During their marriage, Debra and David Tras-ter executed a postmarital agreement setting forth the respective legal rights and obligations of each spouse in the event the marriage did not survive. After more than 25 years of marriage, David filed for divorce and—contrary to the terms of the postmarital agreement—requested the court equitably divide the marital property. Debra moved for partial summary judgment, asking the district court to find that the postmarital agreement was valid and enforceable and that it controlled the disposition of any and all of the parties’ real and personal property.
The district court ultimately construed the postmarital agreement as a separation agreement and, as required by K.S.A. 60-
We conclude the district court erred in finding the postmarital agreement ran counter to public policy and in construing the post-marital agreement as a separation agreement under K.S.A. 60-1610(b)(3) for purposes of determining its enforceability. In the absence of a statute governing the law related to postmarital agreements between spouses who plan to continue their marriage, we conclude the appropriate standard for assessing the enforceability of postmarital agreement is review of the agreement by the court to determine whether (1) each party had an opportunity to obtain separate legal counsel of each party’s own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; (5) the terms of the agreement were fair and reasonable at the time of execution; and (6) the terms of the agreement are not unconscionable at the time of dissolution. Applying this standard to the postmarital agreement between David and Debra here, we find it enforceable and, therefore, reverse the decision of the district court and remand with directions to enforce it as written and agreed to by the parties.
David and Debra were married on June 25, 1976. They never had children. David has been a practicing attorney since 1981, while Debra’s employment during the marriage was limited. Although she graduated from law school, Debra never sat for the bar exam or practiced law due to mental health issues and a traumatic brain injury she received in 1983 as the result of a car accident.
The parties signed two postmarital agreements after they were married, both of which were drafted by David. The first agreement, drafted sometime in the 1980’s, provided that Debra would be entitled to all of the parties’ assets in the event of a divorce. This agreement was either lost or misplaced. In 2004, David drafted a second postmarital agreement, which was similar if not identical to the distributive provisions set forth in the original agreement. The 2004 written agreement acknowledged David’s role as scrivener and provided that Debra “does not have David’s practical experience with drafting and enforcing agreements. For this reason, David has superior knowledge and understanding concerning the drafting of agreements such as this and Debra is relying on David’s legal expertise and advice.”
The written agreement also acknowledged that the parties had experienced problems and difficulties during the marriage but stated that the parties “currently have a valid marriage” and that neither рarty had “current plans [to] seek a dissolution of the marriage.” In the event the marriage did fail, however, the agreement provided that David would receive his personal belongings and effects, including his clothing, tools, and guns, and Debra would receive all other assets including, but not limited to, the couple’s home, vehicles, personal property, accounts, funds, stocks, bonds, investments, buildings, contracts, and leases. The agreement also required David to maintain a $1 million life insurance policy naming Debra as the sole beneficiary, even if the marriage ended in divorce.
On June 20, 2007, David filed for divorce and—notwithstanding the terms of both agreements he drafted and executed during the marriage—requested “an equitable division of the property and
Following argument, the district court found the postmarital agreement was drafted and executed in contemplation of divorce and, therefore, qualified as a separation agreement under K.S.A. 60-1610(b)(3), subject to review by the court to determine if it was valid, fair, and equitable. In order to make such a determination, the court scheduled an evidentiaiy hearing to identify and consider the value of the parties’ assets that were subject to distribution under the postmarital agreement. Aftеr hearing the evidence, the court held the postmarital agreement was unjust and inequitable because enforcing it would result in a disproportionate share of the marital estate being distributed to Debra. In addition, the court held the postmarital agreement was invalid because it ran counter to public policy by promoting and encouraging divorce.
Having found the postmarital agreement to be inequitable and against public policy, the district court made its own decision on how to divide the parties’ property pursuant to K.S.A. 60-1610(b)(1). In addition, the court awarded Debra spousal maintenance for 120 months but denied her request for attorney fees. Finally, the district court denied Debra’s motion to alter or amend the judgment as it related to the postmarital agreement and attorney fees.
On appeal, Debra claims the district court erred (1) in finding the postmarital agreement in this case ran counter to public policy; (2) in relying on K.S.A. 60-1610(b)(3), which governs separation agreements, instead of general principles of contract to determine whether the postmarital agreement in this case was enforcеable; and (3) in denying her request for attorney fees under the terms of the parties’ postmarital agreement. We address each of Debra’s claims in turn.
1. The Postmarital Agreement Is Not Contrary to Public Policy
Competent parties are free to malee contracts on their own terms as long as the contracts are not contrary to public policy. National Bank of Andover v. Kansas Bankers Surety Co.,
Based on these stated objectives, premarital and postmarital contracts between spouses generally are not contrary to public policy unless they encourage divorce or separation. Matlock v. Matlock,
With these legal principles in mind, we turn to the postmarital agreement executed by David and Debra in this case. The district court held the agreement was contrary to society’s long-standing public interest in fostering and protecting marriage in that it promoted and encouraged divorce. In so holding, the court focused on a specific stipulation between the parties where David and Debra agreed that, if the marriage did not survive, Debra was entitled to receive virtually all of the personal property acquired during the marriage through gift, inheritance, and joint effort of the parties. The court found this stipulation necessarily provided David with “a substantial incentive to file for divorce as soon as possible” because the sooner David filed for divorce, the sooner he would be able to acquire nonmarital assets for his retirement that would not be subject to distribution under the terms of the postmarital agreement. Based on its finding that the stipulation provided David with a substantial incentive to file for divorce, the court concluded, as a matter of law, that the stipulation promoted and encouraged divorce.
But the district court’s factual finding—that the stipulation provided David with a substantial incentive to file for divorce—is belied by the factual record in this case. The parties signed a post-marital agreement in the 1980’s that was similar, if not identical,
Moreover, the parties specifically and expressly represented and agreed at the time they executed the agreement that they intended to stay married and had no plans to divorce. The parties also acknowledged (in both the recitals and the body of the postmarital agreement) that Debra’s parents either directly or indireсtly provided “all or nearly all” of the existing marital assets owned by the parties and that any assets contributed to the marriage by David from his employment had been, and would be, used by the parties solely to maintain their lifestyle. Based on these circumstances, the parties clearly and unambiguously agreed that David would not receive any of the existing marital assets if the marriage did not survive. If the parties stayed married, however, both David and Debra would continue to benefit from existing marital assets, from prospective marital assets that might be provided by Debra’s parents in the future, and from assets contributed to the marriage by David from his employment if the parties stayed married.
Based on our review of agreement, we find no evidence to support the district court’s conclusion that its terms created a substantial incentive for David to file for divorce as soon as possible. With that said, the terms of the agreement do appear to support the inference drawn by die district court that the sooner David filed for divorce, the sooner he would be able to acquire nonmarital assets for his retirement that would not be subjеct to distribution under the terms of the postmarital agreement. Of course, it is highly likely that one or more provisions within any postmarital agreement will, to some extent, benefit one of the parties in the event of a divorce. But a finding that a postmarital agreement will benefit one of the parties if the marriage ultimately fails falls far short of a finding that the agreement actually encourages one or both of the parties to file for divorce. See In re Estate of Cooper,
Finding no evidence to support the district court’s legal conclusion that the agreement encourages David and Debra to separate or divorce, we hold the postmarital agreement is not contrary to the public’s interest in protecting the institution of marriage.
2. We Construe David and Debra's Marital Contract as a Post-marital Agreement Subject to a Standard for Enforceability Separate and Distinct from the Standard Used to Determine Enforceability of Separation Agreements
Kansas statutes provide two options for defining and limiting the rights and obligations of parties who are entering into or dissolving a marriage. The Kansas Uniform Premarital Agreement Act (KU-PAA) governs the law relating to premarital agreements executed by couples who are contemplating marriage. K.S.A. 2011 Supp. 23-2401 et seq. By statute, Kansas courts will not enforce such an agreement if it was involuntary or unconscionable when executed or signed without an adequate disclosure of assets. See K.S.A. 2011 Supp. 23-2407(a). On the opposite end of the spectrum, the Kansas statutory scheme controlling dissolution of marriage governs “separation agreements” executed by spouses who are contemplating divorce and have no intention of staying married. K.S.A. 60-1610(b)(3); see 2 Elrod & Buchele, Kansas Law and Practice: Kansas Family Law § 11.1, p. 93. Once a divorce action is filed in Kansas, the statute requires the court to incorporate the separation agreement into the divorce decree if it finds the agreement is valid, just, and equitable. K.S.A. 60-1610(b)(3).
We should note drat we have cited to K.S.A. 60-1610, which was in effect when the parties executed their postmarital agreement and when David filed fоr divorce. The Kansas Legislature recodi-fied the statutes for divorce cases effective July 1, 2011; see K.S.A. 2011 Supp. 23-2701 et seq.
In addition to the premarital and separation agreements, many jurisdictions recognize a third option for couples who want to define and limit the rights and obligations relating to marriage without court input: the postmarital agreement. Also referred to as a
Contrast the unique position from which each agreement is negotiated and entered into: spouses who want to preserve their marriage do not contract under the same conditions as either prospective spouses or spouses who already have determined to dissolve their marriage. Parties who intend to marry are generally trusting, loyal, and looking forward to a successful and enduring marriage; yet the fact that they are not yet married necessarily provides the parties with greater leverage to reject an unsatisfactory premarital agreement. It makes sense, then, fhat the Kansas statute governing the premarital agreement requires the court to enforce it unless there is evidence that it was involuntaiy when made, unconscionable when executed, or negotiated without an adequate disclosure of assets. See K.S.A. 2011 Supp. 23-2407(а).
When the marriage has failed and the stated intention of the parties is divorce, the parties look to their own future economic interests and the resulting separation agreement likely will be the product of classic arm’s-length bargaining. In this setting, the Kansas statute governing the separation agreement requires the court to incorporate it into the final divorce decree upon a finding that
Unlike parties to a premarital agreement or a separation agreement, parties to a postmarital agreement have stated their intention to remain part of an existing marriage in which they already share a vested interest, personal intimacy, and mutual trust. The trusting and confidential nature of this existing relationship exposes the parties to a greater risk of unfair advantage in the bargaining process for two reasons. First, spouses who intend to stay married are unlikely to view the marital interest as distinct from their own interest. As a result, spouses to a postmarital agreement run the risk of putting the interests of the couple ahead of their own which, in turn, will malеe them less cautious than they would be if negotiating at arm’s length with an ordinary contracting party. See Bedrick,
Given its unique characteristics, the postmarital agreement does not fall within tire statutory definition of either a premarital agreement or a separation agreement in Kansas. The postmarital agreement does not qualify as a premarital agreement under the KUPAA statute because, by definition, the parties already were married when they executed the agreement. See K.S.A. 2011 Supp. 23-2402(a) (defining “premarital agreement” as an agreement between prospective spouses made in contemplation of marriage); Davis v. Miller,
We recognize that there is another situation that is not present in this case—instead of filing for divorce, parties can file for separate maintenаnce. In such cases, the court has authority to enter all the same orders it might make in a divorce case, but the court issues a decree of separate maintenance rather than a divorce decree. If parties entered into an agreement to determine their rights before filing for separate maintenance—but in contemplation of such a filing—-the statute governing separation agreements presumably would apply. In such a case, the court can make all the same orders dividing property that it can make in a divorce action, and the parties have entered the agreement in contemplation of a separate-maintenance decree. In the case of David and Debra, however, their postmarital agreement was not entered in contemplation either of a divorce action or a separate-maintenance action. Instead, they planned to continue living together as married spouses, and they did so.
Based on the discussion above, we recognize the postmarital agreement as a legitimate marital contract in its own right that does not come within the statutory purview of either a premarital or a separation agreement. Accordingly, it is not governed by the terms of K.S.A. 2011 Supp. 23-2407(a) or K.S.A. 60-1610(b)(3). In the absence of an existing statute in Kansas that governs the legal standard of review for enforcing postmarital agreements, we must determine the proper standard for such a review. We begin by reviewing appellate court decisions in Kansas that may be relevant to such a determination.
Before the provision in K.S.A. 60-1601 governing separation agreements was enacted, Kansas courts liberally construed all post-marital agreements to carry out the intention of the parties and generally upheld them upon a finding that they were fairly and
In a case decided after K.S.A. 60-1610 became law, the Supreme Court determined a postmarital agreement should be reviewed for enforceability under the standards set forth in the KUPAA applicable to premarital agreements. The court’s decision, however, was prompted solely by the fact that the parties specifically agreed in tire document itself that the standards governing premarital agreements in Kansas would control its enforceability. Davis,
More recently, a panel of our court concluded in an unpublished opinion that any agreement between spouses presented for judicial approval in a divorce action should be construed as a separation agreement under K.S.A. 60-1610(b)(3), regardless of whether the parties’ intention was to stay married or divorce at the time the agreement was executed. In re Marriage of Wood, No. 97,123,
In sum, we conclude that neither the Kansas Legislature nor the courts in Kansas have embraced a standard for enforceability of a spousal agreement that properly distinguishes between a separation agreement executed by spouses who intend to divorce and a postmarital agreement executed by spouses who intend to stay married. Given -the need for such a standard, we look to other jurisdictions for guidance.
Some jurisdictions treat postmarital agreements under the same standards as premarital agreements. See, e.g., Tibbs v. Anderson,
Other jurisdictions go beyond the standards imposed by premarital agreements and subject postmarital agreements to greater scrutiny. See, e.g., Bedrick,
Due to perceived risks of unfair advantage and of unequal bargaining positions that are unique to the postmarital agreement, the Massachusetts Supreme Court in Ansin set forth certain factors a spouse seeking to enforce a postmarital agreement must satisfy. Drawing heavily on the work of the American Law Institute, the court held that judges must carefully scrutinize this type of agreement to determine whether
“(1) each party has had an opportunity to obtain separate legal counsel of each party’s own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before tire agreement was executed; (4) each spouse knowingly and explicitly agreed in wilting to waive the right to a judicial equitable division of assets and all marital rights in tire event of a divorce; and (5) the terms of the agreement are fair and reasonable at tire time of execution and at the time of divorce.” Ansin,457 Mass. at 291 (citing ALI, Principles of the Law of Family Dissolution § 7.01 et seq).
Thus, in addition to the usual protections against fraud and coercion, the Ansin court stressed the need for opportunity to obtain
In Bedrick, the Connecticut Supreme Court looked to tire Ansin factors for guidance but ultimately decided to use one standard for judging fairness at the time of execution and a different standard for judging fairnеss at the time of enforcement. See Bedrick,
Our review of die analysis conducted by other jurisdictions provides a good framework for our own analysis. But the contractual
Notably, an exception to the freedom of contract principle is recognized in Kansas when a contract is so one-sided that it is found to be unconscionable. Wille v. Southwestern Bell Tel. Co.,
Based on the discussion above, we conclude the appropriate standard for assessing the enforceability of a postmarital agreement necessarily must be guided by two overriding principles: (1) public policy in Kansas that promotes, fosters and protects the institution of marriage by encouraging spouses to live together and preventing separation; and (2) well-established principles of contract law in
Based on these principles, we hold the appropriate standard for assessing tire enforceability of a postmarital agreement is review of the agreement by the court to determine whether (1) each party had an opportunity to obtain separate legal counsel of each party’s own choosing; (2) there was fraud or coerciоn in obtaining the agreement; (3) all material assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; (5) the terms of the agreement were fair and reasonable at the time of execution; and (6) the terms of the agreement are not unconscionable at the time of dissolution. Having determined the appropriate standard, we are ready to review David and Debra’s postmarital agreement to determine whether the agreement is enforceable. Although the district court did not have an opportunity to evaluate the agreement under this standard, remand is unnecessaxy because the record contains sufficient factual information for us to reach a decision. See Newman Mem. Hospital v. Walton Constr. Co.,
a. Opportunity to Obtain Legal Counsel
Representation by counsel is an important factor in determining whether a spouse voluntarily enters into an agreement. See Davis,
Here, it is not clear whether Debra had the opportunity or desire to obtain independent legal counsel prior to signing the postmarital agreement. But it would be difficult for David, as the spouse seeking to invalidate the agreement, to argue that he did not have the opportunity to consult with independent counsel regarding the waiver of his rights. There is no dispute here that David is a lawyer and that he is die individual who drafted die agreement. In fact, the agreement itself states that “David has superior knowledge and understanding concerning die drafting of agreements such as this” and Debra is “relying on David’s legal expertise and advice.”
b. Fraud and Coercion
“[W]here a party voluntarily signs a postmarital contract and thereafter seeks to refute it on the ground its execution was obtained by fraud, such fraud must be made to appear clearly before the contract may be declared invalid.” In re Estate of Beeler,
“The elements of an action for fraud include an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or with reckless disregard for die truth, upon which another party justifiably relies and acts to his or her detriment. [Citation omitted.]” Alires v. McGehee,
Coercion comes into play when improper pressure by one party to a contract deprives anodier party of the exercise of his or her free will and causes him or her to act to his or her detriment. Hastain v. Greenbaum,
“ ‘To determine if the agreement was voluntary, the court will focus on the surrounding facts and circumstances. These include the situation of the parties as compared to each other, such as their respective ages, eduсational backgrounds, business experience, property, family ties and connections. Additionally the court will look at tire circumstances leading up to the execution of the contract and marriage, such as timing of the presentation and execution of the agreement, who drafted the agreement, provisions for the dependent spouse, statements made by the party wanting the agreement, if diere was independent legal counsel, and who was present at the execution of the agreement. Absent a showing of undue influence or fraud, die agreement will be upheld.’ 1 Elrod and Buchele, Kansas Family Law § 2.24, pp. 99-100.” Davis,269 Kan. at 741 .
There is no dispute here that David is a lawyer and that he is tire individual who drafted the agreement. The agreement itself states that “David has superior knowledge and understanding concerning the drafting of agreements such as this and Debra is relying on David’s legal expertise and advice.” The agreement further provides that both Debra and David were entering into the agreement “freely, voluntarily and with full understanding of all of its provisions” and that each of them had read the agreement and understood the rights, obligatiоns, and legal consequences arising out of it. Although the provisions relating to property division greatly favored Debra and the agreement was, at least partly, executed in consideration for Debra’s agreement not to obtain a divorce at various times throughout the marriage, there is no evidence that David executed the agreement against his will.
c. Disclosure of Assets
Parties disclosing assets in a premarital context need not provide an exact dollar amount as long as there is a general knowledge of the nature and extent of the property involved. Davis,
But disclosure of assets in a mid-marital environment is unlike a disclosure in a premarital environment in that a confidential fiduciary relationship already has been established and currently exists between spouses. As such, the parties should be required to disclose mоre than just a general overview of the nature and extent of the property held. Although—like a premarital agreement—the parties disclosing assets in a postmarital context should not be required to provide an exact dollar amount, a postmarital agreement generally should be enforced only if the parties have a reasonably accurate understanding of the monetary value attached to material assets held jointly or separately by the other party.
The relevant portion of the postmarital agreement in this case provided:
“The Parties each agree that they are both aware of the full extent of the Assets of tire [Parties] and expressly waive any right to further disclosure of the property or financial obligations of the other party. The Parties each acknowledge that he or she has given full consideration to the Assets, liabilities and income of the other and that he or she is entering into this Agreement freely, voluntarily and with full understanding of all of its provisions.”
David does not argue, and the evidence does not suggest, that Debra hid any material assets from David or provided David with misinformation as to the value of any material assets. Moreover, David agreed in writing that he was fairly apprised of the nature and extent of the property and interests awarded to Debra under the agreement, and he waived his right to any further disclosure of Debra’s assets. Under these circumstances, we find the disclosure of assets sufficient.
d. Waiver of Judicial Equitable Division of Assets
Waiver as it relates to a postmarital agreement is important because it emphasizes a party’s exercise of a meaningful choice to give up certain rights. In determining whether a party meaningfully waived his or her right to a judicial division of assets, the Ansin court held that a judge should consider “ whether each party was
The terms of the agreement in this case readily establish that David knew he was entitled to have the court divide the marital assets in the event of divorce but—for a myriad of reasons expressly stated in the agreement itself—he wanted to relinquish that right. Again, David drafted the agreement himself, which necessarily precludes any argument that David lacked adequate time to review the agreement or that he did not understand its terms. The terms of the agreement itself state that David understood the rights, obligations, and legal consequences arising out of it. Finally, the fact that David was a practicing attorney is strong evidence that David knew he was entitled to have the court divide the marital assets in the event of divorce.
e. Fair and Reasonable Terms When Executed
Next, we turn to the requirement that a postmarital agreement contain terms that are “fair and reasonable” at the time of execution. In analyzing Debra and David’s agreement under this factor, we are mindful of the rule that tire terms of written instruments generally are construed against the scrivener. See T.R. Inc. of Ashland v. Brandon,
With regard to this “fair and reasonable when executed” requirement, the Ansin court afforded
“greater latitude for agreements reached where each party is represented by separate counsel of their own choosing. [Citation omitted.] A judge may consider ‘the magnitude of the disparity between the outcome under the agreement and the оutcome under otherwise prevailing legal principles,’ whether ‘foe purpose of the agreement was to benefit or protect the interests of third parties (such as the children from a prior relationship),’ and ‘foe impact of foe agreement’s enforcement upon foe children of foe parties.’ [Citation omitted.] Other factors may include foe length of the marriage, foe motives of foe contracting spouses, their respective bargaining positions, foe circumstances giving rise to foe marital agreement, foe degree of foe pressure, if any, experienced by foe contesting spouse, and other circumstances foe judge finds relevant.”457 Mass. at 297 .
£ Unconscionable at Dissolution
Whether an agreement is unconscionable involves a question of law and is to be determined based on the facts and circumstances of each case. See Davis v. Miller,
“ ‘The test of “unconscionability” is drawn from Section 306 of the Uniform Marriage and Divorce Act (UMDA) [citations omitted.] The following discussion set forth in the Commissioner’s Note to Section 306 of the UMDA is equally appropriate here:
“Subsection (b) undergirds tire freedom allowed the parties by making clear drat the terms of the agreement respecting maintenance and property disposition are binding upon the court unless those terms are found to be unconscionable. The standard of unconscionability is used in commercial law, where its meaning includes protection against one-sidedness, oppression, or unfair surprise [citations omitted], and in contract law [citations omitted]. It has been used in cases respecting divorce settlements or awards. [Citations omitted.] Hence the act does not introduce a novel standard unknown to die law. In the context of negotiations between spouses as to tire financial incidents of tireir marriage, the standard includes protection against overreaching, concealment of assets, and sharp dealing*379 not consistent with the obligations of marital partners to deal fairly with each other.
“In order to determine whether the agreement is unconsciоnable, the court may look to tire economic circumstances of the parties resulting from the agreement, and any othér relevant evidence such as the conditions under which the agreement was made, including the knowledge of tire other party. If the court finds the agreement not unconscionable, its terms respecting property division and maintenance may not be altered by the court at the hearing.’ ” Davis,269 Kan. at 742-43 (quoting ULA Comment to § 6 of the UPAA, 9B U.L.A. 376-77).
The postmarital agreement in this case provides Debra with a substantial amount of the parties’ assets. However, inequality alone does not render a postmarital agreement unfair and/or unreasonable, as diere is no requirement in Kansas that joint marital property be divided equally. In re Marriage of Vandenberg,
“Whereas, to Don and Pat Concannon [Debra’s parents], family is and was everything and it is and was their desire for their wealth, accumulated through considerable hard work, sacrifice and struggle, to remain in the Concannon family. Because of David’s great love and respect for both Don and Pat, his respect for their hard work, his understanding of their desire to have their own children and grandchildren benefit from their efforts, as well as his deep and abiding appreciation and gratitude for both Don’s and Pat’s support of David and Debra in both material and non-material ways and because of tire opportunities that both Don and Pat have given David to grow and achieve much more than he could have ever anticipated, David desires to honor Don’s and Pat’s desires to [provide] for their own family and to return to them or their issue the assets which were*380 given to David and Debra as well as the accumulation of assets made possible by their generosity, their teaching, and the opportunities they have given Debra and David.”
Notably, the postmarital agreement stated that Debra had disclosed its existence to her father. Thereafter, Debra’s family continued to provide gifts to Debra and David with the knowledge that these gifts would remain with Debra in the event of dissolution of their marriage. Although David accepted all the benefits of these gifts, he now seeks to modify that same agreement to avoid its disadvantages. “A party may not accept the benefits of a judgment and reject its burdens. [Citation omitted.]” Drummond v. Drummond,
We conclude from the facts and circumstances before us—including David’s role as the scrivener of the agreement, Debra’s reliance on David’s expertise and knowledge in drafting the agreement, the substantial assets contributed to the marriage by Debra’s family, Debra’s mental disability and corresponding needs, Debra’s inability to earn income and acquire capitаl assets in the future, David’s profession, David’s opportunity to earn income and acquire capital assets in the future, the absence of alimony for Debra in the agreement—that the postmarital agreement is neither outrageous and unfair in its wording nor in its application and thus does not shock the conscience or offend the sensibilities of this court. See Adams,
3. Debra Is Entitled to Attorney Fees Under the Indemnity Provision
As a final point, we must address Debra’s argument that she is entitled to attorney fees pursuant to the indemnity provision in the postmarital agreement, which provides:
“Indemnification. Each of The Parties agrees to refrain from attempting to obtain any court order or decision that is contrary to the terms of this Agreement. Each of the Parties hereby agrees to indemnify the other for any loss, cost or expense (including attorney fees and expenses) incurred because a Party seeks to obtain judicial modification of this Agreement. This indemnification on behalf of*381 each party shall be binding upon and include any claims, demands, or litigation filed by the legal or personal representatives, executors, heirs, legatees, devisees or beneficiaries of either party.”
A court may not award attorney fees absent statutory authority or an agreement by the parties. Unruh v. Purina Mills,
In rejecting Debra’s request for attorney fees, the district court stated:
“No attorney fees are granted against David and in favor of Debra. In making this decision the court considered that the property award of the parties greatly favors Debra and that Debra has been provided Spousal maintenance for 120 months. To award Debra an additional amount for attorney fees would not be fair, just and equitable and would warrant a reconsideration of the award of spousal maintenance and property. David’s actions in this case were consistent in dirеcting the court to follow the law. Finally a substantial contributor to the significant attorney fees incurred by Debra and the delay in getting this matter to the court was due to Debra and her mental illness.”
Debra claims that she is entitled to an award of attorney fees because David sought “to obtain judicial modification” of the post-marital agreement, contrary to the terms of the indemnity provision.
David’s request for an equitable division of property in the divorce, including his argument that the postmarital agreement was unenforceable, was a clear attempt to obtain judicial modification of the agreement. In light of our holding that the postmarital agreement is enforceable and is not contrary to public policy, the indemnity provision contemplating attorney fees must also be enforced against David.
Conclusion
The district court erred in construing the present agreement as a separation agreement and reviewing it for fairness under K.S.A. 60-1610(b)(3). The agreement is an enforceable postmarital agree
Reversed and remanded with directions.