Dove v. Dove

We granted appellant Paul Dove’s application for interlocutory appeal to consider whether the trial court erred by ruling that the parties’ prenuptial agreement was unenforceable because it was required to be attested by two witnesses under OCGA § 19-3-63 but was not. Lauri Dove has filed a cross-appeal, contending that the trial court erred in ruling that the prenuptial agreement satisfied the criteria of Scherer v. Scherer1 For the reasons that follow, we conclude the trial court erred in ruling that OCGA § 19-3-63 applies to the prenuptial agreement but did not err in ruling that Scherer was satisfied.

Case No. S09A0197

1. OCGA § 19-3-63 provides, in relevant part, that “[e]very marriage contract in writing, made in contemplation of marriage . . . must be attested by at least two witnesses.” In the present case, the question is whether a prenuptial agreement addressing alimony issues is an agreement made in contemplation of marriage. We conclude that it is not.

2. This Court has repeatedly stated that prenuptial agreements settling alimony issues are made in contemplation of divorce, not marriage.2

In Scherer, we stated that,

“[i]n the past, there has been virtually unanimous agreement in all jurisdictions that prenuptial agreements purporting to settle alimony in the event of a future divorce are void ab initio as against public policy since they were considered to be in contemplation of divorce. Georgia has followed the majority position.”3

In Reynolds, a case holding that prenuptial agreements settling alimony are void against public policy, this Court described these agreements as being in contemplation of divorce because they are *648“ ‘made with the intention of promoting a dissolution of the marriage relation existing between’ ” the parties.4 In this vein, in Scherer, we favorably compared prenuptial agreements that addressed alimony issues with postnuptial agreements that we had previously considered to be invalid on the ground they promoted the dissolution of a marriage.5 We noted that such postnuptial agreements were in contemplation of divorce and that, in Sanders v. Colwell,6 we had recently abolished the rule that such postnuptial agreements are void as facilitating divorce.7 The fact that we had approved postnuptial agreements made in contemplation of divorce supported our decision to approve such prenuptial agreements in Scherer. A leading commentator also notes that prenuptial agreements settling alimony issues are made in contemplation of divorce and, until recently, have been “universally held to be invalid.”8 In fact, only in 1982 did this Court hold that prenuptial “agreements in contemplation of divorce are not absolutely void as against public policy.”9

3. In contrast to prenuptial agreements addressing issues of alimony, this Court has held that prenuptial agreements settling property rights of the parties at death are made in contemplation of marriage.10 The reason is that such agreements are considered to be an inducement to marriage,11 and the division or transfer “is only to occur if the parties remain married to each other and living together as husband and wife.”12 Such agreements have been referred to as death-focused instead of divorce-focused.13 For example, in Nally, the husband promised his wife that, if she would marry him, he would name her the beneficiary of an insurance policy to be effective at his death. The agreement was upheld as valid on the grounds that it was an inducement to marriage and that marriage is a valuable consideration.14 Prenuptial agreements settling property rights at death have uniformly been considered to be in contemplation of marriage *649and have uniformly been considered valid in this State and elsewhere.15

4. The predecessor to OCGA § 19-3-63 was first enacted in 1863. Since then, it has been brought forward in identical language into the Codes of 1868, 1873, 1882, 1895, 1910, 1933, and 1981. When it first enacted the predecessor to OCGA § 19-3-63 in 1863 and when it brought it forward into each succeeding Code, the legislature did so based on case law approving of prenuptial agreements transferring property at death on the ground such agreements were in contemplation of marriage.16 On the other hand, until 1982, case law in this State considered prenuptial agreements settling alimony to be in contemplation of divorce and thus void.17 Because our legislature is presumed to enact statutes with full knowledge of existing law, including court decisions,18 it defies common sense and logic to conclude that, when the legislature enacted the predecessor to OCGA § 19-3-63 in 1863 and brought it forward into each succeeding Code, it intended it to apply to void prenuptial agreements.19

5. In addition, we have held that the “ ‘enforceability of ante-nuptial agreements is ... a matter of public policy.’ ”20 Statutes, of course, are expressions of the public policy of this State.21 In Scherer, in deciding the circumstances under which prenuptial agreements made in contemplation of divorce would not violate the public policy of this State, this Court did not specify that it was necessary for such agreements to comply with OCGA § 19-3-63 in order to comply with public policy. Thus, this Court must have considered and rejected the proposition that such a prerequisite existed.

Moreover, although the dissent states that we have explicitly acknowledged that the applicability of OCGA § 19-3-63 to prenuptial agreements settling alimony is an open question, this is not accurate. In Scherer, instead of specifying that prenuptial agreements had to comply with OCGA § 19-3-63 to be valid, we specified *650that courts should employ three definitive criteria in making this determination.

Taking the law of other jurisdictions as our guide, we devised a three-part test for determining whether a particular antenuptial agreement is enforceable under Georgia law. We held that the party seeking enforcement bears the burden of proof to demonstrate that: (1) the antenuptial agreement was not the result of fraud, duress, mistake, misrepresentation, or nondisclosure of material facts; (2) the agreement is not unconscionable; and (3) taking into account all relevant facts and circumstances, including changes beyond the parties’ contemplation when the agreement was executed, enforcement of the antenuptial agreement would be neither unfair nor unreasonable. The Scherer test, as refined and clarified by our later case law, continues to govern the enforceability of antenuptial agreements.22

As this quotation illustrates, we did not say in Scherer and subsequent cases that the criteria in Scherer were merely some of the considerations to be used in determining the enforceability of prenuptial agreements. We stated they were the criteria to be used. Since Scherer, we have stated that “[t]he three-part test we adopted in Scherer is consistent with the standards governing the enforcement of antenuptial agreements that prevail throughout most of the nation today.”23 In Chubbuck, although we noted that the issue whether OCGA § 19-3-63 applied to prenuptial agreements settling alimony was raised before the trial court,24 we also stated in Chubbuck that “[w]e have been unable to find a case in which an antenuptial agreement made in contemplation of divorce has been ruled void and unenforceable for a reason other than failure to live up to the criteria set out by this Court in Scherer v. Scherer, [cit.].”25 Moreover, the litany of our cases relying exclusively on these criteria is extensive and demonstrates that this Court has viewed these criteria as exhaustive.26 To hold such agreements void now unless attested by two witnesses would do a disservice to the bench and bar and to the litigants involved.

*651Furthermore, a holding that OCGA § 19-3-63 applies to prenuptial agreements settling alimony would put this State in the distinct minority of states that require witnesses to prenuptial agreements settling alimony issues.27 The Uniform Premarital Agreement Act, which has been adopted in twenty-six states, does not contain such a requirement, and most, if not all, states that have adopted it have not added one.28 Moreover, it appears that most other states have adopted a test similar to the one we adopted in Scherer for determining the validity of such agreements.29

6. For the foregoing reasons, the trial court erred in ruling that OCGA § 19-3-63 applies to prenuptial agreements settling alimony.

Case No. S09X0198

7. In her cross-appeal, Ms. Dove contends the trial court erred in ruling that Mr. Dove’s failure to disclose his income when the parties executed the prenuptial agreement did not render the agreement unenforceable. We disagree. Although the financial statement Mr. Dove provided to Ms. Dove did not list his income, it did list the value of his CPA practice, the value of his investment accounts, and the value of his residence and a lake house. The financial statement “reveal[ed] [Mr. Dove] to be a wealthy individual with significant income-producing assets.”30 The disclosure of these assets, combined with the fact that Ms. Dove “lived with [Mr. Dove] for four years” before the prenuptial agreement was entered, supports the trial court’s decision that the absence of Mr. Dove’s income on his financial statement did not “constitute[ ] the nondisclosure of material facts which would render the prenuptial agreement unenforceable.”31 Finally, contrary to Ms. Dove’s contention, we conclude the trial court did not err in resolving the enforceability of the *652prenuptial agreement on summary judgment.32

Judgment reversed in Case No. S09A0197. Judgment affirmed in Case No. S09X0198.