PATRICIA LYNN HOSEA V TEDDY LEE HOSEA
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STATE OF MICHIGAN
COURT OF APPEALS
PATRICIA LYNN HOSEA
UNPUBLISHED
March 7, 1997
Plaintiff-Appellee,
v
No. 189276
Genesee Circuit Court
LC No. 93-175911-DM
TEDDY LEE HOSEA,
Defendant-Appellant.
Before: MacKenzie, P.J., and Wahls and Markey, JJ.
PER CURIAM.
Defendant appeals as of right from a judgment of divorce. We reverse and remand.
Defendant first contends that the trial court erred when it determined that the antenuptial
agreement was unenforceable. We agree. In a divorce case, we review a trial court’s factual findings
under the clearly erroneous standard. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992).
A finding of fact is clearly erroneous if, after a review of the entire record, we are left with the definite
and firm conviction that a mistake was made. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207
(1990).
This Court has specifically found that antenuptial agreements governing the division of property
are generally enforceable,1 provided that the following three criteria are considered: (1) was the
agreement obtained through fraud, duress, or mistake, or misrepresentation or nondisclosure of material
fact; (2) was the agreement unconscionable when executed; and (3) have the facts and circumstances
changed since the agreement was executed so as to make its enforcement unfair and unreasonable.
Booth v Booth, 194 Mich App 284, 288-289; 486 NW2d 116 (1992); Rinvelt v Rinvelt, 190 Mich
App 372, 379-382; 475 NW2d 478 (1991). Where an antenuptial agreement is challenged, the
burden of proof and persuasion is on the party challenging its validity. Booth, supra at 289; Rinvelt,
supra at 380, 382.
In the instant case, the procedural aspects are important. Defendant moved for summary
disposition pursuant to MCR 2.116(C)(10) alleging that there existed no genuine issue of a material fact.
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Specifically, defendant asserted that the antenuptial agreement entered into between the parties was
enforceable; therefore, plaintiff had no interest in the assets listed on exhibit A of the antenuptial
agreement and/or the proceeds from the sale of those assets. In support of his motion, defendant
attached the antenuptial agreement, incorporated affidavits setting forth the parties’ respective
properties, submitted an additional June 23,1994 affidavit defendant prepared in addressing allegations
contained in plaintiff’s complaint regarding various properties, and attached pertinent portions of
plaintiff’s deposition. In response, plaintiff filed a brief, a copy of an article written by Attorney Fred
Morganroth entitled “Drafting Considerations For Enforceable Pre-Nuptial Agreements,” a notice of
disciplinary action against Teddy L. Hosea by General Motors Corporation, and another copy of Teddy
Hosea’s affidavit of June 23, 1994. Moreover, both parties implicitly stipulated that the parties had
entered into the document entitled “Antenuptial Property Agreement” and attached to defendant’s
answer to the complaint. In addition, plaintiff’s deposition testimony confirmed that both she and
defendant had entered into the agreement.
MCR 2.116(G)(3), (4) and (5) provide in relevant part:
(3) Affidavits, depositions, admissions, or other documentary evidence in support of
the grounds asserted in the motion are required
***
(b) when judgment is sought based on subrule (C)(10).
(4) When a motion under subrule (C)(10) is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of his or her
pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific
facts showing that there is a genuine issue for trial. If the adverse party does not so
respond, judgment, if appropriate, shall be entered against him or her.
(5) The affidavits, together with the pleadings, depositions, admissions, and
documentary evidence then filed in the action or submitted by the parties, must be
considered by the court when the motion is based on subrule (C)(1)-(7) or (10).
[Emphasis added.]
Defendant’s motion for summary disposition, supported by the agreement, affidavit, and deposition
testimony, comported with MCR 2.116(C)(3)(b). Thus, plaintiff was required to respond to
defendant’s motion via “affidavits, depositions, admissions, or other documentary evidence.” None of
the materials submitted with plaintiff’s brief in opposition constitutes the requisite evidence to rebuff a
(C)(10) motion. Specifically, although plaintiff submitted defendant’s June 23, 1994 affidavit ostensibly
in an effort to counter defendant’s motion, that affidavit did not “set forth specific facts showing that
there is a genuine issue for trial” as it had nothing to do with whether the antenuptial agreement was
enforceable. MCR 2.116(G)(4). We believe that this failure, coupled with the fact that it was plaintiff’s
burden to prove that the antenuptial agreement was unenforceable, should have resulted in summary
disposition for defendant. MCR 2.116(G)(4).
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Patently, this fatal procedural omission was overlooked. Moreover, although the trial court set
forth various factual findings to support its opinion and conclusions, the only findings supported by any
evidence were its findings that the parties had lived together for four years before plaintiff became
pregnant with defendant’s child and that although defendant and defendant’s attorney told plaintiff that
she could hire her own attorney, she did not do so before signing the agreement. All of the remaining
“factual findings” were, instead, simply the trial court’s adoption of assertions, all hearsay, set forth in
plaintiff’s brief. Additionally, the trial court was clearly erroneous in its finding that the parties had
agreed that each was “making full, complete and fair disclosure to the other of all assets and liabilities.”
The title of the document itself was “Antenuptial Property Agreement” and the plain terms of the
antenuptial agreement required only that the parties divulge their respective properties. We review the
trial court’s findings of fact for clear error, i.e., whether after analyzing the record we are left with a
definite and firm conviction that the lower court erred. MCR 2.613(C); Poirier v Grand Blanc Twp,
192 Mich App 539, 548; 481 NW2d 762 (1992). Because of these unsupported facts, we are left
with a definite and firm conviction that the trial court erred in its fact finding.
First, plaintiff admitted in her deposition that she read the agreement, that defendant’s counsel
read the agreement out loud to both of them while inviting questions about the terms of the agreement,
and that defendant’s counsel informed her of her right to get an attorney but she chose not to because “I
trusted Gary [Lambert]’s judgment. That’s the only reason.” We find no case law supporting the
conclusion that a party to a contract can ignore requests that he or she obtain counsel and then use the
absence of counsel as vehicle for avoiding enforcement of the agreement. See Hockenberry, supra at
376.
Second, plaintiff also explained during her deposition that the “agreement was put together to
protect Ted’s assets in the event that I, without cause, walked out of the marriage and tried to take
advantage of him,” that “[i]t was to protect him in case I only married him to get his house,” and “[m]y
opinion of the prenuptial agreement or my understanding of what it was for was so I couldn’t marry him,
and in a short period of time leave the marriage and make him sell everything that he had before we
were married.” While plaintiff may not have been able to recite verbatim the contents of the antenuptial
agreement, it appears that she understood the purpose and impact of the agreement.
Third, even accepting the court’s finding that plaintiff failed to disclose his liabilities and income,
we hold that this omission is not fatal to the enforceability of the antenuptial agreement. Indeed, the
antenuptial agreement specifies that the parties made “a full, complete and fair disclosure of their
respective properties to each other” and attached summaries of their assets to the agreement. Again,
we find no cases where one party who fully disclosed all assets but failed to disclose liabilities and
income was deemed to have fraudulently induced another to sign the agreement or failed to disclose a
material fact sufficient to void the antenuptial agreement. Cf. In re Benker Estate, 416 Mich 681, 688
690; 331 NW2d 193 (1992); see, generally, In re Halmaghi Estate, 184 Mich App 263, 266-267;
457 NW2d 356 (1990). Indeed, there is no requirement that in order to constitute full and fair
disclosure, parties to an antenuptial agreement must disclose all of their liabilities and sources of income
in addition to their assets. In re Benker Estate, supra at 684; Booth, supra at 289. Here, the parties
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to this contract apparently chose to disclose only their respective assets, i.e., neither party advised the
other of his or her liabilities or sources of income.
We also believe the trial court erred, in part, in its analysis of the facts in this case to the
applicable law as set forth in Booth, supra, and Rinvelt, supra; consequently, its legal conclusion was
clearly erroneous. From our reading of the trial court’s opinion, it appears that the only factor the trial
court considered was whether the agreement was obtained through fraud, duress, or mistake, or
misrepresentation or nondisclosure of material fact. See Booth, supra; Rinvelt, supra.
With respect to the finding of duress, even if the trial court’s factual findings had been supported
by the evidence, we find no duress occurred as a matter of law. Black’s Law Dictionary (6th ed), p
504, defines “duress” as follows:
Any unlawful threat or coercion used by a person to induce another to act (or to
refrain from acting) in a manner he or she otherwise would not (or would). Subjecting
[a] person to improper pressure which overcomes his will and coerces him to comply
with [a] demand to which he would not yield if acting as [a] free agent. . . . Application
of such pressure or constraint as compels man to go against his will, and takes away his
free agency, destroying power of refusing to comply with unjust demands of another. . .
. [I]f a party’s manifestation of assent to a contract is induced by an improper threat by
the other party that leaves the victim no reasonable alternative, the contract is voidable
by the victim. [Emphasis added.]
It also explains that “coercion” may include “actual, direct, or positive [complusion], as where physical
force is used to compel act[ion] against one’s will, or implied, legal or constructive, as where one party
is constrained by subjugation to another to do what his free will would refuse.” Id. at 258.
Here, the trial court concludes that plaintiff may have been under duress because she was
distraught about the fact that she was an unmarried mother, she was not represented by counsel, and
she was financially dependent upon defendant. The only finding of fact supported by the record,
however, is that plaintiff chose to rely on defendant’s attorney rather than obtain a separate legal
opinion. MCR 2.116(G)(4). All of the court’s other “findings” are merely reiteration of the assertions
contained in plaintiff’s brief in opposition to defendant’s motion to enforce the antenuptial agreement.2
Without more, we find no duress, as a matter of law, that compelled plaintiff to sign the antenuptial
property agreement against her own free will.
Plaintiff had the burden of persuading the court that the antenuptial agreement should not be
enforced. She failed to do so, while, on the other hand, defendant did prove the existence of a valid,
binding agreement. So, in light of the fact that we find that the agreement was not induced by duress,
Rinvelt supra at 380, and given the trial court’s failure to make valid findings of fact or conclusions of
law regarding two of the three factors set forth in Booth, supra and Rinvelt, supra, we vacate the trial
court’s opinion and order and remand for entry of summary disposition in favor of defendant and for
any appropriate modification of the divorce judgment necessitated by this decision.
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Reversed and remanded for further proceedings consistent with this opinion. Booth, supra at
288-289; Rinvelt, supra at 380. We do not retain jurisdiction. Defendant being the prevailing party,
he may tax costs pursuant to MCR 7.219.
/s/ Barbara B. MacKenzie
/s/ Myron H. Wahls
/s/ Jane E. Markey
1
See In re Benker Estate, 416 Mich 681, 688-690; 331 NW2d 193 (1982), which held that valid
antenuptial agreements must be fair, equitable, and reasonable under the facts and circumstances of the
case and must be entered into voluntarily with an understanding of his or her rights and the extent of the
rights that each party is waiving.
2
After noting that deposition testimony referred to in plaintiff’s brief and the court’s opinion was not
attached or in the lower court record, with the exception of the several pages of plaintiff’s testimony
provided by defendant, this Court requested the transcripts assuming their inadvertent omission.
Plaintiff’s counsel, however, advised us of his objections to their being submitted and, in fact, stated in
his January 28, 1997 letter to this Court, “[T]o the best of my recollection, at no time was there ever
any introduction of the discovery depositions of either one of the parties into the record and they simply
are not evidence.” Thus, we must rely on the limited record the parties have apparently agreed to.
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