*1 $3,880.40 in pay costs and he proceedings. disciplinary WALLE, W. GERALD VANDE CROTHERS, C.J., MARY DANIEL J. MARING, CAROL
MUEHLEN KAPSNER, and DALE V.
RONNING
SANDSTROM, JJ., concur. SAILER, L. Plaintiff Appellee SAILER, K. Defendant Appellant.
No. 20080114. North Dakota.
Supreme Court of 30, 2009.
April *4 awarding physical
ment children to parties’ three minor part, part, We affirm reverse Sailer. proceedings. for further remand Curtis Sailer Sandra Sailer [¶2] They signed prenup- met both in 1989. 13, May par- tial 1993. The May ties married on resided Hazen, near North Dakota. Sandra Sailer marriage, had to their prior one child during had children three marriage. In Sandra Sailer October *5 children,
took the minor left Bismarck, home, family and relocated to Curtis Sailer filed for di- North Dakota. 13, 2006, and vorce on November Sandra interim order hear- Sailer answered. An 2006, 29, and on ing held on December was an January the trial court entered awarding Curtis Sailer tem- interim order custody legal physical and porary children. Trial was held parties’ minor 20-21, 2007. The district court December on March 2008. judgment entered prenuptial The district court deemed as matter of law agreement conscionable one- agreement and was so held the unenforceable. district sided as found waive Curtis Sailer express provision prenuptial agree- his family his by supporting ment court awarded Curtis The district income. children and custody physical Sailer children. legal of their both Bismarck, Runge (argued), I. Gregory appeals. Sailer ND, plaintiff appellee. Severin, (argued), Kent M. Morrow II Morrow, Bismarck, ND, for Ringsak & asserts Sandra Sailer [¶4] appellant. defendant enforcing pre- by the trial court erred asserts nuptial agreement. Sandra Sailer KAPSNER, Justice. not be agreement should prenuptial voluntarily did not enforced because: she appeals from a Sailer [¶ 1] Sandra agreement; Curtis agree- prenuptial enter judgment enforcing prenuptial knowingly right waived his to en- so we can reschedule it you so can find prenuptial agreement; And, force mean, enforce- counsel. you if can find ment prenuptial agreement will like- somebody in days two or three to review ly assistance; public cause her to seek back, it and then come we would re- enforced, prenuptial agreement if the its schedule. effect is
substantive
unconscionable.
Curtis Sailer testified Sandra Sailer “said
she
signing
was fine with
is.”
A
attorney
Sailer testified
John
re-
Olson
“A premarital
be
by stating:
you
acted
“Then if
going
marriage,
effective upon
comes
but several
that,
do
you
then
review the whole
parts
Uniform
[The
Premarital
prenup agreement,
and so he went
Agreement] Act
enforceability
affect the
through step
step
explained every-
premarital
Lutz,
agreement.”
Estate of
thing
both of us
if
she had
[asked]
(internal
¶ 25,
asked attorney where her or Q. counsel ... Did he through, ever read to represent indicated, her and she said she didn’t Curt each of paragraphs any have and he said that he cannot to make you sure that understood what represent her: am Curt, I representing paragraph that said? Q. page four. Number Turn to No.
A. just please, you can read that out loud or not you ask whether Did he Q. the first sentence? what was about you any questions had and under- parties recognize A. The agreement? prenuptial being exe- stand that this of was All I was made aware A. No. days to their scheduled prior cuted 16 on the assets listed protect this was to 29th, May date 1993. wedding pages. these this Q. Why you sign document? also you that it anyone Did tell Q. A. that would trust me. So he increase any protection included in value than trust? they Q. If increased No reason assets? other those that that years marriage over things These A. That correct. also be included? would great impor- two were of pages the last to him. tance A. No. at all?
Q. you Did read the document A. over the first draft. I looked or was you understand Q. Did also that you by Mr. Olson explained different Q. the first draft Was any giving up also you this were signing this draft? sup- alimony spousal or to claim
right A. can’t I recall. case of a divorce? port property in or Q. you Did contact either Curtis No. A. you any changes Mr. Olson with pre- being Now, you, thought important would be did both Q. agreement? sign nuptial yourself, Curt and same time? A. I did know that would my future changes to make right Yes, both there at we were A. prenuptial agreement. husband’s of each Within moments same time. signed it. Q. again? Say that *7 know I would have the A. Did not cross-examination, Sandra my to hus- right changes make to Sailer testified: prenuptial husband’s band’s—or future Now, agreement, you signed this Q. agreement. you did not? with an attor- Q. You consult didn’t Yes, I A. did. ney? pres- it with Curt Q. you signed And A. No. ent? A. Yes. you go to Q. read —or ... Would Mr. it in front of Q. you signed And 13? and read number page five Olson? acknowledge each parties A. The A. Yes. has that this represent going can’t recall Q. you But free of them by each been executed with Mr. Olson? document through the influence, fraud, undue persuasion, only thing going I recall
A. The economic, duress or emotional physical pages. through the last two whatsoever. any kind you? it in Q. youDo front any claiming that Q. you Are these occurred? Yes, I do. A.
A. Occurred Q. document itself? you And didn’t reschedule the wedding date? No, Q. you occurred forcing sign A. No. it? Q. you And didn’t consult with coun- My
A. economic condition was very sel? present in this. A. I could not afford counsel.
Q. Certainly was. Let’s go to Q. your you But economic condition. had go plenty Let’s time one, though. you Did page paragraph me, go to— one—excuse paragraph three. What that say? does A. I did not have an hour to $200 pay go someone to over I this me.
A. am sorry, where? Well, Q. go did you any of the free one, Q. Page paragraph three. clinics in Bismarck? A. Wife has any accumulated A. I was not any. aware of assets, significant investments or prop- Q. How legal about assistance? erty essentially and her assets consist of personal property. A. I was not made aware either.
Q. So recognized, not, was it Q. you you virtually had Did bringing little call the bar into association? the relationship? A. No. Right.
A. Q. Why not? Q. Again you, A. why you I Didn’t ask know sign you that’s what the document? Nobody needed do. gave me any instruction. again say,
A. And so he would Well, Q. contract, right? this is a trust me. A. It’s a prenuptial agreement. Q. four, Now on page number 12 again? Q. contract, It’s a right? A. marriage Our is a
A. contract. Um-hum. Q. What is this prenuptial agree- Q. you Would read that sentence out ment then? loud? A. piece A paper.
A. acknowledge that Q. It doesn’t mean anything you each has had opportunity sufficient prior then? to executing to consult *8 counsel,
with to reschedule the wedding A. It’s not a vow before God. date if necessary, to proceed not and/or Q. Does this you, mean to anything with marriage, the but each nonetheless this contract? agrees timing that the of the execution A. Not since it stated in here that if of this agreement has no upon effect he died I would have absolutely nothing. their decision to agreement. execute this Q. Does this mean anything you to Q. So I ask you, why you get did or not? married? A. No. A. Because I loved him and I Q. It doesn’t anything? mean As far thought he loved me. you as are concerned— Q. you And signed the agreement? A. The last pages two only are the '
A. That is correct. thing that mean anything.
453 B ques- me ask the Q. stop. Let Just concerned, you far tion. So as of Paragraph seven the [¶ 12] ink on paper? more than nothing this is provides: par prenuptial agreement “The A. That is correct. earnings agree that all the and ties “Lack of This has held: Court resulting from accumulations either prospective spouse to legal to advice services, skills, efforts spouse’s personal significant is a independent counsel obtain work, together all ac property with voluntariness of a weighing the factor therefrom, quired or income derived shall presence but the arrangement, premarital property party separate the prerequi counsel not independent the and income are attrib earnings whom Lutz, enforceability.” Estate site “Through The trial held: utable.” (citing 589 N.W.2d the marriage, the Curtis never waived out ¶¶ 31, 34, Lutz, ND Estate agreement by provisions of the express 90). testified attor Curtis Sailer N.W.2d separate his income to voluntarily using Sailer an ney gave John Sandra Olson provide to the children.” On Sandra legal independent obtain opportunity to argues appeal, Sandra Sailer Curtis Sailer counsel, Sailer was and when Sandra his the knowingly right waived enforce her attorney if John Olson advised asked provisions prenuptial agreement. counsel, responded: “I legal she to obtain essentially arguing that Sandra Sailer is don’t recall.” routinely his because Curtis Sailer used attorney called Neither money support both Sandra Sailer and testify at trial. John Olson daughter, knowing her this was a and vol it “significant contends Sailer Sandra the untary paragraph waiver of seven of Sailer did not call telling” that Curtis prenuptial agreement, and constituted testify to shed an attorney John Olson to enforceability waiver of the entire issue, objective light on the prenuptial agreement. sug- documentation produce explained his attorney John Olson gesting trial, At Sandra Sailer testified party oppos- As role to Sailer. Sandra joint never held bank accounts. parties enforcement, had Sandra Sailer ing took care of She also testified Curtis Sailer prove prenuptial burden to their all associated with house bills voluntarily. was not executed Paragraph life. seven of and married 14-03.1-06(l)(a). testimony Her estab- agreement simply prenuptial states and had an lishes she had document earnings property were to be parties’ its well in opportunity to examine contents separate; it does not indicate kept Sandra Sailer advance of its execution. provide one another. parties could disparity aware of the testified she was Therefore, testimony sug- Sailer’s time execu- resources complied paragraph gests tion, reflects the same. and the document *9 agreement. We prenuptial seven any pressure undue to Nothing establishes or violate Sailer did not waive hold Curtis her desire to sign the document other than prenuptial agree- paragraph seven of marry have “trust” and to Curtis Sailer family. sup- Such by supporting his ment Therefore, we hold the record does her. therefore, port, cannot establish waiver met her bur- not establish Sandra Sailer agree- enforcement of the entire of the voluntarily showing did not den of she agreement. ment. prenuptial enter into 14-07-03, N.D.C.C., pro- mony.” Section Sandra Sailer asserts a mu-
vides: “The husband and wife have because enforcement of the prenuptial tual other duty support likely each out of their agreement would her to cause seek property sup- individual and labor.” By assistance, public she is to spousal entitled porting throughout Sandra Sailer their 14-03.1-06(2), N.D.C.C., support. Section with marriage, complied Curtis Sailer provides: Compliance with 14-07-03. provision a premarital agreement If statutory does mandate not establish modifies or eliminates spousal support provisions waiver of the sev- paragraph and that modification or elimination en prenuptial agreement. party agreement causes one to the to be eligible for support program under a 15] Sandra Sailer contends be [¶ public separa- assistance the time of cause paragraph Curtis Sailer violated sev dissolution, court, tion or marital not- en prenuptial entire agreement, withstanding the the agree- terms of prenuptial agreement is unenforceable. ment, may require the other However, Sandra did not point Sailer provide support to the necessary extent any authority if suggesting one of a clause eligibility. to avoid that prenuptial agreement contract or violat waived, ed pre or the entire contract On November [¶ or signed nuptial agreement Sailer a financial is unenforceable. We statement and affirm finding subsequently the trial affidavit which was court’s that Curtis filed with 8, trial paragraph waive or violate court on December 2006. In affidavit, agreement. seven of prenuptial How Sandra Sailer indicated she ever, if (Temporary even we to hold con received TANF were to the Assistance for Families) Needy (North trary, paragraph prenuptial fifteen of the and WIC Dakota Women, Infants, provides: any provi “Should Program). Children sion of this At the time signed held invalid or Sandra Sailer and filed by any affidavit, unenforceable court of the financial competent statement and she jurisdiction, parties’ all provisions none had the three living shall minor children effect, with her. theless continue full force and The trial court entered an inter- im remaining January extent that order on provisions awarding fair, Therefore, just Curtis Sailer equitable.” minor even if would children. we have determined Curtis Sailer waived paragraph pre seven of the trial, examination, 18] At [¶ redirect nuptial agreement, this would not render Sandra Sailer testified: prenuptial agreement the entire unen Q. During ... you the time that forceable. Curt, separated have been from you any ever sought public assistance? C A. Yes. 16] The trial found: Q. you What did receive? “Sandra has demonstrated that she can be IA. food TANF, received stamps, self-sufficient. prenuptial Under jobs Service, program Job child agreement, if marriage was terminat care I job assistance while seeking. ed, both [Curtis Sailer Sandra Sailer] Q. youDo receive any? still agreed any support not make claims for No, A. nothing. receive alimony. Therefore, neither nor *10 granted spousal support Q. is or ali- Any why? reason
455 14-03.1-06(2), § pre- does not N.D.C.C. qualify. IA. don’t agree- prenuptial clude enforcement you qualify? Q. Why don’t ment. money. I make too much A. you the time that were Q. During D living in the same
married to Curt
Sandra Sailer
[¶
On
21]
qual-
household,
you
attempt
did
ever
is so one-
prenuptial
asserts
public assistance?
ify on
the prenuptial
sided that enforcement of
A. No.
agreement would be unconscionable. The
the mar-
Q.
you
prior
had
But
held,
prenuptial agreement,
trial court
“the
riage?
1993,
13,
May
between the
is
dated
A. Correct.
law.”
as a
Section
conscionable
matter
14-03.1-06(3), N.D.C.C.,
“An is
provides:
recross-examination, Sandra
19]
[¶
of a
unconscionability
premarital
sue of
Sailer testified:
is
the court as a
for decision
not
TANF?
Q. You are
on
“Unconscionability of a
matter of law.”
No,
not.
I’m
A.
law,
premarital agreement is a matter of
not?
Q. Why
findings
factual
related to
but it turns on
I
qualify.
A.
don’t
values,
the relative
property
circumstances,
you
ongoing
and their
Q. Why
qualify?
don’t
financial
¶5,
Binek,
10,
2004 ND
need.” Binek v.
job
I
now.
A.
Lutz,
Estate
(citing
her assets personal consist of time, whether due to market conditions property.” Paragraph provided, four in services, or the skills or efforts of either part: party. own, Husband have full right shall
use, control, dispose encumber and of all parties The respect contracted with exists, of his as it property now as it spousal support against and claims each shall change, increase or from decrease property other’s in paragraph six of the time marriage to time the same as if the prenuptial agreement: relationship did not exist.... The wife parties agree that whether the mar- may sepa- also continue to hold in her riage death by legal terminated or name, acquire rate in the future proceedings, they will make no claim name, separate her properties other except as specifically otherwise provided shall investments which remain her agreement, in this any part separate property. antici- property waive all pate during they their marriage, [sic], rights power curtesy, community will acquire property and investments homestead, property, inheritance, suc- they which agree are to be considered cession, surviving spouse family al- by and, jointly owned them accord- lowance, exempt property, claims for ingly, they expressly agree all such support, alimony, attorney’s fees and property and investments which are reg- of property costs settlement. joint names, shall, istered in their for all purposes, be considered to This Court be owned has held: “Even if a by one-half of them. All premarital agreement each household validly been has goods furnishings acquired voluntarily obtained, its substantive effect
457
court noted:
“Plaintiff
defendant
and thus unen-
may
unconscionable
be
are
Lutz,
82,
pay
they
all of the debts
indi-
ND
should
1997
Estate
forceable.”
of
responsible
¶
as listed on the
14-03.1-07, vidually
for
39,
90.
N.W.2d
Section
563
Listing.”
Rule
and Debt
Property
8.3
N.D.C.C., provides:
Both
their assets on the
parties valued
provisions
the
Notwithstanding
other
Listing;
Property
Rule
and Debt
how-
8.3
if a court finds
chapter,
this
ever, nothing in the
record indicates
premarital agreement
a
enforcement of
placed a value on the assets.
trial court
unconscionable,
clearly
would be
agree-
may
to enforce the
court
refuse
Although the trial court
ment,
the remainder of the
enforce
to be con
prenuptial agreement
found the
the unconscionable
agreement without
law,
as matter
it did not
scionable
a
application
limit
an
provisions, findings
to come to this
necessary
make
an un-
provision
avoid
unconscionable
the trial court
conclude
conclusion. We
result.
conscionable
findings
sufficient
to allow
provide
enacting
ch. 14-
opportunity
properly
In
N.D.C.C.
re
[¶ 26]
Court the
03.1,
§
Legislature adopted the Uniform
14-
view its decision under N.D.C.C.
Ebach,
187,
N.D.
Act.
1985
ND
Agreement
Premarital
03.1-07. See Ebach v.
2008
¶
190,
However,
16,
§§ 1-9.
a
court
Laws ch.
34. When
trial
Sess.
757 N.W.2d
findings,
§
is not
of the
it errs
part
required
14-03.1-07
as
N.D.C.C.
does not make
Act;
law,
necessary
rath
Agreement
Premarital
and it is
Uniform
matter
¶
er,
enacted
at 14
separate provision
findings.
for
Id.
it is
remand
additional
(citation omitted).
Legislature. Hearing on S.B.
this issue
We remand
2171 Before
Comm.,
N.D.
Judiciary
49th
to value
trial
with instructions
Senate
(Jan. 23, 1985);
assets,
Unif. Premar
as
Legis.
findings
Sess.
make
(2001).
Act,
resources,
38
Agreement
ital
9C U.L.A.
their
and determine their
§ 14-03.1-
deciding
interpreted
purposes
for
We
foreseeable needs
guidelines
forth
for trial
agreement
07 and have set
whether enforcement of the
analyzing
concluding
use
this statute.
courts to
when
We are
unconscionable.
when trial courts discuss
was unconscion
We have held
the prenuptial
“clearly
law;
premarital
only
we
hold the
whether
able
a matter of
as
specific
14-
required
under N.D.C.C.
to make
unconscionable”
trial court was
03.1-07,
requires complete
analysis
not.
findings,
it did
property
findings
factual
about the relative
Ill
and fore
and the other resources
values
Sail-
asserting
spouse
seeable needs
failed to make an
trial court
er asserts the
is unconscionable.”
premarital agreement
¶
A
45,
marital estate.
Lutz,
82,
equitable
ND
563
division
1997
Estate of
regarding
trial court’s determinations
90.
N.W.2d
property are treated
of marital
division
Findings of
In
trial court’s
[¶27]
may
be reversed
findings
fact
Law, and
Fact,
Order
Conclusions
clearly
errone
appeal
findings
if these
noted Sandra
the trial court
Judgment,
¶71, 12,
2008 ND
Lynnes
Lynnes,
v.
ous.
monthly income from all
net
Sailer’s
Heinz,
(citing
2001
747
Heinz
N.W.2d 93
It also indicated
sources was $860.05.
443).
¶ 6,
147,
N.W.2d
ND
has demonstrated she can
Sandra Sailer
prenuptial
four of the
Paragraph
parties
filed Rule
self-sufficient.
agreement provides
part:
Listing. The trial
Property and Debt
8.3
anticipate
during
idviecky,
their
N.W.2d
marriage, they
acquire property
255);
Fischer,
will
see Fischer v.
139 N.W.2d
*13
they agree
which
are to
845,
(N.D.1966);
investments
be
852
Ruff, 78 N.D.
Ruff v.
jointly by
owned
784,
(1952).
considered to be
them 775,
107,
52 N.W.2d
111
and,
they
accordingly,
expressly agree
are
“[P]arties
entitled to a
division
their
property
such
that all
and investments
property
application
under a correct
joint
in their
registered
which are
by
law the trial
Jangula
Jangu
court.”
v.
names, shall,
purposes,
¶
all
be
for
consid-
la,
16,
ND
2005
459
erroneous,
opportunity to observe witnesses
clearly
and our
court’s
is not
dence
credibility
their
should be
applica-
and determine
especially
review
deferential
Hanson, 2005
difficult
decision
ND
given great
child
deference.”
ble
¶82, 11,
(citing Hanson v.
involving
parents.
fit
pulis, 1999 ND
it
custody,
to child
must
decision as
(citation omitted).
the children’s best inter
strive to serve
Sail-
appeal,
On
Sandra
DesLauriers,
[¶ 34]
v.
ests. DesLauriers
¶
improperly
trial court
ced
er
the
contends
66,
5,
(citing
ND
not the best A custody investiga adopt court to child rather, love, better for report; it would be tor’s af Factor a “[t]he report the into the trial court to take fection, existing emotional ties its conclu and come to own consideration the and child.” N.D.C.C. parents between Hanson, ND 14-09-06.2(l)(a). sions. Hanson fa The trial ¶ 11, 205. 695 N.W.2d this Sailer on factor. vored Curtis provides: custody investigation report coming regard- In to its decision disagreements some There have been custody, trial court held: ing child the by Sandi to- expressed frustrations all has reviewed ‘best “The Court during exchanges and Curt ward 14-09-06.2, in Section interests’ factors present. [One while children Cent.Code, custody as the well N.D. recently expressed has children] report update [the investigation going to take was concern Sandi analysis and conclu- custody investigator’s] his Dad’s return him to him and not only reviewed The trial court sions!.]” after weekend. custody investigator’s report, but also that are been investigator testify There have weekends custody observed weekend, and she scheduled Sandi’s held: district “[A] at trial. This Court has early them get stronger calls Curt to come and formance when he was lived Sailer, to take them to doctor. compared when he lived trial, custody with Sandra Sailer. At she why When asked favored Curtis Sailer investigator testified Curtis Sailer a, custody investigator on factor testi- “stronger” than Sandra Sailer in the area fied: continuing education the children. guess I base that on the times since explain, When asked to inves- went in—I they back Curt don’t re- tigator testified: they member when that was. When though. year back Just whole [Sandra went context children, Sandy has been with the there has not contact had] with the school.... were a lot times she where called [When oldest child] pick up early. months, had Curt come and them school those two the teacher They missed. I don’t if any were know didn’t have contact with her other times, there but were missed there than picking up, *15 she would see her them early saying were—the times she really but didn’t much I contact. just couldn’t them. And [the handle you think crucial if going that’s are to child], parties’ I got oldest the feel from education, you continue need to have he [him] was that kind felt left out system contact with the education and I he when was with his mom. don’t think she had that. appeal,
[¶ 38] On Sandra Sailer asserts appeal, On [¶ 41] Sandra Sailer asserts equal. factor a argues should be She the this factor should be equal. She contends custody only investigator discussed her re- support the evidence custody does the lationship with the children from Decem- investigator’s factor, finding on and present. ber 2006 to She also con- parents ability provide both have the for custody investigator tends the improperly custody investigator’s their children. The weighed the fact that Curtis Sailer would report testimony and indicate there is evi- their take children the doctor at Sandra supporting dence the conclusion that Cur- request. Sailer’s tis Sailer is favored on factor b. The trial court’s conclusion that factor b favored custody investigator’s report The [¶ 39] clearly was erroneous. indicates evidence supporting existed determination that Curtis Sailer is favored C
on factor a. trial The court reviewed the custody disposi Factor c is investigator’s report, “[t]he listened to testimony, Therefore, her tion of the agreed. parents provide child food, finding clothing, care, trial with court’s that factor a medical or other favored remedial clearly recognized permitted Curtis Sailer was not care erroneous. under the laws this state in lieu of B care, medical and other material needs.” Factor capacity “[t]he b is trial The court favored Curtis Sailer on disposition parents to give factor c. investigator’s report The love, affection, child guidance indicated because Curtis Sailer has the continue often, the education of the provides child.” children more he the ma 09—06.2(l)(b). trial jority The of their needs. also It stated when 14— court favored Curtis Sailer on b. factor the children sick get they when are with custody investigator’s The report Sailer, indicates Sandra she has called Curtis Sailer per- oldest child’s academic get to take them them doctor D, you Q. And factor also consider indicated while report also medicine. two the difference between their resi- splitting to be supposed mean, insurance, dences, I major factor. costs not covered medical all of the children’s the size? pays for Curtis Sailer expenses. medical factor, necessarily. A. Not It’s but major it’s not a factor. asserts Sandra Sailer contends: equal. She this factor should Q. Why was a factor? Curtis on favoring reason for “The sole stability, regardless I A. think time be the amount of
this factor seems to home, stability it’s the rather than which equaled to being children spent location. money spent on the chil- the amount Q. you agree with me that And would However, custody investigator dren.” gain stability over a period children can significant!y finding her was not testified they’re of time if moved? Families has a that Curtis Sailer based fact move all the time. custody investi- income. Both the greater A. Sure. custody investiga- report and the gation Q. Stability is that is something gained factual testimony there tor’s indicate progressively? determining factor c favored Cur- basis Yes, agree. A. holding court’s tis Sailer. trial *16 factor c favored Curtis Sailer was stability, you If move Q. it’s instant clearly erroneous. to some other residence? A. Right. D appeal, Sandra Sailer asserts [¶ 45] On of length Factor d is 44] “[t]he [¶ on this factor. She she should be favored lived in a satisfac
time the child has stable custody investigator equated contends the of desirability and the tory environment parties’ financial and economic situa- court maintaining continuity.” The trial environment. providing tions with a stable d. cus Sailer on factor The favored Curtis trial, also at the cus- argues tody investigator’s report provides: “Sandi greater weight to tody investigator gave end of apartment in her since the has been in a he lived house Sailer because October, It is plans moving. no of has However, ac- apartment. rather than an par apartment, [the so a three bedroom above-quoted testimony, cording to the his own room. gets [The ties’ oldest child] trial, custody investigator indicated room, a two share children] factor, homes is but size a room.” It also states: Sandi has major anot factor. two bath- home is a four bedroom Curt’s d, this discussing In factor mile from Hazen. room home about one den, explained: large game room Court has It includes for the downstairs. Outdoors play area past sta- Essentially, factor d addresses slide, climbing wall swings, children environment, including consid- bility of paved is also a and a sand box. There as physical setting, place eration of or bike, and a driveway for to ride them prior fami- well as a consideration play area is backyard. in the patio lifestyle part its of that ly unit and and protected. in fenced quality of It also setting. addresses environment, the desirabil- past trial, ques- custody investigator was At continuity. Under ity maintaining factor d: tioned about 462 d, prior custody factor
factor
is a
to be
Evidence of
In
domestic violence.
determining
when
considered
custo-
awarding custody
granting rights
or
arrangement
dial
which
is best
visitation, the
shall
court
consider evi-
child.
of domestic
dence
violence. If the court
Shaw,
114, ¶ 7,
v.
2002 ND
Shaw
finds credible
evidence
domestic vi-
(quoting Stoppler
Stoppler,
N.W.2d
occurred,
has
olence
and there exists
¶
142).
633 N.W.2d
In
one
incident
domestic violence which
d, a trial
should
applying factor
court
ana
in
bodily
resulted
or in-
injury
serious
lyze
physical
more than a
or a
structure
dangerous weapon
volved the use of a
location; however,
geographic
a trial
pattern
there exists a
vio-
domestic
court’s concerns
allowing
about
children to
lence within a
proxi-
reasonable time
school
attend
same
and live
proceeding,
mate to the
this combination
house
same
are valid considerations under
presumption
creates
rebuttable
that a
Burns,
d.
factor
Burns v.
ND
parent
perpetrated
who has
domestic vi-
(citations
omitted).
463 We remand the issue of agreement. The as set presumption, [¶ 51] is un- 14-09-06.2(1)©, prenuptial agreement is whether the in N.D.C.C. forth the trial court finds conscionable as enforced to trial court only when triggered parties’ violence that domestic with instructions to value as- “credible evidence sets, occurred, their findings and there exists one incident make as to other re- has sources, in resulted seri their foreseeable violence which determine domestic needs, or involved the use of to determine whether the bodily injury ous order pat there weapon exists unconscionable as enforced. dangerous court violence within reason further direct district tern of domestic We joint- proximate proceeding.” equitable make an distribution able time ¶63, 11, ND 591 ly property. held We conclude the trial Chepulis, Reeves v. omitted). (citations If pre physical custody to award N.W.2d 791 court’s decision triggered, trial court is minor to Curtis is not children sumption factual find affirm specific clearly to make is not erroneous. We required however, can part, part, such evidence still reverse in and remand for ings; the trial court as one of further proceedings. considered Gabel, interests factors. Gietzen best WALLE, W. VANDE GERALD [¶ 54] ¶ 153, 9, (citing N.W.2d 552 SANDSTROM, C.J., DALE V. Cox, ND 613 N.W.2d Cox v. JJ., CROTHERS, DANIEL J. concur. 516). custody investigator MARING, Justice, dissenting. testi- The [¶52] to the level fied none of the incidents rose agree parts I IIB and III with violence, and we can infer domestic I majority opinion, respectfully but held: “The because it agreed, trial court IIA, D, C, parts and IV. I dissent from custody has ... inves- Court reviewed reverse the district court’s order. would report update tigation [the agrees [the The investigator]. Court analysis and conclu- custody investigator’s] Voluntariness trial court’s determination sions[J” ¶ 6, Majority, acknowl- level that none of the incidents rose to the trial did not make edged “[t]he violence sufficient to activate of domestic *18 express of whether San- finding an fact on the against custody for presumption the pre- voluntarily entered into the dra Sailer Fur- clearly not erroneous. perpetrator is However, the nuptial agreement. because ther, the trial court’s decision we hold agree- prenuptial trial court enforced the of the incidents consider the evidence ment, inferred the trial court it can be that its one the interests factors and of best parties voluntarily entered both on fac- to favor Curtis Sailer this concluded decision am agreement.” I of prenuptial into the tor, clearly not erroneous. not be opinion the that this Court should whether the district inferring V on legal conclusion this issue reached the volun- We conclude [¶ 53] IIA of dissent from Part respectfully prenuptial agree- into the tarily entered opinion. majority the ment, not or violate Curtis Sailer did waive The does district court’s decision prenuptial agree- paragraph seven Sandra Sail- 14-03.1-06(2), not reflect that it considered ment, § does and N.D.C.C. voluntarily that did not en- prenuptial of er’s claim she not enforcement preclude premarital agreement. premarital agreement ter into and decide issue adequate voluntarily Sandra Sailer received Whether of whether Sailer en- Sandra legal signing premarital advice before premarital agreement. tered into the question of fact that agreement is a is a significant weighing factor when the volun II premarital agreement.
tariness of a See Public Assistance Lutz, Estate not repre 90. Sandra Sailer was N.W.2d dissent from also Part IIC of attorney sented an before or at the majority opinion. On Sandra signing premarital time argues spousal she is entitled to attorney agreement. Curtis Sailer hired support pre- because enforcement of the paid Olson his John for services. San agreement likely marital will cause her to public dra at Sailer was assistance public Majority, seek The assistance. at time and testified she could not afford an ¶ 20, 14-03.1-06(2) § concluded N.D.C.C. attorney. premarital agreement at preclude pre- does not enforcement of the (there paragraph paragraphs) are 23 agreement. 14-03.1-06(2), marital Section parties acknowledge states: “The that N.D.C.C., provides: opportunity each has prior had sufficient If provision premarital agreement to executing to consult with spousal support modifies or eliminates ” explicit counsel.... There waiver is no modification or elimination agreement. counsel Sandra Sailer party causes one to the to be testified she not did see the final version eligible support a program under until the day signed she it. Because the public separa- assistance at time judgment district court does not reflect dissolution, court, tion or marital not- whether considered Sailer’s ar withstanding agree- the terms gument, necessary made the factual find ment, may require ings, voluntarily concluded that she en provide support necessary to the extent premarital tered into agreement, we eligibility. avoid adequately unable to review this issue ¶ 20, Majority, at acknowl- 52(a). on appeal. See N.D.R.Civ.P. With edged public that Sandra Sailer received requisite out the findings, factual we are parties separated, assistance after the but unable to determine whether the factual 14-03.1-06(2) contends N.D.C.C. does findings clearly on voluntariness are erro preclude premarital enforcement of the Furthermore, any neous. without indica agreement because she receive tion the court disagreed considered and public assistance the time of claim, trial. The with Sandra Sailer’s we are unable Majority misinterprets the law. Section to determine whether district court 14-03.1-06(2), N.D.C.C., require correctly does not concluded voluntarily she entered *19 that an eligible individual be to agreement. into the receive Because the district public at court did assistance the time of trial. any not make factual findings, 14-03.1-06(2) Rather, § explain express- nor its N.D.C.C. decision on Sandra Sailer’s claim, ly provides eligible it that a must erred as a matter of law. See Ebach, for support separation Ebach “at the time added.) N.W.2d 34. The marital (Emphasis case should be dissolution.” remanded for the parties separated district court to make After the factual find and at the time ings as to order, whether Sandra Sailer the court received issued its interim Sandra adequate legal signing advice before eligible the Sailer was for public assistance. in the does support record not the district court should have considered The district spousal finding. presented court’s The evidence Sandra Sailer to award whether that, assistance public to avoid establishes even if Sandra Sailer con- support order to requisite findings support jobs, only tinues all three and made the to work she decision. earns a month or approximately its $774.21 $9,290.52 annually, making net her claims Majority Sandra contends likely public that she will need assistance that “provided any has not evidence Sailer paying valid. After a month child $232.00 likely qualify is for such assistance she a support, she has net annual income of ¶20. Majority, Again, at after trial.” $6,506.52. poverty guideline The federal 14-03.1-06(2) § require not does N.D.C.C. $10,400 person one annu- for 2008 for was However, showing. Sandra such January 23, ally. Register Federal public likely will seek as- argued that she (Volume 15). 73, Number Because there brief, trial the trial. In her sistance after is no that the district court con- indication asserted, has sought, “[She] Sandra Sailer sidered whether Sandra Sailer was entitled seek, likely public assistance and will spousal support public to avoid assis- financially is struggling the future. She 14-03.1-06(2) tance under 14-03.1-06(2) may re- this time. Section make district failed to the neces- support to provide Curt to sufficient quire I sary findings, would reverse on this is- eligibili- necessary to avoid that ‘the extent ” sue. brief, ty.’ post-trial argued, In her she agreement, “If the Court enforces the San- nothing and dra will be left with little or Ill likely public
will be forced seek assis- sort.” tance some Unconscionability Furthermore, testimony at trial 61] [¶ agree Majority with the established Sandra Sailer indeed findings the district court’s factual on financially. testified that struggling She unconscionability wholly issue inade- part-time jobs, had three had taken she However, I quate. from Part IID dissent at Job employees tests and met with Ser- majority opinion because the undis- jobs, only quali- but acquire vice better prove puted facts from record jobs. part-time fied for Sandra Sailer also substantively un- premarital agreement is significant testified that she owed as a matter of law because conscionable cards money amount on credit because imposes hardship a severe is one-sided and money her provide Sailer would on Sandra Sailer. during marriage and she unique North in its Dakota job immediately parties sepa- after the unconscionability consideration one of her rated. Sandra Sailer testified Majority $17,000 premarital agreements. As of over credit cards had balance recognizes, adopted Dakota expensive you live when when North because “[i]t Act in Agreement Premarital any money,” and she did not Uniform don’t have job separate provision it also enacted a have a for the first two months after unconscionability. See 1985 N.D. Sess. separated. yet, only And 190, §§ Pre- concerning Laws ch. 1-9. Uniform finding the court made *20 provi- Act includes a Agreement assistance marital public Sailer’s need to be on that, pre- of a precludes has that sion that enforcement was “Sandra demonstrated if: agreement marital she can be self-sufficient.” evidence we bargain was unconscionable call that contract uncon —so and, before execu- 2174, when it executed was Hearing supra scionable.” on S.B. party: agreement, tion that (Jan. 1985) 23, (testimony of John McCabe). (1) legislators questioned a fair Several provided and rea- Was of property disclosure sonable McCabe about the Uniform Premarital of obligations financial the oth- or Act, Agreement including Senator Olson party; er posed hypothetical question who about (2) sign a voluntarily docu- of a premarital Did enforcement one-sided expressly waiving any right
ment
2174,
agreement. Hearing
supra
on S.B.
property
to disclosure of the
(Jan.
1985)
23,
(testimony
Sen. John
obligations of the
financial
other Olson).
asked,
Senator Olson
“What
beyond
pro-
the disclosure
party
if
happen
would
a man
woman mar
vided; and
premarital
ried and
agreement provid
(3)
proper-
Did not have notice
ed that
gets everything everything
he
he
—
obligations
ty or financial
everything from
business.
his
He
earns —
party.
just
responsible
child support.
03.1—06(l)(b)-
stuck;
14—
everything
There she is
is in his
get
Uniform Premarital
They
Hearing
[¶ 64] While
name.
a divorce.”
on
Agreement
precludes
(Jan.
1985)
Act
enforcement of
2174,
23,
supra
S.B.
(testimony
an
premarital
unconscionable
if
Olson).
responded
Sen. John
McCabe
met, the
provisions
Legislative
certain
are
question
that the
it an
first
is “is
uncon
Assembly clearly
that this provi
indicated
agreement?” Hearing
scionable
on S.B.
McCabe,
far
John
go
enough.
sion did not
(Jan.
2174,
1985)
23,
supra
(testimony of
a representative of the
Commit
National
McCabe).
continued,
John
“I
McCabe
Laws,
tee on
appeared
Uniform State
be
it,
looking
think
you’d
the terms
on
Judiciary
January
fore the
Committee
probably
you
a situation where
23,
Hearing
1985.
on S.B.
2174 Before
saying that it is an
agree
unconscionable
Comm.,
Judiciary
Legis.
Senate
N.D.
49th
2174,
(Jan.
Hearing
supra
ment.”
on S.B.
(Jan. 23, 1985) (testimony
Sess.
of John
1985)
23,
McCabe).
(testimony of John
He
McCabe).
presented
He
the contents of
stated,
you’d
then
“Then
ask: is there fair
Agreement
the Uniform Premarital
Act
property
and reasonable disclosure or a
urged
adopt
the committee
waiver of the
Hearing
disclosure.”
on
2174, supra
uniform act.
on
Hearing
S.B.
(Jan.
1985)
2174,
23,
S.B.
supra
(testimony
(Jan.
1985)
23,
(testimony of
John
McCabe).
explained
John
McCabe
that
McCabe).
explained
McCabe
that
if
disclosure,
there
if
was
even
it is uncon
Uniform
Act
Agreement
Premarital
con
scionable,
probably
it would
be enforce
provision
tained
would render a
2174,
(Jan.
Hearing
supra
able.
on S.B.
premarital agreement unenforceable if it
1985)
23,
McCabe).
(testimony of John
Hearing
on
unconscionable.
S.B.
responded,
Senator
“I’m
Olson
a little
(Jan.
1985)
2174,
23,
supra
(testimony of
by
bothered
that because I think there is a
McCabe).
explained
John
McCabe
lot of accumulation that is not known up
unconscionability
a “contract between
guess
front.
I’m a little bothered
unequal bargaining power,
fact that
happen.” Hearing
that could
where one
has
party
created
contract so
(Jan.
1985)
supra
S.B.
(testimony
onerous to the other
that we cannot
Olson).
in clear
regard
conscience
as a fair
of Sen. John
*21
The
for un-
Judiciary
provision
Com
additional
[¶ 67]
the Senate
When
[¶ 65]
of a
January
conscionability
premarital agreement
bill on
met to discuss the
mittee
provision
further than the
for uncon
1985,
goes
their con
28,
legislators expressed
scionability under
Premarital
unconscionability provision
the Uniform
cerns with
Act. It
no
Agreement
places
Act.
restrictions
Agreement
Premarital
the Uniform
(Jan. 28,
2174,
required
premarital
what is
to find a
supra
on
Hearing on S.B.
1985).
legislative
unconscionable. The
agreement
that “he
expressed
Senator Olson
bill,
distinguishable from the Uni
and is
enactment is
about
this
has reservations
Agreement
that
form Premarital
Act
limits
part
the unconscionable
bothered about
(Jan.
2174,
28,
pre
the enforcement
unconscionable
supra
it.”
on S.B.
Hearing
Olson).
1985)
agreements only
require
marital
if three
(testimony of Sen. John
§
has
are met. See
14-03.1-
Stenehjem indicated that “he
ments
N.D.C.C.
Senator
Deach,
06(l)(b); see also Jana Aune
Case
also.”
problems with
unconscionable
(Jan. 28, Comment,
2174,
Premarital Settlements: Till
Hearing
supra
on S.B.
1985)
Do
(testimony
Wayne
Defining
Ste Death
Us
Sen.
Enforce
Part —
Agree
ability
that
Premarital
nehjem).
Olson later stated
Senator
Uniform
Dakota,
unconscionable, but
Act in North
In re Estate
ment
“he has trouble
Lutz,
(N.D.1997),
563 N.W.2d
74 N.D.
Hearing
has
on
thinks the bill
merit.”
(Jan.
1985)
(1998)
411,
2174,
28,
(testimony
(concluding
that
L.Rev.
supra
S.B.
Olson).
seeming
states have
mitigated
Lashkowitz
several
John
Senator
Sen.
Premar
good ly
harsh standards of the Uniform
that “he thinks this is
expressed
Act,
North Dako
Hearing
Agreement
including
ital
but it needs work.”
mechanism
(Jan.
1985) (testi
2174,
ta,
28,
which amended the statute to address
supra
on S.B.
Lashkowitz).
premarital
of unconscionable
Herschel
enforcement
mony of Sen.
enactment,
agreements). Through the
Judiciary
met
Committee
provided
Legislative Assembly expressly
February
and moved to
again on
agreements
premarital
that
should
be
specifi
to add
amend the bill
a subsection
they
if
re
are unconscionable
enforced
Hearing on
unconscionability.
cally
of whether
had fair
gardless
(Feb.
1985).
6,
The sec
supra
S.B.
property
reasonable
disclosure
uncon
“Enforcement of
tion is entitled
obligations
financial
of the other
provisions”
provides:
scionable
entering
agreement.
into
before
See
Notwithstanding the
provisions
190, §
ch.
7.
1985 N.D. Sess. Laws
if a
that
chapter,
court finds
this
premarital agreement
enforcement of
case,
In this
the district court
unconscionable,
clearly
would be
not one-sid-
agreement
found “[t]he
[was]
may
agree-
refuse to
enforce
to be unenforceable” and concluded
ed as
ment,
enforce
remainder
premarital
was con-
agreement
without
the unconscionable
It is
as a matter of law.
difficult
scionable
of an
application
or limit the
provisions,
imagine
premarital agreement
more
an un-
provision to avoid
unconscionable
This
agreement.
than
one-sided
result.
conscionable
scenario, whereby
precisely
factual
gets everything and the other
spouse
The committee
one
14-03.1-07.
expressed
nothing,
legislators
unanimously
gets
to attach the amend
voted
ch. 14-03.1
about when N.D.C.C.
bill and
that the bill
concern
ment to the
moved
premarital
passed
Hearing
amended.
on S.B. was enacted.
(Feb. 6, 1985).
only
that not
all of Curtis Sailer’s
provided
supra
*22
assets,
investments,
property
surviving spouse
and
would dent’s
to an
entitled
all
separate property,
liqui-
and,
remain his
but
intestate
share
under N.D.C.C.
from
30.1-05-01,
dations and re-investments
that
§
right
has a
of elective share
property
separate
would also remain his
in the decedent’s estate. Sandra Sailer
property.
premarital agreement
The
also
rights
any
has no
to
of Curtis Sailer’s
any
provided
earnings
that
from either
premarital
the
estate under
agreement.
services, skills, efforts,
spouse’s
and work
When
parties
pre-
[¶
signed
separate property
be the
of the
would
marital agreement, Sandra
had no
Sailer
party
earnings
to whom the
and income
welfare;
assets and was on
Curtis Sailer
Likewise, any inheri-
are attributable.
$421,703.52 assets, investments,
had
in
and
or gift
tance
would be considered each
property. During
parties’ marriage,
spouse’s separate property.
premari-
Curtis
worked full
Sailer
time for Dakota
that,
agreement provided
tal
in the event
Gasification,
earning
approximately
divorce,
party
neither
be entitled
would
$67,807.00 in 2005. Sandra
earned
Sailer
to insurance
retirement benefits from
$4,520.04 in 2005. Over
the course
party.
the other
parties’ nearly fifteen-year marriage, San-
14-05-24(1),
§
69] Under N.D.C.C.
dra
worked
part-time jobs
Sailer
several
granted,
divorce is
“[w]hen
and
approximately $66,000,
earned
which
make an
equitable
shall
distribution
$5,077.00
to
averages
year.
out
At
and
property
parties.”
debts of the
San-
trial,
the time of
Sandra Sailer was work-
gets
dra
none of
Sailer
the marital estate
ing
jobs
three
and
monthly
her actual net
the premarital agreement
under
unless
income
monthly
was
Out of
$774.21.
joint
placed property
Curtis Sailer
in
ten-
income,
pay
she
ordered to
Curtis
§
ancy with her. Under N.D.C.C.
14-05-
Sailer
a month
support,
for child
$232.00
court,
rendering
in
the decree of
leaving her
a month
$542.21
on which to
divorce, may assign the homestead to a
live.
separated,
When
Curtis
party
may require
party
give
either
to
Sailer
he
ap-
disclosed
had accumulated
security
making any pay-
reasonable
for
$800,000
proximately
in net
includ-
assets
ordered in
ments
the divorce. Sandra
ing
account, investments,
a retirement
gave up
Sailer
all of
under
rights
her
fact,
In
property.
Curtis Sailer’s assets
premarital
in the
agreement.
law
Under
had nearly
during
marriage
doubled
his
14-05-24.1,
§
may
“the court
re-
Sandra Sailer.
Included in Curtis Sailer’s
quire
party
one
pay spousal support
assets
awas
401k from
employment
his
any
for
of time.”
period
that he
$648,465.26.
admitted was worth
any
Sailer
spousal
Sandra
does not receive
Shortly after Curtis Sailer
for di-
filed
support
agreement.
under
premarital
vorce, Sandra Sailer submitted a financial
26.1-36-23.1(2),
§
every
Under N.D.C.C.
statement
affidavit stating she was
health
policy
pro-
insurance
must contain a
benefits,
receiving welfare
money
had
permits
vision that
no
continuation
cover-
hand,
deposits
bank,
in
age
in the
spouse upon
insured’s former
$50
entry
divorce,
of a
she and
Sailer
decree of
if the
had stocks
bonds
decree
in
requires the
the amount of
provide
insured to
continued
both their names.
$200
coverage for that
After
person
up
thirty-
parties separated,
401k,
six
gave up
months.
her
invested
in a
Sandra Sailer
however that mon-
$959
right
support
ey
to this
from her former
longer
hus-
was no
in the 401k at
trial
premarital agreement.
band under
because Sandra Sailer testified she had to
30.1-04-02,
Under N.D.C.C.
a dece- use it
rent.
pay
undisputed facts
law,
show,
premarital agreement
leaves
a matter of
ment
record
*23
real
in-
property,
unconscion-
Sailer with no
agreement was
premarital
the
vestments,
accounts,
pov-
is in
retirement
or assets.
enforced. Sandra Sailer
able as
fifteen-year marriage
agreement
Enforcement of the
means she
the
of a
erty at
end
any spousal
support,
does
receive
and three children.
in
acquired
share
increases in assets
dur-
§ 14-
In
to N.D.C.C.
addition
[¶ 71]
ing
marriage,
the
or share in the marital
03.1-07,
un-
provides that
expressly
which
parties
each had
home.
Binek
en-
should not be
agreements
conscionable
married, and,
they
assets
al-
some
when
forced, this
case law also indicates
Court’s
though
disparity
there was a
in the value
is unconsciona-
premarital agreement
the
assets,
parties’
disparity
the
the
was not
and, therefore,
In Bi-
unenforceable.
ble
significant
in this
Further-
as
as
case.
Binek,
explained
courts
v.
we
that
nek
more,
request
Ruth
Binek was allowed
pre-
of a
unconscionability
considered
the
spousal support upon termination of
time of
agreement at both the
marital
case,
In
marriage.
this
Sandra Sailer has
agreement
premarital
execution
the
assets,
receiving spousal
is barred from
no
¶ 11,
time of
at the
divorce.
at the
support,
her “circumstances
Binek,
Court, in
594. This
673 N.W.2d
incredibly
time of dissolution” were
dire.
parties
that when the
married
considered
skills,
has few
from
employment
She
which
$600,000
worth
Theodore Binek’s net
was
answering
record
tele-
the
amount
$30,000.
net worth
and Ruth Binek’s
was
phones
filing.
¶2.
divorced,
parties
the
Id. at
When
Further,
approxi-
opinion
net worth
this Court’s
Theodore Binek’s
was
$30,000
$200,000
mately
supports
and Ruth Binek’s
v.
the conclusion
Weber Weber
¶
depleted.
premarital agreement
Id. at
This Court
that
this
is uncon-
had been
3.
Weber,
agreement was
In
we conclud-
the
scionable. Weber
premarital
concluded
that
property
agreement
it
executed
a
settlement
not unconscionable when was
ed
agreement
by
couple
Ruth
entered into
a
who
provided
divorcing
the
was
because
twenty-seven days was
premarital
could
her
assets
had been married
keep
Binek
grow,
them to
and Theodore
unconscionable and unenforceable.
and allow
¶11, 19,
support
during
proper-
358. The
obligated
Binek was
her
ND
589 N.W.2d
¶
the
hus-
ty
12.
also
awarded
the
marriage.
the
Id. at
The Court
settlement
wife
had
agreement
the
was
residence that he
owned before
premarital
concluded
band’s
$70,000.
at
marriage,
when
enforced
which was valued
not unconscionable
was
¶¶ 2,16.
property
at
concluded the
govern
parties’
it did not
Id.
We
“because
agreement
was
regarding spousal
Id.
unconscionable
rights
support.”
settlement
one-sided,
agreement
ad-
was
explained, “By
12. The Court
because
husband,
allowing
great hardship
a
dressing spousal support
placed
and,
hastily,
at the time the
separate
Binek
her
formed
keep
Ruth
assets
was
settlement,
Binek’s,
signed
property
cre-
parties
from Theodore
counsel,
represented by
uncon-
was
while
enough leeway to avoid an
wife
ated
¶¶
upon
Id. at
15-18.
result based
husband
not.
scionable
time
circumstances at the
of dissolution.”
case,
In
Sailer was
Curtis
Id.
counsel,
while Sandra Sail-
represented
“Although the
provision
in this
was not.
There is no such
er
agreement may
with-
approxi- premarital
proceed
agreement. After
premarital
counsel,
factor
is relevant
this is a
mately
years marriage,
fifteen
enforce-
out
unconscionability
to a
under the Crawford
finding
approximately
were married for
children,
years,
fifteen
had four
and at
Agreement
[Uniform Premarital
Act].”
divorce,
Law,
time of
Kenneth Crawford
Property
Antenup
Marital
Effect
$130,000
(2008
earning
was medical doctor
26:9,
Agreement,
supp.).
tial
at 8
year.
Id. at 834. At
time of
earlier,
Additionally,
explained
as
divorce, Leslie Crawford was earning
one-sided,
clearly
it pro
$3,600
Id.
year.
Without the advice of
vides
is to receive
over
*24
counsel, Leslie Crawford entered into a
$800,000
assets,
in
while Sandra Sailer re
stipulated
agreement
divorce
with Ken-
basically
assets, and
spousal
ceives
no
no
Crawford,
neth
whereby Kenneth Craw-
Furthermore,
support.
Curtis Sailer has a
ford was
custody
awarded
of
four chil-
job,
well-paying
where he earns six times
dren,
home,
paid
received the
earns,
what Sandra Sailer
and he receives
vehicle,
fees,
attorney’s
Leslie Crawford’s
health
and retirement benefits.
insurance
paid
spousal
and
her
a
sup-
month
$250
premarital agree
enforcement
port
period.
for a six-month
Id. at 835.
places
great hardship
ment
a
on Sandra
pay
Leslie Crawford was to
Kenneth
Sailer.
Crawford
a
support
month in child
$15
Weber,
Finally, in
we
[¶
stated it is
and
rights.
received visitation
Id. The
for a
appropriate
district court to consider
district court entered a judgment based on
guidelines when deter-
Ruff-Fischer
this stipulation.
Id. Five months after the
mining unconscionability of
settlement
entered,
judgment was
Leslie Crawford
agreement
divorcing parties.
attorney
retained an
and moved for relief
¶11, 17,
We
those entry ordering judgment ing facts and
for Larson.
Klein, 236, 34, 724 ND N.W.2d J., part
(Crothers, concurring and dis- cases These all indicate
senting part). incorrectly ap-
that when a district