Baer v. Cabiran-Baer

44 So. 3d 840
CourtLouisiana Court of Appeal
DecidedJuly 28, 2010
Docket2009-CA-1484
StatusPublished
Cited by1 cases

This text of 44 So. 3d 840 (Baer v. Cabiran-Baer) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baer v. Cabiran-Baer, 44 So. 3d 840 (La. Ct. App. 2010).

Opinion

*843 MICHAEL E. KIRBY, Judge.

_JjAt issue in this appeal is the validity of a premarital agreement (“the agreement”) signed by the plaintiff, Joseph L. Baer (“Mr.Baer”), and the defendant, Sylvia C. Cabiran (“Ms.Cabiran”). Following a trial, the trial court concluded the agreement was valid and, pursuant thereto, rendered a judgment ordering Mr. Baer to pay Ms. Cabiran spousal support and attorney’s fees. Mr. Baer appealed the judgment and another judgment denying his motion for a new trial. 1 For the reasons that follow, we affirm the trial court judgments.

FACTS AND PROCEDURAL HISTORY

Mr. Baer and Ms. Cabiran met in 2001. At the time, Ms. Cabiran was a forty-seven year-old licensed attorney and Mr. Baer was a twenty-seven year-old licensed riverboat captain. The parties dated for several months before deciding to marry in December, 2001. 2 Several days prior to their wedding, Mr. Baer told Ms. Cabiran that he wanted to enter into an antenuptial agreement to reserve their ^respective property as separate. To save the costs of an attorney, he suggested that Ms. Cabi-ran draft the agreement.

Together, the parties went to Loyola Law Library where they researched and reviewed several premarital contracts. After Mr. Baer had expressed the terms he wanted in the contract, Ms. Cabiran drafted the agreement. Reviewing the initial draft, Mr. Baer objected to the child and spousal support provisions. Ms. Cabi-ran revised the draft and gave a copy to Mr. Baer. Because she had no experience ■writing premarital contracts, Ms. Cabiran told Mr. Baer that she wanted an experienced attorney to review her draft of the agreement before they signed it. Mr. Baer agreed.

Ms. Cabiran called Lindsey Ladouceur, an attorney who specialized in marriage and family law, and asked her to review the draft of the premarital agreement. Ms. Ladouceur had Ms. Cabiran fax the proposed agreement to her office. Several days later, Ms. Ladouceur called Ms. Cabi-ran, informing her that she had made a few changes, and suggested that she come to her office to review the changes.

Mr. Baer never retained his own attorney to review Ms. Cabiran’s draft of the agreement. He did, however, go with Ms. Cabiran to Ms. Ladouceur’s office on December 19, 2001, to review the agreement. Although Ms. Ladouceur went over the agreement she had prepared, the parties left her office without signing it. 3

*844 |sThe parties returned home where Ms. Cabiran made copies of the agreement she herself had drafted. They later brought the original document and copies to a notary public kiosk in Lakeside Mall where they executed the agreement before a notary and two witnesses. Paragraphs 15 and 33 of the agreement, the provisions in dispute, provide as follows:

15. SPOUSAL SUPPORT. In the event of divorce, dissolution of marriage, separation, or similar proceedings are filed by either party in any state or country, the parties agree that neither party will request or receive alimony or support, whether temporary, rehabilitative, permanent, or lump sum. In consideration for not requesting alimony or other support under any of the proceedings named above, the Husband shall pay to the Wife a sum equal to $20,000 per year paid in equal monthly installments until the death or remarriage of the Wife or upon the death of the Husband, which ever occurs first. In the event that the Husband is earning more than twice as much as the Wife, then the spousal support amount shall be increased and based on the parties’ standard of living. In the event that the Wife is earning a stable yearly salary that is more than the Husband’s salary, and the Husband is working at a fair market salary, then the spousal support terms for the Husband to pay the Wife shall not apply.
⅜ * * * * *
33. ATTORNEY’S FEES IN ENFORCEMENT. A party who fails to comply with any provision or obligation contained in this agreement shall pay the other party’s attorneys’ fees, costs, and other expenses reasonably incurred in enforcing this agreement and resulting from the noncompliance.

The parties recorded the executed agreement in the public records on December 19, 2001, and were married the next day.

On January 3, 2007, Mr. Baer filed a petition for divorce. Ms. Cabiran timely filed an answer and reconventional demand, seeking to enforce the Lpremarital agreement. At a hearing on March 26, 2007, Ms. Cabiran submitted her state and federal income tax returns as proof of her income, but Mr. Baer had no proof of his income. Nonetheless, the trial court rendered a judgment of divorce on April 3, 2007, and directed Mr. Baer to commence paying spousal support in accord with the agreement.

When Ms. Cabiran received no spousal support, she filed a motion to make the premarital agreement a judgment of the Court. She later filed a rule for contempt, which the trial court granted on June 18, 2007. When Mr. Baer discovered a warrant had been issued for his arrest, he arranged for his employer to pay Ms. Ca-biran $1,000.00 and agreed to a wage garnishment for future payments. The day after the wage garnishment went into effect, Mr. Baer quit his job. However, Ms. Cabiran did receive $77.00 as a result of the wage garnishment.

Over the next year and a half, the dispute escalated with the parties’ filing numerous pleadings, discovery motions, and rules for contempt. In February 2009, Mr. Baer, who by then had retained a new attorney, filed a motion for new trial after being held in contempt and a motion for summary judgment. He also filed a petition to nullify the premarital agreement on the grounds of fraud, error and duress.

The trial court granted Mr. Baer a new trial. Following the trial on March 30, 2009, the trial court concluded the premarital agreement was valid, as the parties had a meeting of the minds regarding the terms of the agreement. The terms, the *845 court found, were clear, unambiguous, and not against public policy. The court also concluded there was no evidence of fraud, error, failure of cause, or duress to vitiate Mr. Baer’s consent to the agreement. Thus, the trial court rendered the judgment ordering Mr. Baer to pay Ms. Cabi-ran $33,200.00 in |.^accrued monthly spousal support; $22,000.00 in attorney fees; and $1,666.67 in monthly spousal support, beginning April 1, 2009 until her death or remarriage. Mr. Baer filed another motion for a new trial, which the trial court denied. This appeal followed.

ISSUES

On appeal, Mr. Cabiran raises eleven assignments of error:

1. The trial court erred in finding no fraud, error or duress on the part of Ms. Cabiran;
2. The trial court erred in finding that a child conception provision must be included within the premarital agreement to render the same the object of the agreement;
3. The trial court erred in finding that Ms. Cabiran did not have an unfair advantage as drafter of the agreement;
4.

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Bluebook (online)
44 So. 3d 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baer-v-cabiran-baer-lactapp-2010.