Rowland v. Rowland , 74 Ohio App. 3d 415 ( 1991 )

I respectfully dissent. After reviewing the record in the causesub judice, I am persuaded that there is sufficient evidence to support the trial court's judgment upholding the validity of the antenuptial agreement. Furthermore, I disagree with a number of the contentions made in the principal opinion and feel compelled to address them in part.

In reversing the judgment below, the principal opinion begins its analysis by discussing the element of "overreaching." First, it is stated that "the trial court erred, by not considering overreaching." This is patently erroneous. Conclusion of Law No. 3, attached to the court's findings of fact filed January 26, 1990, explicitly provides the following:

"3. The parties freely entered into the agreement without fraud, duress, coercion or overreaching." (Emphasis added.)

The principal opinion then goes on to clarify the concept of "overreaching" by explaining that it requires the parties to "act in good faith, with a high degree of fairness * * *." (Emphasis added.) While that may be true, such conclusion must be read in light of the definition of "overreaching" given by the Supreme Court in Gross v. Gross (1984), 11 Ohio St.3d 99,105, 11 OBR 400, 406, 464 N.E.2d 500, 506, as being a situation where "one party by artifice or cunning, or by significant disparity to understand the nature of the transaction, [acts] to outwit or cheat the other." (Emphasis added.) In my opinion, an attempt to "cheat" an individual would require much more than the showing of a mere absence of "good faith."

More significant, however, is the principal opinion's contention that the trial court made no finding of good faith in the execution of the antenuptial agreement and that there was no evidence which would have supported such a finding. In effect, the principal opinion appears to place the burden of proving the validity of that agreement upon the party seeking to uphold it rather than the party who bought the action to challenge it. I am not persuaded that this is the law.

Ohio law has long provided, in most instances, that the party which asserts an issue or claim for relief will carry the burden of proving that which he asserts. See, e.g., McFadden v. BreuerTransp. Co. (1952), 156 Ohio St. 430, 433, 46 O.O. 354, 356,103 N.E.2d 385, 387; Martin v. Columbus (1920), 101 Ohio St. 1, 5,127 N.E. 411, 412; Ginn v. Dolan (1909), 81 Ohio St. 121, 127,90 N.E. 141, 142. With respect to challenging the validity of antenuptial agreements, there is some early case law to the effect that a portion of this burden may lie with the party seeking to uphold the validity of such agreement.¹

Whatever the earlier state of the law, however, the Ohio Supreme Court recognized, in 1984, that changing policy and trends in marriage and divorce across the country had made such agreements desirable as a means "to promote or facilitate marriage * * *." Gross, supra, 11 Ohio St.3d at 105, 11 OBR at 406, 464 N.E.2d at 506. Thus, new criteria were set forth by the court to gauge the validity of such agreements. Id. at paragraphs two and four of the syllabus. Although the Supreme Court never discussed who would bear the burden of proof in an action challenging these agreements, it did hold that, with respect to the element of unconscionability, the burden was on the party asserting an unconscionable effect. Id. at 109, 11 OBR at 409,464 N.E.2d at 509.

It would, therefore, seem logical to assume that the burden also lies on that party challenging the agreement to show theabsence of any other element required to sustain its validity. This would also be the more just result where, as with any death-operative antenuptial agreement, the only other party to the agreement is deceased and unable to present evidence to uphold it. Moreover, the growing trend among jurisdictions which are now presuming these agreements to be valid is to place the burden of proof on the party challenging them. See, e.g., In reEstate of Peterson (1986), 221 Neb. 792, 795, 381 N.W.2d 109,112; Evered v. Edsell (Fla. 1985), 464 So.2d 1197, 1199; Gant v.Gant (1985), 174 W. Va. 740, 329 S.E.2d 106, 116; Newman v.Newman (Colo. 1982), 653 P.2d 728, 736; In re Estate of Burgess (Okla.App. 1982), 646 P.2d 623, 626; Counts v. Benker (1982),416 Mich. 681, 690, 331 N.W.2d 193, 196; Sunshine v. Sunshine (1976), 51 A.D.2d 326, 327, 381 N.Y.S.2d 260, 262, affirmedsub nom. In re Sunshine (1976), 40 N.Y.2d 875, 389 N.Y.S.2d 344,357 N.E.2d 999.

Thus, I disagree with the implicit contention of the principal opinion that it was incumbent upon appellee to have demonstrated, below, that the antenuptial agreement was executed in good faith. Rather, the burden should have been on appellant to demonstrate the absence of good faith and any failure to carry that burden would only serve to strengthen the argument for validity. This argument is academic, of course, inasmuch as the determinative question with regard to "overreaching" is, as stated previously, not good faith per se but whether the deceased acted to "outwit" or "cheat" appellant. Nevertheless, I believe the burden of proving such factors rested squarely on appellant.

I also disagree with the principal opinion's finding of "overreaching" in the consummation of the agreement. To be sure, there was sufficient evidence presented below to support such a finding. However, the principal opinion ignores all evidence to the contrary. For instance, I would note the following admissions made by appellant during the proceedings below:

"Q. Okay, Are you saying that Robert Rowland, Jr. tricked youinto signing this agreement and you didn't know what you were signing?

"A. No I don't believe he did. I can't get inside his mind and see why he made me sign it, but I think his parents had something to do with it because he loved me and he wouldn't have wanted me to go through any pain.

"* * *

"Q. Were you threatened, was [your] life in danger if you didn't sign the paper?

"A. No.

"Q. Were you under any duress that somebody else was going to be harmed in any way if you didn't sign this paper?

"A. What is duress?

"Q. Well, under force or a fear that something bad was going to happen if you didn't sign the paper?

"A. No, just what Rob told me about his parents, about divorce." (Emphasis added.)

This testimony is clearly sufficient to support the trial court's conclusion that there had been no overreaching. An appellate court should not overturn the judgment of a lower court where that judgment is supported by some competent, credible evidence. Vogel v. Wells (1991), 57 Ohio St.3d 91, 96,566 N.E.2d 154, 159; C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus. While the principal opinion may recognize this fundamental doctrine of appellate review, it has nevertheless reassessed and reweighed the evidence in order to reverse the trial court on this issue.²

In determining that overreaching had occurred, the principal opinion relies heavily on the fact that "[t]he agreement was prepared entirely by decedent's counsel, without any input from appellant." I find no particular relevance in this factoralone. Legal documents (e.g., notes, mortgages, contracts, etc.) are frequently prepared by one party's attorney and then executed by another party who has not sought legal counsel. That being the case, nobody seriously contends that those documents should be held invalid per se merely because one side was unrepresented by counsel. The same should be true with antenuptial agreements. Of course, the parties to such an agreement are in a fiduciary relationship to one another, Gross, supra, 11 Ohio St.3d at 108, 11 OBR at 408, 464 N.E.2d at 508, whereas most parties in an ordinary contractual setting are not. Nevertheless, I am not persuaded that the mere absence of counsel, without more, is sufficient to make the agreements invalid as a matter of law.

Furthermore, the record is replete with evidence to show that appellant, even if not fully cognizant of specific terms in the agreement, was at least put on notice that important legal rights were involved and that independent counsel should be consulted. For instance, testimony reveals that prior to going to Mr. Blair's office to execute the agreement, appellant had been advised by her "Aunt Susan" not to sign anything. Further testimony reveals that, upon returning from the attorney's office, the decedent's mother was requested by appellant not to inform anyone on appellant's side of the family that the agreement had been executed. During her own testimony, appellant made the following admissions:

"Q. Now between the time that Rob had told you that he wanted you to sign a paper and this particular day you were driving to Mr. Blair's office, had you discussed with anyone of anything about a paper or agreement?

"A. No he told me not to. He said especially don't tell mymom and dad because they won't let us get married and he said don't talk to anybody about it because it is not something you go around talking to people about.

"* * *

"Q. Do you remember stating that Rob told you that if the pre-nuptial agreement or the paper was not signed that he could not get married?

"A. Right, he said, I was joking around with him, I don't know if he was joking . . . or not, but I said well what if I don't sign this then, and he said well then I can't marry you."³ (Emphasis added.)

In sum, this evidence clearly shows that appellant was aware that important legal rights were involved in this agreement, even if she was not able to understand the specific terms thereof. Accordingly, independent counsel should have been sought. Appellant should not now be permitted to seek refuge behind her own inability to understand the specific provisions of the agreement when she knowingly neglected to have those provisions explained to her.

The principal opinion also utilizes this absence of legal representation to conclude that John Blair, the attorney who drafted the agreement, engaged in a "dual representation" of both parties and thereby effected an overreaching of appellant. I find nothing in the record which leads to this conclusion.

Generally, an offer and acceptance of employment is necessary to create the relationship of an attorney-client representation. See State ex rel. Shroder v. Shay (C.P. 1906), 3 Ohio N.P. (N.S.) 657, 669, 16 Ohio Dec. 446, 455. I can discern no indication from the transcript in this case that appellant ever retained the services of Blair. Indeed, while testifying, appellant made several references to Blair as having been the decedent's attorney. Further, testimony by Patty Junk, Blair's legal secretary, suggests that the decedent as well as appellee, Robert O. Rowland, Sr., had retained Blair to represent them in past legal matters. This indicates a sustained relationship between Blair and the Rowland family but lends no credence to a theory that he had also been retained to protect appellant's interests. Even assuming, arguendo, that there had been a dual representation, I am not persuaded that this would have caused the agreement to be invalid.

Finally, the principal opinion declares that "[t]o have upheld this agreement, the court would have to have found that [Mr.] Blair * * * adequately advised her." No such criterion, however, is required by the Supreme Court as a specific foundation for upholding these agreements. See Gross, supra, at paragraph two of the syllabus. Although the principal opinion states that the absence of independent representation will not render these agreements invalid per se, it nonetheless places great, if not controlling, significance on that factor.

Although there appears to be little Ohio case law on the subject, I note that at least one neighboring jurisdiction has recently rejected this very proposition. See Simeone v. Simeone (1990), 525 Pa. 392, 401, 581 A.2d 162, 166. Instead, I believe the better approach would be to regard the presence, or absence, of independent legal counsel as only one of several factors to consider in determining whether there has been any duress, coercion or overreaching. See McHugh v. McHugh (1980),181 Conn. 482, 487, 436 A.2d 8, 12; In re Marriage of Ingels (1979),42 Colo.App. 245, 249, 596 P.2d 1211, 1214. Were it otherwise, and independent legal representation was required in order to uphold these agreements, then a knowledgeable prospective spouse could always make an argument to later invalidate such an agreement by not retaining counsel. This would clearly run counter to the Supreme Court's policy of allowing valid agreements as a means to promote or facilitate marriage. Gross, supra,11 Ohio St.3d at 105, 11 OBR at 405, 464 N.E.2d at 506.

In conclusion, I reemphasize that, in my view, there is sufficient evidence to support the finding of the principal opinion that overreaching had occurred in consummating the agreement; however, there is also sufficient evidence to support the trial court's judgment to the contrary. That being the case, this court should not substitute its own evaluation of the circumstances for that of the trial court. Moreover, by restricting its inquiry of "overreaching" solely to the element of good faith, and by imposing the burden of proof upon appellee, the principal opinion disregards much of the pertinent evidence which supports the judgment below. Therefore, I respectfully dissent.

¹ See, e.g., Juhasz v. Juhasz (1938), 134 Ohio St. 257, 12 O.O. 57, 16 N.E.2d 328, at paragraph three of the syllabus, wherein the court held that the burden of proving the validity of an antenuptial agreement was placed upon the party seeking to uphold it whenever the amount of property given to one spouse was "wholly disproportionate" to the property owned by the other spouse. Subsequent decisions, however, strictly construed this principle, and it was held that the burden to prove validity would not be placed on the party seeking to uphold the agreement unless there actually was a "disparity" between the value of the estate and the property taken by the spouse and the burden remained on that spouse to demonstrate such "disparity." See,e.g., Herman v. Soal (1942), 71 Ohio App. 310, 311-312, 26 O.O. 188, 188-189, 49 N.E.2d 109, 110; Rocker v. Rocker (1967),13 Ohio Misc. 199, 214, 42 O.O.2d 184, 192, 232 N.E.2d 445, 455. The syllabus in Juhasz, however, must be read in light of the fact that the fairness standard employed in that case has, subsequently, been replaced by those tests set forth in Gross v.Gross (1984), 11 Ohio St.3d 99, 11 OBR 400, 464 N.E.2d 500, at paragraph two of the syllabus.

² For similar reasons, I am unpersuaded by any argument concerning appellant's alleged lack of understanding of the antenuptial agreement. To be sure, a significant disparity in understanding of that document may go to the issue of overreaching. See Gross, supra, at 105, 11 OBR at 405,464 N.E.2d at 506. However, I believe that such an issue is best left for the determination of the trier of fact. This court is supposed to proceed on a presumption that the findings of the trial court are correct because that court is better able to gauge the witnesses' demeanor, gestures and voice inflections in weighing the credibility of their testimony than we are. SeeIn re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138,566 N.E.2d 1181, 1184; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410,461 N.E.2d 1273, 1276. In reviewing appellant's testimony, it is clear that her credibility might have played a significant role in the court's decision to uphold the agreement. In particular, appellant's numerous questions indicating that she did not understand certain words used in questioning her (e.g., property, provisions, statute, etc.) as well as her apparently belligerent attitude to counsel during cross-examination may have influenced the court in its determination that she was not so lacking in understanding of the agreement as she would have us believe.

³ Both the principal opinion and appellant's brief make reference to this testimony that the decedent would not marry appellant unless she signed the antenuptial agreement. Although no particular reliance is placed on this testimony, I would parenthetically note that I am not persuaded that such action would constitute "duress" or "overreaching." It is well-settled law that it does not constitute duress for an individual to do that which he has a legal right to do. Andres v. Perrysburg (1988), 47 Ohio App.3d 51, 54, 546 N.E.2d 1377, 1381;Gallagher v. Lederer (1949), 86 Ohio App. 181, 183, 41 O.O. 29, 30, 90 N.E.2d 412, 413; Bartlett v. Richardson Co. (1927),27 Ohio App. 263, 271, 161 N.E. 403, 405. Inasmuch as an individual has a right to not get married, a refusal to proceed with the wedding unless the agreement was signed would not constitute duress. Liebelt v. Liebelt (App. 1990), 118 Idaho 845, 848,801 P.2d 52, 55. Furthermore, such a threat, if nothing else, "should put the potential spouse on notice that the agreement was of a serious nature and should be dealt with in a serious manner." Id.