                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-CA-01153-SCT

TANYA DALE WRIGHT SANDERSON

v.

HOBSON L. SANDERSON, JR.


DATE OF JUDGMENT:                         06/15/2012
TRIAL JUDGE:                              HON. TALMADGE D. LITTLEJOHN
COURT FROM WHICH APPEALED:                MONROE COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  JANELLE MARIE LOWREY
                                          ROY O. PARKER
ATTORNEYS FOR APPELLEE:                   GREGORY M. HUNSUCKER
                                          JAK MCGEE SMITH
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
DISPOSITION:                              AFFIRMED IN PART; REVERSED IN PART
                                          AND REMANDED - 12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       COLEMAN, JUSTICE, FOR THE COURT:

¶1.    The instant matter arises from the financial portion of a bifurcated divorce trial.

Tanya Dale Wright Sanderson and Hobson L. Sanderson divorced after seventeen years of

marriage. When Tanya and Hobson married in 1994, Tanya signed a prenuptial agreement

the day before their marriage, and upon divorce, the chancellor enforced the terms of the

agreement. Tanya appealed. She argues that the prenuptial agreement is procedurally and

substantively unconscionable. She also claims, among other things, that the chancellor erred

in not finding a joint bank account contained commingled, marital property. We affirm the
trial court on its finding that the prenuptial agreement is not procedurally unconscionable.

We reverse and remand for further proceedings on whether the prenuptial agreement is

substantively unconscionable. We also hold that certain funds, used for familial purposes,

kept in a joint bank account created after the marriage began, do not fall within the

parameters of the prenuptial agreement.

                       FACTS AND PROCEDURAL HISTORY

¶2.    After dating for two years, Tanya Sanderson and Hobson Sanderson married on July

23, 1994, in Decatur, Alabama. Hobson was a sixty-two-year-old businessman. He owned

Sanderson Construction and Sanderson Ready-Mix. The value of his assets at the time of

marriage was approximately $3,580,000. Tanya was twenty-eight years old, and she had

attended one year at a four year college studying music and one semester at a community

college. She also had about five years of clerical experience as a deputy clerk at the Lee

County Chancery Clerk’s office. The value of her assets at the time of marriage was about

$135,000, and she had a young daughter.

¶3.    The parties decided to marry only a few weeks before the wedding ceremony. The

ceremony was a small and casual event, and no formal invitations were sent. Two weeks

prior to the ceremony, Hobson approached Tanya regarding the execution of a prenuptial

agreement. Hobson’s attorney prepared the agreement and told Hobson to encourage Tanya

to seek outside legal counsel. The agreement contained a signature line for Tanya’s attorney.

Hobson’s brother and CPA for Hobson’s construction company, Tom Sanderson, prepared

Hobson’s financial statement to be attached to the agreement. Tanya prepared her financial

statement, and she gave it to Tom on July 18 or 19. The final agreement for the parties to


                                             2
sign, that was supposed to have the financial statements attached to it, arrived the morning

of July 22 – the day before the wedding.

¶4.    The agreement eliminated all rights to spousal support, and it deemed all property

owned before marriage and all property acquired during the marriage to remain separate

property if traceable. Specifically, it stated that:

       WHEREAS, the parties desire that all property now owned by each and set
       forth herein on the appropriate Exhibits or any property hereafter acquired by
       each that shall be traceable to proceeds or appreciation from their separate
       property as set forth herein, shall for testamentary, intestate succession, and for
       their lifetimes and for any and all other purposes, be free from any claim of the
       other that may arise by reason of the contemplated marriage, notwithstanding
       any and all State laws to the contrary; any property acquired after the marriage
       not acquired as a result of the separate property as defined herein shall not be
       subject to this Agreement:

              IT IS, THEREFORE, AGREED THAT:

       ...

       After the solemnization of the marriage between the parties, each of them shall
       separately retain all rights in his or her own property, real and/or personal,
       whether now owned or hereafter acquired, and each of them shall have and
       maintain, regardless of circumstances or change of circumstances, the absolute
       and unrestricted right to dispose of and maintain use and retain the use and
       ownership of such separate property, free from any claim that may be made by
       the other by reason of or as a result of their marriage, and with the same effect
       as if no marriage had been consummated between them, notwithstanding any
       State laws to the contrary; and each party waives and releases all rights,
       statutory or otherwise, in and to the other’s property described above at its
       present value, in addition to any appreciation in value, following the marriage,
       that may arise by law as a result of the marriage of the parties.

Further, the agreement stated that neither party was entitled to alimony or any part of the

other party’s “investments, earnings, gifts, or inheritance.” The agreement also covered what




                                                3
each party would receive upon the death of the other party. Tanya would receive $100,000

from Hobson’s estate, and Hobson would receive $20,000 from Tanya’s estate.

¶5.    On July 22, the day before the wedding, Hobson gave the agreement to Tanya and

requested she have an attorney sign it. Tanya testified that the first time she saw the

agreement was on July 22, and she took the agreement to the law office of her cousin, Jimmy

Doug Shelton. Tanya discussed the agreement with Shelton for about ten minutes before she

convinced him to sign it. Shelton testified that Tanya’s number one concern was Shelton’s

signature and that she did not seem to want legal advice about the agreement. Tanya

appeared eager to drive to Decatur to finish planning the wedding. Shelton told Tanya that

the agreement was one-sided, and he needed more time to review it. Tanya stated that she

and Hobson would not divorce; Shelton signed the agreement.

¶6.    At trial, witnesses presented conflicting testimony as to when Tanya signed the

agreement and as to whether the financial disclosures were attached to the agreement when

she did. Tanya testified she signed the agreement after the wedding at Hobson’s request.

Hobson testified that Tanya signed it before the wedding. Hobson further testified that the

financial disclosures were attached to the agreement at the time Shelton signed it. However,

Tom also testified that the financial disclosures had not been initialed on each page like the

agreement. Tom stated that he had tried to contact Tanya to have her come to his office, but

she was already in Decatur, Alabama. Tanya initialed each page about a week after the

wedding, and she testified that she had not seen the financial disclosures until she initialed

them after the wedding.




                                              4
¶7.    Tanya testified that she did not understand the extent of her rights that she was

forfeiting by signing the agreement, and if she had understood, she would have postponed

the wedding. She further testified that Hobson did not want her to work after their marriage

and that he promised to take care of her for the rest of her life. Tanya stated that she was

generally aware of Hobson’s wealth, but he was secretive about it. About a year or two after

they married, Tanya and Hobson opened a joint banking account, and Tanya deposited

Hobson’s salary checks into the account each month. They filed joint tax returns. However,

the child support Tanya received from her daughter’s father accumulated and remained in a

separate account. The child support money has since been used for the daughter’s college

expenses.

¶8.    After the parties filed for divorce, a hearing was held on whether the prenuptial

agreement was enforceable. The court held the agreement was enforceable. In 2010, the trial

court bifurcated the trial. The first portion of the bifurcated trial was the grant of divorce;

Tanya was granted a divorce on the ground of cruel and inhuman treatment. The second

portion of the trial was division of financial assets.

¶9.    During the financial portion of the trial, the chancellor found the prenuptial agreement

to be enforceable, and the chancellor awarded assets as per the agreement. The parties were

awarded their separate property: Hobson was awarded all of his corporate assets, multiple

real properties, six financial accounts, and various personal items such as furniture, guns, and

jewelry. Tanya was awarded two financial accounts, a piece of real estate that had been

deeded to her by her parents, and various personal property classified as gifts, including

hunting trophies, guns, furniture, art, a motorcycle, and jewelry.


                                               5
¶10.   The court also specifically found that the joint checking account was a “clearing house

to facilitate the transfer of funds,” and therefore, it was traceable to the source of the income,

Hobson, and was his separate property. One of the investment accounts in Hobson’s name

had been funded in part with money from the joint account, but it remained separate. The

court found that the additional account in which the child support money was accruing was

not subject to distribution because it was for the benefit of the child.

¶11.   The court valued Tanya’s separate property at approximately $424,597.01, and it

valued Hobson’s separate property at $3,544,806.00. Tanya appealed.

                                            ISSUES

¶12.   On appeal, Tanya brings sixteen issues classified into four general categories: (I) the

prenuptial agreement, (II) commingling of marital assets and the improper classification of

investment accounts and bank account, (III) the distribution of marital property, and (IV) the

mislabeling of property Tanya conveyed to her parents. Hobson presents three broader issues

concerning whether the chancellor erred in his application of the prenuptial agreement.

                                 STANDARD OF REVIEW

¶13.   Contract interpretation is a question of law and is reviewed de novo. Harris v. Harris,

988 So. 2d 376, 378 (Miss. 2008) (citing Warwick v. Gautier Util. Dist., 738 So. 2d 212, 215

(Miss.1999)). However, the Court considers the chancellor’s decision of whether to enforce

a prenuptial agreement under the abuse of discretion or manifest error standard. Mabus v.

Mabus, 890 So. 2d 806, 810 (Miss. 2003). The Court will not disturb the findings of the

chancellor unless they are “manifestly wrong, clearly erroneous, or applied the wrong legal

standard.” Id. (citing McNeil v. Hester, 753 So. 2d 1057, 1063 (Miss. 2000)). The Court

                                                6
also applies a limited standard of review for the distribution of property in divorce cases.

Owen v. Owen, 798 So. 2d 394, 397 (Miss. 2001) (citing Reddell v. Reddell, 696 So. 2d 287,

288 (Miss. 1997)). The chancellor’s ruling of the division and distribution “will be upheld

if it is supported by substantial credible evidence.” Owen, 798 So. 2d at 397 (quoting

Carrow v. Carrow, 642 So. 2d 901, 904 (Miss. 1994)). “This Court will not substitute its

judgment for that of the chancellor ‘[e]ven if this Court disagree[s] with the lower court on

the finding of fact and might . . . [arrive] at a different conclusion.’” Owen, 798 So. 2d at

397-98 (quoting Richardson v. Riley, 355 So. 2d 667, 668 (Miss. 1978)).

                                         DISCUSSION

         I.       Whether the chancellor erred in finding that the prenuptial
                  agreement was procedurally conscionable.

¶14.     Mississippi law concerning prenuptial agreements is not well settled. However, it is

well settled that prenuptial agreements are enforceable like any other contract. Estate of

Hensley v. Estate of Hensley, 524 So. 2d 325, 327 (Miss. 1988); see also Smith v. Smith,

656 So. 2d 1143, 1147 (Miss. 1995); Mabus v. Mabus, 890 So. 2d 806, 818 (¶53) (Miss.

2003).        Prenuptial agreements also have the heightened requirement of being fair in the

execution. Estate of Hensley, 524 So. 2d at 327. “Fair in the execution” means that the

agreement must be entered into voluntarily, and each party must disclose his or her financial

assets. Id., see also Mabus v. Mabus, 890 So. 2d at 818-19 (¶53). We hold that the

chancellor did not err in finding the agreement was voluntarily entered into with fair

disclosure.




                                                7
¶15.   Fair disclosure can be found either by the parties providing financial disclosure

statements or by their independent knowledge of each other’s financial state. In the case sub

judice, the chancellor resolved the conflicting testimony about whether the financial

statements were attached in Hobson’s favor, finding that they were attached to the prenuptial

agreement. Upon review, we cannot hold that the chancellor’s finding was manifest error.

¶16.   Tanya also had the advice of independent counsel that the agreement was one-sided,

and she chose to proceed. Independent counsel is not necessarily required in order for a

prenuptial agreement to be procedurally conscionable. Mabus, 890 So. 2d at 821 (¶ 63).

However, whether parties had a reasonable opportunity to consult with independent counsel

if they so desired is an important consideration in evaluating the overall procedural

conscionability of the contract. Id. Although the agreement was signed in close proximity

to the wedding, the informal nature and scope of the wedding, combined with the presence

of independent counsel and the attachment of the financial disclosures, does not indicate a

level of coercion or surprise that would make Tanya’s entry into the agreement involuntary.

Accordingly, we hold that the chancellor did not err in finding the prenuptial agreement to

be procedurally conscionable.

       II.    Whether the chancellor erred in failing to consider the substantive
              unconscionability of the prenuptial agreement.

¶17.   Confusion has arisen in Mississippi as to whether courts should consider the

substantive unconscionability of prenuptial agreements. The chancellor in the instant case

stated in his Final Decree of Divorce that “some states look at both substantive and

procedural unconscionability, Mississippi courts do not.” The lack of clarity in the law has



                                             8
arisen perhaps because of the Mabus Court’s use of the phrase “fundamental fairness”

instead of “substantive unconscionability.” The Mabus Court wrote as follows:

       The claim that the estates of the parties are so disparate that it questions
       fundamental fairness is of no consequence. An antenuptial agreement is as
       enforceable as any other contract in Mississippi. Of course, there must be
       fairness in the execution and full disclosure in an antenuptial agreement in
       Mississippi.

Id. at 821 (¶ 64) (internal citations omitted). The above-quoted language constitutes a

holding that the Mabus prenuptial agreement was not fundamentally unfair but falls short of

a blanket prohibition against considering substantive unconscionability in all prenuptial

agreements.    The Mabus Court’s language does not prohibit considering substantive

unconscionability in prenuptial agreements as a rule of law. Mabus also makes two further

assertions that have confused our law of prenuptial agreements.

¶18.   First, Mabus states that a prenuptial agreement is a contract like any other contract

that is subject to the same rules of construction and interpretation applicable to contracts.

Mabus, 890 So. 2d at 819 (¶53) (citing Estate of Hensley, 524 So. 2d at 327). However,

prenuptial agreements cannot be contracts like any other if courts cannot consider whether

a prenuptial agreement can be substantively unconscionable. “The law of Mississippi

imposes an obligation of good faith and fundamental fairness in the performance of every

contract . . . this requirement is so pronounced that courts have the power to refuse to enforce

any contract . . . in order to avoid an unconscionable result.” Sawyers v. Herrin-Gear

Chevrolet Co., 26 So. 3d 1026, 1034-35 (¶ 21) (Miss. 2010) (emphasis added); see also

Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds ex rel. Braddock, 14 So.

3d 695, 705 (¶13) (Miss. 2009).

                                               9
¶19.   Within contract law, there are many different types of contracts. The Legislature has

carved out a remedy for unconscionable sales contracts. See Miss. Code Ann. § 75-2-302

(Rev. 2002). However, Section 75-2-302 has been applied to other types of contracts, such

as arbitration contracts. Covenant Health & Rehab. of Picayune, 14 So. 3d at 706.

Similarly, the Court has analyzed the unconscionablity of domestic relations contracts. See

id. (“We also have found contracts to be unconscionable for clauses other than arbitration

agreements.”); In the Matter of Johnson’s Will, 351 So. 2d 1339 (Miss. 1977) (considering

unconscionability for a contract between a husband and wife preventing a wife from revoking

her husband’s will); West v. West, 891 So. 2d 203, 213 (Miss. 2004) (“A contract may be

either procedurally or substantively unconscionable.”). Accordingly, because prenuptial

agreements are contracts like any other, substantive unconscionability must be considered.

¶20.   The Court has even gone further and defined an unconscionable contract in domestic

relations contracts.   “[I]t is also the law that courts of equity will not enforce an

unconscionable contract. In Terre Haute Cooperage, Inc. v. Branscome, 203 Miss. 493, 35

So. 2d 537 (1948), this Court defined an unconscionable contract as ‘one such as no man in

his senses and not under a delusion would make on the one hand, and as no honest and fair

man would accept on the other.’” In re Johnson, 351 So. 2d at 1341; see also West, 891 So.

2d at 213 (¶ 27) (“Substantively, the terms of the property settlement agreement are less than

desirable, but we cannot say that no spouse in his or her right mind would agree to what is,

at worst, a begrudging but generous offer . . . to provide alimony . . . .”).

¶21.   Second, the Mabus Court appears to have considered substantive unconscionability

after stating fundamental fairness was of no consequence. In In re Johnson, the Court

                                              10
explained how to determine if a contract is unconscionable: “In determining whether this

contract was unconscionable, it is necessary to analyze what the widow was to receive under

the will in contrast to her rights absent the will under the laws of descent and distribution.”

In re Johnson, 351 So. 2d at 1342. In other words, the Court considered what the wife

would have received if the contract had not existed and if the wife was able to renounce her

husband’s will. Similarly, even in light of the premarital agreement, the Mabus Court

considered the White factors for lump sum alimony and the Ferguson factors for distribution

of the marital property. Mabus, 890 So. 2d at 821-23 (¶¶65-71) (citing White v. White, 557

So. 2d 480, 483 (Miss. 1989); Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994)). Also,

in Estate of Hensley, in determining whether the prenuptial agreement between the husband

and wife was enforceable, the Court noted that “a full reading of the record divulges that Mr.

Hensley had actually been very benevolent.” Estate of Hensley, 524 So. 2d at 328. Thus,

Mississippi has implicitly considered the substantive unconscionablity of premarital

agreements.    We hold that, given the contract law on unconscionability, substantive

unconscionability for premarital agreements must be considered by trial courts.

¶22.   Contract law has largely, with the exception of the sale of goods, remained common

law. Therefore, inevitably, contradictions arise. Unconscionability looks at the terms of the

contract. See West, 891 So. 2d at 213. Unconscionability also looks at the circumstances

existing at the time the contract was made. Vicksburg Partners, L.P. v. Stephens, 911 So.

2d 507, 517 (¶ 22) (Miss. 2005), overruled on other grounds by Covenant Heath & Rehab.




                                              11
of Picayune, LP v. Estate of Moulds ex rel. Braddock, 14 So. 3d 695 (Miss. 2009).1 We

hold that substantive unconscionability feasibly could be measured at the time the prenuptial

agreement is made; measuring it at the time the agreement is made would maintain

consistency in the law. It also would ensure that the Court does not “relieve a party to a

freely negotiated contract of the burdens of a provision which becomes more onerous than

had originally been anticipated.” Mabus, 890 So. 2d at 819 (¶53) (quoting Estate of Hensley,

524 So. 2d at 328).

¶23.   Because the chancellor in the case sub judice operated under the erroneous conclusion

that the prenuptial agreement could not be analyzed for substantive unconscionability, we

reverse and remand the case for him to do so. We decline the dissent’s invitation to conduct

that analysis for the first time on appeal, because the error consisted of making no finding

at all rather than the wrong finding. In other words, there is no decision on point for us to

analyze for error.

       III.   Whether the chancellor erred in finding joint bank account funds
              were not commingled.

¶24.   Tanya argues the chancellor improperly found certain assets not commingled for

purposes of making an equitable distribution of marital property. Included in the charge of

error is a joint bank account. The chancellor found that the joint bank account was a




       1
        Vicksburg Partners held two clauses of an arbitration agreement to be
unconscionable. Vicksburg Partners, 911 So. 2d at 523-24 (¶¶42, 45). Subsequently, in
Covenant Health, the Court considered the many jurisdictions that have found contracts to
be unconscionable. Covenant Health, 14 So. 3d at 703-07 (¶¶26-33). Under the same basic
rules of unconscionability, the Court held that an arbitration contract, similar to the one in
Vicksburg Partners, was completely unconscionable. Id. at 525-26 (¶ 49).

                                             12
clearinghouse for Hobson’s money and could be traced back to Hobson. He accordingly held

that, under the prenuptial agreement which provided that property that could be traced to one

spouse belonged to that spouse, the money traceable to Hobson was not commingled and not

a marital asset.

¶25.   We hold that the money deposited into the joint checking account became a marital

asset subject to equitable division because of its familial use. See A & L, Inc. v. Grantham,

747 So. 2d 832, 838 (Miss. 1999) (“[N]on-marital assets may be converted to marital assets

if they are commingled with marital assets or used for familial purposes, absent an agreement

to the contrary.”) (citing Heigle v. Heigle, 654 So. 2d 895, 897 (Miss. 1995)). While it is

true that Hobson was the only one depositing money into the account, and that the funds

could be traced solely to him, Mississippi’s jurisprudence clearly establishes that property

is presumed to be marital property unless it can be shown to have been exchanged for a

separate, and not a familial, asset or function. Maslowski v. Maslowski, 655 So. 2d 18, 20

(Miss. 1995).

¶26.   In the case sub judice, the chancellor treated the joint account as separate because the

monies deposited could be traced solely to Hobson. The chancellor determined that Tanya

made no contributions. However, the chancellor erred by failing to address the familial use

of the funds and Tanya’s contribution in helping to disburse the funds for the familial

purposes. Under the law cited above, her contributions and the familial use to which the

money in the joint account was put changed the legal nature of the money in the account

from separate property subject to tracing to marital property. Absent a contractual provision

that indicates the parties intended familial use monies to be separate and subject to tracing,

                                             13
thereby waiving the operation of law that so converts it, we are constrained to hold the

parties intended for our law regarding familial use to apply.2

¶27.   We acknowledge that Tanya and Hobson could have drafted the prenuptial agreement

to address funds commingled for familial use, see A & L, Inc., 747 So. 2d at 838; Heigle,

654 So. 2d at 897, but they did not. In the absence of such contractual language, the law

regarding commingled, familial use money applies.

                                       CONCLUSION

¶28.   Although we herein express no opinion regarding whether the contract at issue in the

instant case is substantively unconscionable, we hold that prenuptial agreements are contracts

like any other, and therefore subject to substantive unconscionability analysis. Furthermore,

we reverse the chancellor’s finding that the joint bank account funds were not commingled.

After due consideration of the other issues raised, we discern no other errors. Accordingly,

we remand the case to Monroe County Chancery Court for a determination of whether the

prenuptial agreement was substantively unconscionable at the time it was entered into by the

parties and other further proceedings consistent with the instant opinion.

¶29.   AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

    WALLER, C.J., LAMAR, KITCHENS, PIERCE, AND KING, JJ., CONCUR.
RANDOLPH, P.J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED IN PART BY CHANDLER, J.
CHANDLER, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE


       2
         It is interesting to note that the Mabus Court placed great importance on the fact that,
in Mabus, the parties “meticulously maintained separate accounts for their premarital
separate property and for the gifts and inheritances that they each received during the
marriage.” Mabus, 890 So. 2d at 823 (¶ 71). By creating the join account at issue, the
parties in the case sub judice were not so meticulous.

                                               14
WRITTEN OPINION JOINED BY DICKINSON, P.J. RANDOLPH, P.J., JOINS IN
PART.

     RANDOLPH, PRESIDING JUSTICE, CONCURRING IN PART AND
DISSENTING IN PART:

¶30.   I concur with part I of the majority’s opinion, and I join in part only with Justice

Chandler’s dissenting opinion, specifically ¶33,¶34, and ¶37. My dissent as to part II of the

majority follows. We should consider the circumstances at the time the contract was made

to determine whether unconscionability exists. (Maj. Op. ¶22). Furthermore, this Court will

not “relieve a party to a freely negotiated contract of the burdens of a provision which

becomes more onerous than originally anticipated.” (Maj. Op. ¶22 (citing Mabus v. Mabus,

890 So. 2d 806, 819 (Miss. 2003) (citations omitted)). Here, it is undisputed that Tanya

sought and obtained legal advice from independent counsel, who instructed her that the

agreement was one-sided. She chose to disregard that substantive advice and executed the

negotiated agreement. Based on the facts specific to this case, no court should consider

substantive unconscionability.

¶31.   Although the chancellor’s decision was indeed premised on the wrong reason, our

appellate courts have regularly affirmed trial courts that reach the right result albeit for the

wrong reason. See State v. Buckhalter, 119 So. 3d 1015, 1019 (Miss. 2013); Powell v.

Crawley, 106 So. 3d 864, 866 (Miss. Ct. App. 2013); Tedford v. Dempsey, 437 So. 2d 410,

418 (Miss. 1983) (citing Huffman v. Griffin, 337 So. 2d 715, 723 (Miss. 1976)).

Accordingly, I would find that review for substantive unconscionability is not required in this

case under the facts presented.

       CHANDLER, J., JOINS THIS OPINION IN PART.

                                              15
    CHANDLER, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶32.   I respectfully dissent. Given that the contract formation was procedurally

conscionable, I do not find that the facts of this case warrant a review of the substantive

conscionability of the property-division provisions at the time of contract formation. At most,

this Court should consider whether to isolate the spousal-support waiver and review it for

conscionability at the time of divorce. Additionally, this Court treats contract conscionability

as a question of law this Court can determine on appeal without remand. Caplin Enterprises,

Inc. v. Arrington, 145 So. 3d 608, 614 (Miss. 2014). To promote judicial efficiency and

preclude unnecessary rounds of appeals in the future, the majority should accept that task

here and remand only if a determination of conscionability requires an alternate division of

property and alimony than the lower court already has made.

¶33.   While I do not believe that prenuptial agreements should be completely immune from

substantive-unconscionability considerations, I also firmly believe that the doctrine of

unconscionability under general contract law cannot apply to prenuptial agreements.3 The

decision to marry is not an arms-length commercial transaction, but rather is grounded in

personal, moral, religious, and emotional considerations that are off-limits to strangers to the

relationship. By imposing the contract doctrine of unconscionability on prenuptial

agreements, the majority leaves our chancellors to forage in the dark, with no guidance as

to many issues, for instance, whether a prospective marriage partner with children from a




       3
         In recognition that prenuptial contracts involve unique concerns, a growing majority
of states have adopted some version of the Uniform Prenuptial Agreement Act.

                                              16
previous marriage may protect and provide for those children in a prenuptial agreement,

without fear that a court will void the agreement as unconscionable and leave the children

at the mercy of the former spouse.

¶34.   This Court made very clear in Mabus that parties are free to bind themselves to

property-division agreements that may be or may become one-sided. We stated in that case:

       . . . the chancellor determined that Julie freely negotiated the agreement, and
       the chancery court would not relive her of the obligation even if it was a bad
       bargain. The claim that the estates of the parties are so disparate that it
       questions fundamental fairness is of no consequence. An antenuptial
       agreement is as enforceable as any other contract in Mississippi. Smith, 656
       So. 2d at 1147. Of course, there must be fairness in the execution and full
       disclosure in an antenuptial agreement in Mississippi. Id. Both Julie and Ray
       signed a valid agreement. Had the tables been turned and Julie’s estate
       increased in value while Ray’s estate decreased in value from the time of the
       agreement, Julie would presumably want this Court to uphold the agreement
       to her benefit. The parties made this agreement to protect their assets. The fact
       that over time one party had the fortune of increasing their assets is not a
       reason to abolish or invalidate the agreement. At the time the agreement was
       made the parties wanted to protect premarital and inheritance assets, the
       agreement has done exactly what it was intended to do. All contracts involve
       some type of risk; this agreement was no different.

Mabus v. Mabus, 890 So. 2d 806, 821 (Miss. 2003) (emphasis added). In light of the whole

Court’s agreement that this contract was procedurally conscionable, the reasoning above

should control this Court today to uphold the property-division provisions of the contract.

¶35.   However, I would acknowledge that a prenuptial contract can be conscionable in its

property divisions but unconscionable in its alimony provisions. Permitting an isolated

review of spousal-support provisions and waivers at the time of divorce is a good way to

approach a contract that both is and is not like any other contract. Marriage is hardly your

ordinary consideration. It is extremely difficult if not impossible to predict how life will



                                              17
require the responsibilities of a marriage to be divided regarding noneconomic contributions.

Electing economic dependence for the purpose of furthering the goals of the marriage can

prevent an individual from accumulating economic skills and assets he or she otherwise

would have secured over time. Public policy favors protecting individuals who place

themselves in that position.

¶36.   Permitting this bifurcated review of property division and spousal support would

better enable attorneys to draft enforceable prenuptial contracts with confidence and would

give chancellors more accessible tools for deciding challenges to such agreements. I disagree

with the dissent that a substantive review of the property divisions of the contract is

appropriate, given that the contract formation was procedurally conscionable. At most, this

Court should conduct a limited review of the waiver of spousal support for fairness at the

time of divorce.

¶37.   I also disagree with the majority’s conclusion that the prenuptial agreement does not

adequately provide that money kept in a joint account and used for familial purposes is

covered by the prenuptial agreement.4 One of the fundamental characteristics of contract law

is that contracts are used to create an alternate controlling law to the default common law.

The use of separate funds for marital purposes can result in a finding that the funds are

marital property subject to division, absent an agreement to the contrary. See Johnson v.




       4
        The creation of a joint banking account, while creating a right of withdrawal, does
not automatically act to create an ownership interest. Smith v. Smith, 656 So. 2d 1143, 1147
(Miss. 1995).

                                             18
Johnson, 650 So. 2d 1281; A &L, Inc., v. Grantham, 747 So. 2d 832 (Miss. 1999). Here,

we have such an agreement. The agreement provides in part:

       . . . any property hereafter acquired by each that shall be traceable to
       proceeds or appreciation from their separate property as set forth herein, shall
       for testamentary, intestate succession, and for their lifetimes and for any and
       all other purposes, be free from any claim of the other that may arise by reason
       of the contemplated marriage, notwithstanding any and all State laws to the
       contrary . . . .

I cannot agree with the majority that the common-law approach to marital use of property

supercedes the contract. The opposite is true. The contract should control.

¶38.   For all these reasons, I therefore respectfully dissent.

     DICKINSON, P.J., JOINS THIS OPINION. RANDOLPH, P.J., JOINS THIS
OPINION IN PART.




                                              19
