Shaun Perrill v. Brandy Perrill , 126 N.E.3d 834 ( 2019 )

FILED
May 28 2019, 5:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Monty K. Woolsey William O. Harrington
Carmel, Indiana Danville, Indiana
Andrew R. Bloch
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shaun Perrill, May 28, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-DN-1616
v. Appeal from the Hendricks
Superior Court
Brandy Perrill, The Honorable Robert W. Freese,
Appellee-Respondent. Judge
Trial Court Cause No.
32D01-1709-DN-552
Tavitas, Judge.
Case Summary
[1] Shaun Perrill (“Husband”) filed this interlocutory appeal after the trial court
concluded there was no enforceable premarital agreement (the “Agreement”)
between Husband and Brandy Perrill (“Wife”). We reverse and remand.
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Issues
[2] Husband raises several issues on appeal, which we consolidate and restate as:
I. Whether the trial court erred in concluding there was no
meeting of the minds between the parties to form an
enforceable contract.
II. Whether the trial court erred in failing to admit testimony
regarding Wife’s excluded property.
III. Whether the trial court erred in concluding the Agreement
was unconscionable.
Facts
[3] Husband and Wife met in 2000 when they were both students at Purdue
University. Wife graduated in 2001, and Husband graduated in 2002.
Husband and Wife began living together in 2002. The couple eventually moved
to Hendricks County in 2003.
[4] Husband began working at Matrix Label Systems, one of his family’s
businesses. Wife began working at Hendricks College Network and is now the
executive director. At some point early in the couple’s relationship, Husband
mentioned to Wife that he would be interested in having Wife sign a premarital
agreement if the couple were to marry. Husband’s family had several family
businesses that Husband sought to protect. The couple were engaged to be
married in 2005, and they married in 2008.
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[5] Shortly before Husband’s and Wife’s wedding day in October 2008, Husband
presented Wife with the Agreement. Wife asked an attorney to review the
Agreement for her. Wife testified that she only saw one version of the
Agreement, which was the version that she signed. 1 Wife claims she did not
make any changes to the Agreement before she signed. Wife also testified that,
as part of the Agreement, she was asked to provide a list of property that would
be identified as her excluded property in the event the couple divorced.
[6] The Agreement consisted of three main parts. The first section is the main
portion of the Agreement, which covers nine pages, and includes the signature
of both parties and the notary. In this portion of the Agreement, Husband and
Wife agreed that each would:
retain the value of certain of [his or her] own individual assets
and property that [he or she] now owns or later receives as a gift
or inheritance, including any increase in the value of such
property, . . . the same as though [he or she] were not married
and free from any control, interest, claim or right whatsoever of
the other Party whether growing out of the marital relationship
or by reason of death.
Appellant’s App. Vol. II p. 151. This section defines Husband’s excluded
property as follows:
1
There were several previous drafts of the Agreement; however, Wife claims she only saw the final version of
the Agreement. The parties tendered, as a joint factual stipulation, an affidavit by attorney Ryan Leach, who
was the drafter of the Agreement and is also Husband’s parents’ business attorney. The trial court accepted
the joint factual stipulation on March 22, 2018. Attorney Leach did not receive a copy of the executed
Agreement until November 7, 2017.
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In the case of Husband, Excluded Property shall mean and
include all of the common stock or ownership units or other such
ownership interests in and of Compatible Technologies, LLC
owned by Husband and shall also mean and include the
membership or ownership interests of Moon Limited
Partnership, now owned by Husband or received in the future by
Husband, and any income, dividends, increase or decrease in
value, or proceeds thereof, including any increase in the value of
such shares, membership, or other ownership interests, or arising
under the terms of Husband’s employment with compatible
Technologies, LLC or Moon Limited Partnership as now in
effect or as hereafter agreed, provided, however, that Husband’s
salary from Compatible Technologies, LLC shall not constitute
Excluded Property. Husband’s Excluded Property shall also
include any property acquired with Excluded Property.
Husband’s Excluded Property shall also include any gifts or
inheritances later received from his family.
Id. at 152-53. The next part of the Agreement is “Exhibit A,” which is defined
in the main Agreement as Wife’s “financial and asset information” as well as
Wife’s “excluded property.” Id. at 152. Finally, the third part of the
Agreement is “Exhibit B,” which is defined as Husband’s “financial and asset
information.” Id.
[7] Wife asked Rebecca Cotney to serve as a notary for purposes of executing the
Agreement. Cotney’s signature notarizing the Agreement indicates that both
Exhibit A and Exhibit B were included with the Agreement. Husband testified
that, after he and Wife signed the Agreement, he placed the Agreement in a
fire-proof filing cabinet.
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[8] After Husband filed a petition to dissolve the marriage on September 13, 2017,
Wife filed a motion to determine the enforceability of the couple’s Agreement
on March 7, 2018. Wife testified to the foregoing facts and her uncertainty
regarding the Agreement she actually signed. Wife does not recall if she
received a copy of the Agreement at its execution. The next time Wife recalls
seeing the Agreement after its execution was in 2017 when this matter began.
Wife noticed, however, that when she received a copy of the Agreement in
2017, it did not appear to be the same Agreement she signed because her
Exhibit A was not attached. Instead, there was another document titled
“Exhibit A” which appeared to list items belonging to Husband, and no Exhibit
B was attached. (“Version 1”).
[9] On November 1, 2017, Wife sent Husband a request for production of
documents, requesting that Husband produce a complete copy of the executed
Agreement. In response to the requests, Husband produced another version of
the Agreement, which did not include a page entitled Exhibit A. In this
version, Husband’s excluded items list was attached as Exhibit B (“Version 2”).
This Exhibit B was slightly different than the exhibit produced in Version 1.
[10] Wife testified that she prepared Exhibit A and gave it to Husband; however, at
the hearing, Wife did not recall the items she included on Exhibit A. On the
other hand, Husband stated that he “[did] not recall [Wife] giving [him]
[E]xhibit A.” Tr. Vol. III p. 56. Husband stated that he was aware when the
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parties signed the Agreement that Exhibit A was not attached. 2 Husband did
not believe that Wife prepared an Exhibit A because, according to Husband,
Wife did not own any property of value at the time.
[11] After an evidentiary hearing on the issue, the trial court entered its findings of
fact and conclusions of law on May 3, 2018, and concluded, in relevant part,
31. Sometime on or after October 16, 2008, Wife prepared an
Exhibit “A” list of what Wife wanted to be her “Excluded
Property” under the Antenuptial Agreement . . . . In addition,
Wife delivered Wife’s Exhibit ‘A’ List of Excluded Property to
Husband.
*****
36. Wife understood and intended that she executed the
Executed Antenuptial Agreement with Wife’s Exhibit ‘A’ List of
Excluded Property attached.
*****
55. Wife’s Exhibit ‘A’ List of Excluded Property is not attached
to either the First version of executed Antenuptial Agreement or
the Second Version of Antenuptial Agreement.
2
Husband gave somewhat conflicting testimony at his deposition, testifying at one point that Exhibit A was
not attached to the Agreement because “[Wife] did not have any excluded property,” but later testifying that
Husband “cannot recall if there was an exhibit A at [the time the Agreement was executed].” Tr. Vol. III pp.
61-62.
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*****
60. The First Nine Pages clearly demonstrate that Wife’s Exhibit
‘A’ List of Excluded Property was attached to the Executed
Antenuptial Agreement when it was executed. Wife contends
that Wife’s Exhibit ‘A’ List of Excluded Property (a) was
intended to be attached to the Executed Antenuptial Agreement
and (b) was, in fact, attached to the Executed Antenuptial
Agreement when it was executed. During the Second Hearing,
Husband testified that Wife’s Exhibit ‘A’ List of Excluded
Property was not attached to the Executed Antenuptial
Agreement when it was executed. On the basis of this evidence,
it is evident that there was no meeting of the minds between Wife
and Husband. Therefore, if Husband’s testimony during the
Second Hearing is taken at face value, no binding Antenuptial
Agreement was ever formed by Wife and Husband.
*****
63. As noted above, in Irvine v. Irvine, 685 N.E.2d 67 (Ind. Ct.
App. 1997), the Court of Appeals of Indiana held that,
“[a]ntenuptial agreements are legal contracts by which parties
entering into a marriage relationship attempt to settle the interest
of each party in the property of the other during the course of the
marriage and upon its termination by death or other means.” Id.
at 71. Thus, the precise and essential purpose of an antenuptial
agreement is to settle the rights of the parties to their property in
contemplation of marriage. In this case, there was no meeting of
the minds between Husband and Wife because an essential term
of the Antenuptial Agreement – Wife’s Excluded Property – is
uncertain. Therefore, the intention of Wife and Husband when
they entered into the Antenuptial Agreement is uncertain and the
Antenuptial Agreement (both versions) cannot be specifically
enforced.
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*****
70. Neither the First Version of Executed Antenuptial Agreement
nor the Second Version of Executed Antenuptial Agreement is
enforceable as a matter of law.
71. There is no enforceable premarital agreement between Wife
and Husband in this case.
Appellant’s App. Vol. II pp. 16, 21, 23-26 (emphasis supplied). Husband now
appeals.
Analysis
[12] Husband appeals from the trial court’s findings of fact and conclusions of law.
Accordingly,
[W]e apply a two-tiered standard of review for clear error; that is,
first, we determine whether the evidence supports the findings,
and second, whether the findings support the judgment. We do
not reweigh the evidence but consider the evidence favorable to
the judgment.
Findings of fact are clearly erroneous when the record contains
no facts to support them, and a judgment is clearly erroneous if
no evidence supports the findings, the findings fail to support the
judgment, or if the trial court applies an incorrect legal standard.
Although we review findings under the clearly erroneous
standard, we review conclusions of law de novo.
Carmer v. Carmer, 45 N.E.3d 512, 516-17 (Ind. Ct. App. 2015) (citations
omitted).
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I. Enforceability of Agreement
[13] We begin with Husband’s argument that the parties’ intent was clear, and,
accordingly, the trial court erred in finding there was no meeting of the minds
between the parties, and thus, no contract. This conclusion of law is reviewed
de novo by our Court. See Carmer, 45 N.E.3d at 517.
[14] Generally, courts favor premarital agreements, and our Supreme Court “has
consistently held that [antenuptial] agreements, so long as they are entered into
freely and without fraud, duress, or misrepresentation and are not, under the
particular circumstances of the case, unconscionable, are valid and binding.” In
re Marriage of Boren, 475 N.E.2d 690, 693 (Ind. 1985). “‘Antenuptial agreements
are favored by the law and will be liberally construed to effect, so far as
possible, the parties’ intentions.’” Boetsma v. Boetsma, 768 N.E.2d 1016, 1024
(Ind. Ct. App. 2002) (quoting Beatty v. Beatty, 555 N.E.2d 184, 188) (Ind. Ct.
App. 1990)), trans. denied. “Standard principles regarding contract formation
and interpretation apply to premarital agreements.” Fetters v. Fetters, 26 N.E.3d
1016, 1020 (Ind. Ct. App. 2015), trans. denied. “The party urging the validity of
a contract bears the onus of proving its existence.” Ochoa v. Ford, 641 N.E.2d
1042, 1044 (Ind. Ct. App. 1994).
[15] A premarital agreement between parties contemplating marriage “must be in
writing and signed by both parties.” Ind. Code § 31-11-3-4. “The agreement is
enforceable without consideration.” Id. “It is fundamental that a contract is
formed by the exchange of an offer and acceptance between contracting
parties.” Ochoa, 641 N.E.2d at 1044 (citations omitted). “The parties to a
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contract have the right to define their mutual rights and obligations, and a court
may not make a new contract for the parties or supply missing terms under the
guise of construing a contract.” Id.[16] “The basic requirements for a contract are offer, acceptance, consideration, and
a meeting of the minds between the contracting parties on all essential elements
or terms of the transaction.” Jermas v. Gumz, 53 N.E.3d 434, 445 (Ind. Ct. App.
2016), trans. denied. “There must be mutual assent or a meeting of the minds on
all essential elements or terms in order to form a binding contract.” Id. “Only
‘reasonable’ certainty is necessary; ‘absolute certainty in all terms is not
required.’” Id. (citing Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306, 309
(Ind. 2012)). Instead, “[o]nly essential terms need to be included to render a
contract enforceable.” Id. “An agreement required to be in writing must
completely contain the essential terms without resort to parol evidence in order
to be enforceable.” Schuler v. Graf, 862 N.E.2d 708, 713 (Ind. Ct. App. 2007),
trans. denied.
[17] “The court must read all of the contractual provisions as a whole to accept an
interpretation that harmonizes the contract’s words and phrases and gives effect
to the parties’ intentions as established at the time they entered the contract.”
Schmidt v. Schmidt, 812 N.E.2d 1074, 1080 (Ind. Ct. App. 2004) (citations
omitted). “If the language of the agreement is unambiguous, the intent of the
parties must be determined from the four corners of the document.” Id. (citing
Bressler v. Bressler, 601 N.E.2d 392, 395 (Ind. Ct. App. 1992)). “The terms of a
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contract are ambiguous only when reasonably intelligent persons would
honestly differ as to the meaning of those terms.” Id.[18] At the outset, it appears that the question of the parties’ intent and whether
there was a meeting of the minds is focused squarely on the attachment of
Exhibit A. The trial court first found that there was no “meeting of the minds”
between the parties because Wife claims that she attached Exhibit A to the
Agreement, whereas Husband claims that Wife did not. The trial court implies
that Exhibit A is essential and, accordingly, concludes that it could not enforce
the agreement without the meeting of the minds on this essential term.
[19] Turning to the four corners of the document, the Agreement set forth the
purpose of the Agreement, stating,
WHEREAS, it is the desire and intention of Wife and Husband
that Husband will retain the value of certain of his own
individual assets and property that he now owns or later receives
as a gift or inheritance, including any increase in the value of
such property or, the same as though he were not married and
free from any control, interest, claim or right whatsoever of the
other Party whether growing out of the marital relationship or by
reason of death; and
WHEREAS, it is the desire and intention of Wife to release,
relinquish, waive and discharge any and all claim, right, title,
interest, expectancy or otherwise, or in, or to certain of the
property or estate of Husband as set forth herein (including
contingent rights or claims) whether arising out of the marital
relationship of Wife and Husband or as a result of the death of
the other Party, or otherwise; and
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WHEREAS, it is the desire and intention of Wife and Husband
that Wife will retain the value of certain of her own individual
assets and property that she now owns or later receives as a gift
or inheritance, including any increase in the value of such
property or, the same as though she were not married and free
from any control, interest, claim or right whatsoever of the other
Party whether growing out of the marital relationship or by
reason of death; and
WHEREAS, it is the desire and intention of Husband to release,
relinquish, waive and discharge any and all claim, right, title,
interest, expectancy or otherwise, or in, or to certain of the
property or estate of Wife as set forth herein (including
contingent rights of claims) whether arising out of the marital
relationship of Wife and Husband or as a result of the death of
the other Party, or otherwise; . . .
Appellant’s App. Vol. II p. 151.
[20] Pursuant to paragraph 4 of the Agreement, excluded property for Wife would
include “all property shown in Exhibit A, including any income, dividends,
increase or decrease in value, or proceeds with respect to such property, and
any gifts or inheritances later received from her family,” whereas Husband’s
excluded property was defined separately in the first nine pages of the
Agreement. Id. at 152. Husband’s excluded property is defined as:
In the case of Husband, Excluded Property shall mean and
include all of the common stock or ownership units or other such
ownership interests in and of Compatible Technologies, LLC
owned by Husband and shall also mean and include the
membership or ownership interests of Moon Limited
Partnership, now owned by Husband or received in the future by
Husband, and any income, dividends, increase or decrease in
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value, or proceeds thereof, including any increase in the value of
such shares, membership, or other ownership interests, or arising
under the terms of Husband’s employment with compatible
Technologies, LLC or Moon Limited Partnership as now in
effect or as hereafter agreed, provided, however, that Husband’s
salary from Compatible Technologies, LLC shall not constitute
Excluded Property. Husband’s Excluded Property shall also
include any property acquired with Excluded Property.
Husband’s Excluded Property shall also include any gifts or
inheritances later received from his family.
Id. at 152-53.
[21] The Agreement also set forth that “the value of Wife’s Excluded Property, as
defined and disclosed in Exhibit A, shall be set off to Wife free of and without
any claim by Husband and Husband’s Excluded Property, as defined in this
Agreement, shall be set off to Husband free of and without any claim by Wife.”
Id. at 153. As to the remaining marital property, the Agreement states that it
“shall be equally divided between Wife and Husband, after distribution of
Wife’s Excluded Property and Husband’s Excluded Property has been made.” 3
Id. In other words, the language of the Agreement anticipated that property
would be set aside to each party pursuant to the Agreement’s definition of
3
Relatedly, the Agreement also contemplates, that
Wife and Husband further acknowledge and understand that they may pool certain of their financial
resources together in a joint effort to acquire various and, at present, undetermined assets such as
real estate or financial investments. In the event of Wife and Husband’s separation or marriage
dissolution, each understands and agrees that all such acquired property shall be forthwith
distributed amicably between them, or in the event Wife and Husband cannot agree, liquidated with
the net proceeds derived from the liquidation to be evenly distributed between them.
Appellant’s App. Vol. II p. 154.
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excluded property. Exhibit A would have only identified property Wife owned
prior to the marriage. The issue then becomes whether the contents of Exhibit
A, or Wife’s excluded property, contain essential terms.
[22] While we agree that Wife’s Exhibit A would give more context to identify
Wife’s premarital property, the identification of the property itself is not
essential. In Hunsberger v. Hunsberger, 653 N.E.2d 118, 125 (Ind. Ct. App. 1995),
a panel of this court reversed the trial court’s conclusion that the antenuptial
agreement between the parties was invalid and unenforceable. Specifically, the
trial court found that the antenuptial agreement was invalid and unenforceable
“because [the husband] did not disclose his assets and their value to [the wife]
before she signed the agreement.” Id. There, aside from the trial court’s error in
relying on a vacated case, this court found that the trial court erred because,
“even with respect to antenuptial agreements, presumably
entered into when the parties’ relationship is likely to be one of
trust and reliance, in contrast to the potential and actual adversity
which accompanies marriage dissolutions, there is no absolute
and mandatory duty imposed upon the parties to disclose
information regarding possessions.”
Hunsberger v. Hunsberger, 653 N.E.2d 118, 125 (Ind. Ct. App. 1995) (quoting
Selke v. Selke, 600 N.E.2d 100, 102 (Ind. 1992)).
[23] Here, the trial court ultimately concluded that Wife did attach Exhibit A when
the parties executed the Agreement. Exhibit A, as evidenced by the parties’
intent in the main Agreement, was intended to identify Wife’s excluded
property in the event of dissolution or death. The actual list of excluded
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property can be easily recreated and was not an essential term relating to the
intent of the parties. This is especially true when the intent of the main portion
of the Agreement was clear. The trial court expressly found that the “first nine
(9) pages of the First Version of Executed Antenuptial Agreement and the first
nine (9) pages of the Second Version of Executed Antenuptial agreement are
identical.” Appellant’s App. Vol. II p. 19. This is important because, as a
reviewing Court, we do not reweigh the evidence. Instead, we merely review
the Agreement to determine whether the parties’ intent is clear.
[24] The first portion also squarely states, that, “the inadvertent omission of any
property shall not affect the validity, effect, or enforceability of this
Agreement.” Id. at 155. Further, the Agreement also has a partial invalidity
clause that states,
[s]hould any part or segment of this Agreement be declared
invalid by a court of competent jurisdiction, the declaration shall
not affect the validity of the remaining portions of this
Agreement, all of which shall continue in full force and effect as
though this Agreement had been executed with the invalid
portion deleted.
Id. The Agreement also contains a severability clause that states,
[s]hould any provision of this Agreement be held invalid or
unenforceable by any court of competent jurisdiction, all other
provisions shall nonetheless continue in full force and effect, to
the extent that the remaining provisions are fair, just and
equitable.
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Id. at 156. While we recognize that the trial court did not find that a portion or
provision of the Agreement was invalid, we believe this provision further
evidences the parties’ intent that the property each owned before marriage
would be excluded. The intent of the parties—that each would retain his or her
excluded property—was clear; the specificity of Wife’s excluded property was
not needed to find the intent between the parties.
[25] Relatedly, we note that Exhibit B does not define Husband’s excluded property,
but merely lists his assets and financial information at the time he signed the
Agreement. Husband’s excluded property is defined in the main portion of the
Agreement. Husband’s list had minor changes between Version 1 and Version
2. While this is concerning, these changes do not impact an essential term of
the Agreement.
[26] Ultimately, the terms of the contract do not change with time, whereas the
parties’ actual property is fluid and everchanging. The Agreement ultimately
contemplates the potential for change in defining excluded property, using
terms such as “any gifts or inheritance later received. . .,” and “now owned by
Husband or received in the future by Husband.” Appellant’s App. Vol. II p.
152. In other words, the parties’ Agreement already contemplated that each
party would be required to later identify property that fit within the definition of
excluded property.
[27] All essential contractual elements were present in the Agreement with or
without Exhibit A or B. Accordingly, the trial court erred in concluding as a
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matter of law that there was no contract between the parties. The mere fact that
Exhibit A was missing does not render the entire contract unenforceable.
Exhibit A was designed to identify Wife’s specific excluded property at the time
she signed the Agreement.
II. Parol Evidence
[28] Husband next contends that it was error for the trial court to deny admission of
parol evidence to prove that Wife did not own any property at the time of the
marriage. As we have noted, “An agreement required to be in writing must
completely contain the essential terms without resort to parol evidence in order
to be enforceable.” Schuler, 862 N.E.2d at 713. The Agreement does contain
the essential elements of a contract. The contents of the missing Exhibit A were
not essential terms of this contract as Wife asserts. “The parol evidence rule
prohibits courts from considering parol or extrinsic evidence for the purpose of
varying or adding to the terms of a written contract.” Millner v. Mumby, 599
N.E.2d 627, 629 (Ind. Ct. App. 1992). “The prohibition against the use of parol
evidence is by no means complete; in fact, parol evidence may be considered as
long as it has not been offered to vary the terms of the written contract.” Id.For example, “parol evidence may be admitted to supply an omission in the
terms of the contract.” Malo v. Gilman, 379 N.E.2d 554, 557 (Ind. Ct. App.
1978).
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[29] Here, parol evidence should have been introduced with regard to the items
listed on Wife’s Exhibit A. 4 The introduction of evidence with regard to what
was included on Wife’s Exhibit A would not have contradicted the terms of the
agreement, but merely would have provided specific determination of Wife’s
premarital property at the time the Agreement was executed. See Malo, 379
N.E.2d at 558 (finding that “parol evidence of a maximum cost limitation may
be introduced where the contract fails to contain such a limitation”). Similarly
here, parol evidence is admissible to determine what property Wife owned prior
to the marriage and would have listed in her Exhibit A. Wife is not denied her
excluded property; instead, it is a question of fact as to what property Wife is
entitled to as excluded property, which Wife may show using parol evidence.
Whether Exhibit A actually existed does not change the terms of the contract.
Parol evidence should have been allowed to determine what, if any, property
Wife owned prior to the marriage.
4
Importantly, Wife was asked if she could recall what she included in her Exhibit A, to which she
responded, “I don’t recall what I put on that list.” Tr. Vol. III p. 15. Ultimately, Wife would have to
identify evidence of the property she owned prior to the marriage pursuant to Indiana Code Section 31-
15-7-4, which states:
(a) In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the
property of the parties, whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
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III. Unconscionability
[30] Finally, Husband argues that the Agreement complies with Indiana’s Uniform
Premarital Agreement Act (“UPAA”) pursuant to Indiana Code Chapter 31-11-
3, and is, accordingly, not unconscionable. At the beginning, we note that we
are not entirely certain that the trial court found the agreement was
unconscionable. The trial court’s order concludes, “It would be unconscionable
for the Court to enforce the Antenuptial Agreement in Husband’s sole favor,
while denying Wife her express bargain – that Wife’s Exhibit ‘A’ List of
Excluded Property would be protected in the event of divorce or death.”
Appellant’s App. Vol. II p. 25. The trial court apparently used the term
“unconscionable” to describe the potential result, and not the Agreement itself.
[31] Regardless, we agree with Husband that the Agreement is not unconscionable.
Generally, “[a] premarital agreement is not enforceable if a party against whom
enforcement is sought proves that: (1) the party did not execute the agreement
voluntarily; or (2) the agreement was unconscionable when the agreement was
executed.” I.C. § 31-11-3-8(a). The court decides whether a premarital
agreement is unconscionable as a matter of law. I.C. § 31-11-3-8(c). Our
Supreme Court has given context to the unconscionability definition,
concluding that an agreement is unconscionable if:
“there was a gross disparity in bargaining power which led the
party with the lesser bargaining power to sign a contract
unwillingly or unaware of its terms and the contract is one that
no sensible person, not under delusion, duress or distress would
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accept. The doctrine of unconscionability necessarily looks to
the time of execution.”
Rider v. Rider, 669 N.E.2d 160, 162 (Ind. 1996) (quoting Justus v. Justus, 581
N.E.2d 1265, 1272 (Ind. Ct. App. 1991)).
[32] Here, Husband was the one who wanted the Agreement to be executed, and
Husband’s attorney was the drafter of the Agreement. Wife, however, also had
an attorney review the Agreement. The parties appear to agree that, if Exhibit
A was attached, there would be no disagreement regarding the terms of the
Agreement. At the hearing, Wife was asked if she would argue the Agreement
should not be enforced if her Exhibit A was attached. Wife responded, “I
probably wouldn’t, I think that that [sic] document would make much more
since [sic] as to what it says within the wording.” Tr. Vol. III p. 19. In other
words, the only reason for unconscionability would be the exclusion of Exhibit
A. Wife is in the best position to identify the assets she owned prior to the
marriage. We fail to understand Wife’s contention that she cannot recall what
property she owned prior to the marriage.
[33] The lack of an Exhibit A does not make the Agreement unconscionable. Even
if the trial court believed the Agreement was unfair because Wife would receive
less, this does not make the Agreement unconscionable. See Rider, 669 N.E.2d
at 164 (concluding that, even in the case where “enforcement of this contract
eventually may force [Wife] to sell her home, [it] cannot find enforcement of
this antenuptial agreement to be unconscionable,” and that the case “does not
involve a situation where, following divorce, one spouse is left with
Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019 Page 20 of 21
considerable assets while the other spouse is left virtually penniless, with no
means of support”). Accordingly, to the extent the trial court found that the
agreement was unconscionable, the trial court erred.
Conclusion
[34] The trial court erred in concluding there was not an enforceable prenuptial
agreement between the parties. We reverse and remand.
[35] Reversed and remanded.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019 Page 21 of 21