Marriage of Stokes, In re

• Decision Date: 20 December 1979
• Docket Number: No. 78-601,78-601
• Citation: 43 Colo.App. 461,608 P.2d 824
• Parties: In re the MARRIAGE OF Beverly STOKES, f/k/a Beverly S. Douthit, Appellant, and Glen S. Douthit, Appellee. . I
• Court: Colorado Court of Appeals

Page 824

608 P.2d 824

43 Colo.App. 461

In re the MARRIAGE OF Beverly STOKES, f/k/a Beverly S.

Douthit, Appellant,

and

Glen S. Douthit, Appellee.

No. 78-601.

Colorado Court of Appeals, Div. I.

Dec. 20, 1979.

Rehearing Denied Feb. 7, 1980.

Certiorari Denied April 7, 1980.

Sheldon, Bayer, McLean & Glasman, P.C., James T. Bayer, Denver, for appellant.

Hough, Grant, McCarren & Bernard, William J. McCarren, Longmont, Robert Bugdanowitz, P.C., Robert Bugdanowitz, Denver, for appellee.

SILVERSTEIN, Judge.

In this dissolution of marriage proceeding, the trial court determined that the antenuptial agreement of the parties was valid and that it precluded the wife's claim for division of property and maintenance. On appeal by the wife, we affirm in part and reverse in part.

The agreement was signed on May 8, 1972, and the parties were married on May 14, 1972. In the agreement the husband's net worth was stated to be approximately $3,500,000, and that of the wife to be approximately $250,000. It further provided that, "irrespective of a future marriage between them, and irrespective of a subsequent dissolution of such marriage, all of his and her respective properties shall, always and forever, remain free and clear of any rights, claims or interests on the part of the other party."

All of the parties' assets were included in the "properties" covered by the agreement, including "those which (each party) now owns and which (each party) may, at any time in the future acquire." And, further, that any items acquired by either party after the marriage "shall remain a part of (that party's) assets."

I.

The wife contends the trial court erred in finding the agreement to be valid and binding on the parties. She asserts it is invalid because 1) the agreement was contrary to public policy, 2) the husband was guilty of fraud and over-reaching, 3) the agreement was unconscionable under §§ 4-2-302, 14-10-112, and 14-10-113, C.R.S.1973.

Antenuptial agreements are valid and enforceable in dissolution proceedings, and are not void as against public policy. In re Marriage of Ingels, Colo.App., 596 P.2d 1211 (1979); See In re Marriage of Franks, 189 Colo. 499, 542 P.2d 845 (1975).

The wife asserts that the husband was guilty of fraud and over-reaching, claiming that the husband failed to disclose all of his assets, provided no financial statement listing his assets, and failed to advise her to obtain independent counsel to represent her in the transaction. The evidence on all of these facts was conflicting, and the trial court, in its findings, found that there was a proper disclosure of assets, and that the wife was given ample opportunity to consult a lawyer, was advised to do so, and declined. These findings are supported by the evidence.

It is undisputed that the execution of an antenuptial agreement was discussed for at least a month before it was actually signed, and that the wife had stated at various times that she was not marrying husband for his money. Thus, even though the valuation of the husband's assets set forth in the agreement was only an approximation, the agreement was not therefore invalid. The amount of the husband's assets was not materially misstated, and thus his failure to supply an itemized list was not fatal to the validity of the agreement. Marriage of Ingels, supra; In re Estate of Lewin, Colo.App., 595 P.2d 1055 (1979).

The wife testified that she did not see the agreement until attending a conference with the husband's attorney, at which the agreement was signed. The husband testified that he had given her two copies of the instrument approximately a month prior to the meeting and told her to discuss it with her lawyer. The husband's attorney (who is not the attorney in this action) testified that the wife brought a copy of the agreement with her to the meeting. It is undisputed that at the meeting the agreement was fully explained, that she said she understood it, and that she was willing to sign. The trial court relied on the husband's evidence, and, under these circumstances, her failure to consult an attorney did not invalidate the agreement, Estate of Lewin, supra. The wife failed to bear her burden of proof on the issues of fraud and over-reaching. Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969); Marriage of Ingels, supra.

The wife also asserts that the agreement was unconscionable at the time of the hearing, and, therefore, relying on § 14-10-112, C.R.S.1973, she concludes that it was not binding. We reject this argument.

Not only is the statute explicitly limited to separation agreements, see § 14-10-112(1), C.R.S.1973, but also the two types of agreement separation and antenuptial are distinct in content and purpose.

Antenuptial agreements are intended as a means of preserving the status quo as to property interests existing before marriage; in contrast, separation agreements resolve claims as to property interests which have matured because of the marriage status. In further contrast to separation agreements, antenuptial agreements are executory in nature until a marriage actually occurs; they have as their principal consideration the marriage itself; and they do not dispose of, or divide, any property, but rather fix the rights of the parties with respect to the specified property, regardless of the duration of the marriage.

Hence, like other contracts, antenuptial agreements, absent fraud, are binding on the parties according to their terms, and " 'the judiciary cannot relieve parties to a fair and binding (antenuptial) contract from the obligations thereof . . . .' " Marriage of Franks, supra.

Accordingly, here, the agreement could not be successfully challenged as being unconscionable at the time of the hearing. Instead, the only appropriate inquiry "is whether the parties entered into the agreement with full knowledge of its consequences." Estate of Lewin, supra.

The fact that the husband's assets increased in value while the wife's did not, does not permit the court to second guess the propriety of the parties' actions in executing the contract, for the parties enter into antenuptial agreements because they cannot foretell the future. Marriage of Ingels, supra. Further, the fact that there is a disparity in the respective value of the assets does not render the agreement invalid. Marriage of Ingels, supra. The trial court was correct in judging the validity of the agreement on the facts existing at the time of its execution.

II.

The wife also urges that even though the contract is valid, it cannot preclude her right to a share of the increase in the value of the husband's assets. We disagree.

Section 14-10-113(2), C.R.S.1973, provides:

"For purposes of this article only, 'marital property' means all property acquired by either spouse subsequent to the marriage except:

(d) Property excluded by valid agreement of the parties."

Nevertheless, the wife argues that the increase in value cannot be included in a "valid agreement" because § 14-10-113(4), C.R.S.1973, provides that "an asset of a spouse acquired prior to the marriage . . . shall be considered as marital property, for purposes of this article only, to the extent that its present value exceeds its value at the time of marriage . . . ."

We do not interpret the latter provision as being a limitation on the right to exclude an increase in value from a valid agreement. Rather it merely defines such an increase to be marital property, which, like other marital property as defined in subsectio...