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In Re the Marriage of Michael Howell and Pamela Howell. v. Pamela Howell

May 24, 2011

IN RE THE MARRIAGE OF MICHAEL HOWELL AND PAMELA HOWELL. MICHAEL HOWELL, APPELLANT,
v.
PAMELA HOWELL, RESPONDENT.



(Super. Ct. No. D509228) APPEAL from orders of the Superior Court of San Diego County, Gonzalo Curiel, Judge. Affirmed in part; reversed in part.

The opinion of the court was delivered by: Benke, Acting P. J.

CERTIFIED FOR PUBLICATION

Our Legislature in 2002 amended Family Code*fn1 section 1612 to invalidate any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of such support if (i) the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed or (ii) that provision is unconscionable at the time of enforcement. (§ 1612, subd. (c).)

The issue before us--which has yet to be decided in this state--is whether subdivision (c) of section 1612 applies to a premarital agreement executed before its enactment. The trial court ruled the amendment applied retroactively and invalidated a provision in the parties' 1999 agreement waiving their right to receive "future spousal support, maintenance or alimony" from the other party in the event of a dissolution of the marriage or legal separation. In making its ruling, the trial court found that the party against whom enforcement was sought had entered into and executed the agreement voluntarily, that the premarital agreement was not unconscionable and that other than the spousal support waiver provision, the premarital agreement was fully enforceable.

As we explain, we conclude the trial court erred in ruling the 2002 amendment to section 1612 applied to a premarital agreement executed before the amendment's enactment. We also conclude there is substantial evidence in the record to support the trial court's findings that the spouse against whom enforcement was sought voluntarily entered into that agreement and that the premarital agreement was not unconscionable. Based on the law that existed at the time the parties' executed their agreement, we conclude the parties' waiver of spousal support in their premarital agreement was valid and enforceable.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are mainly derived from the trial court's September 1, 2009 order entered after a bifurcated trial on the issue of the validity of the parties' premarital agreement. We adopt those facts, as supplemented appropriately.

Respondent Pamela Howell (Pamela) (at the time of trial) was 44 years old and worked as a tax assistant/bookkeeper. She was married to appellant Michael Howell (Michael), a letter carrier with the U.S. Postal Service.

Pamela and Michael began dating in 1997. They became engaged in 1998 and were married in mid-May 1999. They separated in late March 2008.

1. Michael's Testimony

Michael testified that he told Pamela he wanted a premarital agreement a year and a half before they married. He was already twice divorced and was happy in his relationship with Pamela without marriage. However, because Pamela wanted to get married, Michael agreed to do so if she agreed to execute a premarital agreement. Pamela knew that Michael and one of his former wives had also entered into a premarital agreement.

Michael contacted his attorney in May or June 1998, almost a year before the wedding, about preparing an agreement. Pamela provided Michael with a schedule of her assets and liabilities. At that time, Michael and Pamela had similar net incomes; although Michael annually earned about $14,000 more than Pamela, Michael was paying $400 in child support each month to his former wife, plus half of the daycare and uncovered medical expenses, combined with health insurance, union dues and mandatory retirement contribution.

Michael gave Pamela the premarital agreement in early December 1998. He told Pamela to take her time reading it and to consult an attorney. Pamela responded that she discussed the agreement with her mother and several friends and concluded it was unnecessary because Michael had "nothing" to protect. Pamela had a copy of the premarital agreement from early December 1998 until it was signed on January 30, 1999.

2. Pamela's Testimony

Pamela testified that Michael waited until the wedding was fully planned and paid for by Pamela and her family to discuss his desire for a premarital agreement. They argued several times over the need for a premarital agreement and Michael threatened to call off the wedding unless she signed the agreement. A few days after Michael brought up the issue of a premarital agreement, he presented Pamela with an agreement prepared by his attorney. Pamela had the agreement for about three days before she signed it and she did not completely understand what it provided and what rights she was waiving, including the spousal support waiver.

Pamela did not have money to hire her own attorney because of the expenses from the wedding and Michael did not offer to pay for her to consult an attorney. She signed the premarital agreement because canceling the wedding would have been a great embarrassment to her and her family. Thus, on January 30, 1999, the parties executed a premarital agreement.

3. Key Terms of the Parties' Premarital Agreement

The premarital agreement signed by the parties provided, among other terms: Michael was previously married twice and had one daughter; Pamela was never married and had no children; and at the time of the agreement, Michael worked as a letter carrier for the U.S. Postal Service and earned $38,000 annually and Pamela worked as a "processor" at a mortgage company and made $24,000 annually.

Of significance here, paragraph 5 of the agreement provided: "Pamela has been advised to obtain legal counsel. Pamela has decided not to obtain such advice of independent legal counsel and believes that without the assistance of counsel she can fully protect her legal rights regarding the [premarital] agreement. Laura H. Miller is solely Michael's attorney and as such, is representing the interests of Michael and not those of Pamela."

The parties in their agreement disclosed their interests in all real and personal property and all debts for which they were separately liable. In paragraphs 9 and 10 of the premarital agreement, the parties represented they were of "sound mind and body and have a clear understanding of the terms and the basis for the terms of this contract," they "freely and in good faith choose to enter into this marriage contract and fully intend it to be legally binding upon themselves," and they are "voluntarily entering into this Agreement without coercion, duress, or influence by any person."

Of prime importance in this case, section IV, paragraph H of the premarital agreement provided: "The parties mutually waive any right to receive future spousal support, maintenance or alimony from the other in the event of a Dissolution of Marriage or Legal Separation."

4. The Trial Court's Findings and Ruling

At the conclusion of the bifurcated trial, the trial court found that the parties' spousal support waiver contained in their premarital agreement was unenforceable based on the retroactive application of the 2002 amendment to section 1612, and the finding that Pamela lacked independent counsel at the time she executed the agreement.

The court also found Pamela voluntarily entered into the premarital agreement: "The facts establish that the premarital agreement was prepared by Michael's attorney and that Pamela was not represented by independent legal counsel at the time the Agreement was prepared and executed. Meanwhile, the agreement states that 'Pamela has been advised to obtain legal counsel. Pamela has decided not to obtain such advice of independent legal counsel and believes that without the assistance of counsel she can fully protect her legal rights regarding the prenuptial agreement.' [Citation.] The court finds that Pamela was capable of understanding the admonition to obtain her own independent attorney, that she had sufficient time to retain counsel and that, at a minimum, she could have inquired as to the cost of having an independent attorney review the agreement.

"While Pamela reports that she did not understand the spousal support waiver, the Court has stricken the waiver based on retroactive application of the 2002 amendment to [section] 1612. The court finds that Pamela had a full understanding of the terms [of the] premarital agreement, other than the spousal support waiver. The premarital agreement was twelve pages long, was not particularly complex, involved a small estate, made full disclosure, and basically sought to maintain separate the parties' separate property interests. [Citation.]

"The evidence shows . . . Pamela had [sufficient] time to consider the premarital agreement, was fluent in the English language, was employed in the field of bookkeeping which involves keeping track of finances, and was advised to obtain an independent attorney. [¶] . . . [¶]

"The parties disagree as to when the agreement was prepared and presented to Pamela. Michael testified that he provided the agreement to Pamela on December 2, 1998 and told her to take her time reading it and to obtain an attorney. Pamela testified that two weeks before she signed the agreement on January 30, ...


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