Marriage of Pendleton, In re, B113293

• Decision Date: 26 March 1998
• Docket Number: No. B113293,B113293
• Citation: 72 Cal.Rptr.2d 840,62 Cal.App.4th 751
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 62 Cal.App.4th 751 62 Cal.App.4th 751, 98 Cal. Daily Op. Serv. 2248, 98 Daily Journal D.A.R. 3087 In re the MARRIAGE OF Candace PENDLETON and Barry I. Fireman. Candace PENDLETON, Respondent, v. Barry I. FIREMAN, Appellant.

Page 840

72 Cal.Rptr.2d 840

Previously published at 62 Cal.App.4th 751

62 Cal.App.4th 751, 98 Cal. Daily Op. Serv. 2248,

98 Daily Journal D.A.R. 3087

In re the MARRIAGE OF Candace PENDLETON and Barry I. Fireman.

Candace PENDLETON, Respondent, v. Barry I. FIREMAN, Appellant.

No. B113293.

Court of Appeal, Second District, Division 1, California.

March 26, 1998.

Review Granted June 17, 1998.

Lascher & Lascher, Wendy C. Lascher, Ventura, Wasser, Rosenson & Carter and John Foley, Los Angeles, for Appellant.

Kolodny & Anteau, Ronald W. Anteau and Peter Hermes, Beverly Hills, for Respondent.

MIRIAM A. VOGEL, Associate Justice.

In anticipation of marriage, two wealthy and well-educated people represented by separate counsel agreed that, in the event the marriage did not last until death did them part, neither would seek spousal support from the other. Four years later, the marriage ended in dissolution. The wife sought substantial spousal support, claiming her waiver was unenforceable because it was contrary to California's public policy. The trial court rejected the husband's argument to the contrary, concluded that (as a matter of law) all premarital spousal support waivers are void and unenforceable, and ordered the husband to pay support. He appeals. We reverse.

DISCUSSION

A.

In 1983, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment in all states the Uniform Premarital Agreement Act. ¹ In a prefatory note, the Commissioners explained the need for the Uniform Act: "The number of marriages between persons previously married and the number of marriages between persons each of whom is intending to continue to pursue a career is steadily increasing. For these and other reasons, it is becoming more and more common for persons contemplating marriage to seek to resolve by agreement certain issues presented by the forthcoming marriage. However, despite a lengthy legal history for these premarital agreements, there is a substantial uncertainty as to the enforceability of all, or a portion, of the provisions of these agreements and a significant lack of uniformity of treatment of these agreements among the states. The problems caused by this uncertainty and nonuniformity are greatly exacerbated by the mobility of our population. Nevertheless, this uncertainty and nonuniformity seem reflective not so much of basic policy differences between the states but rather a result of spasmodic, reflexive response to varying factual circumstances at different times. Accordingly, uniform legislation conforming to modern social policy which provides both certainty and sufficient flexibility to accommodate different circumstances would appear to be both a significant improvement and a goal realistically capable of achievement." (9B West's U.Laws Ann. (1987) U. Premarital Agreement Act, Prefatory Note, p. 369.)

In 13 sections, the Uniform Act gives us definitions, formalities, and procedures for the adoption, amendment, revocation and enforcement of premarital agreements. More specifically, subdivision (a) of section 3 of the Uniform Act permits parties to a premarital agreement to "contract with respect to: [p] (1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; [p] (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; [p] (3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; [p] (4) the modification or elimination of spousal support; [p] (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement; [p] (6) the ownership rights in and disposition of the death benefit from a life insurance policy; [p] (7) the choice of law governing the construction of the agreement; and [p] (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty." (Italics added.) ²

In a comment to section 3, the Commissioners noted "a split in authority among the states as to whether a premarital agreement may control the issue of spousal support. Some few states do not permit a premarital agreement to control this issue.... However, the better view and growing trend is to permit a premarital agreement to govern this matter if the agreement and the circumstances of its execution satisfy certain standards...." When the comment was written in 1983, the minority view was represented by citations to cases from Iowa and Wisconsin, the "better view" by citations to cases from Colorado, Connecticut, Illinois, Massachusetts, Oklahoma, and Oregon. California was not mentioned in either group. ³

B.

In 1985, California adopted the Uniform Premarital Agreement Act. (Fam.Code, §§ 1600, 1601 [former Civ.Code, §§ 5300, 5302].) ⁴ With one notable exception, the California Act expressly permits parties to a premarital agreement to contract with regard to all of the items listed in section 3 of the Uniform Act--the exception is subdivision (a)(4) of section 3 of the Uniform Act, which is omitted, leaving the California Act silent on the subject of the parties' right to agree about "the modification or elimination of spousal support." (Fam.Code, § 1612, subd. (a); see 1994 Family Code, 23 Cal. Law Revision Com. Rep. 1 (1993) § 1612.) Fortunately, the reason for this omission is clear.

As originally proposed, Senate Bill No. 1143 of 1985 tracked the Uniform Act and thus did include subdivision (a)(4) of section 3 of the Uniform Act. (Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Mar. 7, 1985.) ⁵ The spousal support waiver provision was deleted by a subsequent amendment (Assem. Amend. to Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Aug. 28, 1985) after the Legislature was advised by its staff that California's courts did not "permit a premarital agreement to control this issue." (Assem. Subcommittee on Administration of Justice, Report on Sen. Bill No. 1143 for the Aug. 19, 1985 hearing, pp. 3-4 ["See In re Marriage of Dawley [ (1976) ] 17 Cal.3d 342 [131 Cal.Rptr. 3, 551 P.2d 323], in which the court notes that the enforcement of provisions in premarital contracts to waive or limit spousal support rights is barred because such provisions are considered promotive of divorce"].) Thus, the amendment deleting subdivision (a)(4) of section 3 of the Uniform Act was recommended to "allow California case law to continue to prevail on the issue of spousal support in premarital agreements. " (Assem. Subcommittee on Administration of Justice, Report on Sen. Bill No. 1143 for the Aug. 19, 1985 hearing, supra, p. 3, italics added.) After the August 19 amendment, the Assembly Subcommittee on Administration of Justice reported that the bill, as amended, meant that "California case law would ... prevail on the issue of spousal support in premarital agreements. " (Assem. Subcommittee on Administration of Justice, Report on Sen. Bill No. 1143, as amended on Aug. 28, 1985, p. 3, italics added.)

It is clear, therefore, that the Legislature deleted the express authorization for spousal support waivers because they recognized that the enforceability of such waivers is a question for the courts, not the Legislature.

C.

Accordingly, the question is whether, given the current state of case law and "recent" legislative amendments, spousal support waivers in premarital agreements violate any public policy or any statute imposing a criminal penalty. (Fam.Code, § 1612, subd. (a)(7).) Since no one suggests that a waiver would violate a statute imposing a criminal penalty, the only issue is whether it would violate public policy. It would not.

1.

Traditionally, a premarital agreement in which either spouse or both of them attempted to waive or limit spousal support was void as against public policy (the theory was that it would facilitate divorce). (Barham v. Barham (1949) 33 Cal.2d 416, 427-428, 202 P.2d 289; In re Marriage of Higgason (1973) 10 Cal.3d 476, 485-488, 110 Cal.Rptr. 897, 516 P.2d 289 [invalidating a premarital agreement that would have relieved a wealthy 73-year-old woman of her obligation to support her impoverished 48-year-old husband while they were living together].) The rule was explained in Pereira v. Pereira (1909) 156 Cal. 1, 103 P. 488, where the husband and wife had agreed to limit his support and property obligations to $10,000: "The real effect of the contract to pay the [$10,000], so far as the husband is concerned, would be to provide against liability for a contemplated wrong to be subsequently inflicted by him upon his wife, and to liquidate such liability in advance of the commission of the wrong. The evidence and findings show that the [husband] was then possessed of property worth about [$77,000], was engaged in a very lucrative business, and was receiving an income of about [$11,000] a year which he had every reason to believe would continue. By this contract, if valid, he was left free to inflict upon his wife the most grievous marital wrongs, such as would compel her to obtain a divorce, secure in the protection of his contract that [$10,000] would satisfy all her claims against him of a pecuniary nature or in relation to the community property. If he should, after its execution, be moved by evil impulse to commit anew the offenses against his wife which first gave her cause for divorce, or other acts having the same legal effect, the existence of a valid contract of this sort could not but encourage him to yield to his baser inclinations, and inflict the injury .... The law does not countenance such agreements." ⁶ (Id. at pp. 3-5, 103 P. 488, italics added.)

2.

Twenty years after Barham, California adopted the Family Law Act of 1969 (former Civil Code section 4000 et seq.),...