In re Marriage of O'Malley

1

NOT DESIGNATED FOR PUBLICATION

No. 120,053

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of
JALYN MARIE O'MALLEY,
Appellee,

and

JOSEPH DOMINIC O'MALLEY,
Appellant.


MEMORANDUM OPINION

Appeal from Crawford District Court; KURTIS I. LOY, judge. Opinion filed November 8, 2019.
Reversed and remanded with directions.

Sara S. Beezley and Sarah A. Mills, of Girard, for appellant.

Frederick R. Smith, of Pittsburg, for appellee.

Before ARNOLD-BURGER, C.J., LEBEN and SCHROEDER, JJ.

PER CURIAM: Joseph O'Malley appeals the district court's lack of ruling on the
enforceability of the premarital agreement he entered into with Jalyn O'Malley in 1999.
Joseph argues the district court erred when it failed to find whether Jalyn voluntarily
executed the Agreement and failed to determine the Agreement's enforceability. We
agree with Joseph and remand this matter to the district court for additional findings as
more fully explained below. Reversed and remanded with directions.



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FACTS

Jalyn and Joseph O'Malley lived together for eight or nine years before they
decided to get married. Three days before the wedding in 1999, they entered into a
premarital agreement (Agreement). During the marriage they had two children. After
their second child was born, Jalyn quit her full-time job to stay at home with their
children.

The Agreement provided Jalyn and Joseph each possessed property they intended
to keep separate from marital property, specifically identified and attached to the
Agreement in Exhibits A and B. Exhibit A identified Jalyn's separate property, including
a vehicle, savings, and certain household furnishings. Exhibit B identified Joseph's
separate property, including a residence on a 54.9 acre tract of land in Scammon, savings,
and certain farming equipment and cash crops. The Agreement further required each
party to waive any right to spousal support in the event of divorce. The Agreement failed
to provide how any subsequently acquired property was to be treated.

Joseph filed a petition for divorce in July 2017. In March 2018, Jalyn filed a
motion to determine the scope and enforceability of the Agreement, arguing it was
unenforceable because she did not receive the advice of independent counsel before
signing it. See K.S.A. 2018 Supp. 23-2407(a)(1). She also argued the Agreement was
unenforceable because it did not fully disclose Joseph's debts. See K.S.A. 2018 Supp. 23-
2407(a)(2).

The district court conducted an evidentiary hearing on Jalyn's motion, at which
Jalyn and Joseph testified about the circumstances preceding the execution of the
Agreement. Jalyn testified Joseph said he would marry her only if she signed the
Agreement. Joseph testified he told Jalyn he "would require a prenup before we would
get married." But when Joseph's counsel asked him whether the Agreement was a
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"condition precedent to getting married," he responded, "[a]bsolutely not." Joseph also
testified he never told Jalyn he would not go through with the wedding if she did not sign
the Agreement.

The parties also testified about whether they sought the advice of independent
counsel before signing the Agreement. Joseph testified his attorney, Larry Prauser,
drafted the Agreement, and he and Jalyn met with Prauser several months before their
marriage to discuss the terms they wanted in the Agreement. Jalyn testified she did not
receive the advice of independent counsel before signing the Agreement, but she
"skimmed over" the Agreement a few days before signing it and understood its terms.

The parties testified about Jalyn's education and business experience. Jalyn
testified she was a high school graduate and she lived and worked on the farm for eight or
nine years before they married. The farm where Jalyn and Joseph lived included farm
sheds, farm equipment, crops, and cattle. Joseph stated Jalyn "had to be aware" of his
farming operation because she helped him move cattle, operate farm equipment, and
"knew what the crops were." Joseph claimed Jalyn was aware he had a mortgage on his
property. However, Jalyn testified she was unaware of the "specifics" of Joseph's farming
operation and debts.

Jalyn testified Joseph told her she "had to quit" her full-time job after they had
their second child in 2003 because "he didn't want his children to be raised by a baby-
sitter." Prior to 2003, Jalyn worked full time, earning approximately $36,000 per year.
During the marriage, the parties accumulated substantial farm land and farm-related
equipment.

The district court made several factual statements about whether Jalyn voluntarily
entered into the Agreement. It stated Jalyn did not receive the advice of independent
counsel and "[i]t [was] clear from the testimony that [Jalyn] had no understanding of the
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legal significance of the document she was signing." The district court further stated:
"While the parties have capacity; and the contract was in writing and signed by the
parties, there remains a question as to whether the agreement was freely and voluntarily
entered into." However, the district court did not explicitly determine whether Jalyn
voluntary entered into the Agreement.

Instead, the district court found the parties "abandoned" the Agreement and
entered into a "post marital agreement" in 2003 when "both parties agreed that [Jalyn]
would abandon her career and separate estate and would become a stay at home mom
dedicated to raising a family and a family farm."

Joseph filed a motion for an amended order and an application for interlocutory
appeal under K.S.A. 2018 Supp. 60-2102(c). He argued the evidence did not support the
district court's ruling that the parties "abandoned" the Agreement and entered into a "post
marital" agreement in 2003. The district court ruled on Joseph's application for
interlocutory appeal and amended its order to include: "The enforceability of the
Prenuptial Agreement . . . is a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of litigation." However, it does not appear
the ruling addressed the merits of Joseph's argument regarding the existence of the
postmarital agreement.

Joseph timely filed this interlocutory appeal. See Supreme Court Rule 4.01(b) and
(f) (2019 Kan. S. Ct. R. 26). This court's jurisdiction is proper. See K.S.A. 2018 Supp.
60-2102(c) (interlocutory appeal on controlling question of law in a civil case).





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ANALYSIS

Joseph argues the district court's factual findings and legal conclusions on the
Agreement's enforceability were inadequate. But at the same time, he asserts the district
court found the Agreement to be "valid."

The district court has a duty to make adequate findings of fact and conclusions of
law. Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221). Because Joseph did not object to
the district court's lack of findings and legal conclusions on the Agreement's
enforceability below, this court would ordinarily presume the district court made all
findings necessary to support its ruling. See McIntyre v. State, 305 Kan. 616, 618, 385
P.3d 930 (2016). Here, however, remand is necessary because the district court's lack of
findings and legal conclusions precludes meaningful appellate review. See O'Brien v.
Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012).

A premarital agreement is a contract subject to the same rules applicable to other
contracts. In re Marriage of Cutler, No. 103,148, 2011 WL 1877703, at *4 (Kan. App.
2011) (unpublished opinion). Generally, this court exercises unlimited review over the
interpretation and legal effect of written contracts. Davis v. Miller, 269 Kan. 732, 738, 7
P.3d 1223 (2000). Here, the enforceability of the Agreement relates to factual issues that
cannot be ascertained from the written instrument. This court reviews the district court's
factual findings under the substantial competent evidence standard. State ex rel. Secretary
of DCF v. Smith, 306 Kan. 40, 54, 392 P.3d 68 (2017). "Substantial competent evidence
possesses both relevance and substance and provides a substantial basis of fact from
which the issues can be reasonably determined." Frick Farm Properties v. Kansas Dept.
of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). In determining whether
substantial competent evidence supports the district court's decision, this court does not
reweigh evidence or make credibility determinations. 289 Kan. at 709.

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Historically, the common law governed marital agreements executed before or
after marriage. See In re Marriage of Traster, 301 Kan. 88, 96-97, 339 P.3d 778 (2014).
Under the common law, a marital contract's enforceability hinged on whether its terms
were just and equitable:

"The general rule in this state is that contracts, made either before or after
marriage, the purpose of which is to fix property rights between a husband and wife, are
to be liberally interpreted to carry out the intentions of the makers, and to uphold such
contracts where they are fairly and understandingly made, are just and equitable in their
provisions and are not obtained by fraud or overreaching. Generally speaking, such
contracts are not against public policy, although a different rule obtains where the terms
of the contract encourage a separation of the parties." Fincham v. Fincham, 160 Kan.
683, Syl. ¶ 1, 165 P.2d 209 (1946).

But in 1988, the common-law analysis of premarital agreements was superseded
by statute under the Kansas Uniform Premarital Agreement Act (KUPAA). See K.S.A.
2018 Supp. 23-2401 et seq.; In re Marriage of Traster, 301 Kan. at 97. As a result, a
premarital agreement's enforceability is no longer based on the common law's just and
equitable analysis. 301 Kan. at 97.

Under the KUPAA, a premarital agreement is "an agreement between prospective
spouses made in contemplation of marriage and to be effective upon marriage." K.S.A.
2018 Supp. 23-2402(a). A premarital agreement must be in writing and signed by both
parties. K.S.A. 2018 Supp. 23-2403. Parties can enter into a premarital agreement to
determine how property will be held after marriage; to provide for the disposition of
property upon death or divorce; and to provide for, or waive, spousal support obligations.
See K.S.A. 2018 Supp. 23-2404.

Unlike a separation agreement entered into during marriage, a premarital
agreement is enforceable as long as it was voluntarily executed and not unconscionable.
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Compare K.S.A. 2018 Supp. 24-2407(a) with K.S.A. 2018 Supp. 23-2712(a). The party
challenging the enforceability of the premarital agreement must prove it is unenforceable.
See K.S.A. 2018 Supp. 23-2407(a). To do so, the party must show:


"(1) That party did not execute the agreement voluntarily; or
"(2) the agreement was unconscionable when such agreement was executed and,
before execution of the agreement, all of the following applied to that party:
(A) Such party was not provided a fair and reasonable disclosure of the property
or financial obligations of the other party;
(B) such party did not voluntarily and expressly waive, in writing, any right to
disclosure of the property or financial obligations of the other party beyond the disclosure
provided; and
(C) such party did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the other party." K.S.A. 2018 Supp.
23-2407(a).

In Davis, the Kansas Supreme Court found the "main thrust" of a district court's
"voluntariness" analysis under K.S.A. 23-807(a)(1)—the predecessor of K.S.A. 2018
Supp. 23-2407(a)(1)—should be whether the parties exercised their "free choice" when
they entered into the agreement. 269 Kan. at 741. Some of the factors a district court may
consider include: the circumstances preceding the agreement's execution; whether the
parties had the advice of independent counsel before executing the agreement; and the
parties' age, education, and business experience. 269 Kan. at 741-42.

Here, the district court made several findings that could establish Jalyn did not
execute the Agreement voluntarily. It found Jalyn did not receive the advice of
independent counsel and "had no understanding of the legal significance of the document
she was signing." The district court later stated: "While the parties have capacity; and the
contract was in writing and signed by the parties, there remains a question as to whether
the agreement was freely and voluntarily entered into." But ultimately, the district court
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failed to definitively conclude whether Jalyn executed the Agreement voluntarily. If the
court had determined Jalyn involuntarily executed the Agreement, the Agreement would
have been unenforceable as a matter of law. See K.S.A. 2018 Supp. 23-2407(a)(1). Thus,
the district court failed to complete its analysis on the Agreement's validity.

Instead, the district court ruled on an alternative basis, finding the parties
"abandoned" their 1999 premarital agreement and entered into a "post marital agreement"
in 2003 when "both parties agreed that [Jalyn] would abandon her career and separate
estate and would become a stay at home mom dedicated to raising a family and a family
farm." The KUPAA does not allow a court to disregard a premarital agreement on the
basis of the parties' actions. "After marriage, a premarital agreement may be amended or
revoked only by a written agreement, signed by the parties." K.S.A. 2018 Supp. 23-2406.

Joseph did not object to the district court's failure to expressly find whether Jalyn
voluntarily executed the Agreement or its failure to rule on the Agreement's
enforceability. The district court has a duty to make adequate findings of fact and
conclusions of law to explain its decision. See Supreme Court Rule 165. But a party must
object to inadequate findings or conclusions to preserve the issue for appeal. When a
party fails to object to inadequate findings of fact and conclusions of law, this court can
presume the district court found all facts necessary to support its judgment. See McIntyre,
305 Kan. at 618. Remand is only necessary where the record does not support this
presumption and the lack of findings and legal conclusions precludes meaningful review.
See O'Brien, 294 Kan. at 361.

Joseph should have objected to the district court's lack of findings or requested
additional or more definite findings. However, under the facts as currently presented, the
district court's failure to find whether Jalyn voluntarily executed the Agreement or
determine the Agreement's enforceability precludes meaningful review by this court. This
court cannot determine the enforceability of the Agreement without independently
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weighing the evidence before the district court, which it cannot do. See Frick Farm
Properties, 289 Kan. at 709. Therefore, we must reverse the district court's decision and
remand so the district court can make adequate factual findings and legal conclusions on
whether the Agreement is enforceable. See O'Brien, 294 Kan. at 361.

Joseph correctly argues the district court erred when it concluded the parties
"abandoned" the Agreement in 2003 by orally agreeing Jalyn would leave her job to stay
home with the children. This issue requires this court to interpret and apply the KUPPA.
Statutory interpretation is a question of law subject to unlimited review. When
interpreting statutes, the Legislature's intent governs if that intent can be ascertained. This
court must first attempt to ascertain legislative intent through the statutory language
enacted, giving common words their ordinary meanings. In re Marriage of Traster, 301
Kan. at 98.

The KUPAA limits how parties can amend or revoke an enforceable premarital
agreement. "After marriage, a premarital agreement may be amended or revoked only by
a written agreement, signed by the parties." (Emphasis added.) K.S.A. 2018 Supp. 23-
2406. Here, the record does not show any written agreement signed by the parties
revoking the premarital agreement. The district court's conclusion the parties effectively
revoked their 1999 Agreement when they orally agreed in 2003 Jalyn would stay at home
with the children is contrary to the plain language of K.S.A. 2018 Supp. 23-2406.

Joseph further argues the district court erred when it concluded the parties entered
into a postmarital agreement in 2003 under K.S.A. 2018 Supp. 23-2712 when they orally
agreed Jalyn would stay at home with the children. This issue also requires this court to
interpret and apply the KUPPA, which is a question of law subject to unlimited review.
As previously mentioned we look for legislative intent and it governs if that intent can be
ascertained.

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In re Marriage of Traster held all agreements entered into during a marriage
providing for a spouse's property rights in the event of divorce or separation are
"separation agreements" governed by K.S.A. 60-1610(b)(3)—now K.S.A. 2018 Supp. 23-
2712. 301 Kan. at 103. This includes all agreements in which the parties intended to
remain married at the time of execution. 301 Kan. at 103. Thus, the district court's
decision here regarding the 2003 postmarital agreement is governed by K.S.A. 2018
Supp. 23-2712, which provides: "If the parties have entered into a separation agreement
which the court finds to be valid, just and equitable, the agreement shall be incorporated
in the decree."

Based on the district court's factual findings, the parties could have formed a valid
separation agreement in 2003. A separation agreement under K.S.A. 2018 Supp. 23-2712
can be executed orally without a signed writing. See Rice v. Rice, 219 Kan. 569, 573-74,
549 P.2d 555 (1976). The parties did not need to contemplate divorce at the time of the
separation agreement. See In re Marriage of Traster, 301 Kan. at 103. But nothing in
K.S.A. 2018 Supp. 23-2712 suggests an oral postmarital agreement will supersede a valid
premarital agreement under K.S.A. 2018 Supp. 23-2401 et seq. Thus, a postmarital
agreement does not effectively revoke a premarital agreement because under K.S.A. 2018
Supp. 23-2406, a premarital agreement can be revoked only by the execution of another
written agreement signed by the parties. See Sierra Club v. Moser, 298 Kan. 22, 54, 310
P.3d 360 (2013) (a specific statute controls over a general statute).

Joseph is correct. The district court's conclusion the parties entered into an oral
postmarital agreement in 2003 under K.S.A. 2018 Supp. 23-2712 does not render the
premarital agreement unenforceable because an oral postmarital agreement does not
comply with the specific statutory requirements of K.S.A. 2018 Supp. 23-2406. On
remand, the district court should determine the validity of the Agreement. If it finds the
Agreement is invalid, it must determine if there was a separate oral agreement in 2003
that needs to be incorporated into the decree of divorce. However, the district court is
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also free, based on its fact-finding, to determine no enforceable pre- or postmarital
agreement survives and proceed to divide the assets of the marriage in a fair, just, and
equitable manner.

Reversed and remanded with directions.