Marriage of Bonds, In re
| Decision Date | 12 April 1999 |
| Docket Number | A076586,Nos. A075328,s. A075328 |
| Citation | 71 Cal.App.4th 290,83 Cal.Rptr.2d 783 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 71 Cal.App.4th 290 71 Cal.App.4th 290, 72 Cal.App.4th 94D, 99 Cal. Daily Op. Serv. 2661, 1999 Daily Journal D.A.R. 3459, 1999 Daily Journal D.A.R. 4455 In re the MARRIAGE OF Susann Margreth and Barry Lamar BONDS. Susann Margreth Bonds, Appellant, v. Barry Lamar Bonds, Respondent. |
Fancher & Wickland, Paige Leslie Wickland, Paula Conser Fancher, Law Office of Lawrence H. Stotter, Lawrence H. Stotter, San Francisco, Counsel for Appellant.
De Goff and Sherman, Richard Sherman, Berkeley, Robert J. Nachshin, Scott N. Weston, Los Angeles, Stephen J. Montalvo, Counsel for Respondent.
Prenuptial agreements have become common, but there is little case law setting forth standard requirements to assure the enforcement of such contracts. Despite adoption of the Uniform Premarital Agreement Act (UPAA) by many states, uniform standards regarding enforcement have yet to be universally realized. Accordingly, analyses of the enforceability of premarital contracts by the courts have, thus far, continued to be ad hoc, often inconsistent, and sometimes contradictory. In this opinion we consider the prerequisites to the enforceability of such agreements and offer guidance to the parties and practitioners who seek to employ them.
Judicial review of these agreements, undertaken in the difficult circumstances of marital dissolution and under greatly changed circumstances, sometimes results in judges' enforcing or voiding such contracts based on their personal assessments of the prudence of the parties who made them. Such results are too often dependent upon a particular judge's value judgments rather than upon uniform rules of law. Other judges have attempted to achieve more uniform results by simply applying the general law governing commercial contracts to all premarital agreements, thus ignoring the public policy concerns particular to family law matters. Neither approach has proved satisfactory.
The desire for uniformity in the enforcement of these agreements should not obscure society's paramount interest in contracts governing families and the institution of marriage. For it cannot be forgotten that the consequences of premarital agreements profoundly affect not only the bride and groom, but also all members of their prospective family. The state has a stake in such arrangements, especially when enforcement of such an agreement can result in one spouse's financial dependence on public assistance. Accordingly, these unusually important contracts should rightly be governed by uniform rules which are sufficiently flexible to deal with varied factual patterns and which also further the goals of public policy, not the least of which is to ensure a fair process when parties seek to limit their own legal In this dissolution action between Susann Margreth Bonds (Sun) and Barry Lamar Bonds (Barry), the trial court ruled that their premarital agreement, which waived all statutory rights to community property, was enforceable because it was executed "voluntarily." Barry had his professional financial advisor and two attorneys advising him and devising the agreement. At her side, Sun had only a visiting Swedish friend who had no legal training or expertise in negotiating contracts. The trial court found Sun's waiver of her rights to be enforceable, principally because Barry's attorneys attempted to explain to her the legal ramifications of the agreement. We conclude that the trial court not only failed to give evidence of this unequal bargaining power the proper weight when considering the issue of voluntariness, but also that the court improperly determined that Sun's lack of representation was inconsequential.
rights and duties. Only in this way can the desires of the interested individuals be secured in a fashion that also will serve the interests of society as a whole.
We hold that when a party challenging a premarital agreement establishes that he or she did not have legal counsel while the other party had such assistance, and the unrepresented party did not have the opportunity to obtain legal counsel or did not knowingly refuse legal counsel, the court must strictly scrutinize the totality of the circumstances involved in the execution of the contract.
Here, close scrutiny of the undisputed evidence reveals the following: Barry's attorneys cobbled together an agreement that was riddled with typographical errors, that was missing important exhibits, that had no page numbers, and that ended abruptly with a detachable signature page which included no other text. As Sun arrived at the law office, on her way to the wedding, she was greeted by Barry's agent, who threatened that there would be "no wedding" if she did not sign the agreement. Barry's attorneys answered her questions about the agreement and also attempted to explain to her each provision in the contract. Sun signed the document a short time later, after seeing it for the first time at the meeting in the law office. After the meeting with Barry's attorneys, Barry and Sun went directly to the airport to catch a plane for Las Vegas to attend the wedding scheduled for the following day. We conclude that under these circumstances, elaborated further below,the trial court erred in finding the premarital agreement valid, and we remand for a new trial on this issue.
Both Barry and Sun were 23 years old when they met in Montreal in August 1987. At that time, Barry earned $106,000 a year as a major league baseball player for the Pittsburgh Pirates.
Sun had been in Montreal since the spring of 1985, when, at the age of 21, she left her native home in Sweden to live with her father in Canada and work in his small restaurant. She attended classes to become a cosmetologist or an aesthetician, and hoped someday to have her own business serving celebrity clients.
After they met for the first time in August, Sun and Barry spent two days together in Montreal. Subsequently, Sun visited Barry in Arizona for 10 days and returned to Montreal to attend beautician school. On November 7, 1987, Sun moved to Phoenix to live with Barry. Seven days later Barry proposed to Sun. The parties set their wedding date for February 7, 1988.
According to Barry, they frequently discussed their intent to keep their finances separate. Sun assured Barry that she did not want any of his money or to be dependent upon anyone.
At the end of December 1987, Sun and Barry had an argument and Sun departed for a brief stay in Sweden. After reconciling, Sun returned, and Barry made it clear that they would have to sign an agreement prior to marriage. Sun agreed to this condition.
The wedding was to occur in Las Vegas, and Barry's godfather, Willie Mays, secured hotel rooms there for the wedding party. Sun invited her Swedish friend Margareta Forsberg (Forsberg), who currently lived in Montreal, to attend the wedding, and she arrived in Phoenix on January 29, 1988. She Barry's banker and financial advisor, Mel Wilcox (Wilcox), referred him to Arizona attorneys Sabinus Megwa (Megwa) and Leonard Brown (Brown) to prepare a prenuptial agreement for him. Wilcox, and Barry's agent, Rod Wright, worked with Megwa and Brown to develop the premarital agreement. According to Barry, Sun and he had frequently discussed their plans and had agreed that, after their marriage, they would keep their careers and their "financing" separate.
stayed with Sun and Barry until after the wedding.
In late January 1988, Barry, Sun, Wilcox, Megwa, and Brown met for about 20 minutes regarding the preparation of lists specifying each party's assets. Brown believed that both Barry and Sun wanted an agreement waiving each of their community property rights under Arizona law. Brown told Sun that he represented only Barry and that she "may" want to consult independent counsel.
Brown, who had been practicing law for about seven years, assigned to Megwa the task of preparing the premarital agreement. Megwa had been admitted to the Arizona Bar 10 months earlier, and had no experience in drafting premarital agreements.
On February 3, 1987, Wilcox visited Barry and Sun at home, and obtained information from each of them concerning their assets.
Barry, Sun, and Forsberg had reservations to fly from Phoenix to Las Vegas in the early afternoon of February 5, 1987. Barry and Sun planned to get married on February 6, but needed to obtain their marriage license and select a wedding chapel once they arrived in Las Vegas.
On the morning of February 5, just prior to their scheduled flight departure, Barry and Sun, as well as Sun's friend Forsberg, met with Megwa and Brown in their law office for two to three hours. Wilcox met them as they entered the building and told Sun that there would not be a wedding if she did not sign the premarital agreement.
At the meeting, Megwa and Brown provided Barry and Sun with copies of the premarital agreement. Neither Sun nor Barry had an opportunity to review the agreement before the February 5 meeting. Brown and Megwa informed Sun that she "may" want to seek counsel. At trial, Brown stated he did not believe that he "ever made an affirmative declaration to Sun that she should seek counsel...." Rather, he told her that "she may want to do that." Brown told Sun that he represented Barry, but he also told both Barry and Sun that they each had a right to consult "private" or "additional" counsel to review the agreement.
Both Sun and Barry testified that Sun did not want a lawyer. Barry testified: Sun stated: ...
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Marriage of Bonds, In re
...Bonds, Appellant, v. Barry Lamar Bonds, Respondent. No. S079760. Supreme Court of California July 21, 1999. Prior report: Cal.App., 83 Cal.Rptr.2d 783. Respondent's petition for review GEORGE, C.J., and MOSK, KENNARD, BAXTER, CHIN, and BROWN, JJ., concur. ...
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Insuring the knot: the Massachusetts approach to postnuptial agreements.
...particular state gives to the traditional principles of contract law in the marital-contracting context. See In re Marriage of Bonds, 83 Cal. Rptr. 2d 783, 795 (Ct. App. 1999) (distinguishing different states' philosophies for reviewing prenuptial agreements), rev'd in part, 5 P.3d 815 (Cal......
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Chapter 36 - § 36.6 • PRACTICAL SUGGESTIONS
...should recommend in writing that the person obtain counsel and not refer the non-client to only one lawyer. In re Marriage of Bonds, 83 Cal. Rptr. 2d 783 (Cal. App. 1999), rev'd, 5 P.3d 815 (Cal. 2000). The attorney should have the client acknowledge in a separate writing that the absence o......
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Chapter 36 - § 36.6 • PRACTICAL SUGGESTIONS
...should recommend in writing that the person obtain counsel and not refer the non-client to only one lawyer. In re Marriage of Bonds, 83 Cal. Rptr. 2d 783 (Cal. App. 1999), rev'd, 5 P.3d 815 (Cal. 2000). The attorney should have the client acknowledge in a separate writing that the absence o......