Opinion
15-P-1580
03-20-2017
Louisa L. ROOF v. Arthur ABELOWITZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Louisa Roof (wife), the former wife of Arthur Abelowitz (husband), appeals from a judgment of the Probate and Family Court. After a bifurcated trial, the judge held that the parties had executed a valid and enforceable antenuptial agreement (agreement) and determined, as relevant here, that, under the unambiguous plain language of the agreement, the wife had waived her right to property separately acquired by the husband during the course of the marriage. A judgment of divorce nisi entered and the wife's appeal followed. We affirm.
The judge bifurcated the trial and issued a judgment that the agreement was a valid enforceable contract. The wife filed a notice of appeal from that judgment. After the judgment of divorce entered, the wife filed another notice of appeal. The judgment of divorce nisi "constitutes the final judgment in this matter." Pisano v. Pisano , 87 Mass. App. Ct. 403, 411 (2015).
Background . The parties were married on July 9, 1994. At the time of the marriage, the husband had two minor children from his first marriage and the wife had no children. The husband and wife had each previously been married and divorced.
Beginning in May, 1994, the parties began to discuss drafting the antenuptial agreement—the husband wanted to preserve his estate for his children and protect his assets for his child support payments, and the wife wanted to protect real property she had acquired prior to the marriage. The husband enlisted his divorce attorney to draft the agreement. In mid-June, 1994, the parties exchanged financial statements and 1993 tax returns. On June 28 and 29, 1994, the attorney prepared multiple drafts of the agreement. The day before the wedding, on July 8, 1994, the wife executed the final agreement in Massachusetts and it was notarized by an attorney whom the wife had previously contacted regarding another matter. The husband executed the agreement in New Hampshire. The parties were married the following day in an informal ceremony with approximately eight guests.
On December 20, 2012, the wife filed a complaint for divorce, citing an irretrievable breakdown of the marriage. After two days of trial, on August 29, 2014, the judge found that the agreement was a valid enforceable contract. The judge issued detailed findings of fact and ruling of law on February 24, 2015. A judgment of divorce nisi issued on April 13, 2015. According to the terms of the judgment, the parties retained their individually held assets, and the wife was to receive $30,000 and one-half of the balance of a jointly held bank account. This appeal followed.
Discussion . 1. Validity and enforceability of agreement . The interpretation of an antenuptial agreement is a question of law, which we review de novo. See DeMatteo v. DeMatteo , 436 Mass. 18, 26 n.16 (2002). The probate judge's findings of fact are reviewed for clear error. Adams v. Adams , 459 Mass. 361, 380 (2011). In interpreting an antenuptial agreement, the contract is considered as a whole. Tompkins v. Tompkins , 65 Mass. App. Ct. 487, 494 (2006).
To decide whether an antenuptial agreement is enforceable, the trial judge first considers whether it is valid. The judge must consider whether (1) the agreement was fair and reasonable to the contesting party at the time of execution, (2) the contesting party was aware of the other party's assets and liabilities prior to the time of execution, and (3) a waiver by the contesting party is set forth. Rosenberg v. Lipnick , 377 Mass. 666, 672 (1979). If the judge determines that the agreement was valid at the time of execution, the judge next considers whether, at the time of the divorce, the agreement is fair and reasonable. Austin v. Austin , 445 Mass. 601, 604 (2005). On appeal, the wife argues that she did not understand the effects of her waiver under the agreement and that the agreement was therefore invalid at the time it was executed.
The wife makes no argument regarding the fairness of the agreement at the time of execution, the husband's disclosure of his assets and liabilities, or the conscionabilty of the agreement at the time of the divorce.
In determining whether there was a valid waiver, the judge may consider "whether each party was represented by independent counsel, the adequacy of the time to review the agreement, the parties' understanding of the terms of the agreement and their effect, and a party's understanding of his or her rights in the absence of an agreement." DeMatteo v. DeMatteo , supra at 29. Although not all of these factors must be met, each party must have had "a meaningful understanding that the agreement may provide for a disposition of property and support rights that could be very different from that to which the parties would otherwise be entitled under Massachusetts law should the case be presented to a judge to decide." Eyster v. Pechenik , 71 Mass. App. Ct. 773, 786 (2008).
In this case, the terms of the agreement provide guidance as to the parties' understanding. The tenth clause of the agreement contains an explicit waiver provision, providing that each party entered into the agreement with advice of counsel of their own choosing. Additionally, both the wife and the husband had been previously married and divorced, and, therefore, had previous experience with their rights under the law. See Austin , supra at 603 ("[T]he wife was fully advised of her rights when she executed the agreement and ... having been divorced previously, was fully aware of her rights to alimony, support, property division, and child support").
The provision reads:
"Tenth: The PARTIES hereby acknowledge that they have been fully acquainted with each other's means and resources; that they have been informed, in detail, of their respective net worth and that each has a substantial income; that each has ascertained and weighed all the facts, conditions, and circumstances likely to influence their respective judgment herein; that all matters embodied herein, as well as all questions pertinent hereto, have been fully and satisfactorily explained to each; that each has given due consideration to such matters and questions; that each clearly understands and consents to all the provisions hereof; that each has had the benefit of the advice of counsel of his or her own selection ; and that each is entering into this Agreement freely, voluntarily and with full knowledge" (emphasis added).
Where the wedding was small and informal, the wife had ample time when presented with the final version of the agreement the day before the wedding to review it and fully grasp its terms. The wife's clear understanding of the agreement was demonstrated in an electronic mail message (email) she wrote to a friend in December, 2012. In that e-mail, which the judge credited, the wife stated:
There is a factual dispute about whether the wife retained independent counsel, but this factor is not dispositive. See Eyster v. Pechenik , supra at 786. In any event, the finding that the wife consulted with an attorney does not appear to be clearly erroneous. The judge did not find the wife's testimony credible in this respect and could infer that the wife consulted the same attorney who notarized the agreement and with whom she had consulted on another matter several years before the marriage.
"At the time, I wanted such an agreement too, and our assets were about equal. Meantime, Artie has quintupled his worth and I haven't even doubled mine. ... I didn't want to risk losing my home, so I can't really fault myself for doing what seemed reasonable at the time. Long and short of it is, I don't get anything ... unless/until he dies."
On this record, the judge's finding of a valid waiver is fully supported.
2. Interpretation of the agreement . The wife contends that the plain language of the agreement requires that the investments the husband made in his individually held retirement accounts, with money he earned during the marriage, must be evenly distributed. She relies on a portion of the fifth clause of the agreement, which provides in relevant part: "If any property is acquired by the PARTIES during their marriage with money earned after the consummation of the marriage, said property is to be treated as if it were owned 50% by the HUSBAND and 50% by the WIFE...." The wife asserts that property "acquired by the parties" means any property, whether purchased by the husband and wife jointly or purchased by each individually. We disagree.
As a general rule, "[w]hen the words of a contract are clear, they must be construed in their usual and ordinary sense." General Convention of the New Jerusalem in the United States of America, Inc . v. MacKenzie , 449 Mass. 832, 835 (2007). The beginning of the agreement explicitly states that " ‘HUSBAND’ and ‘WIFE’ are sometimes hereinafter collectively referred to as the ‘PARTIES' " (emphasis added). When the agreement provides for actions that the husband and wife undertake individually, the term "each party" or "each of the PARTIES" is used. Thus, when the agreement addresses property "acquired by the PARTIES," the plain and usual meaning is property acquired by both individuals jointly and not individually.
For example, the fifth clause states that "[e]ach party shall ... keep and retain sole ownership, control, and enjoyment of, and all rights to, all property set forth in Exhibits C and D"; "each party shall ... have the absolute and unrestricted right to dispose of his or her property owned or acquired prior to the marriage"; and "[e]ach of the PARTIES agrees and covenants that he or she will not challenge the granting of an administration upon the personal effects and estates of the other party" (emphasis supplied).
In addition, reading the fifth clause in its entirety, the phrase at issue can only mean property acquired collectively. The fifth clause goes on to state that property "acquired by the PARTIES" will be treated as if fifty percent were owned by each party, "unless the PARTIES have agreed and substantiated in writing that one of the PARTIES by reason of a greater contribution toward acquiring such property is entitled to a greater percentage ownership interest." If the default rule were, as the wife suggests, that property acquired individually by one of the parties, using money earned entirely by that party during the marriage, was nevertheless subject to the fifty percent ownership provision, then it is difficult to understand why the parties would have included the "unless" clause's additional language providing for a greater ownership interest to the party who contributed more to the acquisition of that property.
Such an interpretation is also supported when read in the broader context of the agreement. See Pisano v. Pisano , 87 Mass. App. Ct. 403, 412-413 (2015). Other clauses specifically provide for the distribution of property that is held individually by each party. The fourth clause applies to distribution of individually held property upon either party's death. The sixth and seventh clauses are waivers of any rights that the husband or wife might have to alimony, attorney's fees, and community property, or to their spouse's retirement plans or pensions. The latter provision is notable because it is a share of the husband's retirement plans that the wife seeks here. The fourteenth clause states that "certain property shall, from the beginning of the marriage, be joint," as set forth in an exhibit to the agreement, implying that, unless otherwise specified, all other property was to be kept separate. We perceive no error.
We are not persuaded that the language, "[e]ach party waives any and all state and federal rights he or she may have in any pension retirement or profit sharing plan of the other," relates only to any present rights each party may have had at the time the agreement was signed because it does not contain the language "forever waived." "A contract is to be construed to give reasonable effect to each of its provisions." J.A. Sullivan Corp . v. Commonwealth , 397 Mass. 789, 795 (1986). There is no evidence that the parties would have had any State or Federal rights to each other's pension or retirement accounts, prior to the marriage, that would have been necessary to waive at the time the agreement was signed, and thus, the wife's interpretation would render this clause superfluous.
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Judgment affirmed.