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Uniform Premarital Agreements+California

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Uniform Premarital Agreements+California Powered By Docstoc
					Filed 4/12/99

                           CERTIFIED FOR PUBLICATION
                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                             FIRST APPELLATE DISTRICT
                                     DIVISION TWO


In re the Marriage of SUSANN MARGRETH
and BARRY LAMAR BONDS.


SUSANN MARGRETH BONDS,
                                                      A075328/A076586
        Appellant,
                                                      (San Mateo County
        v.
                                                      Super. Ct. No. F-19162)
BARRY LAMAR BONDS,
        Respondent.


        Prenuptial agreements have become common, but there is little case law setting
forth standard requirements to assure the enforcement of such contracts. Despite
adoption of the Uniform Premarital Agreement Act (UPAA) by many states, uniform
standards regarding enforcement have yet to be universally realized. Accordingly,
analyses of the enforceability of premarital contracts by the courts have, thus far,
continued to be ad hoc, often inconsistent, and sometimes contradictory. In this opinion
we consider the prerequisites to the enforceability of such agreements and offer guidance
to the parties and practitioners who seek to employ them.
        Judicial review of these agreements, undertaken in the difficult circumstances of
marital dissolution and under greatly changed circumstances, sometimes results in judges‘
enforcing or voiding such contracts based on their personal assessments of the prudence
of the parties who made them. Such results are too often dependent upon a particular
judge‘s value judgments rather than upon uniform rules of law. Other judges have
attempted to achieve more uniform results by simply applying the general law governing


                                              1
commercial contracts to all premarital agreements, thus ignoring the public policy
concerns particular to family law matters. Neither approach has proved satisfactory.
       The desire for uniformity in the enforcement of these agreements should not
obscure society‘s paramount interest in contracts governing families and the institution of
marriage. For it cannot be forgotten that the consequences of premarital agreements
profoundly effect not only the bride and groom, but also all members of their prospective
family. The state has a stake in such arrangements, especially when enforcement of such
an agreement can result in one spouse‘s financial dependence on public assistance.
Accordingly, these unusually important contracts should rightly be governed by uniform
rules which are sufficiently flexible to deal with varied factual patterns and which also
further the goals of public policy, not the least of which is to ensure a fair process when
parties seek to limit their own legal rights and duties. Only in this way can the desires of
the interested individuals be secured in a fashion that also will serve the interests of
society as a whole.
       In this dissolution action between Susann Margreth Bonds (Sun) and Barry Lamar
Bonds (Barry), the trial court ruled that their premarital agreement, which waived all
statutory rights to community property, was enforceable because it was executed
―voluntarily.‖ Barry had his professional financial advisor and two attorneys advising
him and devising the agreement. At her side, Sun had only a visiting Swedish friend who
had no legal training or expertise in negotiating contracts. The trial court found Sun‘s
waiver of her rights to be enforceable, principally because Barry‘s attorneys attempted to
explain to her the legal ramifications of the agreement. We conclude that the trial court
not only failed to give evidence of this unequal bargaining power the proper weight when
considering the issue of voluntariness, but also that the court improperly determined that
Sun‘s lack of representation was inconsequential.
       We hold that when a party challenging a premarital agreement establishes that he
or she did not have legal counsel while the other party had such assistance, and the
unrepresented party did not have the opportunity to obtain legal counsel or did not


                                              2
knowingly refuse legal counsel, the court must strictly scrutinize the totality of the
circumstances involved in the execution of the contract.
       Here, close scrutiny of the undisputed evidence reveals the following: Barry‘s
attorneys cobbled together an agreement that was riddled with typographical errors, that
was missing important exhibits, that had no page numbers, and that ended abruptly with a
detachable signature page which included no other text. As Sun arrived at the law office,
on her way to the wedding, she was greeted by Barry‘s agent, who threatened that there
would be ―no wedding‖ if she did not sign the agreement. Barry‘s attorneys answered her
questions about the agreement and also attempted to explain to her each provision in the
contract. Sun signed the document a short time later, after seeing it for the first time at
the meeting in the law office. After the meeting with Barry‘s attorneys, Barry and Sun
went directly to the airport to catch a plane for Las Vegas to attend the wedding
scheduled for the following day. We conclude that under these circumstances, elaborated
further below, the premarital agreement is void.
                                     BACKGROUND
       Both Barry and Sun were 23 years old when they met in Montreal in August 1987.
At that time, Barry earned $106,000 a year as a major league baseball player for the
Pittsburgh Pirates.
       Sun had been in Montreal since the spring of 1985, when, at the age of 21, she left
her native home in Sweden to live with her father in Canada and work in his small
restaurant. She attended classes to become a cosmetologist or an aesthetician, and hoped
someday to have her own business serving celebrity clients.
       After they met for the first time in August, Sun and Barry spent two days together
in Montreal. Subsequently, Sun visited Barry in Arizona for 10 days and returned to
Montreal to attend beautician school. On November 7, 1987, Sun moved to Phoenix to
live with Barry. Seven days later Barry proposed to Sun. The parties set their wedding
date for February 7, 1988.




                                              3
       According to Barry, they frequently discussed their intent to keep their finances
separate. Sun assured Barry that she did not want any of his money or to be dependent
upon anyone.
       At the end of December 1987, Sun and Barry had an argument and Sun departed
for a brief stay in Sweden. After reconciling, Sun returned, and Barry made it clear that
they would have to sign an agreement prior to marriage. Sun agreed to this condition.
       The wedding was to occur in Las Vegas, and Barry‘s godfather, Willie Mays,
secured hotel rooms there for the wedding party. Sun invited her Swedish friend
Margareta Forsberg (Forsberg), who currently lived in Montreal, to attend the wedding,
and she arrived in Phoenix on January 29, 1988. She stayed with Sun and Barry until
after the wedding.
       Barry‘s banker and financial advisor, Mel Wilcox (Wilcox), referred him to
Arizona attorneys Sabinus Megwa (Megwa) and Leonard Brown (Brown) to prepare a
prenuptial agreement for him. Wilcox, and Barry‘s agent, Rod Wright, worked with
Megwa and Brown to develop the premarital agreement. According to Barry, Sun and he
had frequently discussed their plans and had agreed that, after their marriage, they would
keep their careers and their ―financing‖ separate.
       In late January 1988, Barry, Sun, Wilcox, Megwa, and Brown met for about 20
minutes regarding the preparation of lists specifying each party‘s assets. Brown believed
that both Barry and Sun wanted an agreement waiving each of their community property
rights under Arizona law. Brown told Sun that he represented only Barry and that she
―may‖ want to consult independent counsel.
       Brown, who had been practicing law for about seven years, assigned to Megwa the
task of preparing the premarital agreement. Megwa had been admitted to the Arizona
Bar10 months earlier, and had no experience in drafting premarital agreements.
       On February 3, 1987, Wilcox visited Barry and Sun at home, and obtained
information from each of them concerning their assets.




                                             4
       Barry, Sun, and Forsberg had reservations to fly from Phoenix to Las Vegas in the
early afternoon of February 5, 1987. Barry and Sun planned to get married on February 6,
but needed to obtain their marriage license and select a wedding chapel once they arrived
in Las Vegas.
       On the morning of February 5, just prior to their scheduled flight departure, Barry
and Sun, as well as Sun‘s friend Forsberg, met with Megwa and Brown in their law office
for two to three hours. Wilcox met them as they entered the building and told Sun that
there would not be a wedding if she did not sign the premarital agreement.
       At the meeting, Megwa and Brown provided Barry and Sun with copies of the
premarital agreement. Neither Sun nor Barry had an opportunity to review the agreement
before the February 5 meeting. Brown and Megwa informed Sun that she ―may‖ want to
seek counsel. At trial, Brown stated he did not believe that he ―ever made an affirmative
declaration to Sun that she should seek counsel . . . .‖ Rather, he told her that ―she may
want to do that.‖ Brown told Sun that he represented Barry, but he also told both Barry
and Sun that they each had a right to consult ―private‖ or ―additional‖ counsel to review
the agreement.
       Both Sun and Barry testified that Sun did not want a lawyer. Barry testified: ―Sun
said she didn‘t want a lawyer. Sun didn‘t have anything. I paid for everything. Sun said,
what do I need a lawyer for? I don‘t have anything. I mean, I know exactly what she said
in that conversation.‖ Sun stated: ―My recollection is that we were there together, and
the attorneys were there just to help us out with this. And I didn‘t have any––I didn‘t
think that I needed to have somebody else there. It wasn‘t like they were––they were
there to help us out with this agreement, and then we were going to get married.‖ When
asked why she did not believe she needed another attorney, Sun responded: ―Because
Barry––Barry and I were there together, and they were attorneys. And they didn‘t come
out and, you know, in the sense that they were not here for you. I don‘t recall them ever
coming out to me that way. I didn‘t know anything about attorneys. I didn‘t know how it
worked with attorneys, that you have one and I have one.‖


                                             5
       The agreement presented at trial contained numerous typographical errors, and a
portion of one provision was typed twice. Moreover, the pages were not numbered and
none of the pages contained the parties‘ initials. The agreement also appeared to be
incomplete. It ended abruptly with the statement ―OTHER PROVISIONS AS
FOLLOWS:‖; and the immediately following page contained only the signature block and
signature lines for the parties and their attorneys and a notarization block. Barry and Sun
had signed above their names, but Brown had signed only the notary subscription. Brown
did not sign the signature line indicating he was Barry‘s attorney.
       Although the agreement referred to schedules of the parties‘ separate property, no
schedules were attached. This was despite a provision which provided: ―Both parties
have initialed each page of the attached lists as evidence that they have read and concur
with the classification of each item on each list.‖ Inexplicably, a handwritten list of such
properties, used at the meeting for discussion purposes, was not attached. Brown testified
that he ―believed‖ both parties were aware of the other‘s assets.
       A heading in the agreement stated ―SPOUSAL MAINTENANCE AND CHILD
SUPPORT.‖ Following that heading, the agreement contained an illegal provision
regarding the parties‘ contributions for child support, but stated nothing regarding spousal
support.
       After the parties read the agreement to themselves, Megwa read aloud each
provision in the agreement, line by line (apparently oblivious to the numerous errors); and
Brown then attempted, after a fashion, to explain each provision‘s meaning. Brown
testified that he believed Sun understood his explanations and that, although Swedish is
her first language, she never indicated that she was having any difficulty understanding
English.
       Brown specifically remembered explaining the provision regarding earnings
during marriage entitled, ―CONTROL AND EARNINGS OF BOTH HUSBAND AND
WIFE DURING MARRIAGE.‖ This provision provided the following: ―We agree that
all the earnings and accumulations resulting from the other‘s personal services, skill,


                                              6
efforts and work, together with all property acquired with funds and income derived
therefrom, shall be the separate property of that spouse. [¶] The earnings from husband
and wife during marriage shall be: [¶] separate property of that spouse. . . .‖
       Barry also testified that the attorneys explained the agreement. However, at trial,
both Barry and Sun had difficulty recalling Brown‘s explanation. When asked to explain
the provision which states that appreciation of separate property by personal effort should
remain separate, Barry testified that he believed this meant: ―That we were going to have,
that it was going to remain separate property and in protection to both parties that if Sun
was to get it through her career and make it, I had to put in just as much effort into that, or
financial, as she was for it to be community property because we did it jointly, or it would
remain separate in protection to her or in protection to myself. That‘s why it says we, for
the both of us.‖ Sun recalled even less about what the attorneys said regarding this
provision.
       After the parties signed the agreement they left the originals with the attorneys.
       After the marriage, Sun did not work outside the home. Barry and Sun had two
children during their marriage.
       Barry and Sun briefly separated in January 1989, but reconciled after Barry filed
for divorce. Barry filed a petition for legal separation on May 27, 1994. Sun responded
by requesting custody of the parties‘ two children, child and spousal support, attorney‘s
fees, and determination of property rights. By the time of the dissolution proceeding,
Barry was earning $8,000,000 per year.
       The case was first heard before Commissioner George Taylor, who later recused
himself sua sponte after the media reported that he had requested an autograph from
Barry. The case was transferred to the Honorable Judith W. Kozloski. The legal
separation action was later converted to one for divorce, and a status-only dissolution
judgment was entered on December 8, 1994.
       Prior to trial, the court considered whether Arizona or California law should be
applied to the agreement. The agreement contained an obscure provision entitled ―Situs,‖


                                              7
which stated the following: ―This Agreement shall be subject to and governed by the
laws of the state set forth as the effective place of this Agreement.‖ Although it is
undisputed that the agreement took place in Arizona, the agreement itself never defined
―effective place‖ within the meaning of its own language. Nevertheless, the court ruled
that the parties could not have anticipated that they were going to live in California, and
that it would therefore not use California law. The court also stated that it was
inappropriate to use the ―significant relationship‖ approach in deciding the choice of law
question, and ultimately ruled that Arizona law applied.
        The parties stipulated to Sun‘s having the burden of proof to establish the
invalidity of the prenuptial agreement. They also stipulated to bifurcate the trial to
determine the agreement‘s validity prior to the determination of other issues.
        During this first phase of the trial, two copies of the prenuptial agreement were
presented: exhibit A and exhibit 1. Exhibit A and exhibit 1 were substantially the same
except that Barry‘s last name was incorrectly spelled ―Bond‖ on the first page of exhibit
A and was correctly spelled ―Bonds‖ on exhibit 1. It was never explained how literally
identical copies of the same signature page could be attached to both proffered exhibits.
        Counsel for Sun objected to admitting the prenuptial agreement based on the best
evidence rule, but the court overruled the objection and admitted exhibit 1 (the one that
spelled Barry‘s last name correctly) into evidence. At the end of the first phase of the
trial, in its statement of decision dated April 30, 1996, the court ruled that the prenuptial
agreement was valid.
        After the second phase of the trial, which related to the interpretation and
enforcement of the prenuptial agreement, the court entered judgment on all issues except
duration of spousal support. Sun filed a notice of intention to move for a new trial or to
vacate the prematurely entered judgment on June 10, 1996, and then filed the motion five
days later. A one-day hearing on the duration of spousal support occurred on September
9, 1996, and the court issued a minute order terminating spousal support on December 30,
1998.


                                               8
       Sun filed a timely notice of appeal from both the judgment and the minute order
regarding the duration of spousal support.
                                       DISCUSSION
       In her appeal, Sun challenges the trial court‘s determination that the prenuptial
agreement was valid, as well as its refusal to permit her to present evidence that Barry
should be estopped from enforcing the agreement, its interpretation and implementation
of the prenuptial agreement, its award of child support, the duration of spousal support,
and its ruling that Sun must provide reimbursement for an insurance cash-out. After
filing their briefs, the parties settled the matter of the insurance cash-out; and we therefore
need not reach this issue. For the reasons set forth below, we will reverse the trial court‘s
ruling that the prenuptial agreement is valid. Accordingly, the question of estoppel and
the disputes over interpreting the contract are also moot.
                                      I. Choice of Law
       The trial court applied Arizona law, and neither party challenged this ruling on
appeal. We, however, requested supplemental briefs from both parties to address the
choice of law question. Sun argued that the trial court did not err in using Arizona law,
but added that, under either Arizona or California law, the court should have found the
prenuptial agreement void. In contrast, Barry contended that the court should have
applied California law, but that he should prevail in having the contract enforced no
matter which state‘s law is used.
       Choice of law is an issue in this case because at the time Barry and Sun signed the
prenuptial agreement only California had adopted a form of the UPAA. (We will refer to
California‘s version of the UPAA as the UPA.) California adopted the UPA (Fam. Code,
§§ 1600-1617; former Civ. Code, §§ 5300-5317) in 1985 and it became effective in 1986.
(All further unspecified code sections refer to the Family Code.) Arizona did not adopt
the UPAA until 1991 (A.R.S. §§ 25-201 to 25-205), four years after the signing of this
premarital agreement.




                                              9
       At all relevant times under California law, Sun had the burden of proving the
agreement was invalid (§ 1615). She could avoid the agreement by establishing that
―(a)(1) she did not execute it voluntarily‖ or that ―(2) [t]he agreement was unconscionable
when it was executed and, before execution of the agreement all of the following applied
[to Sun]:‖ ―(A) [She] was not provided a fair and reasonable disclosure of the property
or financial obligations . . . [of Barry.]‖ ―(B) [She] did not voluntarily and expressly
waive, in writing, any right to disclosure of the property or financial obligations [of
Barry.]‖ ―(C) [She] did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations. . . [of Barry.]‖ (§ 1615, subd. (a).)
       In 1987, Arizona‘s statute on premarital contracts provided only that ―[p]arties
intending to marry may enter into agreements not contrary to good morals or law. . . .‖
(Former A.R.S. § 25-201, subd. (A).) Case law interpreting this repealed statute would
have placed the burden on Barry by requiring the party attempting to enforce the
agreement to prove its validity by clear and convincing evidence. (Spector v. Spector
(1975) 23 Ariz.App. 131, 140 [531 P.2d 176, 185] (Spector).) The standard for
determining validity under Arizona case law was that the agreement be ―free from any
taint of fraud, coercion or undue influence; the prospective [spouse] must have acted with
full knowledge of the property involved and [his or her] rights therein, and the agreement
must have been fair and equitable.‖ (Ibid., italics added, citing In re Estate of Harber
(1969) 104 Ariz. 79, 88 [449 P.2d 7, 16].) Arizona courts were expected to balance the
above three factors to determine the agreement‘s validity, but the presence of any one of
the above factors could invalidate the contract.
       California and Arizona law therefore differed in their allocation of the burden of
proof and applied different tests for validity. Sun contends Arizona law should apply
because the agreement specified that Arizona law should govern the contract, and because
California generally permits parties to provide for a choice of law provision in an arm‘s-
length contract (Nedlloyd Lines B.V. v. Superior Court (Seawinds Limited) (1992) 3
Cal.4th 459, 464-465 [section 187 of the Restatement Second of Conflicts of Laws


                                             10
applies to arm‘s-length contracts]). Barry responds that the agreement merely stated that
the contract ―. . . shall be subject to and governed by the laws of the state set forth as the
effective place of this agreement‖ and it never specified any state as the ―effective place.‖
        By its failure to define ―effective place,‖ the choice of law provision––like so
many of the provisions in this contract––is both incomplete and ambiguous. Sun
responds that, although the provision is unclear, it should be interpreted against Barry,
since his attorneys told the parties the contract was subject to Arizona law and ―they
should know‖ because they wrote the contract.
        Even presuming that this ambiguous provision sufficiently established that the
parties selected Arizona law, we conclude that the court should still have applied
California law to the issue of enforcement. Under California‘s UPA, ―Parties to a
premarital agreement may contract with respect to . . . : [¶] . . . [¶] . . . The choice of law
governing the construction of the agreement. [¶] . . . [As well as any] other matter,
including their personal rights and obligations, not in violation of public policy or a
statute imposing a criminal penalty.‖ (§ 1612, subd. (a), italics added.)
        No California case has addressed the meaning of ―construction of the agreement,‖1
but the recorded proceedings of the commissioners at the National Conference of
Commissioners on Uniform State Law, which drafted the UPAA, make it clear that the
commissioners intended this provision to refer to the interpretation of, or the definitions
used in, the contract rather than to the issue of validity. While discussing the choice of
law provision in the UPAA, one commissioner explained the meaning of this section:
―First of all, on [the] subsection . . . involving choice of law, remember that they are
talking here about construction, and the kinds of things that could be spelled out, and you
want to distinguish that from validity and enforcement. [¶] A forum will not enforce a
contract and provide a remedy which is contrary to its local public policy. But, on the
other hand, if it‘s simply a matter of using the law of another state as a dictionary for


1        Our independent research has also not uncovered any interpretation of this section by any other
state that has adopted the UPAA.


                                                   11
construction, you really don‘t need a substantial relationship.‖ (Proceedings in
Committee of the Whole Uniform Antenuptial Agreements Act, July 23, 1983, p. 40
(hereafter Proceedings).)
       Public policy also dictates the same result. The Prefatory Note to the UPAA states
as follows: ―The number of marriages between persons previously married and the
number of marriages between persons each of whom is intending to continue to pursue a
career is steadily increasing. For these and other reasons, it is becoming more and more
common for persons contemplating marriage to seek to resolve by agreement certain
issues presented by the forthcoming marriage. However, despite a lengthy legal history
for these premarital agreements, there is a substantial uncertainty as to the enforceability
of all, or a portion, of the provisions of these agreements and a significant lack of
uniformity of treatment of these agreements among the states. The problems caused by
this uncertainty and nonuniformity are greatly exacerbated by the mobility of our
population. Nevertheless, this uncertainty and nonuniformity seem reflective not so much
of basic policy differences between the states but rather a result of spasmodic, reflexive
response to varying factual circumstances at different times. Accordingly, uniform
legislation conforming to modern social policy which provides both certainty and
sufficient flexibility to accommodate different circumstances would appear to be both a
significant improvement and a goal realistically capable of achievement.‖ (9B West‘s U.
Laws Ann. (1987 ed.) UPAA, Prefatory Note, pp. 369-370.) This goal of uniformity
would be undermined by our attempting to apply the few Arizona cases that have
interpreted a repealed Arizona statute to the question of the contract‘s validity.
       Further, as Barry points out, the official comments to section 1615 of the UPAA
make it clear that for public policy reasons the enforcement provision is the ―key
operative section of the Act.‖ If we refused to use a version of the UPAA to interpret this
―key‖ section, we would completely undermine the UPAA‘s primary goal of uniformity.
We therefore conclude that the trial court erred in applying Arizona law when
determining the agreement‘s validity.


                                             12
                    II. Admitting the Premarital Agreement Into Evidence
          Sun claims that the trial court abused its discretion by admitting the premarital
agreement into evidence because it violated the best evidence rule. According to Sun,
Barry failed to authenticate the copy of the prenuptial agreement, and therefore its
admission into evidence violated the best evidence rule (former Evid. Code, § 1500 et
seq.).2
          Although trial counsel frequently misconstrue this rule, and consequently make
frivolous objections (to proffered photocopies, for example) that serve no purpose other
than to irritate the trial judge, here the best evidence rule objection was well taken.
However, because of our deferential standard of review––abuse of discretion––we will
not disturb the trial court‘s ruling on this basis.
          The best evidence rule states: ―Except as otherwise provided by statute, no
evidence other than the original of a writing is admissible to prove the content of a
writing.‖ (Former Evid. Code, § 1500.) A duplicate is admissible ―to the same extent as
an original unless (a) a genuine question is raised as to the authenticity of the original or
(b) in the circumstances it would be unfair to admit the duplicate in lieu of the original.‖
(Former Evid. Code, § 1511.) ―A ‗duplicate‘ is a counterpart produced by the same
impression as the original, or from the same matrix, or by means of photography,
including enlargements and miniatures, or by mechanical or electronic rerecording, or by
chemical reproduction, or by other equivalent technique which accurately reproduces the
original.‖ (Evid. Code, § 260.) Under former Evidence Code section 1511, the duplicate
is admissible without demonstrating the unavailability of the original. (See also Evid.
Code, § 260; People v. Garcia (1988) 201 Cal.App.3d 324, 327-330.)
          Here, a duplicate was admitted, and Barry asserts it was admissible pursuant to
former section 1511 of the Evidence Code. To establish the first criterion set forth in this
section, authenticity, the party introducing the writing must introduce ―evidence sufficient


2        All references to Evidence Code section 1500 et seq. (best evidence rule) are to those in effect
prior to the January 1, 1999 repeal date. (Stats. 1998, ch. 100.)


                                                    13
to sustain a finding that it is the writing that the proponent of the evidence claims it is‖ or
establish ―such facts by any other means provided by law‖ (Evid. Code, § 1400). This
does not require the court to determine conclusively that a writing is authentic. ―. . . A
finding by the trial judge that a writing is ‗authenticated‘ merely means that enough
evidence has been presented relative to its genuineness that the writing becomes
admissible into evidence. . . .‖ (2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982)
§ 30.1, pp. 1051-1052; see also People v. Morris (1991) 53 Cal.3d 152, 205 [―The trial
court was required to admit the document into evidence if the trier of fact was presented
with sufficient evidence to support a finding of authenticity. [Citations.]‖]; People v.
Garcia, supra, 201 Cal.App.3d at p. 329 [conflicting inferences relate to weight rather
than admissibility of duplicate].)
       Sun claims that Barry failed to present sufficient evidence to establish the
prenuptial agreement was what he claimed it to be, and that the purported copy was a true
copy of the original. She asserts that the facts here closely resemble those in Osswald v.
Anderson (1996) 49 Cal.App.4th 812 (Osswald). In Osswald the court held that there
were genuine questions regarding the authenticity of a deed admitted into evidence
because ―[i]t would [have been] a simple matter to transfer the signatures and notary
block to a different property description and with a good photocopy machine create what
appeared to be a copy of a valid deed.‖ (Id. at pp. 819-820.)
       Similarly, here, Sun maintains, the existence of two different ―copies‖ of the
agreement, which could not have both been made from the same original, raised questions
of authenticity. A photocopy which had been received from an attorney in Pennsylvania
was introduced as exhibit 1, while another copy, exhibit A, was also presented at trial, but
it incorrectly spelled Barry‘s last name as ―Bond‖ on its first page. This difference was
particularly consequential, Sun asserts, because neither document had page numbers or
initials on the pages. Furthermore, since an identical copy of the same original signature
page had been attached to both exhibits, there was an inference of obvious tampering.
Because Sun and Barry testified that they had only signed one draft, someone must have


                                              14
improperly attached a copy of the signature page to at least one of the alleged duplicates
of the original.
       The differences in the exhibits also must be considered, Sun maintains, because
both drafts were obviously incomplete. The agreement ended with the statement
―OTHER PROVISIONS AS FOLLOWS:‖; but the following page only contained the
signature block and the signature lines for the parties and their attorneys, followed by a
notarization block. Brown did not sign the line provided for Barry‘s attorney.
       Inexplicably, the agreement referred to schedules of the parties‘ separate property,
but no such schedules were attached. The agreement also referred to a listing of the
community property, but no such listing was attached. The absence of these schedules
contradicted another provision in the agreement which stated: ―Both parties have
initialed each page of the attached lists as evidence that they have read and concur with
the classification of each item on each list.‖
       The agreement also seemed to indicate that Barry had waived his right to counsel,
when it stated the following: ―By execution of this Agreement this date, we waive that
right and willingly forego benefit of independent legal counsel as regards this Agreement,
or represent that we have conferred with independent legal counsel before signing this
agreement.‖ It is undisputed, however, that Barry‘s attorneys prepared the agreement and
explained it to Sun.
       Another problem, according to Sun, is that although Barry identified exhibit 1 as
the premarital agreement, and identified the signatures as being Sun‘s and his, he never
actually testified that the exhibit was an accurate and complete copy of the agreement
signed by the parties. Both Barry and his attorney, Brown, testified that they could not
recall whether the original document had numbered pages. Brown stated: ―I notarized an
agreement, a prenuptial agreement that Barry and Sun executed. I cannot tell you that this
physical document in front of me marked Exhibit A is the agreement that I notarized, and
I cannot tell you that this particular physical representation of an agreement marked as
Exhibit 1 to these proceedings is the agreement I notarized. [¶] Both of these are copies.


                                                 15
I don‘t know where either one of them came from. It‘s my understanding that you
requested these documents, I know that my ex-partner, Mr. Megwa, produced a copy of a
prenuptial agreement. I can‘t tell you sitting here now if––if Exhibit A or Exhibit 1 was
the document that he presented to you.‖
       Barry responds that Megwa explained that one draft of the premarital agreement
had misspelled ―Bonds‖ and his secretary later corrected this misspelling, but Megwa
could not explain why the identical signature page was fastened to the back of both
exhibit 1 and exhibit A. Despite these problems, Sun has pointed out no significant
differences between the two exhibits other than misspelling Barry‘s last name.
       Although our assessment of the evidence in the record might differ from the trial
court‘s, we conclude that the trial court was presented with ―sufficient evidence to
support‖ its ruling of authenticity (People v. Morris, supra, 53 Cal.3d at p. 205). Despite
the otherwise suspicious circumstances, Sun never claimed that either exhibit contained
provisions or language that had been altered. Also, exhibit 1 was not recovered from an
unknown source, but came from an attorney‘s file in Pennsylvania. Furthermore, Megwa
testified that the parties signed exhibit 1.
       The above factors distinguish this case from Osswald. Not only was it uncertain
whether the deed ever existed in Osswald, but the proponent‘s counsel also could not
explain how he received the copy of the deed and why he did not produce it until shortly
after the trial started. (Osswald, supra, 49 Cal.App.4th at pp. 819-820.) In contrast, Sun
has always admitted that she signed a premarital agreement, and has never asserted that
any particular provision in the agreement had been altered, replaced, or omitted.
       Sun also contends that the prenuptial agreement failed to meet the alternate
requirement of former Evidence Code section 1511, subdivision (b), because it is unfair
to admit a copy that may not be identical to the original. It is true that any missing
provisions or pages at the end of the document may have impacted the rights of the
parties by modifying or explaining the many cryptic or confusing provisions which appear
earlier in the document. However, Sun presented no evidence that other provisions, more


                                               16
favorable to her, were omitted. She argues, without citing any authority, that she should
not have the burden of proving the content of any possibly missing provisions, since she
did not devise the agreement and she was never provided a copy of the agreement.
However, in the absence of any evidence that such provisions were included in the
original, we cannot conclude that admitting the prenuptial agreement was unfair.3
                            III. Enforcing Premarital Agreements
A. Recognizing Premarital Agreements and Principles of Fundamental Fairness
       Prior to 1970, no state enforced prenuptial agreements providing for the
disposition of assets upon divorce. (Note, Planning for Love: The Politics of Prenuptial
Agreements (1997) 49 Stan.L.Rev. 887, 897 (hereafter The Politics of Prenuptial
Agreements).) The only exception to this rule was that courts did uphold such agreements
if they addressed property rights of a surviving spouse after the other spouse died. (Ibid.)
Prenuptial agreements were generally disallowed because of the belief that they
encouraged divorce and permitted husbands to avoid providing financial support to their
wives. (Ibid.)
       In 1970, the Florida Supreme Court held in Posner v. Posner (Fla. 1970) 233 So.
2d 381, 385, that prenuptial agreements providing for the division of property in the event
of divorce ―should no longer be held to be void ab initio as ‗contrary to public policy.‘‖
Since then, almost all states have enforced such agreements, recognizing that they may be
the optimal method for dealing with more diverse marriage customs and modern models
of intimacy. In 1973, the California Supreme Court held that such agreements, as long as
they did not attempt to regulate spousal support,4 were actually favored. (In re Marriage
of Higgason (1973) 10 Cal.3d 476.)



3       Since we have concluded that the trial court did not abuse its discretion in admitting the
document under former Evidence Code section 1511, we do not consider whether the document was
admissible under other exceptions to the best evidence rule (former Evid. Code, §§ 1501, 1502).
4       Whether courts will enforce a provision in a premarital contract regarding spousal support is
currently being considered by the Supreme Court in In re Marriage of Pendleton (1998) 62 Cal.App.4th
751, review granted June 17, 1998 (S070018).


                                                 17
       The National Conference of Commissioners on Uniform State Laws approved of
the UPAA in 1983. (9B West‘s U. Laws Ann., supra, UPAA, Historical Notes, at p.
369.) Promoting uniformity in the enforcement of prenuptial agreements in all states was
the clear objective of the commissioners who approved the UPAA, as evidenced by the
Prefatory Note to the UPAA. At the time, uniform enforcement of such agreements was
still an uncertain proposition.
       A review of the limited case law concerning premarital agreements establishes that
the ideal of uniformity has yet to be achieved; and thus, the cloud of uncertainty still
surrounds these agreements. Although all states require ―voluntary‖ execution of such
contracts, jurisdictions vary significantly in the standards used to review the validity of
prenuptial agreements. As one legal scholar points out: ―Courts often reach different
conclusions on similar facts for no easily identifiable reason, so results in any particular
case are difficult to predict. Compare In re Marriage of Adams, 240 Kan. 315, 729 P.2d
1158 (1986) (no overreaching where husband presented wife with agreement one hour
before wedding), with Lutgert v. Lutgert, 338 So.2d 1111 (Fla.Dist.Ct.App. 1976)
(husband guilty of overreaching where he presented wife with contract on the day of the
wedding when they were at jewelers to pick up rings).‖ (Antenuptial Agreement (1997)
14 No. 7 Equitable Distribution J. 73, 76.)
       Courts have often reviewed prenuptial agreements for ―substantive unfairness.‖
(See, e.g., Greenwald v. Greenwald (1990) 154 Wis.2d 767, 784-788 [454 N.W.2d 34,
40-42].) Other courts, such as the Pennsylvania Supreme Court, hold that traditional
principles of contract law should apply to prenuptial contracts (see, e.g., Simeone v.
Simeone (1990) 525 Pa. 392 [581 A.2d 162] (Simeone)).5 The Simeone court reasoned
that it is paternalistic, and therefore archaic, to more carefully scrutinize the capabilities
of the parties to marital agreements and the reasonableness of their bargains. (Id. at pp.
399-400 [p. 165].) According to the concurrence in Simeone (Papadakos, J.), the policy
of not enforcing premarital contracts probably reflected a paternalistic presumption about




                                               18
women‘s incapability to negotiate a contract, but the refusal to scrutinize such contracts
more closely than any arm‘s length agreement is no better because it ―smack[s] of male
chauvinism.‖ (Id. at p. 405 [p. 168].)
       We need not engage in the debate regarding paternalism and chauvinism in order
to observe that women still have not achieved economic parity in the workplace and
frequently have greater responsibility for sustaining the home; it is also undisputed that
women generally earn less income than men. For the purposes of our discussion here, it
is obvious that enforcing agreements that waive community property rights will often
disadvantage women, as well as men, and may ignore the contributions of both spouses to
the marriage, whether or not they are employed outside the home. The foundational
principle of community property, which recognizes the multiple ways a spouse may
contribute to the marriage, is a more significant policy consideration than any social
debate over paternalism and chauvinism. We expect the principles of community
property to be applied evenly to both genders.
       Another criticism of the majority opinion in Simeone stems from its refusal to
acknowledge the state‘s paramount interest in regulating prenuptial contracts and its
disregard of the significant differences between premarital and commercial contracts.
(See, e.g., Family Law, Prenuptial Agreements (1990) 104 Harv.L.Rev. 1399, 1402.) The
state‘s own interests are involved in all matters related to family law and the state may
limit the freedom of the parties to create contractual rights (see In re Marriage of Benson
(1985) 171 Cal.App.3d 907, 913). The government does not allow parties unlimited
freedom of choice when devising prenuptial agreements; people in California, for
example, cannot contract regarding child support. (§ 1612, subd. (b) [―The right of a
child to support may not be adversely affected by a premarital agreement.‖].) Moreover,
as even the majority opinion in Simeone recognized, premarital agreements differ from
other contracts in that they require a full and fair disclosure of the parties‘ financial
positions prior to any enforceable agreement (Simeone, supra, 525 Pa. at p. 402 [581

5      Neither Wisconsin nor Pennsylvania has adopted any version of the UPAA.

                                               19
A.2d at p. 167]). Such full disclosure is obviously not required, and rarely given, in
business negotiations (see also the Simeone dis. [McDermott, J.] id. at p. 406 [pp. 168-
169] [the parties ―‗stand in a relation of mutual confidence and trust that calls for the
highest degree of good faith. . . .‘ [Citations.]‖). These differences were also articulated
by a drafter of the UPAA when the commissioner made the following comment: ―And it
seems to me that there is no particular reason why you should have the same contract
rules applying to the sale of a hundred pounds of . . . beans that you do to a marital
relationship.‖ (Proceedings, Aug. 3, 1982, p. 51.)
       Another legal scholar has commented, ―‗The features of antenuptial contracts that
justify greater state supervision than is ordinarily exerted over commercial contracts
include the special legal status of the marriage relationship in our society, the trust and
confidence the law expects of marriage partners, the emotional intensity surrounding the
desire to marry, the common belief that the marriage will last forever, and the potential
lack of understanding of the economic rights that are being waived. This coalescence of
factors, when viewed against the backdrop of persistent gender inequality in the
marketplace, warrants a relaxation of the rules of contract to accommodate other social
values.‘‖ (The Politics of Prenuptial Agreements, supra, 49 Stan.L.Rev. at p. 899, fn.
omitted.) We note further that it would be in the interest of society as a whole to have the
parties to a marital contract anticipate and provide for various changed circumstances
such as having children, illnesses, or changes in careers and jobs; all of which may
precipitate calls for state assistance.
       Although public policy dictates that prenuptial agreements warrant more careful
review than commercial transactions, we also are mindful of the UPAA‘s policy of
encouraging these agreements and promoting predictability. We therefore do not agree
with those jurisdictions that invalidate otherwise lawful contracts based on evaluations of
their perceived ―fairness.‖ We conclude that the effort to assure uniformity while at the
same time preserving freedom of contract must focus upon procedural, rather than
substantive fairness. The courts must apply a test for ―voluntariness‖ that advances the


                                              20
purpose of promoting predictability while ensuring that the process of executing the
agreement comports with traditional principles of fundamental fairness.
       The notion of fairness and equity is the primary cornerstone of family law.
California courts already review marital settlement agreements for procedural fairness
(see, e.g., In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1043), and such concerns
regarding equity and fairness apply with equal force to settlement agreements made by
prospective spouses. ―[I]n few other fields do the equities scream quite so loudly as they
do in family law.‖ (In re Marriage of Benson, supra, 171 Cal.App.3d at p. 913.)
       It is also undisputed that the first and best safeguard of such procedural fairness is
the advice of competent counsel. Within the family law context, ―‗ready and available
access to legal representation‘‖ has long been considered to be one of the most important
safeguards in ensuring fair settlements (In re Marriage of Ward (1992) 3 Cal.App.4th
618, 623). Questions of fundamental fairness arise most particularly in the premarital
contract context when the agreement is between two people with unequal bargaining
power and business expertise. Nothing raises the warning flag of unfairness more often
than when an unrepresented party contracts with another party who is represented by an
attorney and the unrepresented party waives statutory rights.
       The dissenting opinion never sets forth its definition of ―voluntary,‖ but it deflates
the role of the attorney by ignoring counsel‘s significance as both an advocate and advisor
for his or her client. It also ignores California‘s legislative history and case law related to
family law that has stressed the role of an attorney in securing fair post-dissolution
settlements. Although not explicitly admitted, the dissenting opinion appears to limit its
conception of ―voluntary‖ to simply guarding against physical intimidation or fraudulent
conduct. If this is the sole purpose of an attorney in these circumstances, a professional
wrestler or an armed guard could probably serve as well as a lawyer. With such a limited
and misguided definition of ―voluntary‖––one that has rightly never been used by any
other court––it is obvious why the dissenting opinion so easily determined that substantial
evidence supported the trial court‘s ruling. However, if the concept of voluntary requires


                                              21
the prospective spouse to intelligently sign an agreement, it is clear that the trial court
erred. The absence of legal counsel must figure prominently in any assessment of
whether a party has intelligently signed a contract.
       We agree that no courts require the parties to a premarital agreement to have legal
representation when executing the agreement, and we are not so holding. However,
courts in various jurisdictions have given great weight to this factor and have uniformly
applied a test that more closely scrutinizes situations where all the legal artillery and
negotiation skills are arrayed on one side (see, e.g., Matter of Marriage of Foran (1992)
67 Wash.App. 242 [834 P.2d 1081] (Foran)). These courts‘ holdings accord with the
policies underlying California‘s statutes and case authorities in the area of family law.
Accordingly, we conclude that courts must more carefully scrutinize the process when the
bargaining relationship is so unequal that only one party has legal representation and the
party without representation does not have any particular legal skills or business acumen
and agrees to forego his or her statutory rights. Here, the trial court erred in refusing to
give this factor proper consideration.
B. California Law and the Trial Court’s Findings
       As already discussed, the trial court applied Arizona rather than California law. In
Arizona, at that time, Barry had to show by clear and convincing evidence that the
agreement was valid (Spector, supra, 23 Ariz.App. at p. 140 [531 P.2d at p. 185]), while
California places the burden of proof on the party ―against whom enforcement is sought‖
(§ 1615, subd. (a)).
       Although Arizona law placed the burden on Barry, the trial court here appeared to
rule that Sun had the burden because of a pretrial stipulation between the parties that
stated Sun had the burden of proof. We do not agree that parties can stipulate to the
burden of proof (see American Dredging Co. v. Miller (1994) 510 U.S. 443, 454 [burden
of proof is substantive rather than procedural]), since the burden of proof is a question of
law that is to be determined by the court (Linsk v. Linsk (1969) 70 Cal.2d 272, 276
[counsel may not impair client‘s substantial rights]; see also Leonard v. City of Los


                                              22
Angeles (1973) 31 Cal.App.3d 473, 477). However, despite our disagreement with the
trial court‘s reasoning, we do agree with the result of the trial court‘s decision, which was
to place the burden on Sun, because it accords with California law (§ 1615, subd. (a)).
(The statement of decision also indicated that, even if Barry had the burden of proof, the
trial court found that he had met his burden by clear and convincing evidence.)
       As already noted, California courts have not specifically addressed the issue of
how to determine the validity of such an agreement. However, California‘s version of the
uniform act provides: ―(a) A premarital agreement is not enforceable if the party against
whom enforcement is sought proves either of the following: [¶] (1) That party did not
execute the agreement voluntarily. [¶] (2) The agreement was unconscionable when it
was executed and, before execution of the agreement, all of the following applied to that
party: [¶] (A) That party was not provided a fair and reasonable disclosure of the
property or financial obligations of the other party. [¶] (B) That party did not voluntarily
and expressly waive, in writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided. [¶] (C) That party did not
have, or reasonably could not have had, an adequate knowledge of the property or
financial obligations of the other party. [¶] (b) An issue of unconscionability of a
premarital agreement shall be decided by the court as a matter of law.‖ (§ 1615.)
       When applying the above provision to the situation here, we can quickly dispose of
the second requirement, unconscionability. The trial court found that Sun ―knew what
assets were possessed by Petitioner . . . .‖ It is undisputed that schedules of the parties‘
separate property were not attached to the agreement, but a handwritten list of the
properties was available at the meeting in Brown and Megwa‘s office. Further, Brown
testified that he believed both parties were aware of the other‘s assets. Sun complains
about Barry‘s failure to attach the proper documents to the agreement, but she has failed
to point to any assets or debts that were hidden, which would have impacted her decision
to sign the agreement. We therefore conclude that substantial evidence supported the trial




                                              23
court‘s finding that Sun had adequate knowledge of Barry‘s property and financial
obligations.
          The question whether Sun executed the agreement voluntarily under the first prong
of the validity test is not as easily settled. Although we have concluded that the trial court
improperly applied Arizona law, the trial court did consider the issue of voluntariness
since all states require this as a prerequisite for enforcement. The trial court found the
following: ―Respondent signed the Agreement knowingly and voluntarily. Respondent
knew Petitioner wished to protect his present property and future earnings. . . .
Respondent is an intelligent woman and though English is not her native language, she
was capable of understanding the discussion by Attorney Brown and Attorney Megwa
regarding the terms of the agreement and the effect of the agreement on each parties‘ [sic]
rights.

          ―. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

          ―Both the Agreement and the execution of same was [sic] free from the taint of
fraud, coercion and undue influence. Respondent was not forced to execute the
document, nor did anyone threaten Respondent in any way. Respondent never questioned
signing the agreement or requested that she not sign the agreement. Respondent‘s refusal
to sign the Agreement would have caused little embarrassment to her. The wedding was
a small impromptu affair that could have been easily postponed.
          ―. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
          ―Respondent had sufficient awareness and understanding of her right to, and need
for, independent counsel. Respondent also had an adequate and reasonable opportunity to
obtain independent counsel prior to execution of the Agreement. Respondent was
advised at a meeting with Attorney Brown at least one week prior to execution of the
agreement that she had the right to have an attorney represent her and that Attorneys
Brown and Megwa represented Petitioner, not Respondent. On at least two occasions
during the February 5, 1988 meeting, Respondent was told that she could have separate



                                                                    24
counsel if she chose. Respondent declined. Respondent was capable of understanding
this admonition. The wedding was a small impromptu affair that could have been easily
postponed.‖
       Although the trial court stated it was considering the question of voluntariness, we
conclude that the trial court, as a matter of law, did not properly give the absence of legal
representation the proper weight when determining this issue.
C. The Significance of Legal Counsel
       Premarital agreements reflect the sentiments and desires of both parties only when
the process itself is conducted in a fundamentally fair manner. Courts have a
responsibility to make sure that the agreement reflects both parties wishes and not just
those of the economically dominant party. As discussed ante, in no situation does the
court have a greater responsibility to ensure procedural fairness than in the context of
family law.
       No court in California has addressed the issue of voluntariness in the premarital
context, but the relationship between legal representation and enforcement has been
continually emphasized in California‘s case law regarding marital property and support
rights. California authorities have particularly encouraged trial courts to uncover
inequities through careful inspection of agreements in this latter context when they are
made without the advice of independent counsel. (In re Marriage of Moore (1980) 113
Cal.App.3d 22, 27; Adams v. Adams (1947) 29 Cal.2d 621, 628 [court in divorce action
will carefully scrutinize agreements, especially where parties did not have advice of
counsel].) It is safe to conclude that only fairly negotiated agreements regarding family
law matters are entitled to the benefit of California‘s policy favoring settlement; and we
conclude that this caveat should extend to settlements made before marriage as well as to
those reached after marriage.
       The Legislature has enacted statutes to promote access to counsel in post-marital
agreements. Section 2030 (former Civ. Code § 4370) permits the court in a dissolution
proceeding to order the economically dominant spouse to pay the attorney‘s fees of the


                                             25
economically subservient spouse. The purpose of the fee-award statute is to insure that
each party has equal access to legal representation in order to preserve all of his or her
rights. (In re Marriage of Ward, supra, 3 Cal.App.4th at p. 623.) As Sun points out, the
Ward court expressly tied the court‘s ability to award fees to the effectuation of
California‘s policy favoring settlements that reflect a fundamentally fair process.
―Indeed, within the family law context, ‗ready and available access to legal representation
. . . [promotes] the amicable settlement of dissolution and custody disputes, discourage[s]
unfair settlements prompted by unequal bargaining power of the litigants, and afford[s] a
necessary benefit to the litigants, their children, and to society.‘ [Citations.]‖ (Ibid.)
       We agree with Sun‘s contention that the principles developed in the context of
post-marital settlement agreements, and founded upon sound public policy, should have
equal application to premarital agreements. Moreover, it may be even more important in
this latter context because a prospective spouse may be reluctant to raise questions about
what will happen in the event of divorce when contemplating marriage or when the
prospective spouse presently has few resources to protect. Discouraging the practice of
legal advice being provided only to the more affluent prospective spouse cannot be
directly effectuated through the court‘s award of attorney‘s fees in the premarital context,
because these are out-of-court contracts. Although it is impractical to order the
economically superior party in such cases to pay the attorney‘s fees of the other party, we
can set forth a rule that will discourage the parties from signing agreements when only
one of the prospective spouses has the advantage of legal advice and representation. The
court‘s refusal to more carefully review premarital contracts between a represented and an
unrepresented spouse would contravene California‘s public policy of discouraging marital
property settlements that violate notions of fundamental fairness.
       Barry contends that the undisputed policy of encouraging legal representation for
both parties to dissolution settlements does not apply to premarital agreements.
Settlements after dissolution, Barry argues, involve a confidential relationship between
the spouses because the parties are giving up property interests they already own.


                                              26
Prospective spouses, under the holding of In re Marriage of Dawley (1976) 17 Cal.3d
342, 355, are not presumed to be in such a confidential relationship. We, however, find
this distinction to be untenable under these circumstances.
       The Supreme Court decided In re Marriage of Dawley prior to the enactment of
the UPAA and it has yet to examine the question of the prospective spouses‘ relationship
in light of California‘s adoption of the uniform act. The UPAA requires a full disclosure
of assets and debts, which obviously presumes a relationship more confidential than one
at arm‘s length. Furthermore, as discussed ante, the enactment of the UPA acknowledged
this state‘s paramount interest in the marriage relationship and restated the principles of
equity underlying all areas of family law. This suggests the need for a standard that will
promote fairness when executing a premarital as well as a post-marital agreement.
       Closely scrutinizing the circumstances surrounding the execution of the contract
when only one party has legal counsel (or when there is clear and substantial unequal
bargaining power) has already been the standard of review adopted by many jurisdictions.
(See, e.g., Fletcher v. Fletcher (1994) 68 Ohio St.3d 464 [628 N.E.2d 1343] [when party
has no meaningful opportunity to consult with independent counsel and agreement
provides disproportionately less to the unrepresented party, burden shifts to the party
claiming validity of contract to show it was entered into voluntarily]; Gant v. Gant (1985)
174 W.Va. 740, 749 [329 S.E.2d 106, 116] [independent advice is not a prerequisite when
terms of agreement are understandable to a reasonably intelligent adult and both parties
had opportunity to consult with independent counsel]; Matter of Estate of Lutz (N.D. Sup.
Ct. 1997) 563 N.W.2d 90, 95-101 [lack of legal counsel is significant factual factor in
weighing voluntariness of premarital agreement under North Dakota‘s version of the




                                             27
UPAA]6; Foran, supra, 67 Wash.App. 242 [834 P.2d 1081].)7
        The dissenting opinion criticizes our reliance on non-UPAA cases and dismisses
our analysis of the one UPAA case (Matter of Estate of Lutz, supra, 563 N.W.2d at pp.
95-101), and claims that no UPAA state has adopted the test applied here. The dissenting
opinion at page 9, footnote 7, contends that Lutz is unavailing simply because the posture
of the case was that it was reviewing a summary judgment motion and the court was
remanding because there was conflicting evidence related to whether the unrepresented
party received any advice to obtain counsel. The court therefore, according to the
dissenting opinion, never considered whether the lack of legal counsel was a particularly
significant factor. The dissenting opinion overlooks the fact that such inconsistent
evidence would have been inconsequential if the lack of any legal advice was not an
especially significant factor. Moreover, the dissenting opinion appears to ignore the Lutz
court‘s express statement that the ―lack of adequate legal advice to a prospective spouse
to obtain independent counsel is a significant factual factor in weighing the voluntariness
of a premarital agreement.‖ (Id., at p. 98, italics added.) The Lutz court continued:
―Indeed, adequate legal representation will often be the best evidence that a spouse signed
a premarital agreement knowledgeably and voluntarily.‖ (Ibid.)
        Furthermore, the dissenting opinion neglects to point out that there are almost no
UPAA cases on point other than Matter of Estate of Lutz, supra, 563 N.W.2d at pages 95-
101. The non-UPAA cases we have cited have all considered the issue of voluntariness,
and are therefore relevant. We also note that the application of the standard we use,
unlike the reasoning of the dissenting opinion, can be reconciled with the California cases
determining the validity of dissolution settlements.


6       The voluntary prong of section 14-03.1-06 of the North Dakota Statutes is essentially identical to
the voluntary prong of California‘s UPA (although the North Dakota statute differs on the prong
regarding unconscionability).
7       Courts also have scrutinized the voluntariness of execution more closely when one spouse has
waived all rights to property acquired during the marriage (see, e.g., Matter of Marriage of Matson
(1986) 107 Wash.2d 479 [730 P.2d 668]). This is another factor that is present here, since Sun waived
her right to community property.


                                                   28
       The issue of voluntariness was extensively analyzed by the court in Foran, supra,
67 Wash.App. at page 253 [834 P.2d at p. 1088], which noted that the premarital
agreement was actually a form of settlement. The Foran court ruled that the premarital
agreement was invalid when the unrepresented wife signed it a day prior to the parties‘
departure for their wedding trip. The wife had been advised of her right to seek
independent legal counsel, but the Foran court held that the waiver was not voluntary
because she never was advised of the reason she needed an attorney. (Ibid.) The court
explained: ―That which is obvious to attorneys and judges may not be obvious to the
unrepresented and economically subservient party. Every marriage eventually will
terminate by one of two means: by marital dissolution or by the death of a spouse during
marriage. What is indeed being sought is a divorce settlement and a death settlement
. . . .‖ (Id. at p. 254, fn. omitted [pp. 1088-1089].)
       ―An appellate court will not enforce a patently unfair prenuptial contract unless it
can reasonably conclude that an unrepresented party, who was not dealing at arms[‘]
length and whose relationship with the represented party was one of mutual trust and
confidence, entered into the contract with a full understanding of the legal consequences
of the contract. One who does not have that understanding has not ‗voluntarily and
intelligently‘ entered into the contract as required by Matson.‖ (Foran, supra, 67 Wash.
App. at p. 257 [834 P.2d at p. 1090].)
       Barry contends that the facts in Foran are significantly different because the
husband in Foran physically abused the wife (although there was not sufficient evidence
of this to support a claim of coercion), and the wife had worked with, and grown to trust,
her husband‘s attorney, who only explained the provisions in a manner that furthered his
client‘s interests. (Foran, supra, 67 Wash.App. 242 [834 P.2d 1081].) In contrast, Barry
asserts, his attorneys accurately explained the provisions in the agreement to Sun and he
never physically abused Sun.
       This attempt to distinguish the instant facts from Foran is unavailing. Brown‘s
explanation to Sun was necessarily impaired because of his loyalty to his client, Barry.


                                               29
(See People v. Mroczko (1983) 35 Cal.3d 86, 111 (Mroczko).) More significantly, here,
as in Foran, the unrepresented spouse had no advocate and received no explanation of the
legal consequences to her ensuing from signing the contract. The record is clear that
Brown never apprised Sun that her interests may conflict with Barry‘s interests. Brown
actually testified that at the time Sun and Barry were executing the contract he believed
that two people requesting an antenuptial agreement did not necessarily have a conflict of
interest between them. He further testified that he did not believe any conflict of interest
existed between Sun and Barry, although he later testified that he recognized there was a
―potential‖ conflict of interest. Barry, too, testified that he did not believe there was any
conflict of interest; it is obvious, therefore, that he could not have told Sun that their
interests might conflict. In fact, there was no evidence that anyone ever provided this
crucial information to Sun. The record certainly suggests she was clueless as to any
conflict of interest.
       Finally, the Comment to section 6 of the UPAA makes it clear that the absence of
legal counsel can be considered when determining whether to enforce an agreement, but it
provides no other instruction on its significance or, more particularly, the significance of
only one party‘s having legal assistance. The Comment provides that ―[n]othing in
Section 6 makes the absence of assistance of independent legal counsel a condition for
the unenforceability of a premarital agreement. However, lack of that assistance may
well be a factor in determining whether the conditions stated in Section 6 may have
existed (see, e.g., Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962)).‖ The Act does
not discuss the weight to be given to this factor, and the case cited, Del Vecchio, provides
no further guidance and merely states: ―If the provision made by the agreement is not fair
and reasonable then it should be made to appear that the wife, when she signed, had some
understanding of her rights to be waived by the agreement. In any event she must have
signed freely and voluntarily, preferably, but not necessarily a required pre-requisite,
upon competent and independent advice.‖ (Del Vecchio v. Del Vecchio (Fla.Sup.Ct.
1962) 143 So.2d 17, 20, abrogated on another issue in Fla. Stats., § 732.702(2).)


                                              30
       The importance of having legal counsel was expressly recognized by the
commissioners drafting the UPAA. Originally, the UPAA contained the following
provision regarding enforcement: ―(a) An antenuptial agreement is enforceable unless
the court finds that: [¶] (1) a fair and reasonable disclosure of the property and financial
obligations of the party seeking enforcement was not provided to the party against whom
enforcement is sought before the execution of the agreement; or [¶] (2) the party against
whom enforcement is sought was not represented by independent counsel at the time of
execution. [¶] (b) Except as provided in subsection (c), an antenuptial agreement which
is not enforceable under subsection (a) is enforceable if the court finds that: [¶] (1) the
agreement at the time of execution made a fair and reasonable disposition of the rights
and obligations of the party against whom enforcement is sought and the party against
whom enforcement is sought understood the effect of and voluntarily executed the
agreement; or [¶] (2) the party against whom the agreement is sought to be enforced had,
or reasonably should have had, an adequate knowledge of the property and financial
obligations of the other party and understood the effect of and voluntarily executed the
agreement. [¶] (c) If, after considering all relevant facts and circumstances, the court
finds that enforcement of an antenuptial agreement pursuant to subsection (b) would be
unconscionable under the existing facts and circumstances, the court may refuse to
enforce the agreement, enforce the remainder of the agreement without the
unconscionable provision, or limit the application of the unconscionable provisions to
avoid any unconscionable result.‖ (Proceedings, Aug. 3, 1982, pp. 31-32, italics added.)
       Review of later discussion among the commissioners reveals that they deleted this
section requiring legal counsel, not because they devalued the importance of independent
legal advice in determining the validity of any agreement, but because they did not
believe ―that the legislatures of the states ought to be making the rights of people
dependent upon whether or not they have lawyers.‖ (Proceedings, July 23, 1983, p. 61.)
Additionally, the commissioners wanted to permit parties to void agreements even when
they had legal counsel if their attorneys turned out to be unethical or incompetent. (Id. at


                                             31
p. 62.) One commissioner explained: ―[R]epresentation would be a factor in determining
whether the party acted voluntarily and knowingly. We do not believe, however, that
legal representation alone would be a desirable basis for enforcement.‖ (Id. at pp. 3-4.)
We also do not believe legal representation should be the only factor examined by a court
to determine validity of the agreement.
       Barry and the dissenting opinion maintain, somewhat hyperbolically, that
―requiring‖ both parties to have legal counsel will spawn numerous legal malpractice
lawsuits because courts will automatically invalidate agreements involving an
unrepresented spouse. We are not holding that such agreements should result in
automatic invalidation. We agree with Barry and other jurisdictions that have held that an
unrepresented spouse may voluntarily sign a premarital agreement (Spector, supra, 23
Ariz.App. at p. 140 [531 P.2d at p. 185] [wife‘s representation by counsel is one factor to
consider when determining the absence of fraud and undue influence]; In re Estate of
Henry (1967) 6 Ariz.App. 183, 186 [430 P.2d 937, 940] [court refused to void property
settlement agreement simply because party did not have legal representation]; Nanini v.
Nanini (1990) 166 Ariz. 287, 290-291 [802 P.2d 438, 441-442] [Arizona court applying
Illinois law concluded that advice of counsel is not a prerequisite to upholding a
premarital agreement]). Rather, we conclude that when the party challenging the
agreement waives a statutory right in the contract, and this person does not have any legal
or business sophistication and does not have an advocate with legal skills while the other
prospective spouse does have legal assistance, the validity of the agreement requires
closer scrutiny.
       The claim that this holding jeopardizes existing agreements perpetuates the myth
that presently there is no uncertainty regarding the enforcement of prenuptial agreements.
No such certainty currently exists. No responsible attorney could have reasonably
predicted and assured Barry that a trial court would have enforced his prenuptial
agreement. Courts in other jurisdictions (as already noted, California courts have not yet
addressed this issue) have indicated that an agreement involving one unrepresented party


                                            32
will be invalidated if any one of the following factors is present: The unrepresented party
waived his or her community property rights or was provided disproportionately less than
the represented party (Fletcher v. Fletcher, supra, 68 Ohio St.3d 464 [628 N.E.2d 1343]);
the terms of the agreement were not understandable to a reasonably intelligent adult (Gant
v. Gant, supra, 174 W.Va. 740 [329 S.E.2d 106]); or the unrepresented party was
presented with the agreement too soon before the wedding (Lutgert v. Lutgert (Fla.App.
1976) 338 So.2d 1111).
       Not only are all of the above factors present here, but we have the additional
factors that no original agreement was presented at trial; that someone had tampered with
the agreement, since identical signature pages were attached to copies of differing
documents; that the agreement is patently incomplete and filled with mistakes; and that
Sun was told there would be ―no marriage‖ if she did not immediately sign the agreement.
Accordingly, the enforcement of these agreements generally, and this one in particular,
has always been in jeopardy. The only question has always been whether a particular trial
judge, often informed by little more than his or her own personal values, would or would
not find the agreement to be fair and therefore valid. Rather than permit such
unpredictability to continue, and preferring not to abdicate our role of interpreting and
reconciling the law as a reviewing court, we have set forth a holding which we believe
will promote uniform standards of enforcement.
       The dissenting opinion‘s countervailing alarm that we are creating a new rule and
imposing new standards on practitioners has no support. Practice guides for California
family law attorneys have for many years clearly alerted practitioners about the danger
that a reviewing court will refuse to enforce a prenuptial agreement involving one
unrepresented party. This is especially true when the attorney on the scene has not
required the unrepresented party to sign a written statement or advisement regarding the
potential conflict of interest. William P. Hogoboom and Donald B. King provide the
following practice pointer in their California practice guide on family law: ―[C]ounsel




                                             33
involved in the negotiation and drafting of an agreement between spouses or prospective
spouses should follow these fundamental guidelines:
        ―If the other spouse does not have a lawyer, recommend in writing that he or she
obtain independent legal advice before signing. [¶] (On this point, however, do not
personally refer the pro per spouse to a particular lawyer. If he or she does not have a
referral source, suggest the spouse contact a local bar association for an appropriate
recommendation.)
        ―If the other spouse declines your suggestion and wants to go forward without
independent legal representation, have that spouse sign an acknowledgment clause in the
agreement. This clause should reflect the pro per spouse‘s informed understanding that
the drafting attorney represented only the other party and advised the pro per party to
obtain separate legal advice before signing, but that such advice was declined. [¶] (Do
not attempt to avoid an improper ‗dual representation‘ problem by substituting the pro per
client‘s acknowledgment with your own attorney declaration of full disclosure, advice
and consent; see Estate of Butler, [(1988) 205 Cal.App.3d 311].)
        ―Also, if your advice is declined, it is advisable to have your own client
acknowledge in a signed writing his or her understanding that absence of separate counsel
for the pro per spouse might affect enforceability of the agreement. But use a separate
acknowledgment letter for this purpose (including this language in the agreement itself
might invite later attack).‖ (Hogoboom & King, Cal. Practice Guide: Family Law
(Rutter 1997) § 9:114, pp. 9-29 to 9-30 rev. #1, 1997, italics added.) 8


8        Similarly, another practice guide, the American Law Institute-American Bar Association
Continuing Legal Education, advises: ―In the hypothetical involving a premarital agreement, the client
should be regarded as one or the other of the couple and the attorney probably commits malpractice by
not insisting that the other obtain independent representation. [¶] a. Failure to do so would be more
than an ethical violation, because the surest way to insure the effectiveness of a premarital agreement is
to guarantee that both sides of the agreement have adequate independent representation. [¶] b. Thus, the
spouse(s) desiring the agreement would be ill-served if the attorney did not insist on this measure as the
most effective protection of the parties‘ best interests, and normally the attorney should not accept no for
an answer when recommending that they obtain independent counsel. [¶] c. If that recommendation is
not accepted, the attorney still should regard only one of the parties as the client and should make it clear
that the other was encouraged to obtain independent representation and voluntarily refused to do so.‖ (67


                                                     34
         Moreover, the practice guides already have warned attorneys that certain types of
agreements will be subjected to closer scrutiny. Hogoboom and King, supra, California
Practice Guide: Family Law, section 9:90, at pages 9-23 to 9-24 (rev. #1, 1997) warns:
―Although premarital and marital agreements may be binding with minimal (‗mutual
consent‘) or no consideration (above), courts are likely to strictly scrutinize provisions
under which one party gives up valuable marital property and/or inheritance rights
without receiving anything of value in return. These contracts may raise a suspicion of
fraud, duress, or undue influence. [See, e.g., Estate of Cover (1922) 188 Cal. 133, 143,
204 P. 583, 588; Estate of Nelson (1964) 224 Cal.App.2d 138, 143, 36 Cal.Rptr. 352,
354].‖
         We are obviously not citing these practice guides as authority; they merely
illustrate that practitioners have long been well-aware of the fragility of such agreements
when only one party has legal representation and the other, unrepresented, party is not
informed of the importance of having separate representation. We recognize our holding
may invalidate some agreements involving one unrepresented party when the agreements
are also found to be unfair, but such disproportionate agreements should be invalidated,
because overreaching and sharp practices have never been countenanced in marital
matters. It cannot reasonably be disputed that some prenuptial agreements are so unjustly
asymmetrical that a reviewing court should not hesitate to reverse a trial court‘s finding of
validity. It is difficult to imagine an agreement process involving a represented and

Pennell, ―Ethics, Professionalism, and Malpractice Issues in Estate Planning and Administration,‖ SC75
ALI-ABA (1998), pp. 93-94, italics added; see also, Belcher, ―For Richer, for Poorer: Strategies for
Premarital Agreements,‖ 12 Prob. & Prop. (Dec. 1998), 54, 58, fn. omitted [―A lawyer can take several
steps in drafting and negotiating a premarital agreement to minimize the chances of a successful
challenge. . . . [¶] Retaining independent counsel. Each spouse should retain independent legal counsel
to represent him or her because courts will consider independent representation as evidence that the
parties entered into the agreement voluntarily or that the agreement is not unconscionable. [¶] Although
important, this may be difficult to accomplish. Some clients prefer to limit the cost of obtaining a
premarital agreement by using one lawyer. Other clients do not understand why the ‗family‘ lawyer
cannot fairly represent both individuals. The lawyer should stress the importance of each party having
independent legal advice about the marital rights he or she is waiving in the agreement and the
importance of this advice in upholding the agreement if the agreement is later challenged.‖].)



                                                  35
unrepresented prospective spouse that could be more flawed and uneven in its particulars
than the one before us.
       We also believe the ―danger‖ that some agreements may be found unenforceable
must be balanced by the salutary effect of a rule that presumes the primacy of an informed
decision over an ignorant one. A rule which encourages, but does not require, both
parties to any marital agreement to seek professional legal advice can arguably go further
than any other safeguard to assure the parties that their wishes will be enforced, and their
rights protected. No sound argument can be made against the idea that agreements of
such social importance should be entered into intelligently rather than unadvisedly. We
have endeavored to provide clear guidelines for practitioners to follow so that they can
more confidently assure their clients that their premarital agreements will later be
enforced and so that the courts can be assured that such agreements reflect both parties‘
wishes.
       We also recognize that sometimes the unrepresented, but well-informed, party to
the negotiation of a prenuptial agreement may intelligently refuse legal assistance, and
that in such cases the absence of legal counsel would not necessarily suggest any attempt
to take unfair advantage of the unrepresented party. Thus, when the unrepresented party
(1) has the opportunity to seek legal advice and (2) knowingly refuses such assistance, the
closer scrutiny test we have enunciated should not be applied. The facts of this case
illustrate the application of our holding.
       In the case before us, Brown merely told Sun that she ―may want‖ to seek counsel
a week before the meeting and twice at the meeting. The trial court concluded that––
despite Sun‘s complete lack of income and dependence upon Barry after moving to the
United States and no evidence of any offer to pay for her counsel––she had a ―reasonable
opportunity‖ to obtain independent counsel. Even if we concurred with this finding, we
cannot agree with the court‘s additional finding that Sun ―had sufficient awareness and
understanding of her right to, and need for, independent counsel.‖ The trial court thus
ruled that merely being told she could have separate counsel was the equivalent of telling


                                             36
her why she needed counsel. This was error; merely being told one may seek counsel
does not establish any understanding of the need for counsel. Furthermore, it is by no
means clear from this record that Sun was advised of the nature of her relationship with
the attorneys who were present. We can give no effect to the attorneys‘ statements to Sun
that they represented Barry because their actions at the meeting contradicted this assertion
and actually conveyed an impression that they were independent counsel. It almost goes
without saying that Sun was not advised of the obvious conflicts of interest; the attorneys
themselves admitted they were unaware of the conflicting interests of the parties when
they proceeded to provide Sun with legal advice.
       The dissenting opinion asserts that there are ethical constraints preventing
attorneys from informing the unrepresented party about the potential conflict. We
disagree. We do not suggest, as the dissenting opinion indicates, that the attorney must
provide the unrepresented party with legal advice. Indeed that is precisely what happened
in this case and remains one of its most troubling aspects. Rather, we are merely
requiring the attorney to tell the unrepresented party that the prospective spouses‘
interests may not be identical. Otherwise, the unrepresented party may incorrectly assume
that the attorney is not actively, and zealously, pursuing potentially antithetical interests.
Rule 3-310(C) of the California State Bar Rules of Professional Conduct requires an
attorney representing more than one client to accept representation of clients with a
potential conflict of interest only after an informed written consent by each client. Such
an acknowledgment of a potential conflict does not require the disclosure of any
confidential information or the providing of any legal advice. Moreover, such full
disclosure better serves the represented client, since it helps to ensure that the agreement
will later be enforceable.
       Although California courts have not addressed what is required to establish a
refusal of counsel in the premarital context, the extensive law discussing waiver in other
contexts provides guidance as to when legal assistance may be ―knowingly and
intelligently‖ refused. ―Waiver requires a voluntary act, knowingly done, with sufficient


                                              37
awareness of the relevant circumstances and likely consequences. [Citations.]‖ (In re
Marriage of Moore, supra, 113 Cal.App.3d at p. 27 [―The burden is on the party claiming
a waiver to prove it by evidence that does not leave the matter doubtful or uncertain and
the burden must be satisfied by clear and convincing evidence that does not leave the
matter to speculation. [Citation.]‖].)
       Similarly, in the criminal context, a defendant waives counsel only if ―‗made
aware of the dangers and disadvantages of self-representation.‘‖ (People v. Lopez (1977)
71 Cal.App.3d 568, 572-574.) In discussing a valid waiver of the potential conflict when
an attorney represents codefendants, the Supreme Court in Mroczko, supra, 35 Cal.3d at
page 110 stated: ―No particular form of inquiry is required, but, at a minimum, the trial
court must assure itself that (1) the defendant has discussed the potential drawbacks of
joint representation with his attorney, or if he wishes, outside counsel, (2) that he has been
made aware of the dangers and possible consequences of joint representation in his case,
(3) that he knows of his right to conflict-free representation, and (4) that he voluntarily
wishes to waive that right. [Citations.] Any waiver must be unambiguous and ‗without
strings.‘ [Citations.]‖
       Applying these principles in the premarital contract context does not require
significant variance from the existing guidelines regarding the attorney‘s role in devising
a premarital agreement already suggested in the leading family law practice guides (see,
e.g., Hogoboom & King, Cal. Practice Guide: Family Law, supra, pp. 9-29 to 9-30 rev.
#1, 1997). Counsel, at a minimum, must explain to the unrepresented party: (1) that the
attorney‘s responsibility is to pursue and protect only the interests of his or her client; (2)
that spousal interests are probably not identical and are likely to conflict; (3) that the
spouses‘ interests will change over time and the attorney will not be concerned with
providing for all the changed circumstances that could possibly impact the unrepresented
spouse; and (4) that signing this agreement will eliminate or modify his or her statutory
rights. (Presumably premarital agreements of this sort would be unnecessary when
statutory rights are not being modified.) We conclude that although no specific language


                                              38
must be used, a valid waiver of counsel in this context must be based upon an advisement
which fairly states the above reasons for the desirability of obtaining the advice of an
attorney.
       The dissenting opinion exclaims that this requirement ―will come as a surprise to
the family law bar.‖ (Dis. opn. at p. 13, fn. 9.) Yet, in the post-dissolution context, the
court requires that any waiver must be done with the ―actual or constructive knowledge of
the existence of the right to which the person is entitled. [Citation.]‖ (In re Marriage of
Moore, supra, 113 Cal.App.3d at p. 27; see also City of Ukiah v. Fones (1966) 64 Cal.2d
104, 107 [―‗Waiver is the intentional relinquishment of a known right after knowledge of
the facts.‘ [Citation.]‖].) The Moore court admonishes that this ―rule particularly applies
to cases involving a right favored in law such as, in this case, the right to retain lawful
property entitlements and support.‖ (Moore, supra, at p. 27.) Thus the importance of
establishing waiver in cases such as this one––where an unrepresented prospective spouse
is foregoing his or her community property rights in a contract devised by the other
party‘s attorneys––will not come as a shock to any competent family law practitioner.
       If the attorney provides such an advisement, and the unrepresented spouse persists
in the desire to proceed without an attorney, the spouse will have effectively waived the
right to later complain of involuntariness as it pertains to the need for counsel. (The
attorney should not then offer any legal advice to the unrepresented spouse, but rather
permit the spouse sufficient time to read the contract and discuss its provisions with
anyone else.) Under such circumstances, when a person so advised voluntarily foregoes
the assistance of counsel, later challenges to any resultant agreement would not require
the special scrutiny applied here.
       Here, it is undisputed that Sun was never provided this crucial information. Brown
informed Sun that she could see another attorney but he never encouraged her to do so.
Brown testified that he said the following: ―. . . I don‘t think I ever made an affirmative
declaration to Sun that she should seek counsel, what I said to her is that she may want to




                                              39
do that. If she wanted to do that, there was no problem in doing that. [¶] I think that was
the gist of my presentation in that regard.‖
         Barry‘s own testimony indicated that Sun did not understand why she needed an
attorney. Barry testified: ―. . . Sun said she didn‘t want a lawyer. Sun didn‘t have
anything. I paid for everything. Sun said, what do I need a lawyer for? I don‘t have
anything. I mean, I know exactly what she said in that conversation.‖ This is precisely
the problem: Sun thought she did not have anything and did not need a lawyer, and no
one disabused her of that incorrect perception. The fact was that she did have something:
she had the potential legal right to community property. The whole purpose of the
agreement was to divest her of rights which would accrue to her as a matter of law unless
she waived them before the wedding.
         In this context, the comment that Sun ―may want‖ to obtain an attorney was worse
than worthless; it was misleading. There was not even a superficial attempt to explain to
Sun the reasons for needing an attorney, and attorneys cannot avoid their ethical
obligation to avoid conflicts of interest by merely telling the unrepresented party that he
or she may obtain an attorney. Not only did Brown fail to identify any conflict of interest,
but, as discussed more fully below, he frequently acted in a manner that made him appear
to be an independent legal advisor rather than Barry‘s advocate.
         Additionally, even if Barry‘s attorneys had provided Sun with the proper
admonitions, these admonitions could have been obviated by subsequent behavior that
indicated that, rather than solely representing Barry, they were independent advisors. By
explaining the ―legal ramifications‖ of each provision in the premarital agreement, Brown
further contaminated the process by making it appear that he was acting on Sun‘s behalf.
Although both Brown and Megwa repeatedly stated that they were representing Barry,9
Brown also admitted in his testimony that he gave both parties legal advice. Both Brown



9        At one point, Brown testified that he told Sun that he and Megwa were ―primarily‖ representing
Barry.


                                                   40
and Megwa attempted to explain each provision to Sun, even though they were actually
representing only Barry‘s interests.
       Both Brown and Barry testified that the attorneys offered Barry the confusing
advice that he could also seek other counsel, which helped to convey the message that
Brown was a disinterested ―authority-in-law‖ and that both Barry and Sun could choose
to seek advice from an advocate. Brown responded ―no‖ when asked whether he
explained to Sun ―that there was a distinction between her seeing a counsel in order to
make sure she understood what was going on, as distinct from Barry seeing another
counsel in order to confirm what you had told him.‖
       The confusion regarding Brown‘s role was exacerbated by the contract itself. The
agreement stated: ―Each of us has been informed of our respective right to benefit of an
independent attorney to counsel us. By execution of this Agreement this date, we waive
that right . . . or represent that we have conferred with independent legal counsel before
signing this agreement.‖ However, Barry obviously never waived this right, since both
Brown and Megwa represented him at all stages of the preparation of the agreement.
Further, the agreement‘s signature line for Barry‘s attorney remained blank, and Brown
only signed the signature line provided for the notary.
       Brown and Megwa quite possibly violated Arizona‘s ethical rules which provide:
―In dealing on behalf of a client with a person who is not represented by counsel, a lawyer
shall not state or imply that the lawyer is disinterested. When the lawyer knows or
reasonably should know that the unrepresented person misunderstands the lawyer‘s role
in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.‖
(17A. A.R.S. Sup. Ct. Rules, Rules of Prof. Conduct, Rule 42, E.R. 4.3.) The behavior of
Barry‘s counsel could have lulled any lay person into a false sense of security, even if we
did not take into account that Sun had been in the United States only one month and had
no prior experience in negotiating a legal contract.
       Barry and the dissenting opinion complain that substantial evidence supported the
trial court‘s ruling and cite the following evidence: Barry and Sun had frequently


                                             41
discussed their intent to keep their money separate. Sun knew that Barry would not marry
her unless she signed an agreement that contained a provision to keep their income
separate. The meeting with the attorneys was not rushed and Sun could have postponed
the wedding since only a few people had been invited. However, none of these facts
bears on Sun‘s awareness of her need for counsel. Neither Barry nor the dissenting
opinion can cite any evidence in the record to indicate that Sun was ever advised of the
potential conflict of interest and the concomitant reasons why she should seek counsel.
       Barry also argues that he would not have married Sun had she refused to sign the
agreement. Therefore, even if she had counsel, the agreement would have remained the
same. This argument merits little discussion. There is no way to know whether legal
counsel for Sun could have persuaded Barry to modify the agreement in order to provide
Sun with an interest in all or a portion of the community property, or to provide for such
contingencies such as Sun‘s staying at home to raise the children. It is equally impossible
to determine whether Barry and Sun would have come to an impasse and not married,
which could have resulted in Sun‘s pursuing her own independent career and foregoing
the luxurious lifestyle she enjoyed while married to Barry. Such speculation over what
might have happened had Sun retained an attorney is idle speculation; the crucial inquiry
is whether Sun voluntarily signed the agreement. She could not have done so without
possessing more information than appears in this record.
       Furthermore, other courts have considered a threat to cancel the wedding under
such circumstances as evidence of coercion. One Florida Court of Appeal has opined:
―Surely, particularly at the last moment, a prospective wife ought not be forced into a
position of being ‗bought‘ at the price of losing all if she does not agree to a grossly
disproportionate benefit to the husband should she leave him under any and all
circumstances, any more than she should be permitted to ‗sell‘ herself at zero hour for an
agreement resulting in a grossly disproportionate gain to her upon the same eventuality.
Along with public policy considerations this is the very reason why ‗fairness‘ is the
polestar in these agreements; and fairness would certainly include an opportunity to seek


                                              42
independent advice and a reasonable time to reflect on the proposed terms.‖ (Lutgert v.
Lutgert, supra, 338 So.2d at p. 1116.)
       Accordingly, we conclude that the trial court erred in failing to give the proper
weight to the factor of Sun‘s not having any legal counsel while Barry had two attorneys
and his agent advising him. As with settlement agreements in divorce actions, the court
should ―carefully scrutinize the agreements‖ when the party challenging the agreement
did not have the advice of counsel (Adams v. Adams, supra, 29 Cal.2d at p. 628).
D. Scrutinizing the Totality of the Circumstances
       Not only did the absence of trial counsel fail to trigger closer scrutiny by the trial
court, but the trial court compounded its error by giving this factor almost no weight. The
trial court dismissed this factor when it concluded that Sun understood her community
property rights and had agreed that both Barry and she should not have an interest in the
other‘s income after marriage. The trial court therefore effectively concluded that Sun
did not need legal counsel.
       Sun understood the agreement, Barry asserts, because Brown and Megwa read
aloud each provision in the contract and then ―clarified‖ its meaning. Brown and Barry
testified that Sun asked relevant questions and never indicated that she did not understand
what she was signing.
       It is clear from the testimony, however, that even Barry, who spoke English as his
first language and had prior experience negotiating legal contracts, did not leave the
meeting with an accurate understanding of the provisions of the contract. At trial, Barry
was asked to read the following provision in the contract: ―We recognize that community
property law generally specifies that appreciation from separate property shall remain
separate property except for that appreciation which comes about from the direct efforts
of a spouse during marriage.‖ When asked to explain this section, Barry testified that he
believed this meant: ―That we were going to have, that it was going to remain separate
property and in protection to both parties that if Sun was to get it through her career and
make it, I had to put in just as much effort into that, or financial, as she was for it to be


                                               43
community property because we did it jointly, or it would remain separate in protection to
her or in protection to myself. That‘s why it says we, for the both of us.‖
       Barry was also asked the meaning of ―consideration‖ in the following provision in
the prenuptial agreement: ―As consideration for the promise of marriage, one to the other
and for other valuable consideration.‖ Barry responded: ―It means if I––if––in this
statement, ‗consideration‘ can mean whatever statement or sentence it is put in.
Whatever, if I am considering her needs or wants, am I considering other things in this
sentence.‖
       Although Barry was confused about the meaning of the above provisions, he
nevertheless maintains that Brown clearly explained the provisions to Sun and that she
understood them. Barry testified that Brown ―attempted to explain the legal ramifications
as he [explained the provisions].‖
       Specifically, Barry contends that Sun understood that she was waiving her
statutory rights to community property. The critical provision regarding the community
property waiver was paragraph 10 in the agreement, which provided, in pertinent part, as
follows: ―CONTROL AND EARNINGS OF BOTH HUSBAND AND WIFE DURING
MARRIAGE. We agree that all the earnings and accumulations resulting from the
other‘s personal services, skill, efforts and work, together with all property acquired with
funds and income derived therefrom, shall be the separate property of that spouse. [¶]
The earnings from husband and wife during marriage shall be: [¶] separate property of
that spouse.‖
       Nothing in this paragraph explained that such earnings would ordinarily be
community property. ―[N]o waiver of right can be inferred from a written stipulation
except where an intentional relinquishment of the known right is explicit, the terms and
scope of the waiver are spelled out and the express reason for the waiver set forth . . . .
[Rights strongly favored in our law] ‗will not be held to have been waived or relinquished
except where the language relied upon clearly and explicitly manifests that intention.‘‖
(In re Marriage of Moore, supra, 113 Cal.App.3d at p. 28, citing City of Ukiah v. Fones,


                                              44
supra, 64 Cal.2d at p. 109; see also In re Marriage of Vomacka (1984) 36 Cal.3d 459,
469.)
        Although the contract did not explain that Sun was entitled to community property
under Arizona law, Barry claims that Brown sufficiently explained this to her. In fact,
Brown testified that he provided the following explanation of community property: ―That
the State of Arizona is a community property state; that the effect of the prenuptial
agreement would be to disavow that community property regime between hers [sic] and
Barry. That what they were doing was creating a different community regime, one of
separate property. That if they did not do the prenuptial agreement all of the community,
all of the property that they each generated would be community property and they each
would have an interest in the other‘s property. That would be property, income, anything
of value that was generated by their efforts once they were married. And the agreement
was going to eliminate the effect of that community property regime.
        ―. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        ―That at the execution of the prenuptial agreement Barry‘s income would be
Barry‘s, Sun‘s income would be Sun‘s. That the prenuptial agreement would not result in
a mingling of their assets as joint owner.
        ―. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        ―That the agreement would exclude the effect of community property laws, that
Barry‘s income and property would remain separate from Sun‘s income and property.
That the only way that they could change that would be by some affirmative act in
writing.‖
        Later, Brown testified about using a hypothetical to explain the agreement‘s
impact on community property. He explained: ―I think I did essentially what I just
illustrated, that is, talk about the fact if Barry makes so much money it will remain his,
and if you make so much money it‘s going to remain yours, it‘s not going to become a
part of the community or part of a community property regime.‖




                                                                  45
       Even if we were to agree with the trial court that Brown adequately explained to
Sun, a lay person, her right to community property, that does not mean that she
voluntarily executed the agreement. Brown‘s attempt to explain community property
rights to her exemplified just one aspect of the need for legal counsel. Besides equalizing
the bargaining process, the presence of independent counsel functions to ensure that the
contract addresses and explains the possible situations and contingencies that may occur
during the marriage. ―It is wholly unrealistic to expect ‗the parties to a marital settlement
agreement [to] anticipate and provide for unexpected changes of circumstances which
may invalidate the expectations reflected in the agreement.‘ [Citation.]‖ (In re Marriage
of Benson, supra, 171 Cal.App.3d at p. 913.) This is true for settlement agreements at
dissolution and, perhaps even more true for agreements made before marriage that
prospectively alter or eliminate statutory rights to property and income accumulated
during the marriage. It is obvious that the heightened emotions and optimism which often
precede marriage may hinder people from considering what may be in their long-term
best interests. After all, marriage itself has been referred to as the ―triumph of hope over
experience.‖
       Thus the problem is not simply that Sun did not have her own counsel explaining
the legal concepts to her and that she never received an adequate explanation of those
concepts. She also did not have an attorney advocating on her behalf and explaining the
agreement‘s impact upon her if she were to become disabled or never succeeded in a
career. As Sun points out, the record is devoid of any evidence that Sun was told that
given Barry‘s current profession and income and her lack of skills and employment, Barry
would disproportionately benefit even if Sun were to find employment. Further, no one
discussed with her that she would not be entitled to any money, or property purchased by
Barry‘s income, if she stayed home to raise the children and sustain the family home.
       Barry, who had negotiated legal contracts before, had his attorneys Brown and
Megwa and his financial agent Wilcox at the meeting as his advocates. Sun only had her
Swedish friend, Forsberg, and herself. Neither Sun nor Forsberg had any special legal


                                             46
knowledge or business experience in negotiating contracts. ―The purpose of independent
counsel is more than simply to explain just how unfair a given proposed contract may be;
it is for the primary purpose of assisting the subservient party to negotiate an
economically fair contract.‖ (Foran, supra, 67 Wash.App. at p. 254, italics added [834
P.2d at pp. 1088-1089].)
       One of the commissioners that drafted the UPAA explained that parties need their
own attorneys to ―trot[] out the parade of horribles to their clients . . . . Many of these
changed circumstances of the petitioner can be addressed through properly drafted
provisions in the antenuptial agreements themselves. And if you are going to have a
marriage which appears to be on sound ground, I would suggest that a person would not
be doing [his or her] duty as an independent counsel for a party without suggesting that
they have specific agreements in the contract that would specify what would happen in
some of these contingencies.‖ (Proceedings, Aug. 3, 1982, pp. 52-53; see also Lutgert v.
Lutgert, supra, 338 So.2d at p. 1116 [immaterial that agreement was clear on its face
because unrepresented spouse was not provided with enough information to make
execution voluntary].)
       The court therefore should have scrutinized the other factors related to duress,
coercion, and fraud. As we have already stressed, not only did Sun lack any legal
counsel, but Barry‘s attorneys actually gave her legal advice and acted in a manner that
contaminated the entire process. Moreover, Sun was neither given a copy of the
agreement to review prior to the meeting nor given a copy of the agreement even after she
signed it. Any delay would have resulted in a postponement of the wedding. The
wedding may have been planned as a ―small affair,‖ but guests such as Willie Mays,
Bond‘s relatives, and Sun‘s friend who had traveled from Canada had made special
arrangements to be there. Finally, as already noted, as she arrived at the attorneys‘ office,
Wilcox aggressively threatened Sun with ―no wedding‖ if she did not sign the agreement.
       Another factor to consider when scrutinizing the totality of the circumstances,
which reflects the hastiness of the entire process, was the large number of typographical


                                              47
errors (and the repeated paragraph) in the contract, making many of the sentences
confusing if not incomprehensible. For example in paragraph 19, the last sentence stated,
―These gifts shall become the sole and separate property of the done spouse.‖ Brown
(who is a lawyer and presumably a native speaker of English) first testified that it should
have read ―donor spouse,‖ and after further questioning, recognized that it should have
stated ―donee spouse.‖ In paragraph 21, the first sentence states, ―The debts contracted
by each party prior to their marriage shall be paid sully by the party who incurred that
debt.‖ Brown testified that the word should have been ―solely.‖ At times, the contract
almost appears to have been a poor translation from another language. We are left to
wonder not only how Brown‘s verbatim recital of such garbled provisions could have
assisted the parties‘ understanding, but also how such errors could have persisted after
such a careful reading.
       Brown stated that when the agreement was read aloud to Sun, the typographical
errors were corrected, but the trial court also found this testimony incredible. The court
stated: ―One of the things that I‘m having trouble recognizing in my mind is, if the
attorneys have such a detailed memory of what occurred on that date, I‘m talking about
Brown and Megwa, how could they produce such a sloppy work product as that contract?
[¶] How could they read through it and explain it paragraph by paragraph as they said
they did, and still allow it to come off the press in the fashion that it has? [¶] It doesn‘t
seem to me to make logical sense that you would be so meticulous in your oral
presentation of the contract, and so sloppy in your written presentation. I can‘t reconcile
the two.
       ―. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       ―But if they were so meticulous in explaining this to her, they would have been
meticulous in their authorship of this, and cleaning it up and producing an agreement that
made sense; not one that referred to schedules that didn‘t exist, that repeated paragraphs,
that had important typographical errors.
       ―. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


                                                                 48
        ― . . . I‘m just saying that, how can you expect me to believe that these attorneys
were meticulous in their oral presentation, careful, logical in explaining it all to her when
their written product is a shambles?‖
        A further problem with the prenuptial agreement was its incompleteness. The
agreement stated that a schedule of separate property would be attached, but it is
undisputed that no such schedule was attached. Sun maintains that the disclosure of the
community property affected by the agreement was equally incomplete. The agreement
stated that household furnishings would be community property, but it also provided that
other property would be community as set forth in the schedule to be attached. No such
schedule was attached. Additionally, the agreement contained the heading ―SPOUSAL
MAINTENANCE AND CHILD SUPPORT,‖ but the text following it was an
unenforceable provision regarding child support and stated nothing about spousal support.
        Where it appears from the record as a matter of law that there is only one proper
judgment on undisputed facts, we may direct the trial court to enter that judgment.
(Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 440.) Here it is
undisputed that Sun had no legal representation and was not advised about any potential
conflict of interest between Barry and her; that Barry‘s attorneys devised the agreement
and played a confusing and misleading role when explaining the agreement; that Sun felt
pressure to sign because of the pending marriage and was under the threat of ―no
marriage‖ if she did not sign; that Sun did not have even a day to review the agreement,
but merely a couple of hours in the attorney‘s office; that there appeared to be some
tampering with the agreement by Barry or his agents and the original contract was never
provided to the court; and that the agreement was filled with errors and was patently
incomplete. We conclude that, under the totality of the circumstances, Sun did not
execute the prenuptial agreement voluntarily.10 Because no factual issues remain to be

10      In applying Arizona‘s law in 1987 to this agreement, the trial court also considered whether this
agreement was fair and equitable; it found that it was. Section 1615 does not mention subjective
unconscionability as a reason for invalidating the agreement, and it is therefore not germane to our
analysis. There may be situations when enforcing the contract may shock the conscience or result in one


                                                   49
determined after a reversal of the judgment, and we conclude the errors of the trial court
were of law only, remand would serve no purpose. Accordingly, we shall reverse with
directions to enter judgment that the agreement is invalid.
         IV. No Abuse of Discretion in Determining Child and Spousal Support
        The trial court awarded Sun $10,000 per month in child support for each of the
Bonds‘ two children, and it awarded Sun an additional $10,000 per month as spousal
support, which was to be terminated December 30, 1998. Sun contends that the amount
of support was too little and the spousal support should not end by this specific date. We
are not persuaded by Sun‘s first argument, and, given the change in Sun‘s fortunes likely
to result from this opinion, we remand for the trial court to review the issue of spousal
support and its duration.
A. Combining Child and Spousal Support
        Sun asserts that the trial court abused its discretion in its determination of child and
spousal support. Under California law, both parents are mutually responsible for the
support of their children, and each parent should pay according to his or her ability.
(§ 4053, subds. (b) & (d).) A parent should provide support according to the parent‘s
circumstances and station in life, and children should share in the standard of living of
both parents.
        A decision not to order the guideline amount pursuant to section 4055 is legal
error, unless the trial court finds that a special circumstance is present. (In re Marriage of
Carter (1994) 26 Cal.App.4th 1024, 1028-1029.) The trial court can deviate from the
guideline where the supporting parent has an extraordinarily high income, and the
guideline amount would exceed the needs of the children. (§ 4057, subd. (b)(3); Estevez
v. Superior Court (1994) 22 Cal.App.4th 423, 428-431.) In this latter situation, the court
has the discretion to order whatever amount it decides will meet the reasonable needs of




spouse‘s needing public assistance. In those situations issues of subjective unconscionability may be
relevant, but that is not the situation here and we express no opinion as to if and when it may apply.


                                                   50
the children, consistent with the basic principles of section 4053. (McGinley v. Herman
(1996) 50 Cal.App.4th 936, 941-943.)
       Barry stipulated to having, and the trial court found that he had, an extraordinarily
high income. Barry‘s 1996 pre-tax salary was $8,000,000; thus, guideline support would
have been $67,043 per month for both children. Sun does not argue that a special
circumstance did not exist, but she complains that the court abused its discretion in
determining the amount.
       Sun‘s principal argument is that the court improperly determined child support
based on a ―bare necessities‖ theory. Barry‘s expert accountant, Paul White (White),
recommended $29,454 per month in combined child and spousal support. Sun objects
that he predicated this sum on a ―bare necessities‖ marital lifestyle.
       Child support, Sun contends, is not limited to the living standards established
during marriage (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 551; see also
§ 4053 subds. (a), (c), (d), & (f)), and children of a wealthy parent are entitled to more
than the bare necessities (Catalano, supra, at p. 551; Singer v. Singer (1970) 7
Cal.App.3d 807, 813). When making his calculations, White, according to Sun,
mistakenly excluded the expenditures for establishing a retirement account, charitable
contributions, life insurance, a $20,000 expense for the Giants‘ luxury box, and
purchasing a car or other assets. Sun protests that the resulting support award ―requires‖
Sun and the two children to live on ―only‖ 4.5 percent of Barry‘s monthly income.
       Under the custody order, the children will spend 20 percent of their time with
Barry. Thus Sun is arguing that $20,000 per month for 80 percent of the time with the
children will only cover the bare necessities. This argument is remarkable for its lack of
merit. Sun cannot seriously argue that $20,000 a month would only provide for her
children‘s bare necessities. Moreover, since we are reversing the trial court‘s ruling that
the prenuptial agreement was valid, and Sun will now receive her share of the community
property, she will have significantly more assets of her own to help her provide for the
children beyond their ―bare necessities.‖


                                             51
B. Spousal Support
       Sun also challenges the award of $10,000 in spousal support for four and one-half
years. Her argument is twofold: procedural errors should result in a reversal, and
terminating the award after only four and one-half years is an abuse of discretion.
       1. Procedural Errors
       The trial court first heard the issue of the validity of the premarital agreement in
March and April of 1995. The court issued its tentative ruling on this issue; Sun
requested a statement of decision, which was issued on July 20, 1995. Trial
recommenced on the remaining issues. On March 7, 1996, the trial court issued its
tentative decision and stated that it needed more information from Sun‘s expert to
determine the duration of spousal support. It therefore ruled that this issue would be tried
later, at a separate hearing. Sun again requested a statement of decision, which was
issued on April 30, 1996.
       Prior to hearing the evidence on the duration of spousal support, the trial court
issued its judgment on May 29, 1996. Judgment was entered on June 5, 1996. The
judgment reserved jurisdiction over the duration of support.
       On June 20, 1996, Sun filed a notice of intention to move for a new trial or to
vacate the prematurely entered judgment. Five days later Sun filed her motion for new
trial or to vacate, objecting to the violation of the final judgment rule (see, e.g., Kinoshita
v. Horio (1986) 186 Cal.App.3d 959, 966-967).
       On September 9, 1996, the court heard evidence regarding the duration of spousal
support. By minute order dated September 25, 1996, the court set December 30 as the
termination date for spousal support.
       Sun contends that the court‘s premature entry of judgment deprived her of the
opportunity to request a statement of decision on duration of spousal support; and thus,
we should automatically reverse the trial court‘s decision. Sun argues that California
Rules of Court, rule 232.5 provides that, after issuing a tentative decision and statement
of decision on a bifurcated issue, ―. . . no proposed judgment shall be prepared until the


                                              52
other issues are tried . . . .‖ Sun asserts that the court violated this rule by entering
judgment on the spousal support amount before the trial on duration had occurred. This,
she maintains, foreclosed her opportunity to request a statement of decision, because the
time to make such a request is triggered by the tentative decision. This, she argues, is per
se reversible error (Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d
1126, 1129).
       Barry contends that this procedure is permissible. A trial court is allowed to
reserve jurisdiction over certain issues that cannot be resolved at the main trial in a family
law matter without violating the one final judgment rule. (§ 2550; In re Marriage of
Kilbourne (1991) 232 Cal.App.3d 1518, 1524-1525 (Kilbourne); In re Marriage of
Munguia (1983) 146 Cal.App.3d 853, 858-859 (Munguia).) In addition, a final judgment
can make a spousal support order that is subject to review after either spouse‘s
employment situation is clarified. (In re Marriage of Padilla (1995) 38 Cal.App.4th
1212, 1215-1216 (Padilla).)
       The court may reserve jurisdiction over issues regarding the division of property,
but, as Sun points out, duration of permanent spousal support is not a division of property.
Thus section 2550 and the cases of Kilbourne, supra, 232 Cal.App.3d 1518 and Munguia,
supra, 146 Cal.App.3d 853 have no application because they permit the trial court to
divide community property on a date subsequent to the trial if the court expressly reserves
jurisdiction. Additionally, as Sun argues, Padilla is unavailing. Padilla, supra, involved
the subsequent motion to modify child support that was filed three years after permanent
child support had been awarded in the judgment. (38 Cal.App.4th at pp. 1214-1215.)
       Barry also contends that Sun‘s motion for a new trial was untimely. The notice of
entry of judgment was mailed on June 5, 1996. Code of Civil Procedure section 657
requires a motion for new trial to be filed within 15 days from notice of entry of
judgment. Since Sun did not file her motion until June 26, 1996, it was a nullity. The
augmented record, however, establishes that Sun filed her notice of intention to move for
a new judgment and for a new trial on June 20, 1996. Therefore it was timely.


                                               53
        In addition, Barry claims that the motion for a new trial was premature under
California Rules of Court, rule 232.5 (see also Meyser v. American Bldg. Maintenance,
Inc. (1978) 85 Cal.App.3d 933, 937 [motion for new trial cannot be made until all issues
in bifurcated case have been determined]). Rule 232.5 provides, in pertinent part: ―. . .
Any motion for a new trial following a bifurcated trial shall be made after all the issues
are tried . . . .‖ Here, however, the issue of duration of spousal support was not a
bifurcated issue. Given the trial court‘s improper procedure and violation of the final
judgment rule, Sun‘s motion was not premature.
        Barry also contends that the hearing on spousal support was concluded in one day,
and pursuant to Code of Civil Procedure section 632, Sun was required to request a
statement of decision prior to the submission of the matter. Sun did not do this; thus, he
claims, she was not entitled to a statement of decision. Barry argues that duration was a
separate issue, as the minute order was separately appealable as a post-judgment order.
(Code Civ. Proc., § 904.1, subd. (a)(2).)
        Code of Civil Procedure section 632 provides, in pertinent part: ―. . . The court
shall issue a statement of decision explaining the factual and legal basis for its decision as
to each of the principal controverted issues at trial upon the request of any party appearing
at the trial. The request must be made within 10 days after the court announces a
tentative decision unless the trial is concluded within one calendar day or in less than
eight hours over more than one day in which event the request must be made prior to the
submission of the matter for decision. The request for a statement of decision shall
specify those controverted issues as to which the party is requesting a statement of
decision. . . .‖
        It is true that the issue of duration of support was heard on one calendar day, but
the issue of duration was really just a continuation of the second phase of the trial which
decided, among other things, the amount of spousal support. Once the court issued the
minute order, Sun should have requested a statement of decision within 10 days of that
order. Sun had never specifically requested a statement of decision on the issue of


                                              54
duration, and thus did not satisfy the requirements of Code of Civil Procedure
section 632. The fact that the court‘s minute order was not labeled a ―tentative decision‖
is not dispositive. If Sun had requested a statement of decision, the court would have
been compelled to issue one, and the minute order would have functioned as a tentative
decision.
       2. Abuse of Discretion
       We need not consider Sun‘s second contention, that the trial court abused its
discretion in terminating spousal support, because, in light of our conclusion that the
prenuptial agreement was invalid, Sun‘s economic status may be substantially changed
since the trial court last heard evidence concerning her economic situation. We will
therefore remand the matter for the trial court to redetermine the question of when spousal
support should end in light of the parties‘ new circumstances.
                                      DISPOSITION
       We reverse that part of the judgment which upheld the validity of the prenuptial
agreement, and instruct the trial court to enter judgment that the prenuptial agreement is
invalid. We affirm the judgment regarding child support and we remand for the trial
court to divide the community property consistent with this opinion and to redetermine
the issue of the duration of spousal support. Sun is awarded costs on appeal.


                                                  _________________________
                                                  Lambden, J.

I concur:
_________________________
Kline, P. J.




                                             55
RUVOLO, J., Concurring and Dissenting:

                                              I.
                                      INTRODUCTION
       I concur with the majority‘s conclusion that the trial court did not abuse its
discretion by admitting Exhibit 1 into evidence, and awarding child and spousal support.
However, I respectfully dissent from the majority‘s determination that the premarital1
agreement was invalid and unenforceable under California law.2
       The majority begins by recognizing the need for greater uniformity and
predictability in the judicial treatment of premarital agreements (maj. opn. of Lambden, J.
at p. 1), a proposition with which I agree, as did our duly-elected Legislature in enacting
the UPAA. Yet the majority ironically contributes to the veritable judicial lottery it
suggest exists in the law by importing elastic, judicially-created standards into the plain
language of the statute adopted by the Legislature 14 years ago. In doing so, the majority
has abandoned the statutory test requiring a party resisting the enforcement of a
premarital agreement under section 1615, subdivision (a)(1) to prove the agreement was
entered into involuntarily. In its place the majority poses a new test, quilted together
predominantly by reference to appellate opinions from states where the UPAA has not
been adopted, requiring ―strict scrutiny‖ of ―the totality of circumstances‖ (maj. opn. at
p. 3) pertaining to premarital agreements entered into where one party lacks legal
representation.



1       Contracts entered before marriage with the intention of affecting the rights of the
parties after marriage commences have been variously called ―prenuptial agreements,‖
―premarital agreements,‖ or the more stylized ―antenuptial agreements.‖ I choose to
denominate them as premarital agreements, in the nomenclature selected by our
legislators in adopting the Uniform Premarital Agreement Act (UPAA). Because
California adopted the UPAA without modification, we also use the acronym ―UPAA‖ to
refer to Family Code sections 1600-1617 (former Civ. Code, §§ 5300-5317). All further
undesignated statutory references are to the Family Code.


                                              1
       Not only does the ―strict scrutiny‖ test depart from the statutory calculus we are
obliged to apply, but it subverts the UPAA‘s express dual purposes of enhancing the
certainty that premarital agreements will be enforced, and ensuring that these agreements
will receive uniform treatment by the courts. Moreover, it improperly elevates the
importance of both parties securing independent legal counsel despite the explicit
legislative rejection of this proposition.
       Although the majority acknowledges that strict scrutiny is not required when the
unrepresented party has effectively waived his or her right to independent counsel, it
proceeds to establish a four-part test for determining the effectiveness of such a waiver
that is unprecedented in the annals of California civil law. This new test is undeservingly
analogized to the standards required for the waiver of criminal constitutional rights and
the waiver of statutory rights in postmarital agreements. It also unrealistically requires
counsel for the represented party to engage in potentially unethical behavior in order to
ensure the waiver will be upheld.
       Despite the majority‘s desire to provide guidance to the trial courts, quite the
contrary will be achieved. These new legal standards are so ambiguous and ill-defined
that they will only serve to induce unwarranted confusion and inconsistent results. At the
same time, they threaten the continued viability of thousands of existing premarital
agreements entered into in reliance on the clear, plain mandate of the statute in question.
       Equally troublesome is the majority‘s refusal to accord appropriate deference to
the factual findings of the trial judge. In this case, the trial court issued lengthy and
detailed findings that were well-supported by the record. Instead of accepting these
findings, the majority has assumed the role of a trier of fact and reweighed the evidence
to reach its own contrary results. Moreover, after conceding that it is setting forth a new
legal standard for assessing the validity of premarital agreements in California, the



2      For purposes of this discussion, I have accepted the majority‘s conclusion that
California law applies to the issue of validity, without concurring in its analysis.

                                               2
majority has opted to reverse the trial court without remand, in derogation of well-
established principles of appellate review.
       For these reasons, I am compelled to dissent.
                                              II.
 A BRIEF HISTORY OF THE ENFORCEMENT OF PREMARITAL AGREEMENTS AND THE
                                           UPAA
       In California, the enforceability of premarital agreement is governed by statute.
(Fam. Code, § 1615.) Our Legislature has adopted the UPAA, which sets forth
comprehensive standards for testing the validity of premarital agreements. The statute
provides: ―(a) A premarital agreement is not enforceable if the party against whom
enforcement is sought proves either of the following: [¶] (1) That party did not execute
the agreement voluntarily. [¶] (2) The agreement was unconscionable when it was
executed and, before the execution of the agreement, all of the following applied to that
party: [¶] (A) That party was not provided a fair and reasonable disclosure of the
property or financial obligations of the other party. [¶] (B) That party did not voluntarily
and expressly waive, in writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided. [¶] (C) That party did not
have, or reasonably could not have had, an adequate knowledge of the property or
financial obligations of the other party. [¶] (b) An issue of unconscionability of a
premarital agreement shall be decided by the court as a matter of law.‖ (§ 1615.)
       Given the 200-year history of United States jurisprudence, premarital agreements
are a relatively au courant development of common and statutory law. As the majority
points out, the seminal case of Posner v. Posner (Fla. 1970) 233 So.2d 381 appears to be
the first appellate decision ending the drought against the enforcement of premarital
agreements on the ground that they are contrary to public policy. (Id. at p. 385.).
California joined those states permitting enforcement of such agreements three years later
in In re Marriage of Higgason (1973) 10 Cal.3d 476 overruled on other grounds in In re
Marriage of Dawley (1976) 17 Cal.3d 342, 352. Yet the standards of enforceability


                                              3
which developed during the first decade of judicial acceptance of premarital agreements
were diverse, inconsistent and unpredictable.
       In 1983, the National Conference of Commissioners on Uniform State Laws (the
Commission) approved and published the final version of the UPAA (9B U. Laws Ann.
(1987) Uniform Premarital Agreement Act, Historical Note, p. 369). The majority agrees
the mission of the drafters of the UPAA was to bring order to the chaos surrounding
enforcement of premarital agreements. The ―Prefatory Note‖ recited the drafters‘ view
that the uncertainty and lack of uniformity of enforcement was a result of a ―spasmodic,
reflexive response to varying factual circumstances at different times.‖ (Id. at p. 369.)
       The publication of the UPAA came after more than a year of meetings and drafting
by the Commission. (See the Commission‘s proposed drafts (1982-1983).) As with a
number of enforceability issues,3 the Commission‘s position on the impact independent
legal representation should have on the validity of premarital agreements evolved
significantly during its work. An early draft considered by the Commission proposed to
invalidate agreements where one of the parties was not represented by counsel, unless the
unrepresented party nevertheless had knowledge of the financial obligations and property
of the represented party, the agreement was substantively fair when executed, the party
against whom enforcement was sought understood the effect of the agreement, and it was
executed voluntarily. (See draft presented at meeting of the Commission held July 30-
August 6, 1982, § 7, subds. (a)(2) and (b).) Furthermore, notwithstanding the above, the
draft empowered the court to refuse to enforce any part or all of an agreement if it was
necessary in order to avoid an unconscionable result. (Id. at § 7, subd. (c).)
       By the time of the Commission‘s final hearing in July 1983, this draft enforcement
provision had changed considerably. The final draft deleted the language requiring

3      Perhaps the most controversial question was the role, if any, substantive
unconscionability would play, and if considered at all, whether the unfairness of the
agreement should be judged at the time of formation or enforcement. (Compare § 10,
subd. (b) of Jan. 1982 draft with § 9 of Apr. 1982 draft; pp. 40-49 of the Commission‘s
meeting held Aug. 3, 1982.)

                                              4
independent counsel,4 and eliminated substantive unfairness as a ground for invalidating
agreements. The chairman noted the deletion was made with the expectation that
representation would only be ―a factor in determining whether the party acted voluntarily
and knowingly.‖ (See transcript of National Conf. of Commissioners on Uniform State
Laws, Committee Proceedings re Uniform Antenuptial Agreements Act (July 1983),
pp. 3-4 (hereafter Proceedings).)
       There is little doubt that by this time the Commission‘s focus was on increasing
the certainty that premarital agreements would be enforced where execution of the
agreement was not the product of coercion, duress, or fraud, and the parties‘ respective
assets and liabilities were fully disclosed. As expressed by the Commission‘s chairman,
Bion M. Gregory of Sacramento: ―If you have a fair and reasonable disclosure, we feel
you ought to have a contract which is enforceable, even though it‘s a contract that a
hundred other people would not have entered into.‖ (Id. at p. 54.)
       The final version of the uniform law adopted by the Commission removed many of
the obstacles that traditionally prevented premarital agreements from being enforced.
Under the UPAA, courts were only permitted to invalidate premarital agreements in two
limited situations: (1) where the resisting party proves the agreement was executed
involuntarily, or (2) where the agreement was unconscionable when made and the
resisting party did not either possess adequate knowledge of the prospective spouse‘s
property or financial obligations of the party asserting the agreement, or waive the right to
obtain such financial disclosures.
       The final draft was criticized both within and outside the Commission. During the
last hearing, the following comment was made by one Commission member:
―MR. MILLER: But that in a premarital agreement unconscionability alone will not
preclude enforcement. On the other hand, a lack of voluntariness in execution under


4     A motion was made to reintroduce a provision making an agreement deemed
unconscionable at the time of enforcement invalid unless the party resisting enforcement
had counsel. That motion was defeated. (Proceedings, supra, July 1983 at p. 63.)

                                             5
either Act would preclude enforcement. But assuming it is voluntary, and assuming that
we are dealing with an antenuptial agreement, the language that we have here with the
‗and‘ in it would require that all of those conditions exist before a voluntary agreement
would be rejected. [¶] Now, that seems too harsh a position, because the party would
have the burden of proving all of those four conditions: that he got no notice, that he
didn‘t waive notice, that he had no knowledge of the financial condition, and that it was
unconscionable. That seems too drastic a burden to impose on a party who has entered
into a premarital agreement voluntarily.‖ (Proceedings, supra, July 1983 at pp. 108-109.)
Other Commission members expressed similar misgivings. (Id. at pp. 120-123.)
           Some legal commentators have criticized the UPAA as being an unjustified
elimination of protections against the enforcement of ―unfair‖ premarital agreements
which existed under common law. ―In pursuit of this goal of making the enforcement of
premarital agreements more certain, the [UPAA] sacrifices virtually all principles that
have been created by the common law to prevent the enforcement of unfair
agreements. . . .
―. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
―[¶] Under the [UPAA] it is possible for an unrepresented, prospective wife to make a
binding premarital agreement that is so one-sided as to be unconscionable. Such an
agreement would be binding if it includes a written waiver of her right to disclosure or if
the circumstances suggest that she had reason to know of his financial means (even absent
actual knowledge).‖ Brod, Premarital Agreements and Gender Justice (1994) 6 Yale J.L.
& Feminism 229, 276, 278 (Premarital Agreements and Gender Justice).5 Similar
criticisms have been voiced by others. (See Marston, Planning for Love: The Politics of
Prenuptial Agreements (1997) 49 Stan.L.Rev. 887, 899 (Planning for Love).)

5      The author suggests the UPAA goes further even than the court in Simeone v.
Simeone (1990) 525 Pa. 392 [581 A. 2d 162], a decision which applied ― ‗[t]raditional
principles of contract law‘ ‖ to premarital agreements. (Premarital Agreements and
Gender Justice, supra, 6 Yale J.L. & Feminism at p. 272; see maj. opn. at pp. 19-20.)


                                                                      6
       Despite these reservations, California was one of the first states to adopt the
UPAA.6 Opposition to the bill came from the Women Lawyers‘ Association of Los
Angeles, who warned ―[t]he bill specifies extremely high standards for voiding an
agreement.‖ (See Mary-Lynne Fisher, Member, Women Lawyers‘ Assn. of L.A.
Legislation Committee, letter to Sen. Robert G. Beverly re S.B. No. 1143 (1985-86 Reg.
Sess.) June 6, 1985, p. 1.)
       For better or for worse, this is the statute we are compelled to apply to the evidence
adduced at trial. The majority is correct that it is our lot to apply the UPAA without
attempting to advance the ―social debate over paternalism or chauvinism‖ (maj. opn. of
Lambden, J. at p. 20) that characterizes many of the legal decisions setting the standard of
enforceability in other jurisdictions. While commentators have not been shy to marshal
the social, political and cultural arguments both favoring and disfavoring premarital
agreements (see Planning for Love, supra, 49 Stan. L.Rev. 887; Premarital Agreements
and Gender Justice, supra, 6 Yale J.L. & Feminism 228; Younger, Perspectives on
Antenuptial Agreements (1988) 40 Rutgers L.Rev. 1059), once all the conflicting
viewpoints have been considered and definitive legislation has been passed, it is a debate
in which the courts cannot engage.
                                             III.
    THE STRICT SCRUTINY RULE CONFLICTS WITH THE LANGUAGE AND PURPOSE OF
                                       THE STATUTE
                                              A.
       ―[I]n construing a statute, the duty of the court ‗is simply to ascertain and declare
what is in terms or in substance contained therein, not to insert what has been omitted, or
to omit what has been inserted.‘ (Code Civ. Proc., § 1858.) ‗It is . . . against all settled

6      The bill, modeled after the UPAA, was introduced by Senator Robert G. Beverly at
the request of Bion M. Gregory of the California Commission on Uniform State Laws.
Mr. Gregory also served as chairman of the National Conference of Commissioners on
Uniform State Laws Commission which drafted the UPAA. (See Draft for Approval,
Uniform Antenuptial Agreements Act, presented at the Proceedings held in July 1983.)

                                              7
rules of statutory constructions that courts should write into a statute by implication
express requirements which the Legislature itself has not seen fit to place in the statute.‘
[Citations.]‖ (In re Rudy L. (1994) 29 Cal.App.4th 1007, 1011.)
       Under subdivision (a)(1) of Family Code section 1615, a premarital agreement
may be invalidated when the party resisting enforcement proves that he or she ―did not
execute the agreement voluntarily.‖ This subdivision presents a narrow exception to the
general rule favoring the enforcement of premarital agreements. (See § 1612; In re
Marriage of Higgason, supra, 10 Cal.3d at p. 485 [premarital agreements favored as long
as they do not regulate spousal support].) As previously discussed, the Commission
considered and rejected an earlier version of the UPAA which contained language that
would have exalted the importance of each party having obtained the advice of
independent legal counsel. Under the final version of the UPAA, independent
representation was relegated to one factor out of many that might effect the voluntary
nature of the premarital agreement. (Proceedings, supra, July 1983 at pp. 3-4.) Similarly,
by enacting the UPAA‘s enforcement section without modification, the California
Legislature left it to the trier of fact to consider any and all factors relevant to
voluntariness and accord them their proper weight.
       Rather than adhere to the plain language of the statute, the majority has in reality
chosen to reinsert the requirement that each party obtain independent legal counsel. The
majority further reaches beyond the law by imposing ―strict scrutiny‖ review of the
―totality of the circumstances‖ (maj. opn. of Lambden, J. at pp. 3, 44, 49, 51) on cases
that fail to meet this new requirement. Support for this nascent rule has been patched
together from a handful of out-of-state cases. Yet these cases either originate from
jurisdictions that never adopted the UPAA (Fletcher v. Fletcher (1994) 68 Ohio St.3d
464 [628 N.E.2d 1343]; Matter of Marriage of Foran (1992) 67 Wash.App. 242) [834
P.2d 108], or had not yet adopted the UPAA at the time the opinion was issued (Gant v.




                                                8
Gant (1985) 174 W.Va. 740, 749 [329 S.E.2d 106, 116]).7 Until today, no UPAA state
has adopted the expansive rule proposed by the majority.
       Although the UPAA was designed to enhance the certainty that premarital
agreements would be enforced by making it more difficult for parties resisting
enforcement to void such agreements, the majority has adopted a rule that subverts this
statutory purpose. Under the UPAA, the burden of proving that the premarital agreement
was involuntarily executed rests squarely on the party resisting enforcement. By adopting
the strict scrutiny test, the majority reverses this burden of proof when the party resisting
enforcement was not represented by independent counsel. In such instances, the majority
has not only relieved the resisting party of its statutory burden of proving involuntary
execution, it has also instructed trial courts to view evidence that would ordinarily favor
enforcement of the agreement through the suspicious lens of ―strict scrutiny.‖ Although
the majority claims it has stopped short of requiring independent counsel as a prerequisite
to a valid premarital agreement, the strict scrutiny test imposes such an extraordinary
evidentiary burden that it inevitably mandates the same result.
       Family law judges in this state estimate that either one or both parties passing
through family courts do so without legal representation in 90 percent of their cases.
(Judicial Council of California, State Court Outlook (1998) Vol. II, p. 40.) In the
relatively less adversarial context of executing a premarital agreement, it is likely that an


7       The majority also attempts to draw support for its strict scrutiny rule from Matter
of Estate of Lutz (N.Dakota Sup. Ct. 1997) 563 N.W.2d 90, 95-101 (Lutz). However, the
Lutz court did not adopt the strict scrutiny rule. In Lutz, unlike the case before us, the
parties disputed whether the resisting party was ever advised of the right to have
independent counsel, or understood that her fiancé‘s attorney was not representing her.
(Id. at pp. 98-99). It was in this context that the court concluded summary judgment
should not have been awarded to the party desiring to enforce the premarital agreement
because conflicting evidence was presented regarding whether the resisting party was
actually advised of her right to obtain independent legal counsel. (Ibid.) Thus, the Lutz
opinion is factually and legally inapposite, and provides no support for the majority‘s
adoption of the strict scrutiny rule or its refusal to defer to the trial court‘s posttrial factual
findings.

                                                9
even greater percentage of parties fail to secure the advice of independent legal counsel.
The majority‘s new rule, which it applies retroactively to invalidate an agreement signed
over 10 years ago, places a vast number of extant premarital agreements in jeopardy.
Rather than promoting the goals underlying the UPAA, the majority‘s strict scrutiny rule
forces back the hands of time, thereby recreating an epoch of chaos in the law which the
UPAA was designed to eliminate. The majority‘s new rule plunges premarital
agreements executed without independent legal representation back into uncertainty. The
remote possibility that these agreements could be enforced if they survive a court‘s strict
scrutiny is cold comfort to parties who entered into these agreements in reliance on the
plain language of the UPAA.
                                              B.
       Not only has the majority managed to undo the Legislature‘s effort to imbue
premarital agreements with certainty, but it has significantly undermined the legislative
goal of ensuring that these agreements will be treated uniformly by the courts. The new
legal rule announced by the majority is so subjective, imprecise, and poorly defined that it
will encourage the very ―ad hoc,‖ ―inconsistent,‖ and ―contradictory‖ holdings that the
majority seeks to eliminate. (Maj. opn. at p. 1.)
       First, the majority opinion is peppered with a variety of formulations and
explanations of its strict scrutiny rule, each more vague and elusive than the last. The
majority announces its holding as follows: ―[W]hen a party challenging a premarital
agreement establishes that he or she did not have legal counsel while the other party had
such assistance, and the unrepresented party did not have the opportunity to obtain legal
counsel or did not knowingly refuse legal counsel, the court must strictly scrutinize the
totality of the circumstances involved in the execution of the contract.‖ (Maj. opn. at
p. 3.) This holding may be broken down into the following elements: There must be a
lack of independent counsel resulting either from (a) a lack of opportunity to obtain legal
counsel, or (b) a lack of knowing refusal of legal counsel. If so, the totality of the
circumstances surrounding execution of the agreement must undergo strict scrutiny.


                                              10
       Part of the difficulty parsing this standard stems from the lack of consistent
articulation of it throughout the majority opinion. For example, the majority later
reformulates its holding as follows: ―[w]hen the party challenging the agreement waives
a statutory right in the contract, and this person does not have any legal or business
sophistication and does not have an advocate with legal skills while the other prospective
spouse does have legal assistance, the validity of the agreement requires closer scrutiny.‖
(Maj. opn. at p. 33.) Thus, we are left to wonder whether the majority is setting forth a
rule that applies to all unrepresented parties to premarital agreements, or just parties
without ―any legal or business sophistication.‖ Moreover, this inherently ambiguous
phrase is never defined.
       The same can be said of the reference to a lack of opportunity to consult with
counsel. Although lack of opportunity is stated to be an integral part of its rule, the
majority never explains what evidence would be required to satisfy this standard. The
majority then criticizes the trial court for ―conclud[ing] that––despite Sun‘s complete lack
of income and dependence upon Barry after moving to the United States and no evidence
of any offer to pay for her counsel––she had a ‗reasonable opportunity‘ to obtain
independent counsel.‖ (Maj. opn. at p. 38.) Yet, its lengthy opinion provides no insight
into the proper basis for such a finding. Is the represented party required to volunteer to
advance the costs of providing the unrepresented party with independent counsel where
that party expresses no interest in having legal representation? This critical question is
raised, but never answered.
       The majority at least attempts to clarify that portion of its holding as to what
constitutes a knowing waiver of counsel. However, in so doing, it adopts a novel rule that
requires counsel for the represented party to deliver a four-part admonition designed to
ensure that the unrepresented party understands the need for independent counsel.8 This


8       The majority holds ―Counsel, at a minimum, must explain to the unrepresented
party: (1) that the attorney‘s responsibility is to pursue and protect only the interests of
his or her client; (2) that spousal interests are probably not identical and are likely to

                                              11
admonishment basically explains to the unrepresented party that the attorney represents an
adverse interest and that potential negative consequences could result from entering into
the premarital agreement without independent representation. The majority opinion
indicates that ―[u]nder such circumstances, when a person so advised voluntarily foregoes
the assistance of counsel, later challenges to any resultant agreement would not require
the special scrutiny applied here.‖ (Maj. opn. at p. 41.)
       Presumably, the majority recognizes that imposing a duty on family law
practitioners to ensure the unrepresented party ―understands the conflict‖ before counsel
can be effectively waived signals a significant change in procedure for members of the
bar involved in securing premarital agreements for their clients. Until today, there was no
reported decision in any UPAA state allowing the party opposing the validity of a
premarital agreement to prove ―involuntariness‖ by demonstrating he or she was not
informed by the other party‘s counsel why they should have counsel, even though he or
she was advised of the right to counsel and waived it. The majority also breaks new
ground as being the first case, to my knowledge, to borrow principles from criminal law
governing an accused‘s knowing and intelligent waiver of separate counsel in cases
involving multiple representation of codefendants with conflicting interests (People v.
Mroczko (1983) 35 Cal.3d 86, 109-110) and importing these principles into the realm of
premarital agreements. While the majority acknowledges ―no specific language must be



conflict; (3) that the spouses‘ interests will change over time and the attorney will not be
concerned with providing for all the changed circumstances that could possibly impact
the unrepresented spouse; and (4) that signing this agreement will eliminate or modify his
or her statutory rights.‖ (Maj. opn. at pp. 39-40.) Inexplicably, it also summarizes its
ruling as ―merely requiring the attorney to tell the unrepresented party that the prospective
spouses‘ interests may not be identical.‖ (Maj. opn. at p. 38.) The majority also advises
practitioners that ―no specific language must be used, . . .‖ (Maj. opn. at p. 40.)
        The inherent difficulties in applying this poorly-defined standard are illustrated by
the facts of this case. Although Barry‘s lawyers testified that they repeatedly informed
Sun they represented Barry, ―that for that reason she ha[d] a legal right to have an
independent counsel represent her,‖ and explained that the agreement would change her

                                             12
used,‖ it holds that each of the reasons for needing an attorney set forth in its series of
admonitions must be specified. (Maj. opn. at p. 40.) This unusual and highly
complicated definition of a knowing waiver is certain to encourage endless litigation over
the sufficiency of waivers that heretofore have been routinely accepted by family law
practitioners and trial courts in this state.9
       The majority‘s allusion to standards for the enforcement of post-marital
agreements is equally unhelpful. Postmarital agreements are treated in a manifestly
different way than are premarital agreements under California law. By statute, spouses
who enter into property disposition agreements after a marriage commences are in a
confidential and fiduciary relationship with one another. (§ 721.) By contrast, no statute
imposes such a fiduciary relationship on prospective spouses, and our Supreme Court has
squarely held that ―Parties who are not yet married are not presumed to share a
confidential relationship [citations]; . . .‖ (In re Marriage of Dawley, supra, 17 Cal.3d at
p. 355.) Furthermore, we cannot agree with the majority‘s unsupported assertion that the
passage of the UPAA justifies a wholesale departure from the binding precedent set forth
in Dawley. Neither the majority‘s reliance on the UPAA‘s asset disclosure provisions,
nor its belief that ―the UPA acknowledged this state‘s paramount interest in the marriage


community property rights, the majority still concludes that its four-part test was not
satisfied. (Italics added.)
9       The majority quotes from several practice guides and commentators to bolster its
assertion that it has invented nothing that groups of family law practitioners have not
already advocated for years. (Maj. opn. at pp. 34-35.) I agree with the majority‘s general
comments that the courts should encourage attorneys to aspire to the highest levels of
professional competence, and certainly the treatises to which the majority refers further
that laudable goal. However, seizing these educational tools and elevating them to
authority for deviating from the plain language of the UPAA is unheard of and, I suspect,
will come as a surprise to the family law bar. While these practice guides may dispense
advice to practitioners about the optimal manner in which to obtain an effective waiver of
independent counsel, they do not state that deviation from these recommendations will or
should result in invalidation of a premarital agreement under the UPAA. Furthermore,
none of these commentators has recommended the four-part series of admonitions
adopted by the majority today.

                                                 13
relationship and restated the principles of equity underlying all areas of family law‖ (maj.
opn. at p. 28) are a sufficient basis for the majority‘s utter disregard of our Supreme
Court‘s holding in Dawley.10 (Ibid.)
       The majority fails also to recognize that its four-part disclosure requirement creates
an irreconcilable tension with the ethical constraints that prevent an attorney from giving
legal advice to an unrepresented party if the unrepresented party‘s interests are or have a
reasonable possibility of being in conflict with the interests of the attorney‘s client. The
duty outlined by the majority directly conflicts with the caution given in the comment to
Rule 4.3 of the American Bar Association Model Rules of Professional,11 which states
that ―[d]uring the course of a lawyer‘s representation of a client, the lawyer should not
give advice to an unrepresented person other than the advice to obtain counsel.‖ (ABA
Ann. Model Rules Prof. Conduct (2d ed. 1992), rule 4.3.)
       Citing the same ethical considerations, California courts have consistently held
there is no duty to protect or advise the interests of unrepresented nonclients who are
having arm‘s-length dealings with the attorney‘s clients. As distinctly noted in Fox v.
Pollack (1986) 181 Cal.App.3d 954, ―an attorney has no duty to protect the interests of an
adverse party [citations] for the obvious reasons that the adverse party is not the intended
beneficiary of the attorney‘s services, and that the attorney‘s undivided loyalty belongs to

10     It is also unclear whether the majority refers to postmarital agreements (Hogoboom
& King, Cal. Practice Guide: Family Law 2 (The Rutter Group 1998) § 9:230 rev. #1,
1996) or simply marital settlement agreements (id. at § 9:310 rev. #1 1998). To the extent
the majority is analogizing this case to postmarital agreements affecting property, the law
presumes such agreements which favor one party are the product of undue influence,
placing on the proponent of the agreement the burden of proving otherwise. (In re
Marriage of Haines (1995) 33 Cal.App.4th 277.)

11     While California does not have this same, precise rule of ethics included within its
Rules of Professional Conduct, in the absence of a rule of professional responsibility
conflicting with or dealing with the same subject matter, California courts may look to the
ABA Model Code for guidance or support for conduct. (Santa Clara County Counsel
Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 550, fn. 7; State Bar Formal Opn. No.
1983-71.)

                                             14
the client.‖ (Id. at p. 961, fn. omitted [attorney for parties to real estate transaction had no
duty to unrepresented parties who met at the attorney‘s office to execute an exchange
agreement].) The court explained: ―The effect of such a duty on respondent would be the
eradication of confidentiality [citations], the creation of a conflict of interest [citation],
and the consequent destruction of the attorney-client relationship between respondent and
his clients. The strong public policy in maintaining and enforcing the fidelity and duty of
the attorney toward the client militates against the imposition of a duty to nonclients
under these circumstances. [Citations.]‖ (Id. at p. 962.) As the court observed in Burger
v. Pond (1990) 224 Cal.App.3d 597: ― ‗It is fundamental to the attorney-client
relationship that an attorney have an undivided loyalty to his clients. [Citation.] This
loyalty should not be diluted by a duty owed to some other person, such as [a future
spouse].‘ [Citation.]‖ (Id. at p. 605, quoting Mason v. Levy & Van Bourg (1978) 77
Cal.App.3d 60, 66; see also Flatt v. Superior Court (1994) 9 Cal.4th 275, 289 [attorney is
precluded from giving prospective client advice which could potentially compromise
existing client‘s position].)
       In spite of the wealth of authority indicating that an attorney should not give legal
advice, beyond the advice simply that one has the right to independent counsel, the
majority has taken the opposite approach, assigning to the attorney an affirmative duty to
delineate the disadvantages of entering into the premarital agreement to an adverse party
who has chosen to proceed without the assistance of counsel. The majority opinion even
goes so far as to announce that an attorney has an ―ethical obligation‖ to do so. (Maj.
opn. at p. 42.) To mandate such excessive duties towards an adversary in a transaction
once he or she has decided to proceed without counsel unwittingly forces attorneys, at
least partially, to disregard their own client‘s best interests. It is the duty of an attorney to
maximize the benefits a client receives from the transaction, and this duty is incompatible
with the disclosure requirement imposed on counsel. The majority‘s new four-part test
for effectively waiving independent counsel is seriously flawed because it confronts the
bar with an Hobson‘s choice—compromise your duty to your client and risk running afoul


                                               15
of your ethical obligations by providing legal advice to the unrepresented party, or keep
silent and thereby contribute to the uncertainty that your client‘s premarital agreement
will be enforceable.
       Part four of the majority‘s holding establishes the strict scrutiny standard.
However, the meaning of this standard, described interchangeably by the majority as
―strict scrutiny,‖ and ―close scrutiny,‖ is never adequately explained. Although the trial
court in this case found that the premarital agreement was valid even if Barry had the
burden of proving it was entered into by clear and convincing evidence, the majority
rejects the trial court‘s findings because it never subjected the evidence to ―strict
scrutiny.‖ Trial courts are left to ponder just what evidentiary showing could ever survive
the standard adopted today.
       The last part of the majority‘s holding requires our trial courts to apply this strict
scrutiny standard to ―the totality of the circumstances involved in the execution of a
premarital contract.‖ But what type of examinations by trial courts does this statement
portend? The majority does not tell us. Instead, the trial bench, counsel and litigants are
left to extract what they can from the critique of the majority which appears to be more
concerned with how many typographical errors this premarital agreement contained, than
with assessing the knowledge Sun had about the rights she was relinquishing. By
importing this expansive test into the UPAA, the majority has reintroduced the very legal
ambiguity that led to the ―spasmodic, reflexive‖ judicial decisions based on ―varying
factual circumstances‖ that our legislature sought to avoid. (9B U. Laws Ann., supra,
Prefatory Note at p. 369.)
                                              C.
       The majority agrees that the political and social forces which have led to the
current state of the law favoring the validity of premarital agreements cannot and should
not insinuate themselves into judicial decisions applying these laws. It is not for us to
reject application of a statute because we deem it harmful or promotive to the institution
of marriage, or because we believe the law favors the wealthy, or that it favors or


                                              16
disfavors one gender disproportionately. ―In the absence of a challenge on constitutional
grounds, the courts are not concerned with the wisdom of the legislation nor with
measuring the value of its stated objectives against other values based upon economic and
social considerations.‖ (Coastal Southwest Dev. Corp. v. California Coastal Zone
Conservation Com. (1976) 55 Cal.App.3d 525, 538.) The balancing of such policy
matters has been squarely left to the Legislature of each state considering adoption of the
UPAA. In adopting the UPAA, our state Legislature has exercised the policy balancing
act with finality, leaving members of the judiciary with ― ‗the sole function‘ ‖ of
enforcing the statute according to its terms. (Leroy T. v. Workmen’s Compensation
Appeals Bd. (1974) 12 Cal.3d 434, 438.). Yet despite its lip service to this principle, the
majority turns its back on the statute and wades into the very policy balancing it claims
courts must eschew. This we cannot do.
                                            IV.
 THE MAJORITY HAS USURPED THE TRIAL COURT’S FUNCTION AS TRIER OF FACT
       The appellate standard of evidentiary review has been recited with such frequency
that it cannot be easily overlooked. Indeed, the ―very well settled‖ standard of substantial
evidence is a core tenet of appellate review ―which appellate courts have repeated
‗countless times.‘ ‖ (National Union Fire Ins. Co. v. Nationwide Ins. Co. (1999) 69
Cal.App.4th 709, 712-713, citing Western States Petroleum Assn. v. Superior Court
(1995) 9 Cal.4th 559, 571.)
       This standard, which is not even mentioned in the majority opinion, bears
repeating here. ―It is a fundamental principle of appellate review that the factual findings
of the trial court are presumed correct. (Nestle v. City of Santa Monica (1972) 6 Cal.3d
920, 925 . . . ; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735,
1747 . . . .‖ (Construction Financial v. Perlite Plastering Co. (1997) 53 Cal.App.4th 170,
179.) ― ‗When a finding of fact is attacked on the ground that there is not any substantial
evidence to sustain it, the power of an appellate court begins and ends with the
determination as to whether there is any substantial evidence contradicted or


                                             17
uncontradicted which will support the finding of fact.‘ ‖ (Foreman & Clark Corp. v.
Fallon (1971) 3 Cal.3d 875, 881, original italics; accord, Gray v. Don Miller &
Associates, Inc. (1984) 35 Cal.3d 498, 503.) ―The court is without power to judge the
effect or value of the evidence, weigh the evidence, consider the credibility of witnesses,
or resolve conflicts in the evidence or in the reasonable inferences that may be drawn
from it. [Citation.] Unless a finding, viewed in light of the entire record, is so lacking in
evidentiary support as to render it unreasonable, it may not be set aside. [Citation.]‖
(Huang v. Board of Directors (1990) 220 Cal.App.3d 1286, 1293-1294; Neal v. Farmers
Ins. Exchange (1978) 21 Cal.3d 910, 922.)
       By reversing the trial court‘s finding that Sun executed the premarital agreement
voluntarily, the majority has overtly departed from these time-honored standards, forever
altering the standard of appellate review applicable to a trial court‘s findings in cases
involving premarital agreements. From this day forward, a reviewing court is not simply
permitted to decide if the evidence at trial was legally sufficient to support the decision of
the trier of fact, a task which respects the province of the finder of fact to assess
credibility and assign weight to the evidence. Instead, the appellate court is now
permitted to review and reassess the persuasive value of that same evidence for itself
based on trial transcripts, far removed from the courtroom where the evidence was
presented and the demeanor of the witnesses observed by the trier of fact, to determine if
the appellate court would have reached the same conclusions.
       The trial court‘s findings of fact in this case are the product of weighing and
evaluating all of the conflicting evidence presented at trial, and establish beyond
peradventure that this premarital agreement was entered into knowingly and voluntarily.
Below, I have set forth the trial court‘s critical factual findings, and a summary of the
supporting evidence. I believe that even a cursory comparison of the evidence found
credible and persuasive by the trial court with those excerpts selected for inclusion in the
majority opinion reveals the majority has overlooked evidence favorable to the judgment,




                                              18
reweighed the evidence, and wrongfully substituted its own conclusions for that of the
trier of fact.
        The trial court found Sun had sufficient knowledge and understanding of her rights
regarding the nature, value and extent of the property affected by the premarital
agreement and how the premarital agreement affected those rights. The trial court
supported this finding by citing evidence that Sun knew Barry wished to protect his
present property and his future earnings. The trial court also noted that the attorneys who
prepared the premarital agreement explained to both parties their rights regarding the
property affected by the agreement and how the agreement adversely affected those
rights. The court observed that Sun never stated she did not understand the meaning of
the agreement or the explanations provided by the attorneys prior to her execution of the
document. The trial court found that Sun was an intelligent woman; and although English
was not Sun‘s native language, she was capable of understanding the attorneys‘
explanation of the agreement and its effect on each party‘s rights.
        At the meeting held on February 5, 1988, Sun was told the law in Arizona was
community property and that by her execution of the agreement she was waiving her
community property rights. The lawyers described what community property was. In
their discussion about community property, they talked about the effect of community
property, how it was created, and how community property would be distributed in the
absence of the premarital agreement. Attorney Brown did a ―little illustration in that
discussion demonstrating community property, separate property, property flowing in,
flowing out, so forth . . . .‖ Sun stated she understood she was agreeing to a change from
the community property laws. Each provision in the agreement was reviewed and the
legal ramifications explained to Sun and Barry. The principals and attorneys spent two to
three hours discussing this 15-page document. Brown testified that Sun asked many
questions, including questions ―dealing with property and income after the fact of the
execution of the prenuptial agreement.‖ From Sun‘s questions, which Brown testified




                                            19
―tracked what had been explained to her,‖ it was clear she understood the meaning of
community property.12
       In spite of the trial court‘s findings, which are amply supported by the evidence,
the majority opinion indicates that Sun ―received no explanation of the legal
consequences ensuing to her from signing the contract.‖ (Maj. opn. of Lambden, J. at
p. 31.) In entering into the premarital agreement, Sun ―thought she did not have anything
and did not need a lawyer, and no one disabused her of that incorrect perception. The fact
was that she did have something: she had the potential legal right to community
property.‖ (Maj. opn. at p. 41.) The provision-by-provision explanation of the agreement
provided by Barry‘s attorneys is entirely discounted by the majority. The majority
opinion indicates, without explanation, that ―Brown‘s explanation to Sun was necessarily
impaired because of his loyalty to his client, Barry.‖ (Maj. opn. at p. 31.) But there was
no evidence presented at trial that the explanations provided to Sun, which she does not
deny were given, were themselves inadequate or inaccurate statements of the legal effect
of the agreement on her marital rights.
       The trial court also found Sun had sufficient awareness and understanding of her
right to, and need for, independent counsel. The court specifically found Sun had an
adequate and reasonable opportunity to obtain independent counsel before she executed
the agreement. The court credited evidence that Sun was advised at a meeting with
Barry‘s attorney at least a week before the premarital agreement was executed that she
had the right to have an attorney represent her. She was also informed that Mr. Brown
and Mr. Megwa represented Barry, not her. On at least two occasions during the
February 5 meeting, Sun was told she could have separate counsel if she so chose. The


12     Sun‘s questions included inquiries concerning financial provisions in the event the
couple had children, and future support for herself. The prescience to ask questions about
future support for Sun and her children demonstrates a level of understanding of the legal
significance of the agreement which is consistent, inferentially, with the court‘s finding.
While not dispositive by any means, it demonstrates that Sun gave foresight, thought, and
planning to the effect of their agreement in light of potential future events.

                                            20
trial court explicitly found Sun was capable of understanding this admonition but decided
not to obtain counsel.
       The record reflects that at the February 5 meeting, Barry‘s representatives
discussed Sun‘s right to have an attorney. Although he could not recall the precise
language used, at a brief meeting with Barry and Sun sometime before the February 5
meeting, Brown told Sun something to the effect that ―it might be in her best interests to
seek counsel.‖ Megwa testified that at the start of the February 5 meeting he ―advised
Sun that she has a right to get an attorney to represent her in this matter, to review the
documents. [¶] I also indicated that she does not have to sign this agreement.‖ He
testified that the subject of taking the agreement to another lawyer was brought up at least
three different times during the meeting. Sun was told the lawyers represented Barry, that
they did not represent her, and that was the reason they were explaining her right to have
independent counsel. She was told she could take the agreement to a lawyer and not sign
it that day. She indicated that a lawyer was not necessary.
       The majority opinion disregards both the trial court‘s findings and the evidence
underlying them when it states ―[w]e can give no effect to the attorneys‘ statements to
Sun that they represented Barry . . . .‖ The majority opinion states that this is ―because
their actions at the meeting contradicted this assertion and actually conveyed an
impression that they were independent counsel.‖ (Maj. opn. at p. 38.) However, nothing
in the trial court‘s findings indicates Sun was misled or misunderstood the role of Barry‘s
attorneys.
       Much is made of the fact that Barry was the ―economically superior party‖ who
could afford legal representation and that Sun had comparatively few resources (maj. opn.
at p. 27), but there is nothing in the record to indicate that Sun was prevented from
seeking independent representation because of a lack of money. Similarly, there is
nothing in the record to indicate Sun sought to delay the execution of the premarital
agreement so that she could seek independent advice, although she was repeatedly given
the opportunity to do so.


                                              21
       The trial court found that ―[b]oth the [premarital] [a]greement and the execution of
same [were] free from the taint of fraud, coercion and undue influence.‖ The trial court
found Sun was not forced to execute the document, nor did anyone threaten her in any
way. The trial court concluded that if Sun had refused to sign the agreement, it would
have caused her ―little embarrassment.‖ The wedding was a small impromptu affair that
easily could have been postponed.
       Additionally, there was evidence that the idea of executing a premarital agreement
was not sprung on Sun on the eve of her marriage. Rather, there was evidence Sun and
Barry had periodically discussed the premarital agreement several months before the
February 5 meeting took place, and they ―understood‖ what was going to be in the
agreement before the meeting even began. There was also evidence that Sun knew ―well
in advance‖ of the February 5 meeting that Barry would not marry her unless she
executed a premarital agreement. Sun offered no testimony or other evidence that she
was involuntarily coerced or felt compelled to execute the agreement.
       Notwithstanding this factual record, the majority opinion chastises the trial court
for failing to ―scrutinize[] the other factors related to duress, coercion, and fraud.‖ (Maj.
opn. at p. 49.) The majority opinion cites evidence below indicating that ―[a]ny delay
would have resulted in a postponement of the wedding.‖ (Maj. opn. at p. 49.) The
majority notes that a threat to cancel the wedding can be found to be evidence of
coercion. (Maj. opn. at pp. 43-44.) In support of its ultimate conclusion that Sun did not
execute the premarital agreement voluntarily, the majority opinion refuses to credit the
trial court‘s findings and states ―that Sun felt pressure to sign because of the pending
marriage and was under the threat of ‗no marriage‘ if she did not sign; . . .‖ (Maj. opn. at
p. 51.) Yet as noted, Sun did not testify she signed the agreement because she felt
compelled or coerced to do so.
       In summary, the trial court‘s decision sets forth the reasons that, under the
evidence presented at trial, this premarital agreement was valid and enforceable in a
manner fully adequate to permit appellate review. The decision meticulously describes


                                             22
the evidence upon which it relied, and insofar as conflicting evidence and inferences are
concerned, rests its decision upon credibility determinations that are inherently the
province of the trier of fact. As a reviewing court, our function is to simply determine
whether, upon consideration of the evidence as a whole, the trial court‘s findings have the
requisite measure of support in the record. In utter disregard of the standard of review
imposed on this court, the majority, by a process of selection and omission, sifts through
the record to construct its own findings to justify arriving at a different decision than the
one arrived at by the trial court. Its opinion completely inverts the respective roles of the
trial and appellate courts. Because the trial court‘s findings of fact are supported by
substantial evidence, we must affirm.
                                              V.
                                   REMAND IS REQUIRED
       Furthermore, in reversing the previous judgment entered for Barry and directing
the trial court to enter judgment for Sun without further proceedings, the majority has
once again departed from its role as a reviewing court. Witkin speaks to the authority of
appellate courts to reverse without allowing the parties a complete or partial retrial: ―The
power to reverse with directions to enter judgment for the appellant will not be exercised
where there is a conflict in the evidence and a retrial may develop other important facts.
[Citations.]‖ (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §763, p. 791.) Another
appellate treatise states that an unmistakable expression of intent not to allow a retrial
after an unqualified reversal ―rarely occurs,‖ and then does so only where the facts on the
first trial are uncontested and ―there would be no new evidence on retrial. . . .‖
(Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs 2 (The Rutter Group 1998)
§ 14: 145.2 rev. #1, 1998, citing Bank of America v. Superior Court (Kruse) (1990) 220
Cal.App.3d 613, 623.)
       The reason offered by the majority in departing from the usual practice of remand
is its conclusion, in stark disagreement with the actual evidence and findings of the trial
judge, that ―Barry‘s attorneys played a confusing and misleading role; that Sun felt


                                              23
pressure to sign because of the pending marriage and was under the threat of ‗no
marriage‘ if she did not sign; that Sun did not have even a day to review the agreement,
but merely a couple of hours in the attorney‘s office; that there appeared to be some
tampering with the agreement by Barry or his agents and the original contract was never
provided to the court; and that the agreement was filled with errors and was patently
incomplete.‖ (Maj. opn. of Lambden, J. at p. 51.) I have already commented on the
absence of evidence that Sun was either confused or mislead, or that she felt pressured.
To be sure, the writing which memorialized the parties‘ agreement was not well-drafted.
However, we have been called upon to determine whether Sun involuntarily signed the
premarital agreement, not to evaluate the drafting skills of Barry‘s attorneys. Moreover,
the majority has affirmed the trial court‘s decision to admit the copy of the premarital
agreement into evidence. Thus, it is inappropriate for this appellate court to base its
decision on speculation that ―there appeared to be some tampering with the agreement by
Barry or his agents.‖ (Maj. opn. at p. 51.) Such subjective conjecture is no more edifying
than the majority‘s additional surmise that Brown and Megwa were engaged in
―overreaching and sharp practice.‖ (Maj. opn. at p. 37.)
       Certainly it cannot be said that a retrial of this issue would be a waste of time
because the facts are uncontested or that there is no further evidence which might be
brought to bear on the critical issues as now recast by the majority. I believe it is
manifestly unfair to give life to a new legal standard to be applied in determining the
validity of premarital agreements without affording the parties the opportunity to present
evidence conforming to that standard, and affording the trial court the opportunity to
apply the new legal standard to the evidence. If an appeal to judicial restraint is
unavailing, then at least adherence to well-established procedural rules governing remand
are in order. At a minimum, this case should be remanded to the trial court with
directions to retry, in whole or in part, the phase of the case dealing with the voluntariness
of Sun‘s execution of the premarital agreement. For this additional and separate reason I
dissent from the reversal with directions contained in the majority opinion.


                                              24
                                             VI.
                                       CONCLUSION
       Last, I cannot end without referring to the majority‘s incongruous pronouncement
that its opinion will ―provide clear guidelines for practitioners to follow‖ (maj. opn. of
Lambden, J. at p. 37), and its lament that the majority has been constrained to look to
non-UPAA judicial decisions because of the paucity of decisional law in California
concerning the enforceability of premarital agreements. (Maj. opn. at p. 27.) If the dearth
of law in our state can lead to such a troublesome majority opinion as this, then perhaps
the time has come for the Supreme Court to provide the public, bench, and bar with
guidance on this issue of increasing public importance.




                                                   _________________________
                                                   Ruvolo, J.




                                             25
Court:                    Superior Court of the County of San Mateo

Trial Judge:              Honorable Judith W. Kozloski

Counsel for Appellant:    FANCHER & WICKLAND
                          Paige Leslie Wickland
                          Paula Conser Fancher

                          LAW OFFICE OF LAWRENCE H. STOTTER
                          Lawrence H. Stotter

Counsel for Respondent:   DE GOFF and SHERMAN
                          Richard Sherman

                          Robert J. Nachshin
                          Scott N. Weston

                          Stephen J. Montalvo




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DOCUMENT INFO
Description: Uniform Premarital Agreements+California document sample