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Dick v. Dick
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MAINE SUPREME JUDICIAL COURT					                  Reporter of Decisions
Decision:	2002 ME 92
Docket:	   Ken-01-661
Argued:	   March 7, 2002
Decided:	June 7, 2002

Panel:  SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, and CALKINS, JJ.


TERRY L. HOAG f/k/a TERRY L. DICK

v.

RICHARD DICK


DANA, J.

	[¶1]  Richard Dick appeals from a judgment of the District Court (Augusta, Perry, J.)
holding that Dick's premarital agreement with Terry L. Hoag (formerly Terry L. Dick) was
invalid and unenforceable.  Dick contends that the court erred in failing to apply the Uniform
Premarital Agreement Act (UPAA), 19-A M.R.S.A. §§ 601-611 (1998), and that, in the
alternative, the court erred in its interpretation and application of Maine common law regarding
premarital agreements.  Hoag contends that the UPAA does not apply, that the court did not
commit clear error in finding the agreement unenforceable, and that the court's analysis was
consistent with the applicable common law.  We affirm the judgment.

                                                           I. BACKGROUND

	[¶2]  The court found the following undisputed facts.  Dick and Hoag were married in
1982, and were divorced in 1986.  They continued to live together after the divorce.  Because
Hoag's church threatened to excommunicate her unless she ceased cohabiting with Dick or
married him, Hoag and Dick discussed getting remarried.  They informally discussed the nature of
premarital agreements in the company of Dick's son, an attorney, in the late winter of 1987. 
When the discussion turned more specifically to drafting a premarital agreement for Dick and
Hoag, Dick's son suggested that each be represented by a separate attorney.  Hoag said she did
not need separate counsel because she did not want anything.  Dick insisted that he would
remarry Hoag only if they executed a premarital agreement.  In April of 1987, Dick and Hoag
agreed to remarry.

	[¶3]  Ultimately, Dick's son drafted a premarital agreement, which was delivered to the
parties on May 23, 1987, the date of the wedding.  Dick made one modification at that time and
Hoag gave the agreement a cursory reading.  There were no further discussions about Hoag
obtaining the advice of independent counsel.  The parties executed the document in the church
parking lot immediately before the wedding ceremony.

	[¶4]  The agreement provides that the estate of each party "shall remain and be his [or
her] separate property subject entirely to his [or her] individual control and use the same as if he
[or she] were unmarried"; that each party relinquishes all rights to "any property that [the other]
may hereafter acquire or become entitled to"; that the party bringing an action for divorce "agrees
to pay all expenses incurred in such action, and agrees that the other party shall never be called
upon to pay alimony, separate maintenance, cost of suit or any other expense incurred by the
party bringing the action except as otherwise provided herein"; and that, regardless of who
commences the suit, Hoag "shall accept [$6,000] in full satisfaction of all of her claims" and Dick
"shall make no claim to the separate estate of [Hoag]."  An attachment disclosed some, but not
all, of Dick's property.  At the time they executed the agreement, Hoag was, nonetheless, aware
of all of Dick's property and that it was valued at approximately one million dollars.  Hoag
owned some personal property of negligible value, but no real property.

	[¶5]  Hoag filed a complaint for divorce in 1997.  Dick moved for a summary judgment on
the validity of the premarital agreement.  After a hearing, the court entered an order pending
divorce concluding that the premarital agreement was invalid and unenforceable.  Dick appealed
to the Superior Court (Kennebec County, Studstrup, J.), which dismissed his appeal as
interlocutory.  He appealed to us, but we also dismissed.

	[¶6]  The District Court (Augusta, French, J.) entered a divorce judgment that awarded to
Hoag, inter alia, $150,600 representing her share of the marital property; general spousal support
of $600 per month until October 31, 2006, with nominal support thereafter; and attorney fees of
approximately $17,500.  The court awarded to Dick, inter alia, all the real property and most of
the personal property, including a sail boat and home furnishings.

                                                          II. DISCUSSION

	[¶7]  Because Dick does not contest the court's factual findings, we review the legal
determination of the agreement's validity and enforceability de novo for errors of law based on
the facts found by the court.  See Trask v. Devlin, 2002 ME 10, ¶ 14, 788 A.2d 179, 182 (stating
that cases involving mixed questions of law and fact are reviewed for errors of law if the parties
do not dispute the factual findings).

A. The Uniform Premarital Agreement Act

	[¶8]  Dick contends that the court erred in refusing to apply the enforcement provision of
the UPAA, 19-A M.R.S.A. § 608,{1} because the statute simply codifies general and long settled
contract law.  Dick further contends that the Legislature intentionally omitted the uniform act's
provision that the act applies to any premarital agreement executed on or after the effective date. 
Hoag contends that the statute may only be applied prospectively to agreements executed after
the UPAA's effective date.

	[¶9]  The UPAA became effective on September 29, 1987.  P.L. 1987, ch. 302.  Although
the uniform act that provided the basis for the Maine act included a provision that the act
"applies to any premarital agreement executed on or after [the effective] date," Uniform
Premarital Agreement Act § 12, 9C U.L.A. 58 (2001), the Maine act does not contain that
provision.

	[¶10]  The Maine Constitution provides that "[t]he Legislature shall pass no . . . law
impairing the obligation of contracts,"  Me. Const. art. I, § 11, and we construe statutes to
preserve their constitutionality, Town of Baldwin v. Carter, 2002 ME 52, ¶ 9, 794 A.2d 62, 66. 
Here, although Hoag filed for the divorce after the effective date of the statute, the execution of
the agreement could not have been informed by an understanding of the now existing statute; we
decline to apply the UPAA to this case because to do so would interfere with the contract and
violate the Maine Constitution.

B. Maine's Common Law Regarding Premarital Agreements

	[¶11]  Dick contends that the court should have implied a new legal standard from the
1979 amendment to the Probate Code permitting a spouse, after fair disclosure, to waive by
agreement rights of election and rights to certain allowances.  18-A M.R.S.A. § 2-204 (1998). 
Dick also contends that the court erroneously relied on outdated Maine common law that fails to
reflect the status of women in modern society.  According to Dick, the court erred in applying a
rule requiring that a party enter into a contract intelligently and upon independent legal advice.

	[¶12]  The court relied in part on our holding in Rolfe v. Rolfe, 125 Me. 82, 130 A. 877
(1925), a case in which the marriage dissolved by the husband's death and the parties had
executed a premarital agreement defining the rights of the surviving spouse.  See id., at 82-83, 130
A. at 877.  We stated that it was the settled law in Maine 


that there shall be no fraud or imposition practiced; that full and complete
disclosure shall be made, and that adequacy in provision for the spouse shall
result; that gross disproportion of such adequacy may invalidate such agreement;
that the natural confidence of the relations of the parties shall not be violated; that,
where gross disproportion results, fraud will be presumed; and that the burden is
upon him who sets up an antenuptial agreement to prove fairness, notice,
understanding, and adequacy.

Id. at 83, 130 A. at 878.

	[¶13]  Since the Rolfe decision, we have stated that, although a defendant in an action to
enforce such an agreement bears the burden of proving affirmative defenses of fraud, duress, or
intimidation, a presumption of fraud arises when the evidence establishes that the agreement's
provisions for the surviving spouse are "clearly disproportionate to the [deceased spouse's]
wealth."  Wilson v. Wilson, 157 Me. 119, 131, 170 A.2d 679, 686 (1961).  To overcome the
presumption, the representative of the deceased spouse must establish the surviving spouse's
"full knowledge and understanding . . . at the time of execution of all the facts materially affecting
her interest, viz.: the extent of his wealth and her rights in his property as his survivor, and how
modified by the proposed agreement . . . ."  Id. at 131-32, 170 A.2d at 686 (internal quotation
marks omitted).

	[¶14]  Nearly two decades after our decision in Wilson, the Legislature adopted the
following provision of section 2-204 of the Probate Code:


The right of election of a surviving spouse and the rights of the surviving spouse
to homestead allowance, exempt property and family allowance, or any of them,
may be waived, wholly or partially, before or after marriage, by a written contract,
agreement or waiver signed by the party waiving after fair disclosure. . . .

18-A M.R.S.A. § 2-204.  After the enactment of this provision, we reviewed a case in which the
husband died while the divorce action was pending, and his estate contended that the husband
and wife's "Agreement Incident to Divorce," purporting to dispose of all the parties' marital and
non-marital property, constituted a waiver of the wife's elective share in his estate.  Estate of
Galluzzo, 615 A.2d 236, 238 (Me. 1992).  We affirmed the Probate Court's finding that the
contract was executory, and stated that the husband had not provided "fair disclosure" pursuant
to section 2-204 because the wife executed the "Agreement" on the day she received service of
the divorce complaint without the advice of independent counsel.  Id. at 238.	 Our
interpretation of section 2-204 of the Probate Code therefore comports with our earlier cases
holding that the circumstances of execution must be fair.  See, e.g., Rolfe, 125 Me. at 83, 130 A.
at 878 (requiring a showing of "fairness, notice, understanding, and adequacy" when the gross
disproportion of an agreement triggers a presumption of fraud).

	[¶15]  We have acknowledged, by implication, that people may execute enforceable
premarital agreements that apply in the event of a divorce.  See Foster v. Foster, 609 A.2d 1171,
1172 (Me. 1992) (agreement providing rights as widow is inapplicable in the event of a divorce);
Estate of Berzinis, 505 A.2d 86 (Me. 1986) (agreement defining parties' rights upon divorce
inapplicable when wife was widowed); Skelton v. Skelton, 490 A.2d 1204, 1205-06 (Me. 1985)
(agreement waiving alimony and property claims in the event of divorce inapplicable to the
parties' second divorce following remarriage).

	[¶16]  Here, the premarital agreement all but eliminates Hoag's rights to receive a share of
the marital property and to recover any amount of spousal support.  Pursuant to the agreement,
she would only recover $6000 in settlement of all claims, and as the party bringing the action, she
would be responsible for all litigation costs.  The agreement was presented to Hoag on the day of
her wedding, thus depriving her of any opportunity to obtain advice from independent legal
counsel regarding the document's terms.  See Galluzzo, 615 A.2d at 238 (recognizing a lack of
independent counsel as a factor for determining whether the signor's spouse offered "fair
disclosure" pursuant to 18-A M.R.S.A. § 2-204); see also In re Marriage of Norris, 624 P.2d
636, 638-40 (Or. Ct. App. 1981) (holding agreement unenforceable when the husband presented
a premarital agreement during the trip to the wedding without the wife's opportunity to seek
legal counsel and without informing her of his financial holdings); Bauer v. Bauer, 464 P.2d 710,
711-12 (Or. Ct. App. 1970) (holding agreement unenforceable when the husband presented it the
day the parties left to get married out of town, failed to disclose his assets, and failed to allow
sufficient time for her to consult a lawyer independently).  Without the advice of counsel or time
for consideration of the document, she could not fully know and understand the rights she
relinquished by signing the agreement.  See Friedlander v. Friedlander, 494 P.2d 208, 214 (Wash.
1972) (holding agreement unenforceable when wife lacked independent advice of counsel, did not
freely and voluntarily sign the agreement with knowledge of the husband's property and worth,
and was not fully aware of her rights).{2}  The court's factual findings regarding the circumstances
of execution support its conclusion that the premarital agreement is unenforceable.

	The entry is:

			Judgment affirmed.

Attorneys for plaintiff:

David M. Lipman, Esq. (orally)
Karen E. Boston, Esq.
Lipman & Katz, P.A.
P O Box 1051
Augusta, ME 04332-1051

Attorney for defendant:

Sean M. Farris, Esq. (orally)
Farris, Heselton, Ladd & Bobrowiecki, P.A.
P O Box 120
Gardiner, ME 04345-0120
FOOTNOTES******************************** {1} . The UPAA provides a test to determine whether a premarital agreement is enforceable: A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: A. That party did not execute the agreement voluntarily; or B. The agreement was unconscionable when it was executed and, before execution of the agreement, that party: (1) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. 19-A M.R.S.A. § 608(1). {2} . Although Dick contends that the court erred in citing out-of-state cases, citation to analogous cases as persuasive authority is appropriate.