*1 S05F0982. MALLEN v. MALLEN.

BENHAM, Justice. appeal judgment At issue in this from a and decree of divorce is the trial court’s decision to enforce a parties. (Wife) (Husband)

the together Catherine and Peter Mallen had lived years got pregnant

unmarried for about four when Wife pregnancy, 1985. While she was at a clinic to terminate the Husband marry called to ask her not to have the him, abortion and to to both requests agreed. dayslater, days ofwhich she Afew nine or ten before planned wedding, sign their Husband asked Wife to agreement prepared by attorney. his Wife contends Husband told her agreement formality always was and he would take care of attorney her. She took the to an whom she claims Hus- paid, fully band who advised her that he did not have time to examine days remaining wedding. it in the before the Wife did not consult attorney postpone wedding, spoke another or but and met with Husband and his counsel about the more than once. She agreed sign it after a life insurance benefit was increased and the alimony provisions provide were modified to for increases for each year marriage. agreement provided The that in the event of a alimony adjusted divorce, Wifewould receive a basic amount to be for years marriage, belong the number of and assets would to whom- property originally during marriage. ever owned the or received it high At the time the executed, was Wife had a school working education and hostess, was as a restaurant while Husband college degree operated had a and owned and a business. Wife had a approximately $10,000 net worth of and Husband’s net worth at the agreement’s time ofthe $8,500,000. execution was at least The record appeared approxi- worth, shows that net Husband’s as of mately years $22,700,000. After and the birth of four sought children, Husband filed an action for divorce in 2003 and prenuptial agreement. enforce the The trial court held the incorporated enforceable and in its final judgment, ruling in accordance with the that Wife was per alimony entitled month in for four and Husband marriage was entitled to all the assets with which he entered the during marriage. appeal all assets accumulated This is from that judgment.1 deciding validity

Three factors are to be considered in of a prenuptial agreement: “(1) through [W]as obtained granted application discretionary pursuant We Family Wife’s for review to this Court’s Project. Wright Wright, Law Pilot See misrepresentation through fraud, mistake, or nondisclo- or or duress (3) (2) [I]s facts? unconscionable? sure of material Have and circumstances since the facts executed, make enforcement unfair and unreasonable?” so as to its (3) (1982). Scherer v. enforceable of these criteria is a “Whether an decision *2 [Cit.]” in the trial court’s sound discretion. Alexander made (610 48) (2005). 116, Alexander, v. 279 Ga. 117 SE2d regard factor, the 1. to the first Wife claims is With fraud, duress, and nondisclosure of material facts. infected with (a) alleged misrepresentation forming the the Fraud. The basis of to her fraud claim was a statement Wife avers Husband made to induce agreement, enter the into the an assertion that formality promise he would of her. a and a that “take care” To avoid general special “in of rule that the absence circumstances one ordinary independent diligence making must an exercise verifica representations, (Hubert tion of Roofing, terms and . . .” v. Beale contractual App. (279 336) (1981)), 145, 158 Ga. 146 SE2d Wife asserts engagement, their she had that virtue of and Husband a confi duty relationship verify dential her which excused from to spouses enjoy true that repose a Husband’s statement. While confiden relationship entitling tial one to confidence and trust in the (Beller (3) (571 735) (2002)), Tilbrook, other v. SE2d Georgia recognized not law has existence of a confidential rela tionship persons agreed marry. majority A between who have to of jurisdictions recognized which have addressed issue have special relationship persons engaged married imposes higher regard parties contracts between contracting parties. Cannon, than other Cannon v. exists between (865 563) (2005); (Okla. Md. A2d 384 Civ. 537 v. 94 P3d 96 Griffin, Griffin App. 58) (2004); (834 Hollett, 39, In re Estate 150 N.H. of Marriage Drag, App.3d 348) (2003); 1051, A2d In re 326 Ill. 1056 of (985 (762 1111)(2002); Wiley Iverson, 511, 517 P2d NE2d v. 295 Mont. 1176) Randolph Randolph, (1999); (Tenn. 815, 821 v. 937 SW2d 1996); (628 1343) Fletcher, 464, v. Ohio St.3d NE2d Fletcher 68 466 (1994); Carpenter, App. (449 Carpenter 147, v. 19 Va. 152 SE2d Pajak, (1994); Pajak (385 (1989); 852) (1988); 28, 33 182 W.Va. Tiryakian Tiryakian, App. (370 128, 132 91 N.C.

Rosenberg Lipnick, (389 385) (1979); 377 666 NE2d Mass. Merrill (552 249) (1976); Merrill, 653, v. Estate 275 Or. P2d Allison v. 451) (1959). Stevens, However, we 269 Ala. S2d believe Georgia rejected to be more that have law consistent states protective Marriage Bonds, such a stance. In re Cal.4th See 815) (2000); (N.Y. Eckstein, AD2d 27 P3d Eckstein v. App. 1987). deciding prenuptial agreements should not be Div. against public policy, considered void as this Court in Scherer v. supra, put place quoted into the factors above which are to be judging validity agreements, considered of such did but not impose acting good faith,” additional burden of in “the utmost as required persons relationships. would be confidential OCGA Accordingly, reject § 23-2-58. we Wife’scontention that there existed when the was executed a confidential be- responsibility verify tween the representations which would relieve her of

regarding meaning agree- and content of the ment.

Applying, requiring ordinary diligence making the rule an independent representations verification of contractual terms and (Hubert Roofing, supra), alleged v. Beale Husband’s statement that formality awas mere cannot serve as a basis for a claim of fraud since Wife could ascertain from the clear terms of the rights extremely that her in the event of divorce would be special relationship limited. “In the absence of a or confidence be parties, equally open parties, tween a matter to the observation of all generally support such as the contract, terms of a written will Equifax App. Peachtree, claim of fraud. [Cit.]” LLC, v. 1600 alleged promise 186, 195-196 Husband’s *3 take care ofWife is likewise insufficient as a basis for a claim of fraud promise regarding because it amounts to no more than a future (actionable action, which is not actionable. Id. at 195 fraud cannot be predicated upon promises perform to some act in the future or on a perform promises made). mere failure to (b) applied compel Duress. The duress Wife asserts was to her to agreement .marriage execute the was that the would not occur in the pregnant absence of the and she would be left prefigured penned by and unmarried. As was in the concurrence then-Presiding Justice Sears in Alexander, Alexander v. 279 118, atGa. we conclude that insistence on a as marriage required a condition of “does not rise to the level of duress Marriage to void an otherwise valid contract.” Id. See also In re of Murphy, App.3d (834 56) (2005) (merely 359 Ill. 289 NE2d condition ing marriage upon antenuptial agreement the execution of an does give duress); Doig Doig, (Fla. App. 100, 102-103 rise to v. 787 S2d 2001) (ultimatum 2nd Dist. that without the there would wedding duress); not, itself, be no does Liebelt, constitute Liebelt v. (801 52) (1990) (refusal proceed 845, 118 Idaho P2d to with the wedding signed unless the would not constitute duress). Compare Holler, Holler v. 364 S.C.

(2005) (pregnant, non-English-speaking employment wife without or ability expiring signed counsel, funds or to consult with and with visa only English duress). written under of threats must consist a contract which will avoid “Duress amounting bodily to harm, means or other or other of tending another, actu- of coerce the will coercion, or contrary ally inducing [Cit.] to his free will.” do an act him to the mind and to overcome must be sufficient “The threats will of a ordinary person [Cit.] firmness.” Nothing Critz, Tidwell by suggests overcome free will was case Wife’s the record of this wedding. through going fact, In Wife the “threat” of not sign agreement in the form and declined to her free will exercised only changes acquiescing presented made were her, when it was improving position death. or Husband’s in the event of divorce her pregnancy on make Husband’s insistence does not The fact of Wife’s already demon- of duress. She had rise to the level pregnancy, willingness cannot so she to terminate her strated pressure pregnancy put credibly her as to overcome such on claim the her will.

(c) Attached to the of material facts. Nondisclosure by parties on financial disclosure forms were executed party form liabilities. Neither set out their assets and each which listed authority Citing foreign on the existence of based income. relationship persons engaged married, confidential the financial income from the absence of Husband’s Wife asserts fact which of a material constituted the nondisclosure statement Posner, unenforceable. Posner render the would Supreme (1972), held that in the Florida Court S2d 530 parties and the to a confidential provision inadequate review, under in the for wife significant income rendered sources of failure to disclose husband’s the prenuptial agreements above, However, held as we unenforceable. planned Georgia virtue of their are not relationship. also cited DeLorean in a confidential Wife 1257) (1986), Super. for the state- A2d DeLorean, 211 N.J. complete Jersey require law would ment in that case New more income. We find that case of all assets and all written disclosure persuasive *4 holding law, which that under California for its applied specified does not consider be and which would relationship, marriage persons planning in a confidential spouse seeking long as the “[s]o enforceable general and idea ofthe character has a aside such an to set Indeed, other. . . . income of the the financial assets and extent of duty appears misrepresentation, to be a there fraud or absent inquiry extent of the full nature and to ascertain make some of law is 441. That statement the other.” Id. at financial resources of holding persons planning marriage above that consistent with our party not in a confidential that will are excuse from the ordinary diligence making independent “exercise an veri- representations____” fication ofcontractual terms and Hubert Beale supra, Roofing, App. present although case, at 146. In the income, financial statement did not include it did reveal Husband to wealthy significant income-producing assets, be a including individual with ownership bearing

an 80% share aof business his name. Wife had lived with Husband for four and was aware from the they living enjoyed significant standard of that he received income from his business and other sources. Under those circumstances and authority above, cited be Wife cannot said to have absence, demonstrated that the from Husband’s financial statement precise income data constituted the nondisclosure of material facts which render the would unenforceable. Concerning inquiry pursuant 2. the second be to made to Scherer disparity asserts that Wife financial situa- experience tion and business rendered the “ unconscionable when executed. An-unconscionable contract is one good

abhorrent to morals and conscience ... where one of the advantage takes a person [,] fraudulent ofanother an that no sane acting under a delusion would make and that no honest person advantage Cooney, take of.’ [Cit.]” William J. P.C. v. would App. (1999). Rowland, do not We description. believe the involved here fits that emphasizes Although Wife differences between facts this (1) (603 Adams, case and-the facts in Adams (2004), enough applicable we consider that case similar to make its was not rendered unconscionable “perpetuated already existing disparity because between the parties’ emphasized by prior Wife, estates. . . .” Id. The differences experience part and more business on the of the wife in though perhaps Adams, relevant to consideration of the first Scherer particularly factor, are not relevant to a consideration ofwhether the agreement here was unconscionable. Given our conclusion above that any given fraud, is not infected with the absence of suggestion any disparities delusion, that Wife suffered from experi- Wife and Husband financial status and business ence do not demand a conclusion that the was unconscion- able. remaining

3. The factor to be-considered is whether circum- changed stances have since the execution so as to render its' enforcement unfair and'unreasonable. The cir- cumstance which Wife contends in her brief renders enforcement of *5 net worth is that Husband’s unfair and unreasonable the marriage. during by the 14 million dollars increased supra, adoption Scherer, Scherer Since this Court’s enforceability prenuptial determining to consider in factors directly ques- agreements, had occasion to address we have not might prenuptial changes render a in circumstance of what tion Curry, Curry However, in unreasonable. unfair and 879) (1990), considering (3) (b) (392 a trial uphold application a reconciliation those same factors to court’s holding agreement, trial court’s that found no error this Court change [was] that not foresee- been no in circumstances there “has into. . . .” That was entered able at the time that key recognized by foreseeability a has been other states as element of Reed, circumstances. In Reed v. in consideration of element 825) (2005), App. 131, the court held that Mich. NW2d hardly many years significant growth “can be con- a of assets over justifies voiding changed circumstance that sidered an unforeseeable prenuptial agreement.” Supreme Carolina, The Court ofSouth the... 501) (2003), Hardee, 355 S.C. Hardee v. becoming totally agreed that the wife’s with the lower court’s change in circumstance that would render the disabled was not a premarital agree- prenuptial agreement “[t]he unenforceable because problems specifically com- [and it] ment noted Wife’s health pletely that her health would worsen.” foreseeable to Wife present case, Husband’s financial

In the Wife was familiar with years prior marriage living him for four circumstances from anticipated grow must that his wealth would over and ensuing have years. disparity in their financial situ- Since the continued plainly the terms of the ations was agreement, foreseeable from change rely that as a in circumstance Wife cannot on which renders the unfair. supports finding ofthe the record in this case a none

Because judicial Scherer, for a factors set forth in Scherer v. call parties, prenuptial agreement signed repudiation we enforcing did not its discretion in conclude the trial court abuse agreement. except Judgment J., concur, Sears, C. All the Justices affirmed. Hines, J.,

Hunstein, J.,R and who dissent. dissenting. Justice, Chief SEARS, par- majority’s disagree I conclusion Because prenuptial agreement valid, I dissent. ties’ prenuptial agree- this Court held that a Scherer v. Scherer,2 material facts” if there was a “nondisclosure of ment is unenforceable Thus, under was entered. when entering to disclose material have relationship. By presence a'confidential absent the óf facts even necessity, to a will a fact is material whether depend property alimony issues that are addressed in the on the attorney prepared present agreement. case, Mr. Mallen’s In the right significantly limited Ms. Mallen’s alimony. agreement provides that, divorce, in the event of a Ms. The per alimony, month in Mallen would be entitled *6 parties’ marriage, year for each of the increased a month $100 right alimony to terminate four after the date Ms. Mallen’s parties’ party’s income is a critical divorce decree. Because determining appropriate alimony,3 Mr.Mallen’s factor in amount regard, prenuptial agreement. In this income was material to undisputed that, at the time the entered the agreement, Mr. Mallen did not disclose his income to Ms. Mallen and approximately per year. that his income was Mallen, I Because this material fact was not disclosed to Ms. parties’ prenuptial I is unenforceable. conclude opinión. majority to the therefore dissent Presiding I Justice Hunstein and am authorized to state join in Justice Hines this dissent. 21, 2005.

Decided November Mayoue, Bates, Collar, Bates, Jr., Warner, Nolen & Edward E. appellant. Dyer, Andrea M. for Quigley, Jr.,

Davis, & Richard W. Kurt A. Schiffman, Matthews Kegel, appellee. for BULL v. BULL.

S05F1773. Justice. Melton, Lloyd petitioned wife, Ann for divorce from his Bull Brian non-jury judge trial, A of the issues in a Michelle Bull. resolved all 662) (1982). 2 249Ga. 640-641 McGinn, 3 SeeMcGinn v.