Grey, Judge.
This is an appeal from a judgment entered by the Ross County Court of Common Pleas, Probate Division. The trial court found that an antenuptial agreement entered into between Christie Rowland, appellant, and the decedent, Robert 0. Rowland, Jr., was valid and enforceable. We reverse.
Christie Rowland assigns the following error, which is phrased as follows:
“Whether considering the totality of the circumstances the court erred as a matter of law in upholding the validity of the antenuptial agreement between appellant and her deceased husband.”
On June 6, 1987, Robert 0. Rowland, Jr. died intestate as a result of an accidental drowning. He was survived by his spouse, appellant Christie Rowland, their minor child, Heath Z. Rowland, and his parents, appellees Robert 0. Rowland, Sr. and Anita Rowland. On June 29, 1987, appellee Robert 0. Rowland, Sr. filed an application for authority to administer the decedent’s estate.
On July 20,1987, Christie Rowland filed an amended complaint on behalf of herself in her individual capacity, as well as next friend of Heath Z. Rowland, naming appellees Robert 0. Rowland, Sr., in both his individual capacity and his capacity as administrator of his son’s estate, and Anita Rowland as party defendants. Christie Rowland prayed for a judgment declaring the antenuptial agreement between herself and the decedent to be invalid.
On December 2 and 7,1987, a trial was held on Rowland’s complaint and the following evidence was adduced. On February 7, 1986, Rowland met the decedent on a blind date. In June 1986, she graduated from Circleville High School. In mid-August 1986, she discovered that she was pregnant. After she told the decedent of her pregnancy, they decided to get married. On August 29, 1986, the decedent met with attorney John Blair to discuss the preparation of an antenuptial agreement.
On or about August 30, 1986, the decedent told Rowland that he had a “paper” she needed to sign. He said that the paper would protect appellees if the marriage ended in divorce, and that it would protect her from the decedent’s family’s debts if the marriage ended. He also said that if she did not sign the paper, he would not marry her. The decedent told Rowland that he had scheduled an appointment with Blair for them to sign the agreement.
On September 2, 1986, the decedent and Rowland went to Blair’s office. Blair showed them a rough draft of an antenuptial agreement which did not include a disclosure of their property. At that time, the only property that appellant owned was her clothing and personal effects. Rowland heard the decedent tell his attorney about the property in which he had an interest as well as the approximate values of each item of property. These figures were added into the antenuptial agreement and after the decedent and Rowland read the agreement, they signed it. The parties to the agreement married three days later.
Robert 0. Rowland, Jr. died approximately eleven months after the marriage. The antenuptial agreement noted that a full and complete disclosure of all property owned by the parties had been made to each party and contained an itemized list of the decedent’s property, listing his property’s net worth as $151,000.
Blair testified that he asked Rowland and decedent if they understood the agreement or had any questions about it. He testified that he did not advise Rowland of her right to independent legal counsel since she seemed to go along with the agreement. Blair testified that Rowland was suffering from no observable physical or mental defect, that she made no complaints about being ill, and that she had the full opportunity to read the entire antenuptial agreement and question him about the agreement. Finally, Blair opined that Rowland realized that she was signing away certain rights to the decedent’s property.
Patty Junk, Blair’s secretary, testified that appellant appeared to be physically normal, that she had no apparent problems in comprehending or understanding what she was to do, and that she did not appear to be under any threat, duress, or coercion when she signed the antenuptial agreement.
Rowland testified that she was eighteen years old when she signed the agreement and that she was very sick that day due to morning sickness. She said that although she read the entire antenuptial agreement, she did not understand all of the words and that no one explained the agreement to her.
On February 2, 1988, the trial court entered a judgment which determined that the antenuptial agreement was valid and dismissed Rowland’s complaint for a declaratory judgment. On February 9, 1988, Rowland filed a Civ.R. 52
request for findings of fact and conclusions of law. On February 29, 1988, Rowland filed a notice of appeal from the trial court’s February 2, 1988 judgment.
On March 7, 1988, the trial court overruled Rowland’s request for findings of fact and conclusions of law on the basis that the appeal divested it of jurisdiction. In
Rowland v. Rowland
(Oct. 30, 1989), Ross App. No. 1488, unreported, 1989 WL 128897, this court dismissed Rowland’s prior appeal and remanded the case to the trial court in order for the court to make the required findings of facts and conclusions of law.
On January 26, 1990, the trial court issued findings of fact and conclusions of law. The trial court concluded that the antenuptial agreement was valid because the parties freely entered into the agreement without fraud, duress, coercion or overreaching. The court further found that there was a full disclosure of the parties’ property, that the terms of the agreement did not promote or encourage divorce or profiteering by divorce, and that the parties to the agreement were of full age, in complete possession of their faculties, and able to read, write and fully understand the contents and significance of the antenuptial agreement.
Rowland’s sole assignment of error asserts that, when considering the totality of the circumstances, the trial court erred as a matter of law in upholding the validity of the antenuptial agreement between herself and the decedent.
An antenuptial agreement is a contract entered into between a man and a woman in contemplation and consideration of their future marriage, whereby the property rights and economic interests of either the prospective husband or wife, or both, are determined and set forth.
McDole v. McDole
(July 7, 1990), Washington App. No. 89 CA 16, unreported, 1990 WL 105436. These agreements may include provisions concerning the disposition or devolution of property and payments for sustenance upon the death of one or other of the spouses, or provisions for the distribution of property and the sustenance or maintenance of one or other of the spouses, upon a separation or divorce, or any combination of the concerns between the parties.
Gross v. Gross
(1984), 11 Ohio St.3d 99, 11 OBR 400, 464 N.E.2d 500. The provisions at issue in this agreement involve the unilateral release of Rowland's marital rights upon the decedent’s death.
Although antenuptial agreements are not
per se
invalid, they must meet certain minimum standards of good faith and fair dealing.
Zimmie v. Zimmie
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Grey, Judge.
This is an appeal from a judgment entered by the Ross County Court of Common Pleas, Probate Division. The trial court found that an antenuptial agreement entered into between Christie Rowland, appellant, and the decedent, Robert 0. Rowland, Jr., was valid and enforceable. We reverse.
Christie Rowland assigns the following error, which is phrased as follows:
“Whether considering the totality of the circumstances the court erred as a matter of law in upholding the validity of the antenuptial agreement between appellant and her deceased husband.”
On June 6, 1987, Robert 0. Rowland, Jr. died intestate as a result of an accidental drowning. He was survived by his spouse, appellant Christie Rowland, their minor child, Heath Z. Rowland, and his parents, appellees Robert 0. Rowland, Sr. and Anita Rowland. On June 29, 1987, appellee Robert 0. Rowland, Sr. filed an application for authority to administer the decedent’s estate.
On July 20,1987, Christie Rowland filed an amended complaint on behalf of herself in her individual capacity, as well as next friend of Heath Z. Rowland, naming appellees Robert 0. Rowland, Sr., in both his individual capacity and his capacity as administrator of his son’s estate, and Anita Rowland as party defendants. Christie Rowland prayed for a judgment declaring the antenuptial agreement between herself and the decedent to be invalid.
On December 2 and 7,1987, a trial was held on Rowland’s complaint and the following evidence was adduced. On February 7, 1986, Rowland met the decedent on a blind date. In June 1986, she graduated from Circleville High School. In mid-August 1986, she discovered that she was pregnant. After she told the decedent of her pregnancy, they decided to get married. On August 29, 1986, the decedent met with attorney John Blair to discuss the preparation of an antenuptial agreement.
On or about August 30, 1986, the decedent told Rowland that he had a “paper” she needed to sign. He said that the paper would protect appellees if the marriage ended in divorce, and that it would protect her from the decedent’s family’s debts if the marriage ended. He also said that if she did not sign the paper, he would not marry her. The decedent told Rowland that he had scheduled an appointment with Blair for them to sign the agreement.
On September 2, 1986, the decedent and Rowland went to Blair’s office. Blair showed them a rough draft of an antenuptial agreement which did not include a disclosure of their property. At that time, the only property that appellant owned was her clothing and personal effects. Rowland heard the decedent tell his attorney about the property in which he had an interest as well as the approximate values of each item of property. These figures were added into the antenuptial agreement and after the decedent and Rowland read the agreement, they signed it. The parties to the agreement married three days later.
Robert 0. Rowland, Jr. died approximately eleven months after the marriage. The antenuptial agreement noted that a full and complete disclosure of all property owned by the parties had been made to each party and contained an itemized list of the decedent’s property, listing his property’s net worth as $151,000.
Blair testified that he asked Rowland and decedent if they understood the agreement or had any questions about it. He testified that he did not advise Rowland of her right to independent legal counsel since she seemed to go along with the agreement. Blair testified that Rowland was suffering from no observable physical or mental defect, that she made no complaints about being ill, and that she had the full opportunity to read the entire antenuptial agreement and question him about the agreement. Finally, Blair opined that Rowland realized that she was signing away certain rights to the decedent’s property.
Patty Junk, Blair’s secretary, testified that appellant appeared to be physically normal, that she had no apparent problems in comprehending or understanding what she was to do, and that she did not appear to be under any threat, duress, or coercion when she signed the antenuptial agreement.
Rowland testified that she was eighteen years old when she signed the agreement and that she was very sick that day due to morning sickness. She said that although she read the entire antenuptial agreement, she did not understand all of the words and that no one explained the agreement to her.
On February 2, 1988, the trial court entered a judgment which determined that the antenuptial agreement was valid and dismissed Rowland’s complaint for a declaratory judgment. On February 9, 1988, Rowland filed a Civ.R. 52
request for findings of fact and conclusions of law. On February 29, 1988, Rowland filed a notice of appeal from the trial court’s February 2, 1988 judgment.
On March 7, 1988, the trial court overruled Rowland’s request for findings of fact and conclusions of law on the basis that the appeal divested it of jurisdiction. In
Rowland v. Rowland
(Oct. 30, 1989), Ross App. No. 1488, unreported, 1989 WL 128897, this court dismissed Rowland’s prior appeal and remanded the case to the trial court in order for the court to make the required findings of facts and conclusions of law.
On January 26, 1990, the trial court issued findings of fact and conclusions of law. The trial court concluded that the antenuptial agreement was valid because the parties freely entered into the agreement without fraud, duress, coercion or overreaching. The court further found that there was a full disclosure of the parties’ property, that the terms of the agreement did not promote or encourage divorce or profiteering by divorce, and that the parties to the agreement were of full age, in complete possession of their faculties, and able to read, write and fully understand the contents and significance of the antenuptial agreement.
Rowland’s sole assignment of error asserts that, when considering the totality of the circumstances, the trial court erred as a matter of law in upholding the validity of the antenuptial agreement between herself and the decedent.
An antenuptial agreement is a contract entered into between a man and a woman in contemplation and consideration of their future marriage, whereby the property rights and economic interests of either the prospective husband or wife, or both, are determined and set forth.
McDole v. McDole
(July 7, 1990), Washington App. No. 89 CA 16, unreported, 1990 WL 105436. These agreements may include provisions concerning the disposition or devolution of property and payments for sustenance upon the death of one or other of the spouses, or provisions for the distribution of property and the sustenance or maintenance of one or other of the spouses, upon a separation or divorce, or any combination of the concerns between the parties.
Gross v. Gross
(1984), 11 Ohio St.3d 99, 11 OBR 400, 464 N.E.2d 500. The provisions at issue in this agreement involve the unilateral release of Rowland's marital rights upon the decedent’s death.
Although antenuptial agreements are not
per se
invalid, they must meet certain minimum standards of good faith and fair dealing.
Zimmie v. Zimmie
(1984), 11 Ohio St.3d 94, 11 OBR 396, 464 N.E.2d 142. The parties to an antenuptial agreement are in a fiduciary relationship to one another and,
thus, are under a mandatory duty to act in good faith with a high degree of fairness and disclosure of all circumstances which materially bear on the antenuptial agreement.
Gross, supra,
11 Ohio St.3d at 108, 11 OBR at 408, 464 N.E.2d at 508. See, also,
Cohen v. Estate of Cohen
(1986), 23 Ohio St.3d 90, 23 OBR 218, 491 N.E.2d 698.
Zimmie, Gross,
and
Cohen, supra,
set out the standard of review for antenuptial agreements. This standard differs from the standard used for ordinary contracts, where a court will not inquire into motive, extent of knowledge, consideration, etc. For antenuptial agreements, there is a different standard. It is set out in
Zimmie,
11 Ohio St.3d at 98, 11 OBR at 400, 464 N.E.2d at 146:
“Although antenuptial agreements are not
per se
invalid, they must meet certain minimum standards of good faith and fair dealing. If the agreement is fair and reasonable under the circumstances, it will be deemed enforceable.”
The trial court did not apply this standard in reaching its decision in this case.
A caveat should be injected here. The
Gross
and
Zimmie
cases are in a line of cases where the standard for antenuptial agreements has changed somewhat. In
Juhasz v. Juhasz
(1938), 134 Ohio St. 257, 12 O.O. 57, 16 N.E.2d 328, the court required that an antenuptial agreement be essentially equitable, by stating in paragraph two of the syllabus:
“An antenuptial contract voluntarily entered into during the period of engagement is valid when the provision for the wife is fair and reasonable under all the surrounding facts and circumstances.”
In
Troha v. Sneller
(1959), 169 Ohio St. 397, 402, 8 O.O.2d 435, 437, 159 N.E.2d 899, 903, the court held there was no statutory or public policy prohibition against waiving any particular right arising out of the marriage contract if “ * * * it was the plain intention of the parties to accomplish that object.”
In
Hook v. Hook
(1982), 69 Ohio St.2d 234, 23 O.O.3d 239, 431 N.E.2d 667, the court backed away from the entirely equitable standard of review of antenuptial agreements. In light of
Troha,
which held that the parties could agree to whatever they wanted, the
Hook
court emphasized a voluntariness standard.
In
Gross, supra,
the court said, at 11 Ohio St.3d at 108, 11 OBR at 409, 464 N.E.2d at 509:
“At the outset it must be restated that upon a judicial review of any such agreement, it must meet the general tests of fairness as referred to previously, and must be construed within the context that by virtue of their anticipated
marital status, the parties are in a fiduciary relationship to one another. The parties must act in good faith, with a high degree of fairness and disclosure of all circumstances which materially bear on the antenuptial agreement.”
The change from an entirely equitable standard of review was the basis for the dissents by William Brown, J., in
Hook,
and by Celebrezze, C.J., and C. Brown, J., in
Gross,
but these dissents serve to emphasize what the court was holding. In short, the court said it would not look so much at the fairness of the terms of the antenuptial agreement, but would look at the fairness in making it.
The Supreme Court followed and quoted
Gross
in
Cohen, supra,
and then added, at 23 Ohio St.3d at 92, 23 OBR at 220, 491 N.E.2d at 700:
“The fiduciary relationship and requirement of
good faith and fairness which exists in the making
of the antenuptial agreement does not cease to exist upon performance of that agreement.” (Emphasis added.)
The
Gross
case sets out three criteria in paragraph two of the syllabus, but only the first is relevant here,
i.e.,
“(1) if they have been entered into freely without fraud, duress, coercion, or overreaching.”
Id.
There was no evidence of fraud here. There
was
evidence of what might be characterized as duress or coercive circumstances: appellant’s age, lack of experience, morning sickness, and indeed the pregnancy itself. But those circumstances are issues of fact, and we are bound by the findings of the trial court where there is evidence in the record to support the trial court’s decision.
Seasons Coal Co. v. Cleveland
(1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273. See, also,
Bechtol v. Bechtol
(1990), 49 Ohio St.3d 21, 550 N.E.2d 178. The trial court’s finding that there was not sufficient proof of duress or coercion relied on the well-established presumption that signing means consent and upheld the contract. I believe this is where the trial court erred, by not considering overreaching.
The
Gross
case speaks of “overreaching” and says that “[t]he parties must act in good faith, with a high degree of fairness * * * .”
Id.
at 108, 11 OBR at 409, 464 N.E.2d at 509. The trial court found that there was no overreaching by the decedent and that he acted with a high degree of fairness. The record in this case is absolutely devoid of any evidence to support the trial court’s findings and, significantly, the trial court’s finding of fact and conclusions of law make no reference to any evidence demonstrating good faith.
There is evidence of overreaching. The agreement was prepared entirely by decedent’s counsel, without any input from appellant. The trial court put great emphasis on the testimony of attorney Blair that appellant appeared to understand the agreement, and that she was given the opportunity to ask
questions. To have upheld this agreement, the court would have to have found that Blair, her fiance’s attorney, adequately advised her.
Dual representation always presents this kind of problem.
EC 5-15 of the Code of Professional Responsibility states:
“If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation.”
There is no evidence in the record that Blair considered that his judgment and ability to adequately explain the terms of the agreement might be impaired.
Dual representation is not invalid
per se,
but EC 5-16 goes on to say how these matters should be handled:
“In those instances in which a lawyer is justified in representing two or more clients having differing interests, it is nevertheless essential that each client be given the opportunity to evaluate his need for representation free of any potential conflict and to obtain other counsel if he so desires. Thus before a lawyer may represent multiple clients, he should explain fully to each client the implications of the common representation and should accept or continue employment only if the clients consent.”
There is evidence in the record that Blair did not fully explain the potential conflict or recommend that appellant obtain other counsel before signing the agreement:
“Q. I notice in your draft of your pre-marital agreement there is no attorney conflict of interest provision nor is there any provision relating to the fact that Mrs., well, Christie at any time, had a right to any legal counsel. Was anything that you recall explained to her about her right of representation?
“A. I don’t remember anything along those lines, but that again is possible and I am sure that if she had asked me I would have told her that she did.
“Q. But you didn’t feel that you should advise her that she did have a right at that time to seek counsel?
“A. I feel that everybody really knows that. At least that is my basic experience with people coming into my office, is that people who aren’t mentally retarded generally know that they have a right to see a lawyer if they want to.”
Appellee asserts that the trial court was justified in finding that Christie’s signing was knowing and voluntary because during the time she spent in Blair's office she was given the opportunity to ask questions. Implicit in that contention is the assumption that an eighteen-year-old girl would know what questions to ask.
Blair testified:
“Q. Did you explain in any manner in laymans [sic] terms let’s say, the effect of that agreement?
“Specifically let me say with reference to waiver of marital rights upon death of a spouse?
“A. I think that I said that if her husband wanted to make a will leaving her something other than what he had agreed to do in that agreement that he could do so.
“Q. Okay, but there was no discussion about waiver of specific surviving spouse rights that you recall?
“A. No. Not as far as I can recall. Unless she asked a question about it, I answered it
and I don’t recall her asking a question about anything.
Although she might have but I don’t recall.” (Emphasis added.)
Further on there is this testimony:
“Q. Let me ask you this, did you explain to her that by signing this agreement she not only waived her statutory rights as a spouse but also her right to any alimony upon a divorce?
“A. If, I explained it to her from the standpoint that I had her read the agreement and I think that the agreement speaks to those terms.”
Blair also testified that he did not know that Christie was pregnant, a factor any attorney would want to know before advising a client on any prenuptial agreement. With a child on the way, the parties’ relative interests are considerably different, and with this soon-to-be-born third party, the potential conflict of interest is even greater. But again, there was no disclosure.
We have this testimony from Blair:
“Q. Would you agree with me that it might have been or could have been a better practice to include an attorney conflict of interest in this agreement?
“A. I didn’t really think so under the circumstances. You know, it is, hindsight is a wonderful thing but here was a young couple, they were anxious to get married and yet
for some reason
they wanted this agreement or I don’t know whether they both wanted it, but
the husband wanted it and the wife seemed to be willing to go along with it.”
(Emphasis added.)
It is not this court’s purpose to point out Blair’s failure to know the underlying facts or reasons for making the agreement, nor his failure to advise Christie of the rights she was giving up in this agreement. Rather, we emphasize the above facts to show that the trial court could not have found, using the standard set out in
Gross,
that these facts establish “[t]he fiduciary relationship and requirement of good faith and fairness which exists in the making of the antenuptial agreement * * *.”
Cohen, supra,
23 Ohio St.3d at 92, 23 OBR at 220, 491 N.E.2d at 700.
There was testimony from Christie Rowland that she really did not understand the agreement, and the trial court was free to believe or not believe her. But in a case involving a prenuptial agreement, a court must go on to find evidence of good faith and fair dealing. The trial court did not so find, but instead relied on the ordinary standard for contractual consent when it found in Conclusion of Law No. 6:
“The parties to the agreement were of full age, in complete possession of their faculties, able to read and write and fully understand the contents and significance of the document.”
This case cannot be reconciled with
Zimmie, Gross,
or
Cohen, supra.
Even in
Hook, supra,
the case closest on the facts here, the court noted that Hook entered into the agreement with full knowledge and that:
“Also appellee has an extensive background in legal matters, acting as administratrix of her second husband’s estate (Bates), and having dealings in real estate, and rental property. This circumstance indicates appellee fully understands the significance of legal documents.”
Id.,
69 Ohio St.2d at 238, 23 O.O.3d at 241, 431 N.E.2d at 670, fn. 3.
Not even by
Hook
standards can this prenuptial agreement be upheld.
If Christie Rowland had been handed this agreement and told to sign, as in
Hook,
perhaps the trial court would have been justified in holding that she was bound by the agreement, and any failure to read or understand it was hers. However, in this case appellant’s signature was obtained only after being “advised” in Blair’s office, a procedure in clear violation of the Canons of Ethics. This pro forma exercise cannot be proof of Christie’s knowing, intelligent and voluntary consent to the agreement, but only proof of overreaching as a matter of law.
Christie Rowland’s assignment of error is well taken and is sustained. The judgment of the trial court is reversed and the matter is remanded to the trial court with instructions to enter a finding that the antenuptial agreement between Christie and Robert O. Rowland, Jr. is invalid.
Judgment reversed and cause remanded.
Harsha, J., concurs in judgment only.
Stephenson, P.J., dissents.