Opinion
21-P-746
04-22-2022
Philip D. BURDICK v. Denise M. LAFOUNTAIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (wife) appeals from a judgment of divorce nisi, which provides that the parties are to comply with the terms of their antenuptial agreement dated April 19, 2016 (agreement), and that the agreement is to survive as an independent contract. The wife argues, among other things, that the Probate and Family Court judge erred by failing to assess the validity and enforceability of the agreement before incorporating it into the judgment. We agree and thus vacate the judgment and remand for further proceedings.
For an antenuptial agreement to be enforceable, it "must be valid at the time of execution and must also be fair and reasonable at the time of divorce." Austin v. Austin, 445 Mass. 601, 604 (2005). As to the first of these requirements, the judge must determine whether "(1) [the agreement] contains a fair and reasonable provision as measured at the time of its execution for the party contesting the agreement; (2) the contesting party was fully informed of the other party's worth prior to the agreement's execution, or had, or should have had, independent knowledge of the other party's worth; and (3) a waiver by the contesting party is set forth." Rosenberg v. Lipnick, 377 Mass. 666, 672 (1979). The judge must then "take a second look at [the agreement's] provisions at the time of divorce" to determine whether " ‘due to circumstances occurring during the course of the marriage, enforcement ... would leave the contesting spouse without sufficient property, maintenance, or appropriate employment to support [himself] or herself.’ " Austin, supra, quoting DeMatteo v. DeMatteo, 436 Mass. 18, 37 (2002).
There is no dispute here that the judge did not make any of the above findings. The plaintiff (husband) argues, however, that it was still appropriate for the judge to enforce the agreement because the wife in essence waived any objection to its validity and enforceability. We do not agree.
The husband first sought enforcement of the agreement on March 22, 2021, when he filed an amended complaint through newly retained counsel. On March 25, 2021, the husband filed a pretrial memorandum in which he again stated that he was seeking to enforce the agreement, while noting that the "[w]ife's position [was] unclear" and that "[t]here may be unresolved issues relative to personal property." The husband also objected to the wife's pending discovery requests as overly burdensome.
We reject the wife's argument that the amendment was improper because it was not filed with leave of court. Because the wife had not answered the original complaint, the husband was allowed to amend it once as of right. See Mass. R. Dom. Rel. P. 15 (a).
The parties appeared for a pretrial conference on March 29, 2021. At that time the judge asked the wife, who was pro se, whether she had "filed an answer asserting that the ... agreement is either invalid or not enforceable." When the wife said that she had not, the judge observed that the agreement, "absent an objection to its validity or enforceability, is presumptively valid." The judge then asked the wife what she was "looking to receive or to obtain" from the divorce. The wife replied:
"I'm not really sure, your Honor. I know the ... agreement is about before marriage assets, and I am concerned about during the marriage assets. So I was asking for discovery. I have no idea what my husband ever had for income or assets that were kept from me. So I had asked for discovery to find those out ...."
In response to further questions from the judge, the wife confirmed that she was represented by counsel when she executed the agreement, that she had read it, and that she understood its terms "[a]s far as a layperson can." The judge then concluded by stating, "Let me review the file, and I'm going to enter an order that I think is appropriate." The judgment issued the same day.
The judgment is dated March 29, 2021, but did not enter until April 6, 2021.
This sequence of events does not establish that the wife waived any objection she may have to the agreement. Although the wife admitted that she had not filed an answer contesting the agreement, as of the date of the pretrial conference, her time to respond to the amended complaint had not yet expired. See Mass. R. Dom. Rel. P. 15 (a) ("A party shall plead in response to an amended pleading ... within [ten] days after service of the amended pleading ..."). Furthermore, the wife made no statements at the pretrial conference to suggest that she was waiving her right to object. While the husband asserts that the judge "conducted a colloquy ... regarding the validity and enforceability of the agreement," the colloquy was no more than a short series of questions about whether the wife was represented at the time she signed the agreement and read and understood its terms. The wife's responses did not indicate that she was conceding the validity and enforceability of the agreement. To the contrary, the wife voiced concerns that the husband might have income or assets of which she was unaware, and she informed the judge that she had asked for discovery.
The amended complaint is dated March 19, 2021, but there is no certificate of service in the record. In any event, measured either from March 19, 2021, or from the filing date of March 22, 2021, the wife's time to respond had not expired by the date of the pretrial conference. At no point did the husband move for default.
The husband may well be correct in his assertion that the agreement is valid and enforceable and that the wife in fact received far more assets under the agreement than she would have received under G. L. c. 208, § 34. But the judge made no factual findings on those issues, and we cannot find facts in the first instance on appeal. Further proceedings are therefore required.
The judgment is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
In light of our ruling, we need not address the wife's remaining arguments.
So ordered.
vacated and remanded