Filed 1/24/18
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION FIVE


In re the Marriage of MATTHEW W.
CLARKE and CLAUDIA G. AKEL.


MATTHEW W. CLARKE,
        Respondent,                                A149052
v.
                                                   (San Mateo County
CLAUDIA G. AKEL,                                   Super. Ct. No. FAM0120913)
        Appellant.


        Under Family Code section 1615, subdivision (c)(2), a premarital agreement is
unenforceable as to a party who was not represented by counsel and who did not have at
least seven calendar days between the date he or she was “first presented” with the
agreement and the date it was signed. (In re Marriage of Hill and Dittmer (2011) 202
Cal.App.4th 1046, 1055 (Hill); In re Marriage of Caldwell-Faso & Faso (2011) 191
Cal.App.4th 945, 949 (Caldwell-Faso).) Evidence Code section 622 provides that the
facts recited in a written instrument, other than the recital of a consideration, “are
conclusively presumed to be true as between the parties thereto[.]”
        We conclude that when the evidence shows an unrepresented party to a premarital
agreement was not provided with the seven-day period for review required by Family
Code section 1615, subdivision (c)(2), the agreement’s recitation that the review period
was provided is not binding. In other words, the seven-day review period may not be
circumvented by inserting language into a premarital agreement acknowledging that both
sides had seven days to review the agreement, when in fact they did not. We also


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conclude that Family Code section 1615, subdivision (c)(3), which requires a written
advisement and waiver of an unrepresented party’s rights under a premarital agreement,
applies to an agreement that was initially generated by the unrepresented party. We
therefore affirm the trial court’s order determining the premarital agreement in this case
to be unenforceable.
                                   I. BACKGROUND
       Respondent Matthew Clarke (Matthew) and appellant Claudia Akel (Claudia)1
became engaged to be married and set a wedding date of March 7, 2008. On February
26, 2008, Mathew downloaded a form from Nolo Press and used it as a basis for a draft
premarital agreement, which he emailed to Claudia. Among other things, and as relevant
here, the draft agreement provided that Matthew owned the real property at 538 Palomar
Drive, that the property would continue to be Matthew’s separate property after the
marriage, that the property would become community property “after 7 years of
marriage,” that Claudia would own a two-percent interest in the property for every year
they were married if the couple divorced before seven years of marriage, and that
“Claudia and any children will have lifetime tenancy in the house.”
       Matthew retained attorney Clifford Chernick to represent Claudia in the
negotiation and execution of the premarital agreement. Matthew did not believe he
needed an attorney himself and never sought the advice of an attorney regarding the
agreement. On February 29, 2008, Mathew emailed a copy of the draft premarital
agreement to Chernick’s office. On March 3, 2008, Matthew emailed a revised draft of
the agreement to Chernick’s office, which contained the same provisions regarding 538
Palomar Drive as the original draft. Chernick reviewed the drafts and made some notes
regarding questions he had.
       Attorney Chernick met with Claudia and Matthew in person on March 4, 2008.
Chernick advised Matthew he should seek independent legal counsel, but Matthew told


1
        As is customary in marital proceedings, the parties refer to themselves by their
first names. We adopt this convention.


                                             2
Chernick he was able to represent himself. Chernick spoke to Claudia outside Matthew’s
presence to make sure she understood the agreement. He also discussed some of the
provisions of the draft agreement with Matthew, including (1) what was meant by
“divorce” (separation, filing for dissolution, final judgment of dissolution) in the
provision giving Claudia a percentage interest in 538 Palomar Drive if they divorced
before seven years of marriage; and (2) whether Matthew intended to waive his right to
reimbursement of his separate property interest in 538 Palomar Drive pursuant to Family
Code section 2640 if that property was transmuted to community property after seven
years, as provided in the agreement.2
       On March 5, 2008, the day after the meeting, Chernick revised the agreement and
sent both an unmarked and a red-lined version to Matthew and Claudia. The draft
prepared by Chernick contained additional provisions that had not been included in the
original drafts prepared by Matthew: (1) both parties waived any separate property
interest they might have in their community property, including any right to
reimbursement under Family Code section 2640; (2) Matthew specifically waived his
right to reimbursement of separate property contributions to 538 Palomar Drive; and (3)
Matthew agreed to pay all expenses on the property at 538 Palomar Drive as long as
Claudia’s lifetime tenancy continued. The agreement also stated that each party had had
more than seven days to review the premarital agreement before executing it.
       The parties signed a final version of the premarital agreement on March 6, 2008,
which was substantially the same as that provided by Chernick on March 5, and which
included the language acknowledging that each party had had more than seven days to
review the agreement. Matthew executed a separate written waiver of legal counsel on
the same date acknowledging that attorney Chernick was representing only Claudia, that

2
       Family Code section 2640, subdivision (b), provides in relevant part: “In the
division of the community estate under this division, unless a party has made a written
waiver of the right to reimbursement or has signed a writing that has the effect of a
waiver, the party shall be reimbursed for the party's contributions to the acquisition of
property of the community property estate to the extent the party traces the contributions
to a separate property source.”


                                              3
Chernick had advised him to retain independent legal counsel, and that he was financially
able to do so but was electing to waive his right to consult with an independent attorney
before signing the agreement.
       The parties separated in 2013 or 2014, and this dissolution action ensued. Claudia
sought enforcement of the premarital agreement and in particular the provision giving her
a lifetime tenancy at 538 Palomar Drive. The issue was bifurcated and a trial was held at
which Matthew, Claudia and Chernick testified to the facts set forth above.
       The trial court concluded the agreement was unenforceable under Family Code
section 1615, subdivision (c)(2), because Matthew was not presented with the final
version of the agreement at least seven days before its execution. The court also found
the agreement to be unenforceable under Family Code section 1615, subdivision (c)(3),
because Matthew had not been provided with a written advisement of the rights he was
relinquishing under the agreement and did not execute a written waiver of those rights.
The order was certified for immediate appeal. (Fam. Code, § 2025; Cal. Rules of Court,
rule 5.392.)
                                    II. DISCUSSION
       Family Code section 1615 provides that a premarital agreement is not enforceable
if it is not entered into “voluntarily.” (§ 1615, subd. (a)(1.).) Under Family Code section
1615, subdivision (c), it shall be deemed that a premarital agreement was not executed
voluntarily unless the trial court makes five findings, including “(1) The party against
whom enforcement is sought was represented by independent legal counsel at the time of
signing the agreement or, after being advised to seek independent legal counsel, expressly
waived, in a separate writing, representation by independent legal counsel. [¶] (2) The
party against whom enforcement is sought had not less than seven calendar days between
the time that party was first presented with the agreement and advised to seek
independent legal counsel and the time the agreement was signed. [¶] (3) The party
against whom enforcement is sought, if unrepresented by legal counsel, was fully
informed of the terms and basic effect of the agreement as well as the rights and
obligations he or she was giving up by signing the agreement, and was proficient in the


                                             4
language in which the explanation of the party’s rights was conducted and in which the
agreement was written. The explanation of the rights and obligations relinquished shall
be memorialized in writing and delivered to the party prior to signing the agreement. The
unrepresented party shall, on or before the signing of the premarital agreement, execute a
document declaring that he or she received the information required by this paragraph
and indicating who provided that information. [¶] (4) The agreement and the writings
executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or
undue influence, and the parties did not lack capacity to enter into the agreement. [¶] (5)
Any other factors the court deems relevant.”
       Section 1615, subdivision (c), “ ‘places an evidentiary burden upon the party
seeking to enforce a premarital agreement: He or she must be prepared to present
evidence sufficient for the court to make the [] findings; otherwise, the premarital
agreement must be held unenforceable as having been involuntarily executed.”
(Caldwell-Faso, supra, 191 Cal.App.4th 945, 956, quoting (Hogoboom and King,
California Practice Guide: Family Law (The Rutter Group 2010) paragraph 9:152.1, page
9-41.) A trial court’s factual findings regarding the voluntariness of a premarital
agreement are reviewed under the substantial evidence standard, which requires that all
legitimate and reasonable inferences be indulged to uphold the ruling below. (Hill &
Dittmer, supra, 202 Cal.App.4th at p. 1059.) The trial court’s interpretation of a statute is
subject to de novo review. (Diablo Valley College Faculty Senate v. Contra Costa
Community College Dist. (2007) 148 Cal.App.4th 1023, 1031.)
       Under Family Code section 1615, subdivision (c)(2), a premarital agreement may
not be enforced against a party who was not represented during negotiations unless that
party had “seven calendar days between the time that party was first presented with the
agreement and advised to seek legal counsel and the time the agreement was signed.”
(See Caldwell-Faso, supra, 191 Cal.App.4th at p. 962.) Here, the final draft of the
premarital agreement was sent to Matthew by attorney Chernick on March 5, 2007, and
included significant provisions that were not a part of the initial draft prepared by
Matthew himself. In particular, the final draft included a waiver of Matthew’s statutory


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right to reimbursement of his separate property contribution to the home at 538 Palomar
Drive and an agreement that Matthew would pay all of the expenses for the home for the
duration of Claudia’s lifetime tenancy. Given the material nature of these additions to the
original draft, substantial evidence supports the determination that Matthew was “first
presented” with the agreement on March 5. Additionally, Matthew was not “advised to
seek independent legal counsel” until his meeting with Chernick on March 4, 2007.
Whether we calculate the seven-day period as running from March 4, 2007, or March 5,
2007, fewer than seven days elapsed between those dates and the execution of the
premarital agreement on March 6, 2007.
       Claudia argues that Matthew must be deemed to have had seven days to review the
premarital agreement because Paragraph 11(I), inserted by attorney Chernick, stated:
“Each of us acknowledges that he/she received this Agreement more than seven days
before executing it, and had ample time to review this Agreement with independent legal
counsel and other professional advisors before signing it.” Claudia relies on Evidence
Code section 622, which provides, “The facts recited in a written instrument are
conclusively presumed to be true as between the parties thereto, or their successors in
interest; but this rule does not apply to the recital of a consideration.”
       Evidence Code section 622 is based upon the doctrine of estoppel by contract; i.e.,
“the principle that parties who have expressed their mutual assent are bound by the
contents of the instrument they have signed, and may not thereafter claim that its
provisions do not express their intentions or understanding.” (City of Santa Cruz v.
Pacific Gas & Electric Co. (2000) 82 Cal.App.4th 1167, 1176–1177.) The statute does
not apply to situations not involving arm’s length negotiations; moreover, it does not
apply when the contract itself was invalid. (Ibid.; Bruni v. Didion (2008) 160
Cal.App.4th 1272, 1291.) Family Code section 1615, subdivision (c)(2), provides that a
premarital agreement is involuntary, and thus invalid, when an unrepresented party has
had fewer than seven days to review the agreement. The seven-day rule is obviously
designed to protect parties who enter into a premarital agreement without legal



                                               6
representation, and this policy would be thwarted if the rule could be satisfied by the
inclusion of boilerplate language that did not reflect the true facts.
       Even if we were to apply Evidence Code section 622 and conclude that Claudia
met her burden of establishing that Matthew had seven days to review the agreement, we
would not reverse. The trial court determined the premarital agreement was invalid for
an additional reason, namely, that Matthew, as an unrepresented party, was not advised in
writing of the rights he was giving up as a consequence of the agreement and did not
execute a written waiver of those rights, as required by Family Code section 1615,
subdivision (c)(3). Claudia argues this provision does not apply because Matthew
generated the initial draft of the premarital agreement, but the statute contains no
language suggesting that a party who drafts an agreement without the assistance of
counsel can be deemed to have thereby been advised of the rights he or she is waiving or
to have waived those rights. Matthew’s written waiver of his right to counsel, while
sufficient to satisfy Family Code section 1615, subdivision (c)(1), does not satisfy
subdivision (c)(3).
       Finally, Claudia argues that the trial court should have only invalidated the
provisions that were added by attorney Chernick and enforced the remainder of the
premarital agreement, which appellant himself drafted. She reasons that appellant had
more than seven days between the time he generated the first draft of the agreement on
February 26, 2007, and the time he executed the final version on March 6, 2007. We are
not persuaded. Family Code section 1615 renders “a premarital agreement”
unenforceable against a party who did not execute the agreement voluntarily, and further
provides that an agreement is not voluntarily executed unless certain predicates have been
established. (Fam. Code, § 1615, subds. (a), (c).) Given the plain language of the statute,
we are not at liberty to selectively enforce portions of an agreement when any of those
predicates are lacking. (Contrast In re Marriage of Facter (2013) 212 Cal.App.4th 967,
984–985 [unconscionable waivers of spousal and child support were severable from
remainder of 1994 premarital agreement, which was governed by prior version of Family
Code § 1615, providing “ ‘a premarital agreement will be enforced unless the party


                                               7
resisting enforcement of the agreement can demonstrate either (1) that he or she did not
enter into the contract voluntarily, or (2) that the contract was unconscionable when
entered into and that he or she did not have actual or constructive knowledge of the assets
and obligations of the other party and did not voluntarily waive knowledge of such assets
and obligations.’ ”].) And, assuming the portions of the agreement drafted by appellant
could be said to have been “presented” to him seven days before he signed it pursuant to
Family Code section 1615, subdivision (c)(2), there is nothing in writing to show he was
advised of the rights he was giving up and no written waiver of those rights pursuant to
Family Code section 1615, subdivision (c)(3). Thus, even those provisions drafted by
Matthew himself must be deemed to have been involuntarily executed as having been
unaccompanied by the necessary advisement and waiver.
       The trial court did not err in concluding the premarital agreement was invalid due
to a lack of compliance with Family Code section 1615, subdivision (c)(2) and (3).
                                   III. DISPOSITION
       The judgment is affirmed. Costs are awarded to respondent.




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                    NEEDHAM, J.




We concur.




JONES, P.J.




BRUINIERS, J.




(A149052)



                9
Superior Court of San Mateo County, No. FAM0120913, Don R. Franchi, Judge.


Ester Adut for Appellant.


DeLacy Reibel Family Law Group, Charles Howard DeLacey and Eric Leitner for
Respondents.




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