Cleveland v. Cleveland

The wife appeals from the portions of an interlocutoiy decree of dissolution that held valid an antenuptial agreement between the parties and distributed property in accordance with that agreement. We affirm.

*359 About 15 minutes prior to their marriage, the parties executed an antenuptial agreement, drawn by an attorney for the husband. Although signed by both parties, the agreement was never acknowledged. The effect of the agreement was to make all property then owned by either party, and all property thereafter acquired, the separate property of the party then owning or thereafter acquiring that property.

The trial was bifurcated, Judge Markey holding that the agreement was valid as against both contentions. Thereafter, the issue of support was heard and decided by Judge Alexander, who entered the ultimate interlocutory decree which incorporated Judge Markey’s ruling as to validity. The support provisions are not here attacked.

On this appeal, the wife, and amicus curiae, contend that the agreement was void because not acknowledged. In addition, the wife claims that the agreement was void because obtained by fraud and undue influence.

I

The evidence as to the…

I disagree with the majority in its interpretation of section 5134 of the Civil Code. The majority holds that the antenuptial agreement signed by the marital partners 15 minutes prior to their marriage and not acknowledged prior to their marriage was valid and not in violation of Civil Code section 5134. The majority concludes that the antenuptial *361 agreement did not violate section 5134 because, during dissolution proceedings years after the marriage, the agreement was acknowledged by the husband before a notary at the taking of his deposition and by the wife before the judge of the superior court at the trial, in accordance with the method-of-acknowledgment provisions found in Civil Code sections 1180 and 1181.

The majority interprets Civil Code section 5134 as permitting an acknowledgment of an antenuptial agreement to be made at any time after the marriage of the parties to the agreement. In the case at bench, the parties married in 1960 and separated in 1972. The acknowledgments of the antenuptial agreement which was signed by the parties on August 12, 1960, took place more than 12 years following the marriage of the parties.

It is my view that the correct interpretation…