Marriage of Newman, In re, 79CA0539

• Decision Date: 22 May 1980
• Docket Number: No. 79CA0539,79CA0539
• Parties: In re the MARRIAGE of Debora MacMillan NEWMAN, Appellant and Cross-Appellee, and Richard Wenrick Newman, Appellee and Cross-Appellant. . II
• Court: Colorado Court of Appeals

Page 982

616 P.2d 982

44 Colo.App. 307

In re the MARRIAGE of Debora MacMillan NEWMAN, Appellant and

Cross-Appellee,

and

Richard Wenrick Newman, Appellee and Cross-Appellant.

No. 79CA0539.

Colorado Court of Appeals, Div. II.

May 22, 1980.

Rehearing Denial June 19, 1980.

Certiorari Granted Sept. 2, 1980.

Shaw, Spangler & Roth, Edward C. Moss, Stan L. Spangler, Timothy E. Whitsitt, Denver, for appellant and cross-appellee.

Wolf & Slatkin, P. C., Albert B. Wolf, Denver, for appellee and cross-appellant.

BERMAN, Judge.

Wife appeals the trial court's judgment denying her maintenance in accordance with its determination that an antenuptial agreement executed by the parties was valid. Husband appeals the award of attorney's fees to wife. We affirm in part and reverse in part.

Both husband and wife had been previously married. Prior to their marriage in 1975, they entered into an antenuptial agreement which provided that in the event of a dissolution, wife would receive an automobile, the sum of $2,000, and all property owned by wife prior to the marriage. The agreement also provided that any income earned by wife would be placed in a joint savings account, and that, in the event of dissolution, wife would receive one-half of these earnings. By the terms of the agreement, wife would accept these items as her sole property in full satisfaction of any and all claims for maintenance or division or property.

Wife petitioned for dissolution of marriage in 1977, requesting maintenance, costs of maintaining the action, attorney's fees, and disposition of the property by the court. Husband requested that all financial rights and obligations be resolved according to the terms of the antenuptial agreement. The trial court found the agreement to be valid and found that the terms of the agreement had been complied with. It also awarded attorney's fees of $2,500 to wife.

I.

Wife first argues that the antenuptial agreement is invalid as against public policy because it is conducive of dissolution of marriage. This argument has been previously considered and was rejected in In re Marriage of Ingels, Colo.App., 596 P.2d 1211 (1979), which held that spouses-to-be have the right to enter into realistic antenuptial agreements which contemplate the possibility of dissolution.

II.

Wife contends that even if the provisions of the antenuptial agreement relating to division of property are not invalid as against public policy, those provisions are invalid as a matter of law because the terms are constructively fraudulent. We find adequate evidence in the record to support the trial court's findings that there was no fraud or misrepresentation with respect to the antenuptial agreement, and that there was adequate disclosure of the husband's assets to the wife prior to the execution of the agreement. In re Marriage of Ingels, supra.

III.

Wife next argues that antenuptial agreements which limit or eliminate a spouse's right to maintenance is void as against public policy. We agree.

The issue of whether parties may contractually limit or eliminate the statutory right to maintenance in an antenuptial agreement is one of first impression in Colorado. This court reserved this question, Ingels, supra, and our Supreme Court did not reach the issue in In re Marriage of Franks, 189 Colo. 499, 542 P.2d 845 (1975), as there the validity of the antenuptial agreement was not challenged with respect to maintenance.

Under our statutes, there is a continuing duty of support, even after dissolution, which may fall upon either spouse. Section 14-10-114, C.R.S.1973 (1979 Cum.Supp.). Unlike the statute dealing with the disposition of property, § 14-10-113, C.R.S.1973 (1979 Cum.Supp.), which permits the parties to remove disposition of property from judicial control by a valid agreement, ¹ the General Assembly has not permitted parties to determine maintenance by such antenuptial agreements. The General Assembly has authorized parties to determine maintenance rights in separation agreements drawn up in contemplation of dissolution of the marriage subject to a finding of conscionability by the court. Section 14-10-112, C.R.S.1973 (1979 Cum.Supp.). Separation agreements and antenuptial agreements are separate and distinct legal documents, In re Marriage of Stokes, Colo.App., 608 P.2d 824 (1979). And we now decline to legislate judicially that which the General Assembly has refused to enact.

Further, the principle that the interspousal support obligation, which is imposed by law, cannot be contracted away by antenuptial agreements is based on the sound policy consideration that the conditions which would determine an appropriate maintenance award cannot be accurately foreseen at the time antenuptial agreements are entered into. In re Marriage of Gudenkauf, 204 N.W.2d 586 (Iowa 1973); Connolly v. Connolly, S.D., 270 N.W.2d 44 (1978). And the public interest in the enforcement of the legal obligation to support, to prevent, in the extreme, one spouse from becoming a public charge, overrides the desires of the parties to fix their support obligations in the event of divorce by antenuptial agreements. In re Gaudenkauf, supra. Therefore, we hold that the provision of the parties' agreement which proposed to waive any entitlement to maintenance is not binding and that wife's entitlement to maintenance must be determined as of the date of the hearing on wife's application for maintenance in accordance with § 14-10-114, C.R.S.1973 (1979 Cum.Supp.).

IV.

Husband contends that the awarding of attorney's fees to the wife was error because she engaged in unnecessary litigation and the amount awarded was not sustained by any evidence. We disagree.

Because the antenuptial agreement was silent on the matter of attorney's fees, the awarding of such fees is controlled by § 14-10-119, C.R.S.1973 (1979 Cum.Supp.). In re Marriage of Franks, supra. The awarding of attorney's fees is discretionary with the trial court and will not be disturbed on review if supported by the evidence. In re Marriage of Icke, 35 Colo.App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975). Our review discloses no abuse of discretion by the trial court.

Judgment affirmed in part, reversed in part and cause remanded to the trial court for proceedings consistent with this opinion.

RULAND, J., concurs.

PIERCE, J., dissents.

PIERCE, Judge, dissenting.

I would affirm the trial court on all issues.

I do not agree with the majority's conclusion that an antenuptial agreement which determines spousal maintenance in the event of dissolution of marriage is invalid as against public policy.

The public policy involved in "No Fault" dissolution statutes is discussed at some length in Posner v. Posner, 233 So.2d 381 (Fla.1970). The modern trend has been to hold that antenuptial agreements fixing maintenance are valid. As stated in H. Clark, Antenuptial Contracts, 50 U.Colo.L.Rev. 141 at 149 (1979):

"It is certainly not demonstrable as a general proposition that an agreement respecting...