VINCENT P LIZZIO V JENNIE D LIZZIO
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STATE OF MICHIGAN
COURT OF APPEALS
VINCENT P. LIZZIO,
UNPUBLISHED
December 14, 1999
Plaintiff-Appellant,
v
No. 203018
Wayne Circuit Court
LC No. 96-608409 DO
JENNIE D. LIZZIO,
Defendant-Appellee.
Before: Holbrook, Jr., P.J., and O’Connell and Whitbeck, JJ.
HOLBROOK, JR., P.J. (dissenting).
I respectfully dissent and would reverse and remand for modification of the judgment of divorce.
Antenuptial agreements are interpreted according to the rules of construction applicable to
contracts in general. MCL 557.28; MSA 26.165(8); In re Hepinstall’s Estate, 323 Mich 322, 327
328; 35 NW2d 276 (1948). “The primary goal in the construction or interpretation of any contract is
to honor the intent of the parties.” Rasheed v Chrysler Corp, 445 Mich 109, 127, n 28; 517 NW2d
19 (1994). “‘In ascertaining the intention of the parties, the entire agreement, its general scope and
purpose and the attendant circumstances at the time of the execution should be considered.’” In re
Hepinstall’s Estate, supra at 328, quoting Suess v Schukat, 192 NE 668, 671 (Ill, 1934).
I believe that one of the “attendant circumstances” that sheds light on the parties’ intent in the
case at hand is the contemporary legal setting that existed when the agreement was drafted and entered
into by the parties. As this Court observed in People v Hart, 211 Mich App 703; 536 NW2d 605
(1995):
It is a well-settled legal principle that
“the laws which subsist at the time and place of the making of a contract . . . enter into
and form a part of it, as if they were expressly referred to or incorporated in its terms.
This principle embraces alike those which affect its validity, construction, discharge, and
enforcement. [Id. at 708, n 1, quoting United States, ex rel Von Hoffman v City of
Quincy, 71 US 535, 550; 18 L Ed 403 (1867).]
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I cannot agree with the majority which, in my opinion, disregards the realities of the law as it
existed at the time this agreement was entered into. The majority relies on the fact that prior to Rinvelt
v Rinvelt, 190 Mich App 372; 475 NW2d 478 (1991), no binding precedent existed establishing that
an antenuptial agreement entered in contemplation of divorce could not be enforced. The majority notes
that while earlier decisions of our Supreme Court observed that antenuptial agreements contemplating
divorce were unenforceable as a matter of public policy, such comments were dicta. Ante, at ___. I
cannot take issue with the accuracy of this observation. However, I do not believe that because the
Court’s statements are dicta we can turn a blind eye to them. United States v Bell, 524 F2d 202, 206
(CA 2, 1975).
Given the relatively few number of cases heard by our Supreme Court, it frequently uses dicta
to give guidance on particular issues of law to the lower courts. Cf. In re Comac, 402 F Supp 43, 45
(ED Mich, 1975) (“Since docket restraints do not permit the [United States] Supreme Court to pass
upon all issues of federal law that arise . . . , the Court frequently paints with a brush somewhat broader
than necessary to decide the case immediately before it in order that general guidance may be provided
to the court’s below.”). Indeed, it is an unwise court or practitioner that does not carefully consider the
dicta of the State’s highest Court, given that such deliberative observations often clearly signal the way
the Court will decide an issue when it does come before the court. See Schauer, Opinions as rules, 53
U Chi L R 682, 683 (1986) (reviewing Schwartz, The Unpublished Opinions of the Warren Court
[1985]) (“[I]t is not what the [United States] Supreme Court held that matters, but what it said. In . . .
arenas below the Supreme Court, one good quote is worth a hundred clever analyses of the holding.”).
This is especially so when the dicta at issue is actually a part of the courts reasoning. Luhman v
Beecher, 424 NW2d 753, 755 (Wis App, 1988). Such dicta is known as judicial dicta, Johnson v
White, 430 Mich 47, 55, n 2; 420 NW2d 87 (1988), and is arguably as binding on subsequent courts
as the precise holding of the case. Luhman, supra at 755; Am Jur 2d, § 603, p 299. Cf Johnson,
supra at 55, n 2 (observing that “unlike obiter dicta, judicial dicta are not excluded from applicability of
the doctrine of the law of the case.”). At the very least, such judicial dicta should be given considerable
weight by this Court, especially when those pronouncements remained unchallenged for decades.
I believe that in at least one of the cases cited by plaintiff, the Court’s considered
pronouncements on the validity of antenuptial agreements entered into in contemplation of divorce are
judicial dicta. In the case In re Muxlow Estate, 367 Mich 133; 116 NW2d 43 (1962), the
administrator of the estate of Minerva Muxlow appealed the decision of the circuit court upholding the
validity of a 1935 antenuptial agreement executed between Minerva and Fred Muxlow. Id. at 134.
The parties separated in 1937, but never divorced. Fred Muxlow died in 1958, followed a year later
by his wife. The lower courts had decided that because the agreement was valid, Minerva’s
administrator was barred from claiming any interest in Fred’s estate. Id.
The administrator argued on appeal that the agreement “was entered into in contemplation of a
future separation and was, therefore, void because against public policy.” Id. The Muxlow Court then
noted that “[t]he general rule is that an ‘antenuptial contract which provides for, facilitates, or tends to
induce a separation or divorce of the parties after marriage, is contrary to public policy, and is therefore
void.’” Id., quoting 70 ALR 826, 827. After reproducing the agreement in the opinion, the Muxlow
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Court concluded that “there is no language in the agreement which effectively barred either party from
claiming an interest in the property of the other had their marital relation terminated prior to the death of
one of the parties.” Id. at 136. The Court then observed:
Nothing in the agreement can be said to make separation or divorce more
attractive to either party, notwithstanding the apparent interpretation given the
agreement by the parties themselves following their separation. Had one of the parties
to the agreement sought divorce, the chancellor would not have been bound by anything
in the agreement in dividing the property of the parties or in awarding alimony and other
rights, if in his judgment the equities so required.
Accordingly, since it cannot be held that any effective provision of this
agreement provided for, facilitated, or tended to induce a separation or divorce, the
agreement was not against public policy, and the judgment of the circuit court affirming
its validity is, therefore, affirmed. [Id. at 137 (citation omitted).]
I believe the issue of whether an antenuptial agreement entered into in contemplation of a future
separation was void as against public policy was squarely before the Muxlow Court. In affirming the
circuit court, the Muxlow Court specifically found that there was nothing in the agreement that barred
the legal obligations of the parties had they divorced. Therefore, the Court concluded, the agreement
was not against public policy. In essence, this is the reasoning of the Muxlow Court:
1. Any antenuptial agreement which provides for, facilitates, or tends to induce a
separation or divorce is contrary to public policy, and is therefore void.
2. Any antenuptial agreement that effectively bars either party from claiming an interest
in the property of the other upon divorce, by definition provides for, facilitates, or tends
to induce a separation or divorce.
3. The antenuptial agreement at hand does not effectively bar either party from claiming
an interest in the property of the other upon divorce, and thus is not presumptively void.
4. Therefore, because the antenuptial agreement at hand does not provide for, facilitate,
or tend to induce a separation or divorce, it is not contrary to public policy, and is not
therefore void.
As I read the Muxlow Court’s decision, I cannot conceive that had they found that the
agreement barred either party from claiming an interest in the property of the other upon divorce, that
the Court would have not concluded that the agreement was void as against public policy. Therefore, I
believe that the issue of the validity of antenuptial agreements made in contemplation of divorce was
central to the Court’s reasoning and ultimate resolution. Accordingly, and with all due respect to my
colleagues, I believe that we cannot ignore this rule of law simply because it does not technically qualify
as the holding of the Court.
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Although it is a closer question, I also believe that statements found in the case of Scherba v
Scherba, 340 Mich 228; 65 NW2d 758 (1954), also carry the weight of judicial dicta. The Scherba
Court was faced with a challenge to the trial court’s property settlement. Id. at 229. In finding that the
trial court did not err in using the parties’ antenuptial agreement as a guide for an equitable property
division, the Court noted that the lower court’s action did not amount to specific performance of the
agreement. Id. at 231. This judgment was based on the implicit conclusion that by its terms, the
agreement was not made in contemplation of divorce. “[N]or would it accord with public policy,” the
Court observed, “to permit enforcement of an antenuptial agreement if its provisions actually did
undertake to govern as to property settlement or alimony in the event of a divorce.” Id., citing 70 ALR
826.
At the very least, these cases present a highly persuasive picture of the state of the law on the
subject as it used to be. I believe it is a truism that lower courts and practitioners of this State quite
often give considerable—if not dispositive—weight to such clearly stated, unequivocal pronouncements
of our Supreme Court. Through such dicta, the legal profession can predict and anticipate the direction
of the law, and thereby promote uniformity and stability in the application of legal principles.
Additionally, for the State’s lower courts, the predictive dimension of dicta allows them to avoid the
haunting specter of reversal. See Posner, The Problems of Jurisprudence (1990), p 224, n 23
(observing that “most judges are highly sensitive to being reversed, and for them the prediction theory
makes good sense to follow.”).
Furthermore, I believe our Supreme Court filled in the details of the legal picture sketched in
Muxlow and Scerba by directing readers to the annotation found at 70 ALR 826. The annotation
begins by noting “that although marriage is a status depending upon the consent or agreement of the
parties, and is in many respects analogous to an ordinary contract, it is a social as well as a private
compact, and is affected with a public interest.” 70 ALR 826.1 The annotation further observes:
It may be stated as a general rule that any antenuptial contract which provides
for, facilitates, or tends to induce a separation or divorce of the parties after marriage, is
contrary to public policy, and is therefore void.
And the principle that an antenuptial agreement contemplating future separation
or divorce is a “bargain about an event which they are not entitled to anticipate,” and is
void, was recognized by Rigby, L. J., in Marlborough v Marlborough [1901] 1 Ch.
(Eng.) 165
As stated by the court in H. v W. (1857) 3 Kay & J. 382, 69 Eng. Reprint,
1157: “By the policy of our law, no state of future separation can ever be contemplated
. . . by agreement made either before or after marriage. It is forbidden to provide for
the possible dissolution of the marriage contract, which the policy of the law is to
preserve intact and inviolate.” [70 ALR at 827-828 (citations omitted).]
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That these legal principles had been adopted and spread throughout American jurisprudence is clearly
evidenced by the cases cited in the annotation (cited by Muxlow, supra at 134). For example, in
Oliphant v Olipanht, 7 SW2d 783 (Ark, 1928), the court observed:
“Antenuptial contracts, to be valid, must be made in contemplation of the marriage
relation subsisting until the parties are separated by death. . . . If such an agreement is
made in contemplation, at the time of its execution, that the parties, or either of them,
expect to be divorced, then such an agreement is void ab initio.” [70 ALR at 828,
quoting Oliphant, supra at 788.]
Paraphrasing Neddo v Neddo, 441 Pac 1 (Kan, 1896), the annotation observes:
[A]n antenuptial contract providing that if the parties should separate by abandonment
or divorce, the property should belong to the party who owned it before marriage or
acquired it thereafter, and waiving any claims of alimony or other rights acquired or
liabilities incurred by reason of the marriage, in the event of such separation or divorce,
was held to be invalid as contrary to public policy, as inviting disagreements and
abandonment, and encouraging a violation of the marriage vow, by making divorce or
separation productive of profit to the party having the greater amount of property. [70
ALR at 829.]
Citing Muxlow as authority, Rinvelt itself acknowledges that prior Michigan case law
established as a “general principle” that antenuptial “agreements are not enforceable if they provide for,
facilitate, or tend to induce a separation or divorce.” Rinvelt, supra at 378. Rinvelt also
acknowledges that policy concerns once led courts to refuse to enforce antenuptial agreements made in
contemplation of divorce. Id. at 379. Indeed, Rinvelt cites as “well-reasoned” the following
statements by the Alaska Supreme Court:
“Courts uniformly viewed these agreements as inherently conducive to divorce and as
allowing a husband to circumvent his legal duty to support his wife . . . .
***
[T]he idea that prenuptial agreements induce divorce is anachronistic.” [Id. at
380, quoting Brooks v Brooks, 733 P2d 1044, 1048, 1050 (Alas, 1987).]2
I read all of this foregoing authority as establishing the following principles, which I believe were
strictly adhered to by courts of this State: (1) Any antenuptial agreement that provides for, facilitates, or
tends to induce a separation or divorce is void at its inception; (2) antenuptial agreements made in
contemplation of death are not void unless they violate the first principle; (3) by definition, antenuptial
agreements made in contemplation of divorce violate the first principle, and are thus void.3 As of today,
however, the validity of the third principle has been completely discounted as being, to use a term,
“anachronistic.”
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After carefully reviewing the antenuptial agreement in the context of the above mentioned
principles, I conclude that the trial court erred when it ruled that the property settlement was to be
governed by the provisions of the antenuptial agreement. Attributing to the parties the knowledge of the
law as it existed at the time, I believe the language of the document makes clear that the purpose of the
agreement was to secure the inheritance rights of the parties’ children in the event of the death of either
party during the course of their marriage. See Muxlow, supra at 136;4 Kennet v McKay, 336 Mich
28, 34; 57 NW2d 316 (1953). For example, in paragraph four of the above quoted excerpt, ante, at
___, the agreement states that it is the parties’ “desire to secure to [defendant] . . . the right to make
disposition of [her property] . . . according to her will and pleasure so that said property shall descend
to her said children or to the issue of her said children in the manner which she shall designate.”
(Emphasis added.) No where does the agreement make reference to “separation,” “divorce,” “divorce
proceedings,” or “property settlement.” It was therefore improper for the trial court to base the
property settlement on the agreement. Devault v Devault, 609 NE2d 214, 216 (Ohio App, 1992)
(“If the parties to an antenuptial agreement wish to have it apply in the event of a divorce, they should
do so by express agreement.”); Levy v Levy, 388 NW2d 170, 174-175 (Wis, 1986).
If I were to conclude that it was the parties’ intent that the agreement should govern any future
property settlement in the event of divorce, I would conclude that to the extent that the agreement
implicates such a settlement, it should not be enforced. See Muxlow, supra at 137; Scherba, supra at
231; 70 ALR at 831 (paraphrasing several cases where only the offending provisions of the agreement
were held void); Restatement Contracts, 2d, §§ 178(1), 190(2), pp 6, 54. Because any provision of
the agreement that might pertain to divorce was void at its inception, I conclude we cannot now
resurrect it because of an ensuing change in the common law. Rehmann, Robson & Co v McMahan,
187 Mich App 36, 40-41, n 1; 466 NW2d 325 (1991); Burns Clinic Medical Center, PC v
Vorenkamp, 165 Mich App 224, 227; 418 NW2d 393 (1987) (observing that because a contract was
“void as against public policy” at the time it was signed, a subsequent change in the state of the law did
not serve to validate the contract). See also Restatement Contracts, 2d, § 179, comment d, p 18
(“Whether a promise is unenforceable on the grounds of public policy is determined as of the time that
the promise is made and is not ordinarily affected by a subsequent change of circumstances, whether of
fact or law.”).
The majority reasons that because the antenuptial agreement at issue in Rinvelt was issued prior
to the release of that opinion, we cannot now refuse to enforce the agreement before us on the ground
that at the time it was entered into it was contrary to the existing law. Ante, at ___. I disagree. The
social and policy based underpinnings of the traditional rules against such agreements have undoubtedly
changed, and according to Rinvelt, had changed as of 1983. However, I am not convinced that the
traditional rule that antenuptial agreements made in contemplation of divorce were void ab initio had
been so widely discredited as of 1975 that this Court must now affirm the trial court’s reliance on the
parties’ agreement with respect to their property settlement. For example, the Brooks Court noted that
it was “join[ing] those courts that have recognized” the validity of such antenuptial agreements. Brooks,
supra at 1050. Of the twenty cases cited by Brooks as evidence of this trend,5 only two, Posner v
Posner, 233 So2d 381 (Fla, 1970),6 and Volid v Volid, 286 NE2d 42 (1972),7 predated the year in
which the agreement at issue in the case before us was entered into by the parties. The one cited case
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that was decided in the same year, Dingledine v Dingledine, 523 SW2d 189 (1975), was not released
until two months after the parties’ signed the agreement at issue. The other seventeen cases were all
decided post-1975, with the majority having been decided in the early 1980’s. Therefore, without
commenting on the propriety of the Rinvelt Court’s decision to apply its holding to an antenuptial
agreement written eight years prior, I believe this Court is not bound by either propriety or authority to
now reach back nearly a quarter of a century to validate an antenuptial agreement written eight years
before the agreement at issue in Rinvelt.
Accordingly, I would reverse and remand for modification of the judgment of divorce.
/s/ Donald E. Holbrook, Jr.
1
The annotation is preceded by a reproduction of In re Duncan’s Estate, 285 P 757 (Colo, 1930).
The Duncan’s Court concluded its opinion with the following strongly worded denunciation:
The marriage relation lies at the foundation of our civilization. Marriage promotes public
and private morals, and advances the well-being of society and social order. The
sacred character of the marriage relation is indissoluble, except as authorized by
legislative will and by the solemn judgment of a court. It cannot be annulled by contract,
or at the pleasure of the parities. [Id. at 785.]
2
Referring to the Brooks decision, the Rinvelt Court observed:
We agree with this well-reasoned analysis and hold that antenuptial agreements
governing the division of property in the event of divorce are enforceable in Michigan. . .
. Further, we view the limitations with regard to such agreements as set forth in Brooks
to be consistent with prior Michigan law governing antenuptial agreements after death.
Accordingly, we now apply these principles and limitations to antenuptial agreements
governing the division of property in the event of divorce. [Rinvelt, supra at 382.]
I note that the entire discussion from Brooks that is quoted and relied upon by the Rinvelt Court was
not raised by the parties in Brooks, Brooks, supra at 1048, and thus does not even meet this
jurisdiction’s definition of judicial dictum. White, supra at 55, n 2.
3
In Brooks, the Alaska Supreme Court observed that antenuptial agreements made in contemplation of
divorce were “until recently, . . . held to be presumptively invalid.” Brooks, supra at 1048, n 4
(emphasis added).
4
The antenuptial agreement in Muxlow, included the following language, which is similar to language
found in paragraph three of the excerpt of the agreement in the case at hand:
THEREFORE, in consideration of the mutual agreement of said parties . . . it is hereby
mutually agreed . . . that each of them shall release and relinquish and do hereby release
and relinquish to the other any and all claims of any kind and nature in and to the
property, both real and personal, of the other party which includes any claim of dower
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or courtesy and any right or claim which might accrue to them upon death of the other .
. . and includes any claim against any property now held by said parties or which they
may hereafter acquire. [Muxlow, supra at 135.]
5
Brooks, supra at 1050, n 16.
6
Brook observes that Posner is “[t]he case generally considered to mark the judicial watershed on
prenuptial agreements.” Id. at 1049, n 7. The first and only time Posner was cited in a published
opinion of this Court or the Michigan Supreme Court was in Rinvelt, where it appears in the Brooks
excerpt. Rinvelt, supra at 381.
7
This decision has never been cited by a published opinion of Michigan’s appellate courts.
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