Marriage of Boren, In re

• Decision Date: 26 March 1985
• Docket Number: A,No. 385S116,S.F. BORE,385S116
• Citation: 475 N.E.2d 690
• Parties: In re the MARRIAGE OF Ermalppellant-Respondent, and E. Raye Boren, Appellee-Petitioner.
• Court: Indiana Supreme Court

Page 690

475 N.E.2d 690

In re the MARRIAGE OF Ermal S.F. BOREN, Appellant-Respondent and E. Raye Boren, Appellee-Petitioner.

No. 385S116.

Supreme Court of Indiana.

March 26, 1985.

David B. Hughes, Hughes & Hughes, Indianapolis, James G. McDonald, Jr., Princeton, for appellant-respondent.

Glenn A. Grampp, James D. Lopp, Sr., James D. Lopp, Jr., Evansville, for appellee-petitioner.

ON CIVIL PETITION TO TRANSFER

PRENTICE, Justice.

This cause is before us on the petition of Ermal Boren (Appellant/Respondent) to transfer the cause from the Court of Appeals, Fourth District, following its affirmance of the judgment of the trial court, which, in a dissolution of marriage proceeding, awarded E. Raye Boren (Appellee/Petitioner) $188,500 as well as attorney and appraisal fees, notwithstanding an antenuptial agreement which provided that she would limit her claim against her husband to $5,000 in the event the marriage was terminated by death or "legal proceedings." Inasmuch as the decision of the Court of Appeals, reported at 452 N.E.2d 452, erroneously decided a new question of law, as hereinafter set forth, the petition to transfer is now granted, and the decision and opinion of the Court of Appeals is vacated.

The record discloses that Ermal Boren (Husband), a resident of Gibson County, met E. Ray Boren (Wife), a resident of Florida, in February, 1969 and proposed marriage to her in August, 1969. At that time Husband was fifty-nine (59) years of age, and his wife of over thirty (30) years had recently died. He had one daughter. Wife was fifty-five (55) years of age, had been married on three prior occasions, and had one son from a previous marriage. At the time of the proposal, Wife was managing a motel in Daytona Beach, Florida and had been so employed for several years. Although Husband, at the time of his proposal, discussed his desire to execute an antenuptial agreement with Wife, the agreement was not executed until a date six (6) days prior to the marriage, one month later. Upon accepting Husband's proposal, Wife liquidated her assets, totalling approximately $40,000, resigned her employment, and moved to Husband's home. Wife had thought that she could convince Husband that an antenuptial agreement was unnecessary, but he was adamant and would not agree to get blood tests, apply for a marriage license, or set a wedding date until Wife signed the agreement. The trial court found that Wife traveled to Indiana with full knowledge that Husband was adamant concerning the requirement of an antenuptial agreement.

The agreement provides, in pertinent part, that the parties desire by the agreement to "prescribe, limit, and determine the interest and control which each ... may have in the estate of the other ... during the marriage, ... or should the same be determined by death or legal proceedings." The agreement further provides that each party retain sole ownership, control and enjoyment of and have the exclusive right to dispose of all his property then owned or which might thereafter be acquired. Husband agreed that he would make no claim to any part of Wife's estate. Wife agreed that her claim against Husband's estate would be limited to a cash settlement of $5,000. Paragraph 6 of the agreement provides:

"It is mutually agreed and understood by and between the two (2) parties hereto that the purpose and intent of this agreement is to fully, and completely define and limit the claims and demands which each of the parties to this contract shall have against the estate of the other. Should either party die during the pendency of this contract, or should the contract be determined by legal proceedings, the claim herein stipulated and defined shall be the limit which either party may have against the estate of the party so dying, or the contract being terminated as above specified during the continuance of the marriage contract."

The parties were married on September 24, 1969. During the marriage, Husband continued farming, and Wife performed the usual activities of a housewife, performed some tasks about the farm, and helped to care for Husband's elderly stepmother for a period of time. On April 30, 1981, Wife filed her petition for dissolution of the marriage.

The trial judge found the estate of the parties to be worth $3,306,061.24 at the time of the dissolution. Wife had brought approximately $40,000 into the marriage. The remainder of the assets had been brought into the marriage by Husband, inherited during the marriage by Husband, or earned by him during the marriage. The trial judge determined that the agreement was invalid as to all of the assets acquired during the marriage, modified its terms, and awarded her $183,500 as her share of the assets acquired during the marriage in addition to $5,000 as provided by the agreement. The court further ordered Husband to pay $12,000 attorneys' fees and $4,500 for the cost of an appraisal of the marital property, incidental to the litigation.

At issue is the validity and enforceability of an antenuptial agreement upon the dissolution of marriage. Such agreements are legal contracts by which parties entering into a marriage relationship attempt to settle the interest of each in the property of the other during the course of the marriage and upon its termination by death or other means. Russell v. Walz, (1984) Ind.App., 458 N.E.2d 1172, 1179 (transfer denied ). This Court has had several occasions to rule upon the validity of antenuptial agreements and has consistently held that such agreements, so long as they are entered into freely and without fraud, duress, or misrepresentation and are not, under the particular circumstances of the case, unconscionable, are valid and binding. Mallow v. Eastes, (1913) 179 Ind. 267, 274, 100 N.E. 836, 839; Kennedy v. Kennedy, (1898) 150 Ind. 636, 643, 50 N.E. 756, 758; McNutt v. McNutt, (1888) 116 Ind. 545, 551-552, 19 N.E. 115, 117. In Mallow, we stated:

"Our courts have uniformly upheld antenuptial contracts where fairly entered into, even though the effect be to leave the surviving wife very little, based upon the motives of marriage not being mercenary, but of the highest consideration in itself, and holding under such contracts, that the considerations fixed by the parties will be deemed sufficient, even though the provisions for the contemplated wife be much less than the statutory right of widows, or even give her no property interest."

Mallow v. Eastes, 179 Ind. at 274-275, 100 N.E. at 839. And in Buffington v. Buffington, (1898) 151 Ind. 200, 202, 51 N.E. 328, 329, we held that antenuptial contracts are favored by the law as "promoting domestic happiness and adjusting property questions which would otherwise often be the source of fruitful litigation." Such contracts will be liberally construed to effect, so far as is possible, the parties' intentions. Id.; see also Russell v. Walz, (1984) Ind.App., 458 N.E.2d 1172, 1179; Estate of Gillilan v. Estate of Gillilan, (1980) Ind.App., 406 N.E.2d 981, 988; McClain's Estate v. McClain, (1962) 133 Ind.App. 645, 651, 183 N.E.2d 842, 846; Baugher v. Barrett, (1957) 128 Ind.App. 233, 238-239, 145 N.E.2d 297, 299-300 (trans. denied ); Rousch v. Hullinger, (1949) 119 Ind.App. 342, 346, 86 N.E.2d 714, 715; Moore v. Harrison, (1901) 26 Ind.App. 408, 411, 59 N.E. 1077, 1078.

The above cited cases involve the application of antenuptial agreements upon the death of a spouse rather than upon the dissolution of the marriage; hence, the question is whether these general principles are equally applicable to agreements which provide for the property rights and financial obligations of the parties upon divorce.

In the past, in some cases, policy considerations have dictated that antenuptial agreements providing for property settlement upon divorce are not binding upon the court. See Annot., 57 A.L.R.2d 942 and Watson v. Watson, (1906) 37 Ind.App. 548, 77 N.E. 355. However, policy considerations regarding marriage and antenuptial agreements which address themselves to property settlements in the event of divorce have changed significantly as the institution of marriage and marriage laws have changed. Our court of appeals has discussed the evolution of such policy considerations in Tomlinson v. Tomlinson, (1976) 170 Ind.App. 331, 352 N.E.2d 785 (transfer denied ) and has held that antenuptial agreements settling the property rights of the parties upon dissolution of marriage are not per se void as against public policy. Id. at 339, 352 N.E.2d at 791. With this determination, we and many other jurisdictions, see, e.g., Newman v. Newman, (1982) Colo., 653 P.2d 728, 731; Posner v. Posner, (1970) Fla., 233 So.2d 381, 385; Scherer v. Scherer, (1982) 249 Ga. 635, 292 S.E.2d 662, 666; Volid v. Volid, (1972) 6 Ill.App.3d 386, 286 N.E.2d 42; Frey v. Frey, (1984) 298 Md. 552, 471 A.2d 705, 710; Marschall v. Marschall, (1984) 195 N.J.Super. 16, 477 A.2d 833, 838; Gross v. Gross, (1984) 11 Ohio St.3d 99, 464 N.E.2d 500, 506; Hudson v. Hudson, (1960) Okl., 350 P.2d 596, 597, are in accord.

Two of the significant changes in the institution of marriage and marriage laws in recent years are the increase in the number of divorces and the implementation of "no-fault" divorce laws. A natural consequence of the increased number of divorces is the increased incidence of subsequent marriages. As more and more persons, especially those who are older and have children from previous marriages, enter into subsequent marriages, they may wish to protect their property interests for the benefit of themselves and/or their children. Such agreements can only promote or facilitate marital stability by settling the expectations and responsibilities of the parties. Frey v. Frey, 471 A.2d at 709. ¹

In light of the changes in marriage and marriage laws, we can see no reason to conclude that antenuptial agreements pertaining to the rights and interests of the parties upon dissolution of marriage should be regarded...