Opinion
NO. 2019-CA-001094-ME
02-07-2020
JOSEPH EUGENE BLACKBURN APPELLANT v. JULIA BLACKBURN APPELLEE
BRIEF FOR APPELLANT: Joseph Eugene Blackburn, pro se Lancaster, Kentucky BRIEF FOR APPELLEE: Joseph H. Dahlman Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOURBON CIRCUIT COURT FAMILY DIVISION
HONORABLE LISA MORGAN, JUDGE
ACTION NO. 12-CI-00126 OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. GOODWINE, JUDGE: Joseph Eugene Blackburn ("Gene") appeals pro se the enforcement of the antenuptial agreement with Julia Blackburn ("Julia"). After careful review, finding no error, we affirm.
BACKGROUND
Gene and Julia signed an antenuptial agreement on August 28, 1998, and were married on August 29, 1998 in Saratoga, New York. They had one child, B.A.B., during the marriage. The parties separated in August 2010, and Julia filed a petition for dissolution of marriage on May 10, 2012. The parties agreed to temporary custody of B.A.B. The circuit clerk mailed to the parties a notice to dismiss the case for lack of prosecution in 2014, 2015, and 2016. Each time Julia asked that the case remain on the active docket.
Gene challenged the validity and enforceability of their antenuptial agreement, and on November 18, 2016, the family court held a hearing to determine whether the agreement was enforceable. The parties testified they signed the agreement the day before their wedding. Julia testified she followed a template provided by her mother to draft the agreement and had a clerk notarize their signatures prior to their wedding. Neither party was represented by counsel at any time during drafting or signing of the agreement. Gene testified he never read the agreement prior to signing it or at any time since.
The agreement allocated to Julia: (1) her engagement ring; (2) her wedding band; (3) her personal retirement account; (4) 80% of a horse both parties had an interest in, which was sold during the marriage; (5) $125,000 equity in property; (6) a $10,000 Vanguard account; (7) all family inheritances; and (8) all property listing her as the sole owner. Gene was allocated: (1) his wedding band; (2) his personal retirement account; (3) his personal pension plan; (4) 20% of the horse; (5) $1,000; (6) all family inheritances; and (7) all property listing him as sole owner. The agreement also provided the parties waived any claims to spousal support upon divorce.
The parties also presented evidence of their assets. Prior to the marriage, Julia owned property in Bourbon County: (1) a house at 1309 Golf Course Circle; and (2) a farm at 424 Ruddles Mill Road. Shortly after the parties married, she sold the Golf Course Circle property and applied the proceeds to the construction of a new home on the farm in Bourbon County. The parties further funded construction with a loan, which was paid using funds Julia inherited. Gene testified he believed the farm was half his, but he admittedly made no financial contribution to the purchase of the land or construction of the home.
Julia continued her education during the marriage and earned about $110,000 per year. Gene earned approximately $34,000, which is comparable to what he earned when the parties married. Julia had less than $10,000 in her retirement account at the time of execution of the agreement, but she had $370,000 in retirement at the time of the final hearing. Gene had no funds in his retirement account at the time the parties executed the premarital agreement. He had $2,000 in a retirement account at the time of the final hearing, but Julia testified he had $50,000 in retirement at one time.
Following the hearing, the family court took the matter under advisement and entered findings of fact and conclusions of law on March 1, 2017, ruling the agreement was valid and enforceable. Approximately two years later, the family court held a final contested divorce hearing. It entered findings of fact and conclusions of law on June 4, 2019, and entered a decree dissolving the marriage on June 11, 2019. The parties were awarded joint custody and Julia was named primary custodian. Gene was ordered to pay monthly child support.
The family court ordered each party to keep property in his or her possession, disposed of all property not covered by the antenuptial agreement, and determined that each party was solely responsible for any debt or obligation in their own name. The decree also incorporated unchanged the March 1, 2017 findings of fact and conclusions of law regarding the antenuptial agreement. This appeal followed. On appeal, Gene's contests the enforceability of the antenuptial agreement.
At the outset, we must address the deficiencies in Gene's brief under CR 76.12. "There are rules and guidelines for filing appellate briefs. Appellants must follow these rules and guidelines, or risk their brief being stricken, and appeal dismissed, by the appellate court." Koester v. Koester, 569 S.W.3d 412, 413 (Ky. App. 2019) (citing CR 76.12). Although Gene filed his brief pro se, "we have every reason to expect the briefs filed by pro se appellate advocates to demonstrate a good faith attempt to comport with CR 76.12, our rule for preparing briefs." Hallis v. Hallis, 328 S.W.3d 694, 698 (Ky. App. 2010) (citing Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533, 537 (Ky. 2007)).
Kentucky Rules of Civil Procedure. --------
Gene's brief fails to "reference to the record showing whether the issue was properly preserved for review and, if so, in what manner" as required by CR 76.12(4)(c)(v). "It is not the function or responsibility of this court to scour the record on appeal to ensure that an issue has been preserved." Koester, 569 S.W.3d at 415 (citing Phelps v. Louisville Water Co., 103 S.W.3d 46 (Ky. 2003)). Furthermore, Gene's appendix contains a copy of the decree of dissolution of marriage and accompanying findings of fact and conclusions of law, which incorporates by reference the March 1, 2017 findings regarding the antenuptial agreement. However, it does not include a copy of the March 1, 2017 findings, which he contests, as required under CR 76.12(4)(c)(vii).
Our procedural rules "are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination." Louisville and Bischoff, 248 S.W.3d at 536 (quoting Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977)). Therefore, an appellant's compliance with this rule allows us to undergo "meaningful and efficient review by directing the reviewing court to the most important aspects of the appeal[,] [such as] what facts are important and where they can be found in the record[.]" Hallis, 328 S.W.3d at 696.
Gene's failure to comply with CR 76.12 hinders our ability to review his arguments. See Id. at 695-97. "Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only[.]" Id. at 696 (citation omitted). Because Gene's argument clearly fails on the merits, we opt to ignore the deficiencies and proceed with our review.
On appeal, Gene argues the family court erred in enforcing the parties' antenuptial agreement. "An agreement is unconscionable and must be set aside if the [family] court determines that it is manifestly unfair and unreasonable." Blue v. Blue, 60 S.W.3d 585, 589 (Ky. App. 2001) (citation omitted). We will not set aside findings of fact unless clearly erroneous under CR 52.01. " [T]he test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion." Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citing Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974)). As the family court is in the best position to determine whether an antenuptial agreement is unconscionable, we review for abuse of discretion. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
Although Gene "is obviously dissatisfied with the trial court's decision, threadbare recitals of the elements of a legal theory, supported by mere conclusory statements, form an insufficient basis upon which this Court can grant relief." Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018). Apart from reciting applicable law regarding enforcement of antenuptial agreements, Gene advances nothing of substance in support of his contention. We will not scour the record to construct Gene's argument for him.
Furthermore, the family court correctly applied relevant case law in enforcing the antenuptial agreement. Family courts consider three factors in determining whether to enforce an antenuptial agreement:
1) Was the agreement obtained through fraud, duress or mistake, or through misrepresentation or non-disclosure of material facts? (2) Is the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable?Gentry v. Gentry, 798 S.W.2d 928, 936 (Ky. 1990) (citing Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982)). Family courts also consider whether "the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work an injustice." Blue, 60 S.W.3d 590 (citations omitted). This inquiry focuses on "the reasonable expectations of the parties as contemplated by the agreement." Id.
The family court analyzed each factor in determining the antenuptial agreement was enforceable. First, the family court found the agreement was not obtained by fraud, duress, mistake, misrepresentation, or non-disclosure. It found the agreement was not complicated or lengthy and included a list of assets, which constituted an adequate disclosure. The court further noted neither party testified to any deceitful conduct in obtaining Gene's agreement.
Second, the family court found the terms were conscionable when the parties entered into the agreement and at the time of enforcement. When the parties entered into the agreement, it reflected their intent to retain their premarital assets, contributions from non-marital sources, and their individual earnings or losses. At the time of enforcement, although Gene might have received more in a division of property under KRS 403.190, Julia still would have received significant non-marital property. Gene testified he was able to support himself.
Third, the court found no change in circumstances outside the contemplation of the agreement. Gene knew Julia would be the beneficiary of a trust that would add to her financial estate, each party was entitled to their own retirement, and each would be solely responsible for their own support upon divorce. Although Julia left the marriage in a more favorable financial position, Gene got what he agreed to and bargained for.
The family court thoroughly weighed each factor in ruling the antenuptial agreement was enforceable. Gene bore the burden of proving the agreement invalid, and he failed to convince the family court. Blue, 60 S.W.3d 585. "Parties who contemplate entering into ante-nuptial agreements have a duty to appropriately consider their circumstances and whether such an agreement is right for them." Lane v. Lane, 202 S.W.3d 577, 580 (Ky. 2006). Gene did not make these considerations but instead signed the agreement without reading it. Failure to consider the terms of the antenuptial agreement is not a defense to its enforcement when the agreement is not otherwise unconscionable. As such, the family court did not abuse its discretion in enforcing the antenuptial agreement.
For the foregoing reasons, we affirm the findings of fact and conclusions of law and decree of dissolution of the Bourbon Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Joseph Eugene Blackburn, pro se
Lancaster, Kentucky BRIEF FOR APPELLEE: Joseph H. Dahlman
Lexington, Kentucky