# FILED

June 3, 1996 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA TION CHARLES M. CARY, Jr. ) ) Filed: June 3, 1996 Plaintiff-Appellant. ) ) ) HARDEMAN CIRCU IT Vs. ) ) ) HON. C. CREED McGINLE Y, CATHY ANN CARY, ) JUDGE ) Defendant-Appellee. ) No. 02-S-01-9505-CV-00035

For Appellant: For Appellee: Terry Abernathy Cathy Ann Cary, Pr o Se Selmer, Tennessee 284 North High Bells, Tennessee 38006



# O P I N I O N

AFFIRMED IN PART; REVERSED IN

PART; TRIAL COURT JUDGMENT REINSTATED. ANDERSON, C.J.-2- We granted this appeal to determine whether a provision in an antenuptial agreement by which a prospective spouse waives alimony is void because it violates publ ic policy. The trial court held that such a prov ision in an antenuptial agreement, whi ch waived alimony , was valid and enforceab le and, therefore, denied the spouse’s application f or alimony. The Court of Appeals, however, revers

ed, holding that the wai ver of alimony provision was void as against public policy, and remanded to the trial cour t to consider whether to award alim ony.

We have determined that a voluntary and knowing waiv er or limitation of alimony in an antenuptial ag reement is not void and unenforce able as contrary to public policy. Such provisions will be fully enforced unless enforcement will render the spouse deprived of alimony a public charg e. Accordingly, tha t portion of the Court of Appeals’ judgment w hich holds the waive r of alimony provisi on void is reversed and that aspect of the judgment of the tri al court is affirmed.

B A C K G R O U N D The plai ntiff, Charles M. Cary, Jr., a nd the de fendan t, Cathy An n Cary, were married June 23, 1990. It was the first marri age for Charles Cary , a 42-year-old practicing attorney, and the second marriage for Cathy Cary, a 30- yearold school teacher with a Master’s degree and 11 years teaching expe rience. Joining their household w as her son from her first marri age.1 Becau se the C ourt of Ap pea ls’ d ecision vo ided only the waiver

of ali mony provisi on, and because th e antenupti al agreement contai ned a severabil ity clause, ot her provisions of the an tenu ptia l agreem ent, suc h as t hos e gov ernin g the divisio n of m arital p rope rty, are not a t issu e in this appe al.

2 The antenupti al agreemen t provided that in the event of separation or divorce, Mr. Cary was to receiv

e $70,000 from the parti es' ma rital pr ope rty and that a ny m arital p rope rty rem aining wou ld be dividedequally . Since t he parties' net marital

assets did not exceed $ 70,0 00, th e trial c ourt, in satisfact ion of that

provisi on, awarded the marital residence and its accompanying i ndebtedness of approx imately $3 25,000 to Mr. Ca ry. -3- Four days before their w edding, Charles and Cathy Cary executed an antenuptial agreement, in which each agreed to waive and release “any and all rights and claims of eve ry kind to alimony.” 1

After approximately tw

o years of marriage, Cha rles Cary filed for div orce, alleging inappropriate marital conduct, but further asserting that the pa rties were “equally at fault” and c

ould be declared divorce d pursuant to Tenn. Code Ann. § 36-4-129(b) (1991 Repl.). Cathy Cary filed a counter-complaint for divorce alleging inappropri ate marital conduct and irr econcilable differences and requesting alimony.

Following a hearin g, the trial court decl ared the parties divorc ed pursuant to Tenn. Code Ann. § 36-4-129. Concluding that the antenuptial ag reement was “in all respects valid and enforceable,” the trial court denied Cathy Cary’s request for alimony, and enforced the terms of the antenuptial agreement gov erning the division o f marita l propert y. 2

On appeal, Cathy Cary argued that the entire antenuptial agreement should be decla red void due to he r husband’s lack of disclosure, overreaching, and undue influence. In the alternati ve, she contended that the prov ision in the agreement purporting to w aive alimony in the ev

ent of separation or divorc e was contrary to public pol icy and unenforceable.3 The Court of Appeals in thi s case reli ed on dicta f rom Kahn v. Kahn , 756 S.W.2d 685 (Tenn. 1988), to support i

ts conclusi on. However, that case is i na pposite. In Kahn , this C ourt o nly considered whethe r the hus band h ad m ade ad equate disclosu re. W hil e the waiver of ali mony provisi on in that

agreement had been declar ed void by

the lower

courts, t his Court di d not consider nor decide t hat questi on. -4- The Court of Appeals rejected Cath y Cary’s first a rgument and approved the trial court’s findings of fact with regard to ade quate disclosure, lack

of undue influence, and overreaching . It concluded that the agreement was entered into freely and knowledgeably. Relying upon earlier intermediate court decisions, however, the Court of Appeals, in a two to one deci sion, concluded that provisions in antenupti al agreements waiv ing or limiting al imony tend to promote divorce and, as such, ar e contrary to public pol icy and unenforceable. The Court of Appeals majority then voided the waiv er of alimony provisi on of the antenuptial agreement and remanded the cause to the trial court to consider the appropr iatenes s of an awa rd of alim ony.

Thereafter, we granted this appeal to determine whether provisions in antenuptial agreements limiting or waiving alimony violate the current public policy of this State.

WAIVER OF ALIMONY Althoug h this C

ourt has not prev iously conside red the v

alidit y of a provision in an ante nuptial agreemen t limitin g or waiving al imony, 3 the issue is not new to this State and has resulted in conflicting intermediate Court of Appeals opinions. Over 30 years ago, in Crouch v. Crouch , 385 S.W.2d 288 (Tenn. App. 1964), our intermediat e Court of Appeals considered the question and determined that such provisions promote divorce and are violative of public policy. The Court of Appeals predicted that such prov isions “could induce a mercenary husband to inflict on his wife any wr

ong he might desire w

ith the-5- knowledge his pecuniary liability would be limited. “ Id . at 293. See also Duncan v. Duncan , 652 S.W.2d 913 (Tenn. App. 1983) (“We are of the opinion . . . that a provision in an antenupti al agreement which purp orts to limit a spouse’s liability for alimony is conduciv e to divorce and therefore, v oid.”). But see Gross v. Gross , No. 0257 (Tenn. App. May 17, 1989)(holding such a prov ision waiving alimony valid).

At the time of its adoption in Crouch , the rule declaring ant enuptial provisions waiving or limiting alimony void as against public policy was widely accepted. See e.g. Norris v. Norris , 174 N.W.2d 368 (Iowa 1970); Fricke v. Fricke , 42 N.W.2d 500 (Wis. 1950); see also Klarman, Marital Agreements in Contemplation of Divorce , 10 U.Mich.J.L.Ref. 397, 398 ( 1977); Annot . 57 A.L.R.2d 942 (1958). Generally, two basic public policy considerations were advanced to support the rule requiring inv

alidation of such provisi ons. First, they were considered inimical to marriage and conducive to divorce. Arranging in advance the financial contingencies of divorce was viewed as causing discord and instability. Because a divorce could only be obtained by a showing of fault in most states, these provis ions were believed to allow “mercenary ” spouses to inflict abuse with lit

tle concern for the financial co nsequences when the abused spouse sought a divorce . Indeed, this is the specific reason cited by the Crouch court. Id ., 385 S.W.2d at 293.

Second, antenuptial provis ions waiving or limiting alimony w

ere deemed contrary to the State’s interest in assuring that a divorced spouse is adequately supported and does not become a public charge. Frey v. Frey, 471 A.2d 705, 708 (Md. 1984); Gross v. Gross , 464 N.E.2d 500, 505 (Ohio 1984); Ferry v. Ferry , 586 S.W.2d 782, 78 5-86 (Mo. App. 1979).4 In Re Marriage of Dawley , 551 P.2d 323 (C al. 1976); Newman v. Newman , 653 P.2d 728 (Colo. 1982)(En Banc); Scherer v. Scherer , 292 S.E .2d 662 ( Ga. 19 82); Matlock v. Matl ock , 576 P.2d 629 (Kan. 19 78); Frey v. Fr ey , supra ; Osborne v. Osborne , 428 N.E.2d 810 ( Mass. 1981); Buettner v. Buettner , 505 P.2d 600 ( Nev. 1973) ; Gr oss v. Gross , supra ; Hudson v. Hudson , 350 P.2d 596 (Okla. 1960); Unander v. Unander , 506 P.2d 719 (Or. 1973); Gant v. Gant , 329 S.E.2d 1 06 (W. Va. 1985); Parni awski v. Parniawski , 359 A.2d 719 ( Conn. Super. 1 976); Burtoff v. Burtoff , 418 A.2d 1085 (D.C. App. 19 80); Volid v. Volid , 286 N.E.2d 42 (Ill. App. 19 72); Flora v. Flora , 337 N.E.2d 846 ( Ind. App. 1975); Tolar v. Tol ar , 639 So .2d 399 ( La. App . 1994); Ferry v. Ferry , supra ; Marschall v. Mar sch all , 477 A.2d 833 (N.J. Su per. Ch . 1984); Kark aria v . Kark aria , 592 A.2d 64 (Pa. Super. 1991); Contra In Re Marriage of Gundenkauf , 204 N.W .2d 586 ( Iowa 19 73); Sousley v. Sousley , 614 S.W.2d 942 (Ky. 1981) ; Camp bell v. Moore , 1 S.E.2d 784 (S.C. 1939); Con nolly v. C onn olly , 270 N.W.2d 44 (S.D. 19 78). -6- As a resul t of soci etal and legislative changes, many stat e courts h ave revisited the common-law rule and the rationale inv alidating such agreements

. As a result, a line of authori ty representing the maj ority rule now has emerged upholding the validity of provisions in antenuptial agreements which waive or limit alimony. 4

Widely recognized as leading the departure from the old common-law position is Posner v. Posner , 233 So.2d 381 (Fla. 1970). N oting the increased frequency of divorce and r emarriage and the advent of no fault divorce, the Florida Supreme Court in Posner held that public policy

no longer requires a per se rejection of antenuptial ag reements settling alimony and property rights

upon divorce. The Court obser ved:

With divorce such a commonplace fact of life, it is fair to assume that many prospectiv e marriage partners w

hose property and familial situation is suc h as to generate a vali d antenuptial agreement settling their property rights upon the death of either, might want to consider and discuss also--and agree upon, if possible--the dispositi on of their property and the al imony rights of the wife in the event their marriage, despite their best efforts, should fail.

Id ., 233 So.2d at 384.-7- The Colorado Supreme Court agr eed, openly rejecting the idea that antenuptial provisions waiving or li miting alimony foster di vorce. In fact, that court affirmatively found it reasonable “to believe that such plann ing brings a greater stability

to the marriage relatio n by protecting the financi al expectations of the parties, and does not necessar ily encourage or con

tribute to dissolution,” and further observed that “s ome marriages would not come about if antenuptial agreements were not available.” Newman , 653 P.2d at 732.

Legislative change prompted the Maryland Supreme Court to abandon the old common-law rule. That c ourt viewed the adoptio n of no fault divorce statutes throughout the country as undermining the origi nal justification for the rul e of invalidating antenupti al provisions wai ving or limiting

alimony. Frey , 471 A.2d at 709. Indeed, the Frey

court recognized “the old view’s fear that spouses could induce a divorce throug h fault, without consequence , because the terms of divorce were settled in advance is no longer persuasive . . . .” Id

.
Finally, as they altered the old common-law rule to reflect contemporary society, many courts

have highlighted the change in society’s view of the roles of men and women generally,and specifically, the r oles of husband and wife. For example, the Illinois appel late court noted in Volid v. Volid , supra , that

[w]hen the rules regarding the husband’s duty of support were first enunciated, the roles of a husband and wife were more rigid and defined. The husband w orked and brought income into the family while the w

ife maintained and managed the household. The woman generally did not seek outside employment partly because “her place was i n the home,” and partly becaus e few opportunities for meaningful employ ment were available. Married women nowadays are i ncreasingly devel oping career skills and successfully entering the employment market. W here a woman is trained, healthy, and employ able, and where a woman’s efforts have not contributed to her husband’s wealth or earning potential,-8- the necessity for an alimony award upon breakup of the marriage is not great.

Id. , at 46. Elaborating on the theme of the modern roles of men and women, Pennsylvania’s inte rmediate court stressed, “both parties to an antenuptial agreement, regardless of gender, stand on equal ground in the bargaining posture. . . . The law has advanced to recogniz e the equal status of men and women in our society.Paternalistic presumpti ons and protections that arose to shelter women from the inferior ities and incapacities w hich they were perc

eived as having in earlier times have, appropriately, been discarded.” Karkaria , 592 A.2d at 70-71.

In addition to the present gene ral consensus among state co urts that antenuptial agreements waiving or limiting alimony are not void as against public policy, there is also a near universal exception which precludes specific enforcement of such agreements if enforcement would deny to one spouse support that he or she cannot other wise obtain and therefore r esult in that spouse becoming a public char ge. See Newman , 653 P.2d at 735 (citing c ases).

The Ohio Supreme Court articul ated the reason and the rule as foll ows: “[T]he underlying state

interest in the welfare of the divorced spouse, w hen measured against the rig hts of the parties to freely c ontract, weighs in favor of the court’s jurisdiction to review, at the time of . . . [the] divorce , the terms in an antenuptial agreement . . ." to i nsure that one spouse wil l not be rendered a public charge by spec

ific enforcement of the provision waiving or li miting alimony. Gross , 464 N.E.2d at 509.-9- As we consider the que stion of whether provi sions in antenuptial agreements waiving

or limiting alimony

are contrary to the cur rent public policy of this State, we are mindful that “[t]he public policy of Tennessee 'is to be found in its constitution, statutes, judicial decisions and applicable rules of common law.” Crawford v. Buckner

, 839 S.W .2d 754, 759 (T enn. 1992) (quo ting Home Beneficial Ass'n. v. White , 180 Tenn. 585, 177 S.W .2d 545 (1944)). It is primarily for the Legislature to determine the public policy of this state; however, where there is no declaration in the constitution or the statutes and the are a is governed by common law doctrines, it is the pr

ovince of the courts to consi der the public policy of the st ate as reflected in old, court -made rules. Id .; see also Hanover v. Ruch , 809 S.W.2d 893, 896 (Tenn.1991). Indeed, it is the special duty of this Court to aboli sh obsolete common-law doctr ines. Id

.
In Tennessee, as in most every other state, there has been a shif t in public policy by the General Assembly regarding dissolution of marr iage. A divorce may be obtained on the grounds of irreconcil able differences, without a showing of fault on the part of either parties. See Tenn. Code Ann. § 36-4- 101(11) (1991 Repl.). Acc ordingly, the potential

for abuse which the Crouch court predicted might flow from enforcement of provisions w aiving or limiti ng alimony, is not present. A spouse who desires a di vorce may obtain it w

ithout a showing of fault.

Moreover, the General A ssembly has recogniz

ed the earning potential and the changing role of w omen in current statutory law where either the wife or the husband may be ordered to pay alimony. See Tenn. Code Ann. § 36-5- 101(a)(1) (1991 Repl. & 1995 Supp.) Gone are the days w hen husbands alone bore the duty of support and w ives were primar

ily homemakers. Therefore,-10- parties executing an antenuptial agreement whic h contains mutual provisi ons limiting or waiv

ing alimony are now

on equal bargaining ground.

Finally, the General A

ssembly has specificall y approved antenuptial agreements concerning pr operty owned by either spouse before marriage. Tenn. Code Ann. § 36-3-501(1991 Repl.) provides:

Notwithst anding an y other pro vision of law to the c ontrary, . . . any antenuptial or pr enuptial agreement entered into by spouses concerning proper ty owned by either

spouse before the marriage which is

the subject of such agreement shall be binding upon any court having jurisdiction over such spouses and/or such agreement if such agreement is determined in the discreti on of the court to h ave been e ntered in to by such s pouses f reely, knowledgeably and in good faith and without the exertion of duress or undue influence upon either spouse. Th e terms of such agreement shall be enforceable by all remedies availabl e for enforcement of contract terms.

See also Kahn , supra (discussing disclos ure required to sat isfy knowledge requirement of the statute). Although this statute does no t specifically govern antenuptial provisions waiving or li miting alimony, it i s persuasive evidenc e that antenuptial agreements are favored and not repugnan t to the public policy of this State.

In Tennessee, the legislativ e shift in public policy

regarding dissolution of marriage reflected by our no fault divorce statutes, the legislative changes in alimony placing men and women in equal bargaining positions, the Legislature’s specific approval of antenuptial agreements regarding property, and contemporary society’s changed view of the r oles of men and women all dictate an abandonment of the old court-made common-l aw rule prohibiting antenuptial provision s which limi t or waive ali mony for reasons o f public policy.-11- The original rationale for the rule -- that such agreements promote divorce and that mercenary spouses may abuse with impunity c

ited by the Court of Appeals in Couch -- is no longer valid. We agree with the Florida Supreme Court in Posner

that divorce is such an unfortunate but commonplace fact of life that it is fair to assume that many pr ospective remarriag e partners with existing property and children may want to discuss and ag ree upon the disposition of their property and alimony rights in the event their marriage, despite their best efforts, should fail. W e think the public policy of this State should allow such parties the freedom to contract and to agree on a provisi on limiting or wai ving alimony.

We, therefore, exercise our duty to abol ish obsolete common-law doctrines and conclude that anten uptial agreements containing a provision limiting or waiv

ing alimony are not v

oid as contrary to publi c policy. So long as the antenuptial agreement wa s entered into freely and know ledgeably, with adequate disclosure, and w ithout undue influence or over reaching, the provis ion limiting or waiv

ing alimony wil l be enforced, with one ex ception.

We agree that the State’s interest in pr oviding adequate suppor t for its citizens precludes specific enforcement of such a con tract provision if enforcement deprives one spouse of suppo rt that he or she cannot otherwise obtain and results in that spouse becoming a public charge. The trial court mu st examine the terms of the antenuptial agreement at the time of the div orce to insure that its enforcement w ill not result in the spouse being deprived of alimony, becoming a public charge. If a spouse would be rendered a public charge by specific enforcement, the trial court must void the provision and award-12- alimony in accordance w ith the factors set out in Tenn. C ode Ann. § 36-5-101 (1991 Repl. & Supp. 1995).

Applying that rule to the facts in this case, it i s clear that the Court of Appeals’ judgment declari ng the waiver of ali mony provision voi d must be reversed. Here, the lower court s made co ncurrent findings of fact , by which we are boun d, that t he agreem ent was en tered int o freely a nd knowled geably, without duress, or undue i nfluence. Tenn. Code Ann. § 27-1-113 ( 1980 Repl.). Moreover, there is nothing in the record to suggest that enforcement of the agreement will render

Cathy Cary, a per

son with substantial pr

ior teaching experience and a Master’s degree, a public charge. Under such circumstances, the waiver of alimony

provision is val id and fully enforceable.

CONCLUSION We conclude that a voluntary and know ing waiver or limitation of alimony in an antenuptial agreement is not per se void and unenforceabl e as contrary to public policy. Such provisions will be fully enforced, unless enforcement will render one spouse a public char ge. Accordingly, that portion of the Court of Appeals’ judgment voidi ng the waiver of ali mony provision is r eversed and the judgment of the trial court reinstated. In all other respects, the Court of Appeals' decision is affirmed. Costs of this appeal are taxed to the defendant, Cathy Cary, for wh ich execut ion may iss ue if nec essary.

________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR:-13- Drowota, Reid, Birch and White, JJ.