Friday, January 4, 2013
C.A. Rejects Bid to Enforce Support Waiver in 1985 Agreement
Panel Says Court Must Follow Public Policy as It Existed When Parties Contracted
By KENNETH OFGANG, Staff Writer
A spousal support waiver will not be enforced if the law at the time the agreement was signed deemed such waivers to be contrary to public policy, the Fourth District Court of Appeal has ruled.
Div. Three, in a Dec. 3 opinion certified for publication Wednesday, affirmed an Orange Superior Court judge’s ruling that a waiver in the 1985 agreement between Raymond and Roberta Melissa cannot be enforced.
The Melissas were married in August 1985, and signed a prenuptial agreement shortly before the wedding. The Melissas both testified at the hearing before Judge Claudia Silbar that Raymond Melissa—who was wealthy and said he had been through a difficult divorce before meeting Roberta Melissa—had insisted on the agreement, but there was disagreement as to when he first asked her to sign it.
Roberta Melissa testified that she did not see the three-page agreement until the day it was signed, three days before the wedding and after the invitations had all been sent out. She acknowledged that Raymond Melissa’s attorney, who prepared the agreement, advised her of her right to independent counsel, but she did not consult a lawyer.
The agreement included the following language regarding spousal support:
“Each of the parties acknowledge that while the case of In re Marriage of Higgason (1973) 10 [Cal.3d] 476...provides that the potential for the future right of spousal support cannot be waived by an agreement, the parties acknowledge that the law...is in a state of flux....The parties do specifically state and acknowledge that each is currently capable of supporting himself or herself and that neither party is entering the marital relationship with the expectancy of developing reliance upon the earning capacity of the other. Therefore...each party mutually releases the other and waives any potential future rights which would have or may have accrued for spousal support....The parties further agree that at anytime either changes his or her intention to become reliant upon the earnings of the other, notice of such change in intent shall be given to the other in writing.”
The parties subsequently had a mentally disabled son, who is now in his 20s. Roberta Melissa stopped working full time in 1997, and the couple separated in October 2009.
Prior Law Governs
Bifurcating the validity of the written agreement from the other issues, Silbar concluded that the law in effect at the time of the agreement, including Higgason, governed and required the court to invalidate the waiver. The judge also concluded that, given the length of the marriage, and the fact that the wife had not worked for at least half the length of the marriage and had stayed home—with her husband’s encouragement—to care for their son, enforcement of the waiver would be unjust.
The husband subsequently moved for reconsideration based on In re Marriage of Howell (2011) 195 Cal.App.4th 1062, which held that 2002 legislation regarding spousal support waivers could not be retroactively applied. Silbar found the motion to be neither timely nor meritorious and Raymond Melissa appealed.
Presiding Justice Kathleen O’Leary, writing for the panel, said the trial judge was correct on the merits. Neither the Uniform Premarital Agreement Act, which became effective on Jan. 1, 1986, nor case law since, requires California courts to ignore what had been public policy for more than 100 years prior, O’Leary said.
The jurist explained that when California adopted the uniform act and thus recognized premarital agreements, it omitted the provision that would have expressly allowed those agreements to contain spousal support waivers, but did not codify the previous law disallowing such waivers. The legislative intent, O’Leary said, was to leave the issue in the hands of the courts.
O’Leary acknowledged that the state Supreme Court has, since In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39, recognizes a shift in public attitudes and public policy throughout the nation, allowing waivers of spousal support in most jurisdictions. Pendleton held that a waiver might be enforced in California if “executed by intelligent, well-educated persons, each of whom appears to be self-sufficient in property and earning ability, and both of whom have the advice of counsel regarding their rights and obligations as marital partners at the time they execute the waiver.”
In 2002, O’Leary noted, the Legislature amended the uniform act to recognize spousal support waivers in premarital agreements, while providing that no such waiver is enforceable if the party against whom enforcement is sought was not represented by independent counsel or was not presented with the agreement at least seven days before signing it. The amendment was not made retroactive.
“While we no longer believe prenuptial agreements containing spousal support waivers encourage dissolution or will harm society, we are also well aware of the need for safeguards to ensure fairness and voluntariness,” the jurist said.
In effect, O’Leary went on to say, Raymond Melissa was arguing that contemporary law permitting spousal support waivers should be applied to the 1985 agreement, but that contemporary law prohibiting such a waiver by an unrepresented spouse or by one who has had less than seven days to consider it, should not be.
“It is a somewhat puzzling argument lacking a sound rational basis,” the presiding justice wrote.
The case is In re Marriage of Melissa, 12 S.O.S. 21.
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