Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[¶1] Sandra Sailer appeals from a judgment enforcing a prenuptial agreement and awarding physical custody of the parties' three minor children to Curtis Sailer. We affirm in part, reverse in part, and remand for further proceedings.
[¶2] Curtis Sailer and Sandra Sailer met in 1989. They both signed a prenuptial agreement on May 13, 1993. The parties married on May 29, 1993 and resided near Hazen, North Dakota. Sandra Sailer had one child prior to their marriage, and the parties had three children during the marriage.
[¶3] In October 2006, Sandra Sailer took the parties' minor children, left the family home, and relocated to Bismarck, North Dakota. Curtis Sailer filed for divorce on November 13, 2006, and Sandra Sailer answered. An interim order hearing was held on December 29, 2006, and on January 9, 2007, the trial court entered an interim order awarding Curtis Sailer temporary legal and physical custody of the parties' minor children. Trial was held on December 20-21, 2007. The district court entered a judgment on March 18, 2008. The district court deemed the prenuptial agreement conscionable as a matter of law and held the agreement was not so one-sided as to be unenforceable. The district court found Curtis Sailer did not waive the express provision of the prenuptial agreement by supporting his family with his income. The district court awarded Curtis Sailer physical custody of the children and both parties legal custody of their children. Sandra Sailer appeals.
[¶4] On appeal, Sandra Sailer asserts the trial court erred by enforcing the prenuptial agreement. Sandra Sailer asserts the prenuptial agreement should not be enforced because: she did not voluntarily enter the prenuptial agreement; Curtis Sailer knowingly waived his right to enforce the prenuptial agreement; enforcement of the prenuptial agreement will likely cause her to seek public assistance; and if the prenuptial agreement is enforced, its substantive effect is unconscionable.
[¶5] "A premarital agreement becomes effective upon marriage, but several other parts of [The Uniform Premarital Agreement] Act affect the enforceability of a premarital agreement." Estate of Lutz, 1997 ND 82, ¶ 25, 563 N.W.2d 90 (internal citation omitted). Section 14-03.1- 06(1)(a), N.D.C.C., provides a premarital agreement is not enforceable if the party against whom enforcement is sought proves the prenuptial agreement was not executed voluntarily.
[¶6] The trial court did not make an express finding of fact on whether Sandra Sailer voluntarily entered into the prenuptial agreement. However, because the trial court enforced the prenuptial agreement, it can be inferred that the trial court concluded both parties voluntarily entered into the prenuptial agreement. On appeal, Sandra Sailer argues she did not voluntarily enter into the prenuptial agreement and did not know she could seek advice of counsel.
[¶7] At trial, both Curtis Sailer and Sandra Sailer testified as to this matter. Curtis Sailer testified he hired attorney John Olson to draft the prenuptial agreement. Curtis Sailer testified on the date the parties signed the prenuptial agreement, May 13, 1993, attorney John Olson was surprised Sandra Sailer did not have legal representation. Curtis Sailer also testified attorney John Olson:
asked where her attorney or counsel was to represent her and she said she didn't have any and he said that he cannot represent her: I am representing Curt, so we can reschedule it so you can find counsel. And, I mean, if you can find somebody in two or three days to review it and then come back, we would reschedule.
Curtis Sailer testified Sandra Sailer "said she was fine with signing it as is." Curtis Sailer testified attorney John Olson reacted by stating: "Then if you are going to do that, then you have to review the whole prenup agreement, and so he went through step by step and explained everything to both of us and [asked] if she had any questions."
[¶8] Sandra Sailer testified the first draft of the prenuptial agreement was presented to her about one month before she signed it, and she indicated she had a chance to read it. When asked if she sought out legal counsel, she testified she did not because she could not afford it. When asked if either Curtis Sailer or attorney John Olson suggested that she should seek advice of another attorney, she responded: "I don't recall." On direct examination, Sandra Sailer testified:
Q: . . . Do you recall how long you were in Mr. Olson's office before the agreement was signed?
A: I would say it was less than a half hour.
Q: Do you remember what happened during that?
A: Came in, sat down at a table, [attorney John Olson] told me this was a standard prenuptial agreement with various things in here. He went over property, financial, and focused mostly on the parts that I was aware of, which was the last two pages, Exhibit A.
Q: . . . Did he ever read through, as Curt indicated, each of the paragraphs to make sure that you understood what that paragraph said?
Q: Did he ask you whether or not you had any questions about what was in the prenuptial agreement?
A: No. All I was made aware of was this was to protect the assets listed on these pages.
Q: Did anyone tell you that it also included protection of any increase in those assets? If they increased in value over the years of the marriage that that would also be included?
Q: Did you also understand or was it explained to you by Mr. Olson that by signing this you were also giving up any right to claim alimony or spousal support or property in case of a divorce?
Q: Now, did both of you, that being Curt and yourself, sign this agreement at the same time?
A: Yes, we were both there at the same time. Within moments of each other signed it.
[¶9] On cross-examination, Sandra Sailer testified:
Q: Now, you signed this agreement, did you not?
Q: And you signed it with Curt present?
Q: And you signed it in front of Mr. Olson?
Q: But you can't recall going through the document with Mr. Olson?
A: The only thing I recall going through is the last two pages.
Q: Do you have it in front of you?
Q: Turn to page four. Number 12, can you read that out loud please, just the first sentence?
A: The parties recognize and understand that this agreement is being executed 16 days prior to their scheduled wedding date of May 29th, 1993.
Q: Why did you sign this document?
A: So that he would trust me.
Q: No other reason than trust?
A: That is correct. These things on the last two pages were of great importance to him.
Q: Did you read the document at all?
A: I looked over the first draft.
Q: Was the first draft different to this draft?
Q: Did you contact either Curtis or Mr. Olson with any changes that you thought would be important to the prenuptial agreement?
A: I did not know that I would have the right to make changes to my future husband's prenuptial agreement.
A: Did not know I would have the right to make changes to my husband's - or future husband's prenuptial agreement.
Q: You didn't consult with an attorney?
Q: . . . Would you read - or go to page five and read number 13?
A: The parties each acknowledge and represent that this agreement has been executed by each of them free of persuasion, fraud, undue influence, or economic, physical or emotional duress of any kind whatsoever.
Q: Are you claiming that any of these occurred?
A: Occurred in the document itself?
Q: No, occurred forcing you to sign it?
A: My economic condition was very present in this.
Q: Certainly it was. Let's go to your economic condition. Let's go to page one, paragraph one - excuse me, paragraph three. What does that say?
Q: Page one, paragraph three.
A: Wife has not accumulated any significant assets, investments or property and her assets essentially consist of personal property.
Q: So was recognized, was it not, that you had virtually little bringing into the relationship?
Q: Again I ask you, why did you sign the document?
A: And again I say, so he would trust me.
Q: Now on page four, number 12 again?
Q: Would you read that sentence out loud?
A: The parties acknowledge that each has had sufficient opportunity prior to executing this agreement to consult with counsel, to reschedule the wedding date if necessary, and/or not to proceed with the marriage, but each nonetheless agrees that the timing of the execution of this agreement has no effect upon their decision to execute this agreement.
Q: So I ask you, why did you get married?
A: Because I loved him and I thought he loved me.
Q: And you signed the agreement?
Q: And you didn't reschedule the wedding date?
Q: And you didn't consult with ...