Parkhurst v. Gibson

573 A.2d 454, 133 N.H. 57, 1990 N.H. LEXIS 35
CourtSupreme Court of New Hampshire
DecidedApril 13, 1990
DocketNo. 89-325
StatusPublished
Cited by29 cases

This text of 573 A.2d 454 (Parkhurst v. Gibson) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parkhurst v. Gibson, 573 A.2d 454, 133 N.H. 57, 1990 N.H. LEXIS 35 (N.H. 1990).

Opinion

JOHNSON, J.

The plaintiff appeals the Superior Court’s (Perkins, J.) decision, approving the recommendation of a Master (Larry B. Pletcher, Esq.), to award the defendant in this divorce action a prop[58]*58erty settlement of $35,000 and alimony of $500 per month. At issue on appeal is the application of the parties’ antenuptial agreement to their divorce proceedings. For the reasons stated below, we affirm the trial court’s ruling that the agreement was not made in contemplation of divorce and was therefore not applicable.

Because it is important to view a contract as a whole, we set forth the entire antenuptial agreement:

“This agreement made this fourteenth day of November, 1980, by and between Erwin L. Parkhurst of Colebrook in the County of Coos and State of New Hampshire, hereinafter referred to as party of the first part, and Mildred D. Gibson of Pittsburg in said County of Coos and State of New Hampshire, hereinafter referred to as party of the second part,
WITNESSETH:
WHEREAS, a marriage is about to be solemnized between the parties to this agreement, and
WHEREAS, each of said parties has consented and agreed, each with the other, that neither of them shall have possession nor acquire any interest or estate in any property, real or personal, or right of action, of which the other of them is, or shall be, at the time of said marriage seized or possessed, and
WHEREAS, the parties hereto, in consideration of said marriage, have made a full and complete disclosure to each other as to their respective worldly possessions and each has full knowledge as to the extent and probable value of the real estate and other possessions of the other, and
WHEREAS, said parties are desirous of making a settlement one upon the other in lieu of all rights of dower, homestead, distributive share and all other marital rights by virtue of the laws of the State of New Hampshire, or of any other state or country;
NOW THEREFORE, in consideration of the respective agreements of each party to the other and the settlement each has made upon the other and acknowledging that each has made a full disclosure to the other as to their respective worldly possessions, it is mutually agreed by and between the parties hereto as follows:
[59]*591. The party of the second part agrees to and with the said Erwin L. Parkhurst that in the event of his death, testate or intestate, she will not contest his Will, if any, nor make any claim to his estate whatsoever; that she will accept such provision as may be made for her in his said Will and further that it shall be the same so far as the parties to this instrument are concerned as if he had died leaving no widow surviving him, even in the event of her surviving him.
2. The party of the first part agrees to and with the said Mildred D. Gibson that in the event of her death, testate or intestate, he will not contest her Will, if any, nor make any claim to her estate whatsoever; that he will accept such provision as may be made for him in her said Will and further that it shall be the same so far as the parties to this instrument are concerned as if she had died leaving no widower surviving her, even in the event of his surviving her.
3. It is mutually agreed that in case either of the parties desires to mortgage or sell and convey his or her real estate or personal estate, each one will join in the deed of conveyance or mortgage, as may be necessary to make the same effectual.
4. The parties mutually agree and do hereby release, convey and quitclaim unto the other all their respective interest that he or she may acquire by the said intermarriage in and to the property of the other, now in his or her possession, or what each may hereafter acquire renouncing forever all claims, either in law or in equity, of curtesy, homestead, surviving or otherwise; to the end that neither party shall have or claim any interest in or to the property now owned or which may hereafter be acquired by the other.
5. It is mutually declared that it is the intention of the parties to this agreement that by virtue of their prospective marriage neither one shall have nor acquire any right, title or claim in and to the real or personal estate of the other party, but that the estate of each shall descend to or vest in his or her heirs at law, legatees, or devisees, as may be prescribed by his or her last will and testament or [60]*60by the law of the state in force, as though no marriage had taken place between them.
This agreement shall be construed to come within the provisions of Sections 15 and 16 of Chapter 560 of the Revised Statutes Annotated of New Hampshire, 1955, and any amendments thereof, and shall be given in full force and effect and shall be enforced as provided in said statutes, it being the desire of the parties hereto that their respective rights to the estate of the other be determined, fixed and limited by this agreement; and that this agreement shall be binding upon their respective heirs and legal representatives.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals at Berlin, New Hampshire, this fourteenth day of November, 1980.”

The parties were married on November 25,1980. Mildred D. Gibson (Parkhurst) (hereinafter Mildred) was the second wife of Erwin L. Parkhurst (hereinafter Erwin), and Erwin was Mildred’s fourth husband. Mildred lost one of her prior husbands through death; the other two marriages ended in divorce, as did Erwin’s first marriage. Both parties have children born of these prior marriages.

Erwin and Mildred both testified at the March 21, 1989 hearing that they signed the antenuptial agreement at least in part to protect the inheritance rights of their respective children. Mildred repeatedly testified that the agreement was made in contemplation only of death, and not of divorce. Erwin, however, testified that the agreement was meant to keep the parties’ financial lives forever separate, no matter how the marriage ended. The master concluded that “both parties have testified that the circumstance of divorce was not within their contemplation and was not mentioned to counsel in preparation or execution of this agreement.”

On October 7,1988, after Erwin and Mildred had filed for divorce, the parties’ attorneys signed an “AGREED STATEMENT OF FACTS” which provided, among other things, that: (1) the attorney who drafted the antenuptial agreement had previously represented Erwin, but had never previously represented Mildred; (2) the attorney believed he was representing both parties in effecting a mutually desired agreement and that, as a consequence, Mildred was neither advised to, nor did she, obtain independent counsel; (3) the parties represented to the attorney that the purpose of the antenuptial agreement “was to protect their respective children’s interests in [61]*61their estates”; (4) the attorney explained to Erwin and Mildred “that neither party would acquire any interest in the property of the other unless an inter vivos gift was made to the other”; and (5) the attorney, during the preparation and execution of the agreement, “did not discuss divorce as a probable or possible cause for the termination of the marriage.”

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Cite This Page — Counsel Stack

Bluebook (online)
573 A.2d 454, 133 N.H. 57, 1990 N.H. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parkhurst-v-gibson-nh-1990.