Gartrell v. Gartrell ( 2009 )

{¶ 56} I respectfully dissent from the majority decision regarding the second assigned error.

{¶ 57} The majority correctly sets forth that a prenuptial agreement providing for the disposition of marital property is valid and not void per se as being against public policy, where the three conditions of Gross v. Gross (1984), 11 Ohio St.3d 99, 11 OBR 400, 464 N.E.2d 500, are met. I do not concur, however, in the majority's determination that the present prenuptial agreement must be disregarded because of the "encourag[ing] divorce or profiteering by divorce" prong ofGross. In the case sub judice, Ms. Gartrell did not pursue a divorce and should not be imputed with seeking to "profit" under the parties' agreement.

{¶ 58} I recognize that the Ohio Supreme Court did not, within the aforementioned prong three ofGross and its corresponding hypothetical, technically distinguish between potential profiteering by the party seeking divorce and potential profiteering by the nonmoving party. However, the court stated the following after reviewing the development of case law in various states on the subject of prenuptial agreements: "Upon a review of all of the public policy factors presented, we conclude that the modern trends of marriage and divorce across the country dictate that reasonable laws must be forthcoming to accommodate these changing social attitudes. It may be reasonably concluded that these types of agreements tend to promote or facilitate marriage, rather than encourage divorce." Gross at 105, 11 OBR 400,464 N.E.2d 500. I am thus not inclined to interpret the third prong of Gross in a manner that automatically nullifies the prenuptial agreement in this case, as such contracts are favored in the law in Ohio. See Solomon v. Main (Feb. 19, 1985), Knox App. No. 84-CA-12, 1985 WL 7191, citingRocker v. Rocker (1967), 13 Ohio Misc. 199, 208,42 O.O.2d 184, 232 N.E.2d 445.

{¶ 59} I would therefore reverse and order a new divorce trial, and direct the adoption of the magistrate's decision that had prohibited testimony relative to the intent of the parties and the circumstances surrounding the execution of the prenuptial agreement.