Tomlinson v. Tomlinson

• Decision Date: 19 August 1976
• Docket Number: No. 2--275A48,2--275A48
• Citation: 170 Ind.App. 331,352 N.E.2d 785
• Parties: Germaine E. TOMLINSON, Appellant (Plaintiff below), v. Harold TOMLINSON, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 785

352 N.E.2d 785

170 Ind.App. 331

Germaine E. TOMLINSON, Appellant (Plaintiff below), v. Harold TOMLINSON, Appellee (Defendant below).

No. 2--275A48.

Court of Appeals of Indiana, Second District.

Aug. 19, 1976.

Rehearing Denied Sept. 14, 1976.

Franklin I. Miroff, Klineman, Rose & Wolf, Indianapolis, for appellant.

James A. Buck, Buck, Berry, Landau, Breunig & Quinn Indianapolis, for appellee.

SULLIVAN, Judge.

A decree of divorce occasions this appeal. Appellant (Germaine) challenges the alimony award alleging that the court erroneously considered an antenuptial agreement; that the award is inadequate; and that the court erroneously sanctioned Harold's transfer of certain real estate prior to the divorce.

The statutory provisions governing this divorce were repealed subsequent to commencement of this litigation and were replaced by the Dissolution of Marriage Act. Ind.Ann.Stat. 31--1--11.5--1 et seq. (Burns Code Ed. 1976 supp). Our determination in this appeal does not necessarily indicate future resolution of similar issues.

Germaine and Harold both had children from previous marriages. Germaine was employed at one of Harold's businesses. They eventually developed an intimate relationship and conceived a child. On May 21, 1970, two months after the birth of the child, Germaine, age 30, and Harold, age 46, were married. Immediately preceding the marriage ceremony, Germaine and Harold entered into the following antenuptial agreement. ¹'WHEREAS, Suzy M. Chantegros, (Germaine) hereinafter referred to as Suzy and Harold Tomlinson, hereinafter referred to as Tom desire to enter into a marriage on the 21st day of May, 1970, and,

WHEREAS, Tom has been a widower for a period of approximately three years and has children of his own and both parties desire to protect what Tom has earned and preserved (sic) the same for his children, and

WHEREAS, the parties agree that Tom has a home at 2417 Knollwood Drive, Indianapolis, Indiana, and that he owns Bamberg Realty, which has at least five pieces of property, together with a one-half interest in Western Parks, Inc., and

WHEREAS, both of the parties have made full disclosure to the other regarding the financial situation in the estate of each,

IT IS NOW, THEREFORE, AGREED, that in the event of a divorce between Suzy and Tom, that Suzy will not ask for and agrees not to receive any part of the above listed property or accumulations of property or money earned prior to the marriage of the parties. This agreement is voluntarily entered into by and between the parties both being satisfied of full disclosure by the other of the extent of their interest and in no way precludes Suzy from asking for a divorce at some future time, asking for counsel fees in such a divorce or asking for support for any children that might be born of this marriage.' (Emphasis supplied.)

Following the marriage, Germaine and the baby moved into Harold's home where he was living with his other two daughters. Germaine's previous children lived elsewhere. In 1973, Harold suffered a heart attack. During his recovery over several months, Germaine conducted his business affairs. Throughout the marriage she was responsible for all household duties and some tasks associated with Harold's business. However, four stormy years of marriage resulted in separation February 22, 1974 and finally in divorce on October 15, 1974.

The evidence disclosed Harold's net worth to be approximately $300,000--$400,000 at the time of trial. The interpretations of the evidence drawn by both parties show his net worth at the time of the marriage to have been in the same value range, having appreciated by only $12,000 during the marriage.

In its divorce decree the trial court concluded that the antenuptial agreement was valid. Germaine was awarded $10,400 alimony. She was also awarded custody of their child, and child support allotments which are not challenged.

I. VALIDITY OF ANTENUPTIAL AGREEMENT

Germaine first alleges that the trial court committed reversible error when it admitted into evidence and considered the antenuptial agreement with respect to the alimony award. She asserts that the agreement is invalid (1) as a matter of public policy and (2) as the product of duress and non-disclosure.

It has been held as a general rule that, with respect to property distribution upon the death of one of the parties, antenuptial agreements are favored by the law because they tend to promote marital harmony and to facilitate the judicial process by eliminating unnecessary litigation. McNutt v. McNutt (1888), 116 Ind. 545, 19 N.E. 115; McClain's Estate v. McClain (1962), 133 Ind.App. 645, 183 N.E.2d 842; Baugher v. Barrett (1957), 128 Ind.App. 233, 145 N.E.2d 297. However, under certain circumstances antenuptial agreements have been considered invalid: (a) where fraud or duress has been practiced; (b) where the agreement promotes divorce or restrains marriage; or (c) where the Statute of Frauds has been contravened. Clark, Law of Domestic Relations § 1.9 (1968). ²

Our matter of concern in the instant appeal is whether an antenuptial agreement which contains provisions in contemplation of separation or divorce, necessarily weakens the protection which the law accords the family/marital relationship.

While the parties to a marriage have had the full support of law when they have antenuptially agreed to property distribution or other financial arrangements upon death, they have not had the sanction of the law when they have agreed to similar terms conditioned upon divorce or separation.

This position was explained in Watson v. Watson (1906), 37 Ind.App., 548, 551, 77 N.E. 355, 356:

'If we should adopt appellant's construction of the antenuptial contract it would be in effect affirming a rule of law authorizing parties contemplating marriage to fix in advance the husband's liability for alimony in case either shall obtain a divorce. This we can not do. While the law in this State is firmly fixed giving parties the right to adjust and settle property interests by antenuptial contract (Leach v. Rains (1897), 149 Ind. 152, 48 N.E. 858; Kennedy v. Kennedy (1898), 150 Ind. 636, 50 N.E. 756), and to have such settlement recognized and enforced by the courts, yet such settlement must be free from fraud or imposition (Kennedy v. Kennedy, supra), and not against public policy (Neddo v. Neddo (1898), 56 Kan. 507, 44 P. 1).

It is also equally well settled that the husband is bound to support his wife. Rariden v. Mason (1903), 30 Ind.App. 425, 65 N.E. 554; Scott v. Carothers (1897), 17 Ind.App. 673, 47 N.E. 389. This legal obligation is a part of every marriage contract. It is a duty imposed upon the husband by law, and from this obligation he cannot shield himself by contract. To hold otherwise would be to invite disagreement, encourage separation, incite divorce proceedings and commend a principle which would be a menace to the welfare of society, contrary to public policy, and tending to overthrow and destroy every principle of the law of marriage requiring that husband and wife shall live together during their natural lives, and that the husband, within his financial ability, shall furnish the wife with reasonable necessaries for her support and home comforts in sickness and in health, as by law he is required to do.'

See also cases collected at 57 A.L.R.2d 942.

The traditional division of labor and consequent dominant role of the male in marriage and in society account in part for the reluctance shown by courts to recognize many antenuptial agreements. This concern has been expressed frequently in terms of the husband's 'duty to support his wife.' See Watson v. Watson, supra. This duty, in terms of divorce settlements, is more appropriate to a consideration of alimony as support rather than alimony as a method of property distribution. See Wellington v. Wellington (2nd Dist. 1973), Ind.App., 304 N.E.2d 347.

This distinction was noted by the Florida District Court of Appeals in Lindsay v. Lindsay (1964 Fla.App.), 163 So.2d 336 wherein property distribution provisions were distinguished from support provisions in antenuptial agreements conditioned upon divorce. Subsequently, however, the Florida Supreme Court recognized the validity of all antenuptial agreements, if fairly entered, whether dealing with property rights or support rights. See Posner v. Posner (1972 Fla.), 257 So.2d 530. To the same effect in Hudson v. Hudson (1960 Okl.), 350 P.2d 596.

Judicial decisions traditionally assimilate the mores of society. If they did not, the law would tend toward repression and unresponsiveness to the realities of human conditions. We have given careful attention to indicators of human events, including the sequence of judicial decisions which address the validity of antenuptial agreements. In so doing we find that our neighbor, Illinois, has recently had occasion to do the same.

Volid v. Volid (1972), 6 Ill.App.3d 386, 286 N.E.2d 42 involved an antenuptial agreement with an absolute limitation of $75,000 upon the husband's liability for alimony, support, and with respect to property distribution. That agreement was fairly entered into with full knowledge by the parties and with advice of counsel on both sides and 'did not attempt to avoid the duty of support' 286 N.E.2d at 45 (Emphasis supplied.) The holding, however, placed little or no significance upon the distinction between avoidance of support and limitation of support. The court there addressed itself to the changed and changing mores of society.

'Here the agreement does not attempt to regulate the operation of a functioning family or the amount of support to be provided while the parties were living together, but it anticipates the possibility of a time when the marital relationship has broken down and the parties are separated by decree.

'In cases from other jurisdictions which we have reviewed at length, antenuptial agreements which totally eliminated the right...