*1
309
ionship, and conduct with his co-defendants before and after the
Again,
agreed
commission of the offense.”
substance of the
however, Mister
re-charge
may
complain
appeal.
not
of it on
Delacruz,
398; Jones,
8. Mister contends that his sentence of 20 for his aggravated punish assault conviction constitutes cruel and unusual Mister, however, ment. did not raise below, this issue and is therefore (546 doing appeal. barred from State, sо on 760, Butts v. 273 Ga. 771 472) (2001). SE2d Judgment All the Justices concur. affirmed.
Decided 23, November 15,
Reconsideration denied December 2009.
Wayne appellant. Burnaine, L. for Attorney, Wesley Porter, Daniel J. District Ross, C. Assistant Attorney, Attorney Christopher Baker, District General, Thurbert E. Attorney appellee. Johnson,
R. General, Assistant
S09A1370. LAWRENCE v. LAWRENCE. 421)
NAHMIAS, Justice. This
appeal enforceability involves the of an ante- nuptial agreement.1 challenged The wife on two (1) § grounds: OCGA 19-3-63 renders the “marriage contemplation marriage” void as a contract. . . made in (2) not attested witnеsses; at least two
agreement is unenforceable due to insufficient financial disclosure upheld agreement. before it was executed. The trial court We affirm. public 1. Enforcement of an is a matter of 614)
policy. Langley Langley, See 279 Ga. (2005). deciding In whether to enforce an ‘approve trial court “has discretion to in whole or in ” part, approve or refuse to it as a whole.’ Alexander, Alexander v. 48) (2005) (quoting 117-118 Allen, Allеn v. prospective spouses Contracts between conditioned on the later occurrence of a variously statutes, law, are “antenuptial,” referred to in case and treatises as “antemarital,” “prenuptial,” “premarital” agreements. contracts or See 5 Samuel Williston (4th Lord, 2003) (Williston & Richard A. A Treatise on the Law of Contracts 11:8 ed. Contracts). terminology legal significance Georgia The difference in has no under law. Throughout opinion, “antenuptial” this we will refer to the contract at issue as an *2 (400 15) (1991)). Accordingly, we evaluate a 777, 778 SE2d
260 Ga. antenuptial enforceability ruling regarding anof the trial court’s agreement of review. of discretion standard under the familiar abuse 822) (2008). Blige, Blige Under this 65, 283 Ga. v. legal holdings novo, they de and we standard, we review the trial court’s long uphold as are not as the trial court’s factual clearly in the record there is sоme evidence erroneous, which means Properties support Langley, 377; 279 Ga. at Alexander them. See to Group 497) (2006); Williams v. Doe, 848) (2004). State, 277 Ga. support record, to in the construed 2. The evidence Angela ruling, Lawrence and as follows. G. Lawson court’s showed began dating July 2001. Mr. Lawrence owned the M. Lawrence building office Ms. Lawrence was an Ms. Lawrence worked. where dating, couple year moved half of the time. After a аnd worker at the years they together, Lawrence, a later. Mr. were married two impact a third the financial divorcé, was concerned about two-time courtship, couple’s four-year-long throughout Thus, the divorce. up, topic raise came Mr. Lawrence would the whenever February antenuptial agreement. entering On issue of into an the couple wedding, executed month the the 2005, a little over a before by agreеment Veal, Mr. Lawrence’s G. Randall The was drafted together attorney. couple on two to Mr. Veal’s office The went agreement. They entering antenuptial into an occasions to discuss together they living time, for some Mr. had been informed Veal that antenuptial marry, they they wanted an and that both wished to They agreement. each aware of the both told Mr. Veal that were representation position income, Mr. Veal and At both other’s included meetings, Mr. Veal went over the in the explained consequences terms of signing it for each of them. right have that she had the to Mr. Veal informed Ms. Lawrence agreement attorney to its and advise her as look over the her own meeting, legal consequences. Mr. Ms. Lawrence and At the second pick up agreed finalized Mr. Lawrence would Lawrence give copy review with Mr. her a from Veal’s office actually attorney However, Ms. if she so desired. it was her own Mr. Veal’s the finalized from Lawrence who retrieved not, however, did elect to review the office.Ms. Lawrence agreement attorney signing it. with another April wedding place planned 5, 2005. The as took years May separated 22, 2008, Mr. Lawrence filed a later. On three County Superior complaint Court, with a for the Baldwin divorce copy Ms. Lawrence filed an attached. alleging answer and counterclaim was unen- Discovery including depositions followed, forceable. of Mr. Lawrence and Ms. Lawrence. Mr. Lawrence filed a motion to enforce the addressing and both filed briefs relevant issues. position
Ms. Lawrence took the was void under OCGA 19-3-63 because it was not attested at required every “marriage least two witnesses as contract. . . *3 contemplation marriage.” Alternatively, in made argued of Ms. Lawrence if that even the void, was not it was nevertheless despite agreement’s unenforceable, because, the recitation to the contrary, there was no disclosure to her of Mr. Lawrence’s income or property prior to the execution of the The trial court January ruling 16, 2009, entered an order on that the agreement was both valid and enforceable. The court then issued a granted application review, certificate of immediate for and we the wife’s interlocutory (b); § appeal. See OCGA 5-6-34 Rules of the Supreme Georgia, Court of Rules 30-32. § provides “[e]very marriage
3. OCGA 19-3-63 contract in writing, contemplation marriage, made in of . . . must be attested correctly at least two witnesses.” Ms. Lawrence notes that the antenuptial agreement by only was attested one witness and claims repeatedly reсognized that it is therefore void. This Court has antenuptial agreement purports alimony to settle issues is Georgia contemplation classified under law aas contract “made in of contemplation marriage.” divorce,” not a contract “made in Dove 839) (2009) cases). (collecting Dove, may semantic, The distinction lished seem somewhat but it is well estab- Georgia leading in the law of and the rest of the nation. As a explains: trеatise on the law of contracts
Historically, premarital agreements the often depended upon only upon whether were to be effective upon perhaps taking death divorce, or also most courts contemplated view that an which provision thereby public and made for divorce violated policy, property only encompassed provision while one which during marriage upon
interests death did not. (emphasis original). 5 Williston on Contracts 11:8 While all agreements contemplation states necessarily now hold that of divorce do not public policy, agreements violate the distinction between contemplation agreements contemplation of divorce and marriage or death has continued. alimony. in this case addresses explaining possibility explicitly divorce, refers
Moreover, it govern pаrties in that event: want marriage, contemplate lasting parties hereto While the parties only by hereto, one of the the death of terminated they possibility recognize that their the unfortunate also by way might marriage of divorce or other be terminated parties during of both as both the lifetime dissolution parties previous divorces from other hereto have had readily recognize parties spouses, and both hereto relationship. potential frailty accept In the of their of their a dissolution or termination event of such during by way of divorce or other lifetime of both hereby specifically agree as dissolution, . . . follows: . . . clearly
Consequently, a con- at issue is *4 contemplation made divorce, of not a contract made in tract contemplation subject marriage. such, to the dual As it is not § requirement Dove, 285 Ga. at of OCGA 19-3-63. See attestation upholding Accordingly, the trial court did not err 651. the challenge against under OCGA the of the 19-3-63. antenuptial argues if the that even
4. Ms. Lawrence further
against public policy
agreement
void, it is still unenforceable as
is not
Scherer,
the (1) antеnuptial agreement was not that: the demonstrate misrepresentation, fraud, duress, mistake, result of the (2) agreement not facts; the is nondisclosure of material (3) taking unconscionable; into account all relevant including changes beyond circumstances, the facts agreement parties’ contemplation executed, the when would be neither enforcement of unfair nor unreasonable. antenuptial
Blige,
contends that the
To
the first
[enforcement
full and fair
show both that
there was “a
must
parties prior
execution of the
[
disclosure of the assets
opposing
agreement,”
party
[antenuptial]
enforcement
and that the
voluntarily,
agreement
[freely],
and with full
“entered into the
being
opportunity
understanding
to
of its terms after
offered
.
independent
Adams, 278 Ga.
counsel.” Adams v.
consult with
273) (2004).
every
virtually
Georgia law, like that of
duty
pre-execution
imposes
disclosure
state,
an affirmative
other
Blige,
[w]e of most other states with courts proving fairly simple required, and effective method not assets, attach a net worth sсhedule disclosure is to antenuptial itself. liabilities, and income to the Randolph v. Randolph, (quoting Blige, 937 SW2d Ga. at n. omitted). 1996)) (Tenn. (punctuation We reiterate that attaching show financial statements necessary, ing parties’ assets, liabilities, income, while not both *5 statutory [disclosure] satisfying of the most effective method “is (quot- Blige, obligation 69, n. 12 circumstances,” in 283 Ga. at most (Conn. 2007)) (punctuation ing Friezo, A2d 550 Friezo v. 914 litigation omitted), deterring protracted expensive thereby if the and antenuptial agreement is later invoked. explained above, a trial court’s
Nevertheless,
we review
as
antenuptial agreement,
rejection
acceptance
in whole or
of an
or
supports
only,
part,
in this case
and the record
for abuse of discretion
remaining aspects
dispute
the trial court’s
on the
Ms. Lawrence does not
burden
prong,
determination that Mr. Lawrence met his
does she contest the court’s
first
nor
prongs
respect
proof
and third
of the Scherer test.
of
with
to the second
585) (2006)
(upholding
Corbett,
trial court’s
See Corbett v.
finding
husband “failed to disclose his
based on
refusal to enforce
antenuptial agreement”);
. .
material to the
“[h]usband’s income . was
income” because
(“The
Alexander,
question
whether there was a . . .
before the court was
execution disclosure of Mr. Lawrence’s financial status. The record year shows that dated for a and half and then lived together years they for over two wed. Mr. Lawrence owned Pipe, Center, Columbia Professional and signed Griffon North Rim Park, Office Interiors, Lawrence all of which Ms. Lawrence knew when she they fact, In met because Ms. building Lawrence worked in a Mr. Lawrence owned. Ms. Lawrence practice. knew that Mr. Lawrence had a successful real estate She roughly knew about 95% the land Mr. Lawrence owned when she signеd throughout courtship, and their project every he told her about each he was in, involved real estate purchase made, he and even the amounts he borrowed in connection purchase. with each they dating,
While were Mr. Lawrence wined and dined Ms. country Milledgeville Lawrence at the club in where he was a approxi- member. Ms. Lawrence knew that Mr. Lawrence owned the mately square couple 6,000 foоt house where the lived after together, moved as well as a Florida, condominium in a cabin County, Expedition, Wilkerson Ms. and a truck. Mr. Lawrence took trips, including Jekyll Lawrence on numerous a visit to Island to stay Bayliner couple his 38-foot boat. Ms. Lawrence knew the planned honeymoon gone in Hawaii, that Mr. Lawrence had hunting in Mexico times, several and that he traveled to Australia paid with his son. Mr. $2,000 Lawrence off in credit card debt for Ms. go shopping Lawrence, let her use his credit card to for herself and daughter, gave her her $25,000 a Mercedes, a necklace, diamond pair earrings, of emerald and a total of $5,000 about in cash over four-year period leading up wedding. light
In
showing
the extensive evidence in the record
Ms.
familiarity
Lawrence’s
dealings
with Mr. Lawrence’s business
personal
garnered
lengthy
condition,
over the course of a
premarital relationship including
years
over two
cohabitation,
any
the absence of evidence that Mr. Lawrence had
material income
say
assets which
Ms.
unaware,
Lawrence was
we cannot
concluding
the trial court abused its
discretion
that there was full
*6
and
prior
fair disclosure of Mr. Lawrence’s financial condition
execution of the
See
Mallen,
Mallen v.
280
812) (2005) (no
Ga.
SE2d
finding
abuse of discretion in
adequate
parties
years,
disclosure where
cohabited for four
hus-
band’s financial statement attached to
revealed him to be
wealthy
significant income-producing
man with
assets, and wife was
living they enjoyed prior
well
marriage
aware from standard of
to
that
bearing
husband received substantial income from business
his
sources).
(no
Compare Bilge,
name and other
Ga.
and fair disclosure of
antenuptial agreement.”
parties entering into an
all material facts on
(Footnote omitted.) Blige Blige,
(2008).
822)
majority’s
disagree
I
with the
Because
abuse its
court did not
in Division
that
conclusion
finding adequate pre-execution
Husband’s
disclosure of
discretion
respectfully dissent.
status, I must
it is a
in this case states
The
agreement”
“property
to
that it is the intent of
and
rights
property
clarify
respective
of,
at the time
to
owned
their
marriage.
during,
includes a clause
The
and after the
providing
full disclosure unto each
“have made a
their
liabilities,
full disclosure of
and a
of their assets and
other
assuming
personal properties.”
ownership
this
Even
of real and
fair disclosure of the facts
evidence full and
is sufficient to
clause
enumerated
ing
regard-
provides
no information
therein, parties’
between
is no inherent correlation
income, and there
property
Thus, Wife’s
and one’s income.
or assets
the value of one’s
waiver of
disclosure of
rights,
alimony, among
without the
marital
was made
other
reaching
See Corbett
such a decision.
a factor critical to
585) (2006) (where
(1) (628
Corbett,
For I reasons, these dissent to Division 4 of the majority opinion ruling and the affirmance of the trial court’s upholding enforceability parties’ antenuptial agreement. Judge joins
I am authorized to state that Chief Williams in this dissent. Judge, dissenting.
WlLLLAMS,Chief fully dissenting opinion I concur with the of Chiеf Justice separately express my Hunstein, and write view that trial courts appellate opinions benefit most from which establish ascertainable appropriate, impose obligation specific and, standards if an to make especially important on relevant issues. This is when, as applied appeal. here, the abuse of discretion standard is (Mich. Sumpter App. As noted in Kosinski, v. 419 NW2d 1988), “[i]t that, should be observed when affairs of the heart are legal guidance appropriate involved, no matter how is often not considering heeded.” I believe this Court should hold that in antenuptial agreements, disregard trial courts should boilerplate language to the effect that the have made a full respective party’s disclosure of their failure to retain an conditions, and that a
attorney
proffered
or accountant
to review a
given
weight
determining
should be
no
whether an
adequate
majority opinion repeats
disclosure was made. The
822) (2008)
Bilge Bilge,
admonition of
For the parties’ antenuptial upheld judgment, which court’s rendering objective what financial disclosure without parties’ comported with the true whether it was made and made. condition at the time joins in this Hunstein to state that Chief Justice
I am authorized dissent. November
Decided 15, 2009. denied December Reconsideration appellant. Fierman, for Martin L. appellee. Driggers, Stone, for & Kice H.
Stone CONSULTANTS, et al. RETINA P.C. et al. v. S09A1485. COLEMAN 457) MELTON, Justice. Superior appeals an order from the from
Brendan Coleman non-compete County, in enforced a clause which of Richmond Court an employment into with had entered that Coleman (“TREC”). Eye The Retina Center Consultants, EC. Retina d/b/a marketing enjoined software from certain Coleman The order pay competition certain ordered Coleman with TREC and further appeal, money registry. contends that the On Coleman the court into non-compete upholding because the clause trial court erred trial court was not invalid, and further contends clause was registry. money pay For into the court force him to authorized to part. part and reverse follow,we affirm reasons that practice specializing TREC is a medical The record reveals that engineer surgery. who was hired a software Coleman is in retina