Summary
construing prenuptial agreement providing that, if adultery was proven and wife initiated divorce proceedings for that reason, husband agreed to pay wife a certain sum as part of the divorce judgment
Summary of this case from Ayers v. AyersOpinion
2180357
01-10-2020
Jennifer Robin THACKER v. Orbie Alvin THACKER
Jacquelyn H. Wesson of Wesson & Wesson, LLC, Warrior, for appellant. Randall W. Nichols of Massey, Stotser & Nichols PC, Brimingham; and Wendy Ghee Draper of Ghee & Draper, Anniston, for appellee.
Jacquelyn H. Wesson of Wesson & Wesson, LLC, Warrior, for appellant.
Randall W. Nichols of Massey, Stotser & Nichols PC, Brimingham; and Wendy Ghee Draper of Ghee & Draper, Anniston, for appellee.
EDWARDS, Judge. Jennifer Robin Thacker ("the wife") appeals from a divorce judgment entered by the Calhoun Circuit Court ("the trial court") enforcing her antenuptial agreement with Orbie Alvin Thacker ("the husband").
The parties married in December 2014; they had been living together for several years before their marriage. The marriage was apparently the wife's first marriage and the husband's third marriage. They have no children. Two days before the marriage ceremony, the parties executed an antenuptial agreement that included provisions for dividing the marital estate upon a divorce and waiving any claim to alimony, support, maintenance, property settlement (except as provided in the antenuptial agreement), and attorney's fees "regardless of the cause or reason of the dissolution of the marriage ... and regardless of who is at fault." Included among the waiver and property-settlement provisions was the following paragraph V(C):
"In the event that adultery is proven by photographic, video, or audio recording(s), and not by any other means and specifically not by oral statements or testimony of any person, and the wife initiates divorce proceedings against husband for that reason, then as part of that judgment of divorce, and only as part of the judgment of divorce, husband agrees to pay to the wife the sum of Five Hundred [Thousand] and No/100 ($500,000.00) dollars as a property settlement award, payable in one hundred twenty (120) equal monthly installments of Four Thousand One Hundred Sixty-six Dollars ($4,166.67) with the first payment due on the first day of the first month following the entry of the judgment of divorce."
The husband and the wife were represented by separate counsel during the negotiation and execution of the antenuptial agreement. According to testimony from the wife's counsel for the antenuptial-agreement negotiations, paragraph V(C) was inserted into a draft of the antenuptial agreement, at the wife's request, on the day the antenuptial agreement was later signed. During negotiations over the $500,000 additional property-settlement provision requested by the wife, which she alternatively refers to as a liquidated-damages provision and a penalty at various places in the record on appeal, the husband initially indicated that he would not agree to that provision. As negotiations progressed, however, the husband stated that he would agree to the $500,000 additional property-settlement provision conditioned on the inclusion of evidentiary limitations regarding proof of adultery and on an installment-payment provision. According to testimony from the husband's counsel for the antenuptial-agreement negotiations, the husband would not have executed the antenuptial agreement without the inclusion of those conditions to the $500,000 additional property-settlement provision. Also, the wife's counsel for the antenuptial-agreement negotiations testified as follows when questioned by the husband's counsel regarding the relationship between the $500,000 additional property-settlement provision and the conditions requested by the husband:
"Q. Did you have the understanding that one was given for the other in these negotiations?
"A. Absolutely.
"Q. And without one, the other one wouldn't occur; correct?
"A. That's absolutely the truth.
"....
"Q. So you wouldn't have had one without the other?
"A. That is correct ...."
The parties separated in August 2017, and the husband filed a complaint for a divorce in the trial court in October 2017. He alleged that the parties were incompatible and that there had been an irretrievable breakdown of marriage, and he invoked the antenuptial agreement for purposes of the division of the marital estate and the wife's waiver of any further maintenance or support. In November 2017, the wife filed an answer to the husband's complaint, admitting the existence of the antenuptial agreement, but not that it was enforceable, and effectively denying the husband's allegation regarding the grounds for the divorce. In January 2018, the wife filed an amendment to her answer and a counterclaim for a divorce on the ground of adultery. In her amended answer, the wife alleged that she had not received effective assistance of counsel during the negotiation of the antenuptial agreement and that either the entire antenuptial agreement or paragraph V(C) was void. The husband filed an answer denying the pertinent allegations of the wife's counterclaim.
The case was scheduled for a trial to be held on May 10, 2018, regarding only the issue of the enforceability of paragraph V(C) of the antenuptial agreement. On April 25, 2018, the wife amended her answer a second time, alleging, in pertinent part:
"7. The [wife] admits that the parties entered into a prenuptial agreement ..., which controls certain rights of the parties to this divorce proceeding. The [wife] affirmatively asserts that certain aspects of the prenuptial agreement are void against public policy to the extent they limit the trier of fact from considering normally admissible evidence. The [wife] further asserts that the prenuptial agreement contains a severability clause so that the invalidity of one provision of the prenuptial agreement does not invalidate the remaining provisions of the agreement.
"....
"11. ... The [wife], subject to the assertions set forth in paragraph seven (7) of this Amended Answer, admits that the prenuptial agreement entered into by the parties controls certain aspects of the property division in this divorce."
The wife also amended her counterclaim, alleging not only that the husband had committed adultery with a "certain person" and also with "other parties" throughout the parties' marriage, but also that the husband "continuously lied during the term of the marriage about his adulterous affairs upon repeated questioning by [the wife]." The wife's amended counterclaim also included a request for a judgment declaring that paragraph V(C) "impermissibly infringe[d] on the right of the [wife] to present evidence pursuant to the Alabama Rules of Evidence" and was "void as against public policy." Thereafter, the wife filed a motion for a summary judgment as to her requested declaratory relief; the motion was set for hearing as part of the scheduled May 10, 2018, trial on the enforceability of paragraph V(C). The trial court conducted an ore tenus proceeding on May 10, 2018, along with the hearing on the wife's summary-judgment motion. The parties' respective counsel for the antenuptial-agreement negotiations testified during the May 2018 trial. Also during the May 2018 trial, the wife conceded that she was no longer contesting the enforceability of the antenuptial agreement as a whole. As to the enforceability of paragraph V(C), however, the wife argued that the evidentiary limitation was void as a matter of public policy but that the $500,000 additional property-settlement provision remained valid; she also contended that her counterclaim for a divorce on the ground of adultery satisfied the condition that she "initiate[ ] divorce proceedings" based on adultery. In response to the wife's argument regarding the evidentiary limitation, the husband argued that if that limitation was void as against public policy, then the remaining portion of paragraph V(C) could not be enforced because, he said, the evidentiary limitation and the $500,000 additional property-settlement provision had been negotiated as a "quid pro quo" for one another. Neither party contended that, if the evidentiary limitation was void as against public policy, the entire antenuptial agreement would be unenforceable. On May 24, 2018, the trial court entered an order denying the wife's motion for a summary judgment and stating that the antenuptial agreement "is deemed enforceable and valid."
The "certain person" referred to is apparently a married woman whom the wife later asserted was the cause of the husband's second divorce and a reason that the wife insisted on the $500,000 additional property-settlement provision.
The remaining issues in the case were eventually scheduled for trial on October 26, 2018. On October 19, 2018, the wife filed a motion seeking the recusal of Calhoun Circuit Judge Peggy Lacher, the judge who had been presiding over the case. The wife testified that Judge Lacher, before she became a judge, allegedly had represented the husband's second wife in the divorce proceedings between her and the husband in 2009 ("the 2009 divorce proceedings"). The 2009 divorce proceedings apparently ended after the husband and his second wife reached a settlement agreement; no trial was held. The extent of Judge Lacher's former representation of the husband's second wife is not clear from the record in the present case; there is some suggestion that Judge Lacher had done little more than file a notice of appearance before terminating her representation of the husband's second wife. During the 2009 divorce proceedings, however, the husband's second wife purportedly made allegations that the husband had committed adultery with the wife in the present case. For that reason, and for alleged bias regarding certain rulings, the wife contended that Judge Lacher should recuse herself from the present case. The husband opposed the wife's motion to recuse.
Judge Lacher entered an order of recusal on October 21, 2018. The order of recusal does not state the reason for Judge Lacher's recusal, and the order also purports to assign the case to Calhoun Circuit Judge Tom Wright. The following day, the wife filed a motion alleging that Judge Lacher's reassignment of the case upon her recusal was improper and requesting that Calhoun Circuit Judge Brian Howell, the presiding judge for Alabama's 7th Judicial Circuit, enter an order reassigning the case. That same day, Judge Howell entered an order assigning the case to Judge Wright.
On October 23, 2018, the wife filed a motion requesting that the trial court set aside several orders that had been entered by Judge Lacher, including the order denying her motion for a summary judgment following the May 2018 trial on the enforceability of paragraph V(C). The wife further requested that the trial court conduct new hearings as to the matters underlying the orders the wife sought to set aside. The trial court entered an order stating that, before the trial, the court would hear arguments on the wife's motion to set aside previous orders and to conduct new hearings and on a second motion for a summary judgment that the wife had filed; the second motion for a summary judgment concerned the issue of the effect of the husband's invocation of his right against self-incrimination under the Fifth Amendment to the United States Constitution when he was questioned about the alleged adultery during his deposition.
Ore tenus proceedings were conducted on October 26, 2018. Before receiving testimony, the trial court heard arguments regarding the wife's second motion for a summary judgment, which the trial court denied. The trial court then received arguments regarding the wife's motion to set aside previous orders and to conduct new hearings. During those arguments, the wife's counsel stated that the wife was not seeking to set aside Judge Lacher's ruling that the antenuptial agreement was valid and enforceable generally. Instead, counsel stated, the wife was seeking to set aside Judge Lacher's ruling on the antenuptial agreement only to the extent that the evidentiary limitation in paragraph V(C) was deemed valid and enforceable. After extended arguments by counsel concerning that issue, and the other orders the wife sought to have set aside, the trial court denied the wife's motion, stating:
"I want to inform the parties that I have reviewed the various filings, specifically the filings mentioned in the [wife's motion to set aside previous orders and to conduct further hearings]....
"....
"So having reviewed the orders complained of by the wife, having heard the arguments of the attorneys, the wife's motion ... is denied."
After disposing of the pending motions, the trial court received testimony from the wife, the husband, and a real-estate appraiser who had been retained by the husband. The wife offered testimony and documentary evidence regarding the husband's alleged adultery, including a statement from the husband's deposition in which he invoked his right under the Fifth Amendment to the United States Constitution, which he thereafter waived by denying that he had committed adultery. However, relying on paragraph V(C), the trial court did not admit that testimony or the other testimony and documentary evidence offered by the wife regarding the husband's alleged adultery. Also, the trial court did not allow the wife to question the husband at trial about his alleged adultery. Further, the trial court ruled that the wife's counterclaim did not "initiate the divorce" as required by paragraph V(C).
On December 14, 2018, the trial court entered a divorce judgment, divorcing the parties on the grounds of incompatibility of temperament and an irretrievable breakdown of the marriage, enforcing the antenuptial agreement, and dividing the marital property and debts according to that agreement. The wife timely appealed to this court.
"In a case in which the evidence is presented to the trial court ore tenus, ... the findings of the trial court are presumed correct and will not be set aside unless they are plainly and palpably wrong or unjust." Tibbs v. Anderson, 580 So. 2d 1337, 1339 (Ala. 1991). This court reviews de novo questions of law and the application of the law to the facts. Northington v. Northington, 257 So. 3d 326, 330 (Ala. Civ. App. 2017). An antenuptial agreement entered into in consideration of marriage is enforceable in equity, but "[s]uch contracts are scrutinized by the courts to determine their justice and reasonableness." Ruzic v. Ruzic, 549 So. 2d 72, 75 (Ala. 1989). Generally, when an antenuptial agreement is unambiguous, it will be enforced as written. Jones v. Jones, 722 So. 2d 768, 769 (Ala. Civ. App. 1998). Neither party argues that paragraph V(C) is ambiguous. Also, the party seeking to enforce an antenuptial agreement
"has the burden of showing that the consideration was adequate and that the entire transaction was fair, just, and equitable from the point of view of the other spouse or that the spouse who made the agreement did so freely and voluntarily with competent independent advice and full knowledge of his or her interest in the estate and its approximate value."
Ruzic, 549 So. 2d at 75 ; see also, e.g., Tibbs, 580 So. 2d at 1339. As noted above, the wife abandoned her claim that the antenuptial agreement was unenforceable as a whole.
The wife argues that the evidentiary limitation in paragraph V(C) "is void on public policy considerations and is an impermissible restriction on the rules of evidence" and that she is entitled to enforce her right to the $500,000 additional property settlement pursuant to paragraph V(C). The wife makes no argument that the division of marital property was otherwise inequitable or that she would have been entitled to additional marital property, assuming paragraph V(C) was unenforceable.
As the husband argued in the trial court and as he argues on appeal, the evidentiary limitation in paragraph V(C) is not severable from the right the wife seeks to establish using that paragraph. And, assuming the evidentiary limitation in paragraph V(C) is against public policy, the inclusion of that limitation either resulted in the antenuptial agreement being unenforceable in its entirety, see, e.g., Folmar v. Siler, 132 Ala. 297, 302, 31 So. 719, 721 (1902) ("[A] contract, the consideration of which is in part illegal, is invalid and cannot be enforced at law ...."); Kirby v. Huntsville Fertilizer & Milling Co., 105 Ala. 529, 532, 17 So. 38, 39 (1895) (stating that when "any part of an indivisible consideration is illegal, the whole is void"), or in paragraph V(C) being unenforceable in its entirety, see, e.g., Birmingham Ry., Light & Power Co. v. Pratt & McCurdy, 187 Ala. 511, 515, 65 So. 533, 534 (1914) (stating that the remaining provision is enforceable only when "the part [in violation of public policy] is divisible from the remainder"). The wife has no viable claim to the $500,000 additional property settlement she seeks. The error she has complained about regarding the enforcement of the evidentiary limitation, assuming it was error, is harmless. See Rule 45, Ala. R. App. P. (harmless-error rule); Elliott v. Burch, 293 Ala. 244, 246, 301 So. 2d 557, 559 (1974) (concluding that the error at issue, if any, was harmless because no affirmative relief could have been granted based on such purported error).
The severability clause in the antenuptial agreement does not alter our conclusion. The relationship between the evidentiary limitation and the $500,000 additional property settlement precludes severing only the former from paragraph V(C) because the wife's right to the $500,000 additional property settlement was expressly conditioned on her satisfying the evidentiary limitation, as reflected both in the language of paragraph V(C) and in the testimony regarding the negotiations about that paragraph. In Wright v. Robinson, 468 So. 2d 94, 97 (Ala. 1985), the supreme court stated: " 'The rule in this state is that, if the contract cannot be executed without the void provision, the whole will be declared void. If the right can be established without the void stipulation, the right of recovery is not affected by the illegal clause.' " 468 So. 2d at 98 (quoting Sales-Davis Co. v. Henderson-Boyd Lumber Co., 193 Ala. 166, 172, 69 So. 527, 529 (1915) ) (emphasis added); see also Wright v. Martin, 214 Ala. 334, 336, 107 So. 818, 820 (1926) ; Roberson v. Roberson, 232 Ala. 647, 648-49, 169 So. 292, 294–95 (1936). To excise only the evidentiary limitation in paragraph V(C), but leave intact the wife's right to $500,000, would be to rewrite the parties agreement to eliminate their stipulation regarding the basis for establishing the wife's right.
Some courts have held that an evidentiary limitation may be against public policy. See, e.g., Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18, 23 (1890) ; Franklin v. White, 493 N.E.2d 161, 165 (Ind. 1986) ; Utter v. Travelers' Ins. Co., 65 Mich. 545, 554, 32 N.W. 812, 816 (1887) ; Rollins v. Business Men's Acc. Ass'n of Am., 204 Mo. App. 679, 220 S.W. 1022, 1025–26 (1920) ; Trustees of Leake & Watts Orphan House in City of New York v. Hoyle, 79 Misc. 301, 302-04, 139 N.Y.S. 1098, 1099 (Sup. Ct. 1913).
Our opinion should not be read as concluding that the husband was entitled to enforce the antenuptial agreement or that the wife, by abandoning her argument that the antenuptial agreement was unenforceable in its entirety, could "handcuff" the trial court or this court so as to require that court or this court to enforce an agreement that is against public policy. We do not address those issues in light of the limited arguments made by the wife and the substantive relief she seeks, but is not entitled to receive. Likewise, because the wife is not entitled to the substantive relief she seeks, we need not address the remaining arguments she presents on appeal.
The wife argues that the evidentiary limitation is an impermissible limitation on her "right to seek equity" in a divorce proceeding and that the trial court erred by concluding that her counterclaim did not satisfy the requirement that she initiate divorce proceedings based on adultery. Also, the wife argues that the trial court erred by denying her motion to set aside previous orders and to conduct new hearings and that Judge Lacher erred by failing to disclose her representation of the husband's second wife in the 2009 divorce proceedings.
The wife's request for attorney's fees on appeal is denied.
AFFIRMED.
Thompson, P.J., and Moore and Hanson, JJ., concur.
Donaldson, J., concurs in the result, with writing.
DONALDSON, Judge, concurring in the result.
I concur in the result. Although the parties refer to paragraph V(C) of the antenuptial agreement as an evidentiary limitation, I think that is a misnomer. Although parties may not contractually alter the rules of evidence to be applied by the trial court, competent parties generally can contractually limit the issues to be litigated and the relief that can be granted, i.e., delineate the facts of consequence in litigation and the resulting available relief. Here, the trial court found that two competent and represented adults entered into an agreement that made adultery a fact of consequence only if certain conditions existed. In my view, the trial court determined as a preliminary matter that the evidence proffered by the wife was not relevant because those conditions were not met. See Rule 104(a), Ala. R. Evid. Therefore, the application of paragraph V(C) did not limit the presentation of relevant evidence but, instead, prevented the presentation of irrelevant evidence.