LEBECK V. LEBECK, 1994-NMCA-103, 118
N.M. 367, 881 P.2d 727 (Ct. App. 1994)
ALBERT O. LEBECK, JR.,
Petitioner-Appellee,
vs.
BONNIE A. LEBECK, Respondent-Appellant.
COURT OF APPEALS OF NEW MEXICO
1994-NMCA-103, 118 N.M. 367, 881 P.2d 727
APPEAL FROM THE DISTRICT COURT OF
McKINLEY COUNTY. Benjamin S. Eastburn, District Judge
Certiorari not Applied for
Steven L. Tucker, Tucker Law Firm, P.C.,
Santa Fe, New Mexico, Attorneys for Petitioner-Appellee.
Michael L. Danoff, Kim E. Kaufman,
Albuquerque, New Mexico, Attorneys for Respondent-Appellant.
MINZNER, APODACA, PICKARD
{1} Wife appeals from a final
judgment granting a divorce that upholds the validity of a prenuptial agreement
and denies Wife an award of alimony or community property. She claims error in
(1) the denial of spousal support; (2) the upholding of the prenuptial
agreement; (3) the denial of an award of community property; and (4) the award
of attorney fees. We affirm.
{2} Bonnie (Wife) and Albert
(Husband) Lebeck had been married for eight years at the time of their divorce.
Prior to marrying, the couple lived together for about three years. When the
couple began living together in May 1978, Husband was a fifty-three-year-old
lawyer who did not practice law full-time, but whose main income was from
inherited investments. Husband had four children from a previous marriage. Wife
was thirty-three years old, had a bachelor of arts degree in journalism, and
had worked for the
Gallup Independent as city editor for seven years.
She also had previously been married, and Husband served as Wife's attorney in
her divorce from her first husband. In 1979, after living together for a year,
the couple had a child.
{3} About two and a half
years later, Husband and Wife decided to get married. Some days prior to the
wedding, Husband asked Wife if she would sign a prenuptial agreement. Husband
prepared the agreement, to which he attached a list of his separate property
assets and their value. He asked Wife to review the agreement with an attorney
of her choice and have the attorney send Husband a letter verifying that they
had gone over the agreement and that Wife understood it. She did so and signed
the agreement. They married and Wife continued to write part-time, devoting the
majority of her time to being a mother and homemaker. Husband continued to
practice law part-time, receive director fees from both a family business and a
bank, and receive various commissions for real estate transactions. The
couple's living expenses during the marriage exceeded Husband's income from the
law practice, director fees, and commissions. As a result, Husband spent a
substantial amount of his separate income on the marital community.
{4} In 1989, Husband filed
for divorce. Wife took a job with the Arizona Bar Association, and she and the
couple's daughter moved to Scottsdale. The issues of child custody, visitation,
and support were resolved by the parties and are not issues on appeal. The
parties stipulated that Wife needed interim spousal support immediately
following the filing of the action. During the three years that the action was
pending, Wife worked full-time, and at the time of trial she had a monthly
take-home income of $ 1,080.
{5} Wife initially argues
that the trial court's findings regarding spousal support do not reflect
consideration of the appropriate factors. We disagree. New Mexico cases
indicate that the threshold question for the award of spousal support is need.
Hall
v. Hall, 114 N.M. 378, 385,
838 P.2d 995, 1002 (Ct. App.),
cert. denied,
114 N.M. 314,
838 P.2d 468 (1992);
Foutz v. Foutz, 110 N.M. 642, 643,
798 P.2d 592, 593 (Ct. App. 1990).
{6} Wife requested a finding
that she needed and should receive spousal support. However, the trial court
made an express finding that Wife had needed the interim spousal support
provided by Husband for three years, but that spousal support was inappropriate
following the divorce. Substantial evidence supports this finding. Wife was
forty-six years old, had a degree in journalism and a history of employment in
that field, and was employed and receiving take-home pay of $ 1,080 per month
at the time the trial court made its findings. In addition to her income, Wife
receives $ 1,423.19 per month in child support from Husband.
{7} Wife argues that she
submitted numerous requested findings of fact regarding the parties' finances
and that the trial court should have considered all the factors she raised in
determining whether there was a need for spousal support. However, having
determined that Wife had sufficient funds to meet her needs and therefore did
not require spousal support, the trial court did not need
{*371}
to consider additional factors.
See Foutz, 110 N.M. at 643, 798 P.2d
at 593. The additional factors would have been relevant in calculating the
amount of spousal support to be awarded if the trial court had determined that
there was a need for continued support.
See Lewis v. Lewis, 106 N.M.
105, 115-16,
739 P.2d 974, 984-85 (Ct. App. 1987). Since the trial court
determined that there was no need for spousal support, it was not required to
consider additional factors.
{8} Wife also asserts that
the record indicates the trial court considered inappropriate factors, reveals
bias, and therefore supports a conclusion that the court abused its discretion.
Prior to filing findings and conclusions and a final decree, the trial court
filed a minute entry, a five and a half page document summarizing its
conclusions on each of the major issues. In discussing alimony, the court made
the statement that "Mrs. Lebeck is an intelligent and articulate
college-educated woman with additional attributes of being attractive, and on
observation from several court appearances, possessed of exceptional good taste
in attire." Wife asserts that the trial court is implying that her chance
of securing another husband is a factor it considered in determining whether to
award spousal support. Husband answers that the comments were directed toward
assessing Wife's employability. Husband also argues that even if the comments
were erroneous, the judgment should still be affirmed because the decision on
spousal support was based on other proper factors.
{9} While this case was
pending on appeal, our Supreme Court approved guidelines that are relevant to
the facts of this case. In conjunction with the New Mexico State Bar Standing
Committee on Women and the Legal profession, the Supreme Court recently
published a handbook discussing gender bias.
Handbook on Gender Equality in
the Courts: A Guide for Court Conduct in All New Mexico Courts (1994). The
Handbook acknowledges that gender bias may manifest itself unintentionally and
may arise in common forms of speech, but it also recognizes the judiciary's
obligation to make special efforts toward a bias-free environment.
Id.
at 3-5. The Handbook specifically lists as conduct to be avoided: "Comment
on the physical appearance of others."
Id. at 5. Had this clear
guideline been published earlier, undoubtedly the trial court would have framed
the minute order differently. The Handbook offers suggestions that will be
useful in avoiding unintentional, as well as intentional, manifestations of
gender bias in the future. We believe that the trial court should have drafted
the minute order more carefully, even though it was prepared prior to the
publication of the Handbook. Nevertheless, we agree with Husband that the trial
court listed sufficient proper factors to support its decision regarding
spousal support, and that in context the remarks are part of a paragraph
similar to the discussion of employability contained in
Blake v. Blake,
102 N.M. 354, 364,
695 P.2d 838, 848 (Ct. App. 1985).
{10} Erroneous findings of
fact unnecessary to support the judgment of the court are not grounds for
reversal.
Specter v. Specter, 85 N.M. 112, 114,
509 P.2d 879, 881
(1973). Further, a trial court's verbal comments can clarify an ambiguous
finding, but they do not provide a basis for reversal.
Ledbetter v. Webb,
103 N.M. 597, 604,
711 P.2d 874, 891 (1985). Whether we view the minute entry
as containing an unnecessary finding or as a verbal remark that should not
affect valid findings, its presence in this record does not establish
reversible error. The reference to Wife's appearance does not by itself
establish that the trial court considered inappropriate factors, and thus does
not support a conclusion that the trial court abused its discretion in denying
spousal support.
Compare Blake, 102 N.M. at 364, 695 P.2d at 848 (no
abuse of discretion for trial court to consider such factors as wife's
education, personality, and entree to prominent social circles in determining
alimony)
with Hertz v. Hertz, 99 N.M. 320, 326,
657 P.2d 1169, 1175
(1983) (judge's findings revealed reliance on inappropriate factors, and record
showed spouse seeking alimony was neither in need nor entitled to alimony when
appropriate factors considered). We need not decide in this case what
additional evidence would have been necessary to establish the basis for a
remand.
Cf. Salter v. Jameson, 105 N.M. 711, 714,
736 P.2d 989, 992 (Ct.
App.) (remand for entry of
{*372} revised
findings that exclude a theory of liability for which there was insufficient
evidence),
cert. denied, 105 N.M. 720,
737 P.2d 79 (1987).
{11} Wife further argues that
at trial Husband's attorney conceded that Wife needed $ 600 a month in spousal
support to meet her expenses. That concession, Wife asserts, precludes Husband
from now arguing that spousal support should not be awarded because she relied
on that concession for the remainder of the trial.
{12} The first case cited by
Wife to support her position concerns a husband being precluded from appealing
the award of spousal support when his requested findings and conclusions
contained a provision for spousal support.
See Cox v. Cox, 108 N.M. 598,
602-03,
775 P.2d 1315, 1319-20 (Ct. App.),
cert. denied, 108 N.M. 624,
776 P.2d 846 (1989).
Cox is distinguishable. Husband requested findings
providing for temporary rather than permanent spousal support and he amended
those findings to eliminate any request for support prior to the trial court's
final decree.
{13} Wife's second case
concerns the waiver of a known right which does not fit the facts of this case.
See Miller v. Phoenix Assur. Co., 52 N.M. 68, 71-72,
191 P.2d 993, 995
(1948). However, in light of this citation and Wife's contention that she
relied on the concession during trial and would suffer prejudice if the
admission is permitted to be withdrawn, we will consider her argument as a
theory of judicial admission.
{14} A judicial admission is
an express waiver made in court . . . by the party or
his attorney conceding for the purposes of the trial the truth of some alleged
fact . . . [which] is thereafter to be taken for granted; so that the one party
need offer no evidence to prove it and the other is not allowed to disprove it.
9 John H. Wigmore, Evidence in Trials at Common Law §
2588 (James H. Chadbourn rev. 1981). "It is of the nature of an admission,
plainly, that it be by intention an act of waiver relating to the opponent's
proof of the fact and not merely a statement of assertion or concession made
for some independent purpose." Id. at § 2594(2) (footnote omitted).
If the statement is ambiguous it is presumed not to be a judicial admission. Baxter
v. Gannaway, 113 N.M. 45, 50, 822 P.2d 1128, 1133 (Ct. App.), cert.
denied, 113 N.M. 16, 820 P.2d 1330 (1991). Neither is a statement of
opinion a judicial admission. A judicial admission must be a statement of fact
within the speaker's personal knowledge. Derby Meadows Util. Co. v.
Inter-Continental Real Estate, 202 Ill. App. 3d 345, 559 N.E.2d 986, 991,
147 Ill. Dec. 646 (Ill. App. Ct. 1990). The context in which a statement is
made must be considered when determining whether a statement is a judicial
admission. Baxter, 113 N.M. at 50, 822 P.2d at 1133. Also, the doctrine
of judicial admission should not be applied when it is unclear which issue the
party making the statement intended that statement to address. Fletcher v.
Eagle River Memorial Hosp., Inc., 156 Wis. 2d 165, 456 N.W.2d 788, 793
(Wis. 1990). Finally, it is clearly within the trial court's discretion whether
a statement or purported concession should be treated as a judicial admission. See
Wigmore, supra, at §§ 2590, 2591.
{15} Applying the above
principles to the facts before us, we determine that the statement made by
Husband's attorney during trial was not a judicial admission. Counsel's
concession that Wife needed $ 600 a month support was in reference to a trial
court order concerning temporary support. There was no statement by Husband
that there should be an award of permanent support in that or any other amount.
To the contrary, Husband was arguing to the court that Wife had not met the
threshold test of proving her need for permanent support. Husband's argument
and the context of the statement indicate that he intended his statement to go
only to the temporary spousal support being given to Wife. The statement was
neither a clear, unambiguous, unequivocal statement that Wife should receive $
600 a month in permanent spousal support nor a statement of fact known to
Husband personally.
{16} Wife next argues that
the trial court erred in determining the prenuptial agreement was valid. The
following undisputed evidence was before the trial court. Wife and Husband
lived together for three years before they married. Wife was aware of Husband's
{*373} business and financial situation
prior to their marriage. Wife was approximately thirty-four years old at the
time of the marriage. Wife had a college degree in journalism from the
University of Wisconsin. Wife and Husband married in order to assure that their
two-year-old daughter would legally have Husband's name so that problems at
school would be avoided. Husband would not have entered into marriage without a
prenuptial agreement. Husband drafted the prenuptial agreement, asked Wife to
have it reviewed by an attorney of her choice, and then to either sign the
agreement or let Husband know what part was not acceptable to her. After
consulting an attorney of her choice, who explained the agreement to her and
informed her of its effects on her legal rights, Wife signed the agreement.
{17} Although the parties
suggest that we review the findings for substantial evidence, we think on this
record the issue is whether the trial court could have found that Wife failed
to carry her burden of proving that the agreement was invalid by a
preponderance of the evidence.
See Trujillo v. City of Albuquerque, 116
N.M. 640, 648-49,
866 P.2d 368, 376-77 (Ct. App.) (Hartz, J., concurring in
part, dissenting in part) (proper standard of appellate review when evaluating sufficiency-of-the-evidence
contention made on appeal by a party with the burden of proof is whether it was
rational for the fact-finder to find against this party),
cert. denied
(N.M. Nov. 2, 1993);
see also Sosa v. Empire Roofing Co., 110 N.M. 614,
616,
798 P.2d 215, 217 (Ct. App. 1990) (when reviewing a finding made against
the party with the burden of proof, appellate court can affirm if it was
rational for the fact-finder to disbelieve the evidence offered in support of
the finding);
Luchetti v. Bandler, 108 N.M. 682, 684-85,
777 P.2d 1326,
1328-29 (Ct. App.) (trial court not bound to accept a witness's version of the
facts),
cert. denied, 108 N.M. 681,
777 P.2d 1325 (1989). We conclude
that the trial court did not err in so finding.
{18} A prenuptial agreement
is a contract.
Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162, 165 (Pa.
1990). Earlier decisions on prenuptial agreements applied different rules in
analyzing a prenuptial agreement than in analyzing other contracts. Those
decisions "rested upon a belief that spouses are of unequal status and
that women are not knowledgeable enough to understand the nature of contracts
that they enter."
Id. More recent cases rest on different premises.
The following common law rules illustrate these premises:
(1) The proponent has the obligation of establishing
the existence and terms of the agreement, as would be the situation regarding
any other contract.
(2) Where the agreement appears fair and reasonable on
its face, the party claiming the invalidity of the agreement, or a particular
provision, bears the burden of establishing the impropriety of the agreement or
clause.
(3) If the agreement appears unfair on its face, the
burden of proof shifts to the proponent to prove the validity of the agreement,
particularly including that the opponent had full knowledge of the financial
and other relevant circumstances, either as a result of the proponent's
disclosure, or the opponent's independent knowledge.
Alexander Lindey & Louis I. Parley, 3 Lindey on
Separation Agreements and Antenuptial Contracts § 90.12 at 90-106 (1994)
[hereinafter Lindey]; Howell v. Landry, 96 N.C. App. 516, 386 S.E.2d
610, 616 (N.C. Ct. App. 1989) (burden is on the person seeking to hold the
agreement invalid), review and dismissal denied, 392 S.E.2d 90 (1990).
The Uniform Premarital Agreements Act has altered these tests by placing the
burden solely on the opponent of the agreement, with no shift being made for an
agreement being "'unfair on its face.'" Lindey, supra at
90-108. We note that "it is apparent that in the next several decades
debate will continue to rage concerning the proper function of reviewing courts
in resolving the extent to which the special incidents of the premarital
relationship should alter traditional contract analysis." 5 Samuel
Williston, A Treatise on the Law of Contracts § 11:8, at 478 (Richard A.
Lord ed., 4th ed. 1993).
{19} The prevailing standard
of proof, regardless of who bears the burden, is a "'preponderance of the
evidence.'"
Lindey, {*374} supra
at 90-108. Further, a procedural fairness inquiry is appropriate in determining
whether the party claiming invalidity has made a prima facie showing.
Howell,
386 S.E.2d at 615. Procedural fairness is the only inquiry necessary to resolve
the issues raised in this appeal.
{20} In the present case,
Wife claims that she signed the agreement as a result of undue influence,
coercion, overreaching, and misrepresentations exerted by Husband. She offers
as proof of this claim the fact that she wanted to marry to
"legitimize" her daughter, so when Husband presented her with the
agreement he had drafted several days prior to the wedding and told her he
would not marry her without such an agreement being in place, she felt she had
to sign it.
{21} The fact that Husband
personally drafted the agreement does not indicate that the agreement was
unfair or improper, particularly where, as here, Wife had it reviewed by
independent counsel. Neither is the short amount of time between executing the
agreement and the date of the wedding sufficient to demonstrate that Husband
was exercising undue influence, coercion, or overreaching. "The mere
shortness of the time interval between the presentation of the premarital
agreement and the date of the wedding is insufficient alone to permit a finding
of duress or undue influence."
Id. at 617. We thus conclude that
the short time interval and Husband's statement that he would not marry without
a prenuptial agreement are not sufficient in themselves to compel a finding that
the agreement was unfair.
{22} Wife further claims that
Husband's actions forced her to sign the agreement under duress. We are not
persuaded. A lawful demand or a threat to do that which the demanding party has
a right to demand is not sufficient to support a claim of duress.
Liebelt v.
Liebelt, 118 Idaho 845, 801 P.2d 52, 55 (Idaho Ct. App. 1990). "A
threat to do a legal act or subject the party to the legal consequences of a
refusal to make an agreement, is not duress . . . ."
McDonald v.
Carlton, 1 N.M. 172, 177 (1857).
{23} The trial court was also
entitled to reject Wife's claim that she was subjected to Husband's undue
influence. "Undue influence is proven by showing that a person who has
mental capacity to understand, and does understand, what he is doing, and is
compelled by artifice, force or fear to do, what he does not want to do, and
what he would not otherwise do but for such influence."
Liebelt,
801 P.2d at 55. Wife argues that the agreement lacked consideration and was an
unjust or unnatural disposition of property, and that is sufficient to raise a
presumption of undue influence. We agree with Husband that the mutual covenants
allowing each party to protect his or her separate estate are sufficient
consideration. For reasons similar to those explained above, we are unable to
conclude that Husband's threat of refusal to marry absent an executed
prenuptial agreement would constitute "compelling by artifice, force or
fear." We cannot conclude that the trial court was compelled to find
"undue" influence.
{24} Additionally, in keeping
with the trend to apply traditional contract analysis to issues involving
premarital agreements, there is a trend toward allowing the agreement to stand,
even if one party has given up all his or her rights in the property of the
other.
See Newman v. Newman, 653 P.2d 728, 733 (Colo. 1982) (en banc).
In
Newman, the Colorado Supreme Court wrote concerning facts which are
similar to the facts of the present case:
Once the stringent tests of full disclosure and lack of
fraud or overreaching are met, the parties are free to agree to any arrangement
for division of their property, including a waiver of any claim to the property
of the other. . . . We are aware that [Wife] in effect gave up substantial
rights to marital property. However, she was a mature person who had once
before been through the financial difficulties of a divorce. . . . And, she
freely made the decision with full knowledge that her husband was a person of
substantial wealth.
Id. In this case, the trial court made findings that
"Husband made a full disclosure to Wife, prior to the time she executed
the premarital Agreement, as to the nature and extent of his property,"
and that "Wife signed the premarital Agreement freely and {*375} voluntarily after consulting an
attorney of her choice who explained her legal rights to her." Substantial
evidence supports these findings. We conclude the trial court could have found
that Husband satisfied any burden of proof arising as a result of the terms of
the agreement.
{25} Thus, we conclude that
the trial court was entitled to find that Wife failed to carry her burden of
proof in attacking the agreement, and the trial court properly ruled that the
prenuptial agreement controlled disposition of the marital property. Wife's
additional arguments for an award of community property fail under the terms of
the prenuptial agreement, which specifically included all earnings of the
parties to the agreement.
{26} Finally, Wife argues
that the trial court erred both in awarding attorney fees which were
considerably less than those requested at trial and in failing to enter
specific findings on relevant factors to support the award. Because Wife did
not request findings on the specific factors she identified, she cannot on appeal
claim that the trial court failed to enter findings on the proper factors.
Apodaca
v. Payroll Express, Inc., 116 N.M. 816, 825,
867 P.2d 1198, 1207 (Ct. App.
1993); SCRA 1986, 1-052(B)(1)(f) (Repl. 1992) (a party will waive specific
findings of fact and conclusions of law if he fails to make a general request
therefor in writing, or if he fails to tender specific findings and
conclusions).
{27} The standard of review
on an appeal of an award of attorney's fees is that such an award will be
upheld unless it constitutes an abuse of discretion.
Hakkila v. Hakkila,
112 N.M. 172, 179,
812 P.2d 1320, 1327 (Ct. App.),
cert. denied, 112
N.M. 77,
811 P.2d 575 (1991). Husband takes the position that the majority of
the fees requested by Wife were spent in pursuit of the community property
claim which was foreclosed by the prenuptial agreement. Wife states that her
legal argument attempted to expand the law, because she urged the trial court
to impute income to Husband by analogizing the child support obligation when a
parent chooses to be underemployed to Husband's obligations to the community by
having chosen to be underemployed. Thus, she contends, additional attorney fees
should have been awarded. Since the prenuptial agreement specifically
controlled the parties' earnings, the trial court properly determined that the
foregoing argument lacked merit. In its award of attorney fees the trial court
indicated that it was familiar with the fees connected with this kind of case.
The court went on to state that it was going to award $ 2,800 in attorney fees
for the preparation of those issues in Wife's case in which the court found
merit. We conclude that the trial court did not abuse its discretion in its
award of attorney fees.
{28} The trial court considered
the proper factors when determining that Wife should not receive spousal
support, and it was entitled to conclude that she failed to carry her burden of
proof in challenging the prenuptial agreement. Because the agreement was valid,
the court properly ruled against Wife's community property claims. The trial
court did not abuse its discretion in its award of attorney fees. Therefore, we
affirm its decision.
PAMELA B. MINZNER, Chief Judge