the paper as it was presented" without requesting any changes.³ She went on to state that at the time the agreement was signed she "had been advised as to what [her] rights were with and without [the] agreement . . ." and ...