Kahn v. Kahn

• Decision Date: 22 August 1988
• Citation: 756 S.W.2d 685
• Parties: Susan Elaine Meadlock KAHN, Appellee, v. Siegfried KAHN, Appellant. 756 S.W.2d 685
• Court: Tennessee Supreme Court

Page 685

756 S.W.2d 685

Susan Elaine Meadlock KAHN, Appellee, v. Siegfried KAHN, Appellant.

756 S.W.2d 685

Supreme Court of Tennessee.

Aug. 22, 1988.

Tyree B. Harris, IV, Katherine A. Brown, Harris & Harris, Nashville, for appellee.

John J. Hollins, Deborah B. Willis, Hollins, Wagster & Yarbrough, P.C., Nashville, for appellant.

OPINION

FONES, Justice.

We granted the husband's Rule 11 application in this divorce case to examine the validity of the antenuptial agreement and the differences in the awards to the wife by the trial court and the Court of Appeals.

At the time of the marriage, 17 December 1982, husband was 63 years old and wife was 26 years old. The parties separated exactly two years and two months later, on 17 February 1985. Wife filed a complaint for divorce on 8 March 1985, alleging irreconcilable differences and cruel and inhuman treatment. Husband filed an answer and a counterclaim for divorce on the same grounds.

The trial judge awarded wife a divorce on the ground of cruel and inhuman treatment. She received custody of the parties' son, born in January 1984, $5,000 per year for three years as rehabilitative alimony, $60,000 alimony in solido, payable in $20,000 annual installments, $15,000 to purchase an automobile, and the exclusive use of the Harding House condominium "as provided in the antenuptial property agreement". The antenuptial agreement provided that in the event of divorce husband would provide wife with a two bedroom house or condominium for as long as she resided therein or until she remarried. The trial judge also awarded wife all the right, title and interest to all of the furnishings in the Harding House condominium at the time of the decree.

The trial court's decree also provided for child support of $500 per month plus all expenses for education and medical treatment and $5,000 attorney's fee to wife's attorney.

The Court of Appeals declared the antenuptial agreement void because husband failed to make a full disclosure of his wealth immediately prior to the execution of the agreement and because the provisions made for wife in the event of death or divorce were wholly disproportionate to husband's net worth. The intermediate court awarded wife $180,000 alimony, payable in monthly installments of $5,000 to be fully paid by 30 April 1989, and fee simple title to the Harding House condominium and its furnishings as well as ordering husband to pay off the mortgage in the approximate sum of $38,745. That court found that an incomplete home under construction that no one had ever lived in, purchased entirely by husband and titled in his name alone, had appreciated in value in the sum of $327,000 between its purchase in August 1983 and the time of trial. The Court of Appeals found that the appreciation resulted from the joint efforts of husband and wife because she dealt with the architect and selected furnishings and awarded her a lump sum of $163,500, one-half of the appreciation. Child support was increased to $1,500 per month but the attorney's fee award was vacated because of the absence of proof as to the services rendered and because wife had sufficient resources to pay her attorney after the modifications made by the Court of Appeals.

We reverse the Court of Appeals and reinstate the decree of the trial court with two changes. As additional alimony, wife is awarded fee simple title to the Harding House condominium and husband is directed to pay the mortgage indebtedness and remove the lien. The award for wife's attorney is increased to $25,000 for services in all three courts.

I.

Husband owns all of the stock in Fred S. Kahn Company. That corporation owns four hosiery manufacturing plants in North Carolina. Husband is the chief executive officer of the corporation and apparently personally accounts for most of the sales. He travelled extensively and frequently stayed at a hotel in Hickory, North Carolina, where wife was employed as a waitress. Wife testified that she "knew him for approximately one year before we became romantically involved." He became interested in her, left $25 and $30 tips for service at breakfast and began asking her to have dinner with him. They began going out together in April 1981 and in July 1981 she moved to Nashville where they lived in his Harding House condominium. At that time she was separated from her second husband and they had a divorce action pending. Her daughter Carrie, by a previous marriage, lived with them.

Husband was very generous. He gave her the use of a company car, credit cards, and such spending money as she requested. Wife frequently acknowledged his generosity throughout their live-in and marital relationship. He bought her jewelry and furs and paid Carrie's tuition and expenses at a private school.

Marriage was discussed and in March 1982 husband gave wife an engagement ring but wanted the wedding delayed until fall to coincide with his parent's anniversary. She moved out of the condominium temporarily on more than one occasion, prompted by his apparent disinterest in marriage. The Court of Appeals noted that her desire to be married was "somewhat stronger than his."

The marriage took place on 17 December 1982, and their life together continued for a short time in the same lavish style as before. The parties discussed having a child but admittedly made no decision to do so. Wife resolved the stalemate by ceasing to take her birth control pills without advising husband. Their son Phillip was born in January 1984.

However, in time their widely divergent interests began to erode their relationship and soon led to their separation and these divorce proceedings. Wife complained that all husband wanted to do was have dinner at the country club with his friends and that he did not like any of her friends and did not want her to associate with any of her friends.

Husband complained that she preferred the company of women near her own age, she liked to go out with her friends to Ziggy's, the Steeplechase and Cajun's Wharf. They enjoyed rock and roll music and disco dancing. At least one of the female friends used drugs. She was an employee of husband's company, was suspected of embezzling $120,000 and was discharged. Wife admitted using cocaine on one occasion and smoking marijuana. Wife and her female friends would stay out until 3:00 a.m. or 4:00 a.m. On some occasions when husband was in Nashville, she would be too intoxicated to risk driving home and would spend the night with one of her friends. When husband was out-of-town on business, wife's female friends would sometimes spend the night with her. They shared the same bed but she denied any improper relationship.

Husband did not like rock and roll music and did not like to go to Ziggy's, the Steeplechase or Cajun's Wharf. He did not think that "in the eyes of the community" it was respectable behavior for his wife to frequent those places with her female friends until the early morning hours; neither did he think it was safe because of the drug use and disturbances he had observed at those establishments. Husband and wife had a frank discussion about his views while vacationing in Acapulco in October 1984 and wife said that if that was such a problem with him she would cease going out with those friends to those places. He testified that during the week following their return from Acapulco she was out three nights until the early morning hours with a female friend. Wife testified that she only went to lunch with her female friends after the Acapulco discussion.

Wife testified that in December 1984 husband told her that if they could not live together in harmony he wanted a divorce and custody of Phillip. She attempted suicide by taking husband's medication, after which she threw the bottle at him. She was in the hospital about five days under the care of Dr. Rice, a psychiatrist that she had been seeing professionally for about two months.

The parties continued to live at the same address until 17 February 1985, when husband sent an employee to get some of his clothes and moved out. They have lived apart since that date. Reconciliation was discussed on a few occasions without success.

It is this Court's opinion, after a careful reading of the record, that fault is almost evenly divided between husband and wife. However, both courts below have found that husband was guilty of cruel and inhuman treatment and we will not disturb that adjudication, nor the award of child custody.

II.

On 16 December 1982, the day before the parties were married, they executed an antenuptial property agreement. Each party released all marital rights in the estate of the other in the event of death and provided that each party would have complete control of their respective separate properties after marriage, whether then owned or thereafter acquired.

In the event of divorce each party released any claim to the separate property of the other. However, husband agreed to provide "an adequate two bedroom house or condominium for Susan Beam so long as she resides in the house or condominium or until she remarries." That the provision for wife "shall be treated as alimony ... and this shall be the only alimony that she would be entitled to."

Wife described the circumstances surrounding the execution of the agreement as follows:

Q. When is the first time that you saw the prenuptial agreement?

A. The day before we married, the 16th of December.

Q. When is the first time that the subject of a prenuptial agreement was mentioned to you?

A. I am really not sure. I know the week before we married, the date had been set, and I was trying to discuss it with him like we needed blood tests and we needed [a] marriage license, and he wouldn't even discuss it with me. And I became very upset and I said, I have been with you for a year and a half. If at this point in time you don't feel like you want to marry me, then I am going to go back to Taylorsville and resume my life there....