[Cite as In re Parrett v. Wright, 2017-Ohio-764.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 IN THE MATTER OF:              :
 RICHARD L. PARRETT             :
                                :  C.A. CASE NO. 2015-CA-96
     Plaintiff-Appellant        :
                                :  T.C. NO. 20150118A
 v.                             :
                                :  (Civil appeal from Common
 EDWARD D. WRIGHT, EXECUTOR     :   Pleas Court, Probate Division)
                                :
     Defendant-Appellee         :
                                :
                           ...........

                                                OPINION

                 Rendered on the ___3rd ___ day of _____March_____, 2017.

                                                ...........

DAVID D. HERIER, Atty. Reg. No. 0068990, 451 Upper Valley Pike, Springfield, Ohio
45504
      Attorney for Plaintiff-Appellant

WILLIAM D. WEST, Atty. Reg. No. 0018465, 20 S. Limestone Street, Suite 120,
Springfield, Ohio 45502
      Attorney for Defendant-Appellee

                                              .............

DONOVAN, J.

        {¶ 1} Plaintiff-appellant Richard L. Parrett appeals a decision of the Clark County

Court of Common Pleas, Probate Division, dismissing his complaint to set aside an

antenuptial agreement he entered into with his now deceased wife, Ellen Schwartz
                                                                                        -2-


Parrett, and finding that said agreement was valid and enforceable. Richard filed a

timely notice of appeal with this Court on October 22, 2015.

       {¶ 2} The record establishes that on June 20, 2005, Richard and Ellen entered into

an antenuptial agreement (hereinafter “the agreement”). Neither party was represented

by an attorney when they entered into the agreement. The agreement itself was drafted

by Ellen’s son and the executor of her estate, defendant-appellee, Edward W. Wright.

On the same day, the agreement was hand carried to a clerk in the Clark County Probate

Court who notarized it in a handwritten notation at the bottom of the document. The

parties lived together as husband and wife until January 2, 2015, when Ellen passed away

due to complications from Alzheimer’s disease.

       {¶ 3} On April 9, 2015, Richard filed a complaint to set aside the antenuptial

agreement, arguing that he signed it under duress at the insistence of Ellen and her son,

Edward.    Richard also asserted that at the time he signed the agreement, he was

unaware of the value and extent of Ellen’s income and property, both real and personal.

Thereafter, Edward filed an answer to Richard’s complaint on April 27, 2015.

       {¶ 4} On September 15, 2015, the matter proceeded to a trial to the bench. On

September 25, 2015, the trial court issued a decision dismissing Richard’s complaint and

finding the antenuptial agreement to be enforceable. Specifically, the trial court found

that Richard failed to meet his burden to prove that he was not sufficiently appraised of

the extent of Ellen’s assets at the time that the parties entered into the agreement. The

trial court further found that Richard entered into the agreement voluntarily and not under

duress or as a result of fraudulent inducement.

       {¶ 5} It is from this judgment that Richard now appeals.
                                                                                          -3-


       {¶ 6} Richard’s sole assignment of error is as follows:

       {¶ 7} “DID THE TRIAL COURT ERR IN FINDING THAT THE PLAINTIFF-

APPELLANT, RICHARD L. PARRETT, HAD THE BURDEN OF PROVING A FULL

DISCLOSURE OR KNOWLEDGE OF THE NATURE, EXTENT, AND VALUE OF THE

OTHER SPOUSE’S PROPERTY WHEN HIS DECEASED WIFE’S EXECUTOR

ATTEMPTS TO USE AN ANTENUPTIAL AGREEMENT TO COMPLETELY DISINHERIT

HIM FROM HIS WIFE’S ESTATE?”

       {¶ 8} In his sole assignment, Richard contends that the trial court erred when it

held that the antenuptial agreement was valid and enforceable. Specifically, Richard

argues that the trial court erred when it found that he “failed to meet the burden of proving

*** that he was not sufficiently appraised of the assets of Ellen at the time that the

Antenuptial Agreement was signed on June 20, 2005.” Richard asserts that the burden

was on Ellen’s estate to establish that he entered into the antenuptial agreement with the

benefit of full knowledge or disclosure of the assets of the proponent.

       {¶ 9} An antenuptial agreement is a contract entered into between prospective

spouses in contemplation and consideration of their future marriage, whereby the

property rights and economic interests of either or both of the prospective spouses are

determined and set forth. Rowland v. Rowland, 74 Ohio App.3d 415, 419, 599 N.E.2d

315 (4th Dist. 1991).      These agreements may include provisions concerning the

disposition or devolution of property and payments for sustenance upon the death of one

or other of the spouses, or provisions for the distribution of property and the sustenance

or maintenance of one or other of the spouses, upon a separation or divorce, or any

combination of the concerns between the parties. See Gross v. Gross, 11 Ohio St.3d
                                                                                         -4-


99, 464 N.E.2d 500 (1984).

       {¶ 10} Although antenuptial agreements are not per se invalid, they must meet

certain minimum standards of good faith and fair dealing. Zimmie v. Zimmie, 11 Ohio

St.3d 94, 98, 464 N.E.2d 142 (1984). The parties to an antenuptial agreement are in a

fiduciary relationship to one another and, thus, are under a mandatory duty to act in good

faith with a high degree of fairness and disclosure of all circumstances which materially

bear on the antenuptial agreement. Gross, 11 Ohio St.3d at 108, 464 N.E.2d at 508; see,

also, Cohen v. Estate of Cohen, 23 Ohio St.3d 90, 491 N.E.2d 698 (1986).

       {¶ 11} The test in Ohio for the validity of an antenuptial agreement is set forth

in Gross, paragraph two of the syllabus: “Such agreements are valid and enforceable (1)

if they have been entered into freely without fraud, duress, coercion, or overreaching; (2)

if there was full disclosure, or full knowledge and understanding of the nature, value and

extent of the prospective spouse's property; and (3) if the terms do not promote or

encourage divorce or profiteering by divorce.” The Ohio Supreme Court has also held

that the validity of an antenuptial agreement is a question of fact for the trial court, and

the trial court's decision will not be reversed absent an abuse of discretion. Bisker v.

Bisker, 69 Ohio St.3d 608, 609–610, 635 N.E.2d 308 (1994).

       {¶ 12} “Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482

N.E.2d 1248 (1985). It is to be expected that most instances of abuse of discretion will

result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

       {¶ 13} A decision is unreasonable if there is no sound reasoning process that
                                                                                            -5-


would support that decision. It is not enough that the reviewing court, were it deciding

the issue de novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would support a contrary

result.     AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

          {¶ 14} When an antenuptial agreement provides disproportionately less than the

party challenging it would have received under an equitable distribution, the burden is on

the one claiming the validity of the contract to show that the other party entered into it with

the benefit of full knowledge or disclosure of the assets of the proponent. Fletcher v.

Fletcher, 68 Ohio St.3d 464, 467, 628 N.E.2d 1343 (1994). This burden shifting is in

derogation of traditional contract principles because ordinarily a party asserting the

invalidity of a contract bears the burden of proving a defense to it. Id.; see Ohio Loan &

Discount Co. v. Tyarks, 173 Ohio St. 564, 184 N.E.2d 374 (1962), paragraph two of the

syllabus.

          {¶ 15} In Messer v. Messer, 2d Dist. Darke No. 1570, 2002-Ohio-4196, we affirmed

a trial court’s decision invalidating the parties' antenuptial agreement. The trial court's

decision was partly based on the husband’s lack of disclosure of assets in the antenuptial

agreement prepared by his attorney and signed by his wife two months before the parties’

marriage. Therein, we stated the following:

                 Furthermore, the record also supports the trial court's finding that

          assets were not disclosed. In this regard, Gross indicates that disclosure is

          “satisfied either by the exhibiting of the attachment to the antenuptial

          agreement of a listing of the assets of the parties to the agreement, or
                                                                                           -6-


       alternatively a showing that there had been a full disclosure by other

       means.” Id. at 105. The agreement in the present case did not refer to any

       assets, other than a house George owned at the time, nor was any list

       attached to the agreement. Diane testified that she was not aware of

       George's other assets, including retirement funds, bank accounts, or

       vehicles. Similarly, George testified that at the time of the agreement, he

       owned a house trailer, a whole life policy of insurance through GM, a GM

       pension, and a vehicle. Admittedly, none of these items was disclosed in

       the agreement. Thus, the evidence of record supports the trial court's

       finding that assets were not disclosed.

Id. at ¶ 32.

       {¶ 16} Initially, we note that in its decision finding the antenuptial agreement to be

valid and enforceable, the trial court improperly placed the burden on Richard of proving

that he was not sufficiently appraised of Ellen’s assets at the time that the parties entered

into the agreement. As previously stated, when an antenuptial agreement provides

disproportionately less than the party challenging it would have received under an

equitable distribution, the burden is on the one claiming the validity of the contract to show

that the other party entered into it with the benefit of full knowledge or disclosure of the

assets of the proponent. Fletcher, 68 Ohio St.3d at 467. Accordingly, the burden was on

Edward, as the representative of Ellen’s estate, to adduce evidence which established

that Richard entered into the antenuptial agreement with the benefit of full knowledge or

disclosure of Ellen’s assets. Only in this way would Edward be able to affirmatively

establish that the antenuptial agreement was valid and enforceable against Richard.
                                                                                         -7-


       {¶ 17} Furthermore, even if the trial court had properly placed the evidentiary

burden on Edward, the record affirmatively suggests that Richard was not sufficiently

appraised of Ellen’s assets at the time that the parties entered into the antenuptial

agreement. The parties’ antenuptial agreement states in pertinent part:

       *** [N]ow, therefore, in consideration of said Richard L. Parrett and Ellen J.

       Schwartz consummating the said contract of marriage, said Richard L.

       Parrett and Ellen J. Schwartz hereby agree to waive and release and

       forever quit claim and renounce all dower, curtesy, and other interest in and

       to the said real estate and personal property that said Richard L. Parrett

       and Ellen J. Schwartz may now have or hereafter acquire by means

       whatever.

       ***

       And in consideration of the consummation of said marriage, Richard L.

       Parrett and Ellen J. Schwartz hereby release, cancel and waive all claims

       to all property of said Richard L. Parrett and Ellen J. Schwartz to which they

       might be entitled as wife or widow, husband or widower.

       {¶ 18} Similar to the invalidated agreement in Messer, there was no attachment to

the antenuptial agreement of a listing of Ellen’s assets. The antenuptial agreement only

generally refers to any “real estate and personal property” owned presently or in the future

by either party. The antenuptial agreement in the instant case did not specifically refer

to any of Ellen’s assets, nor was any list attached to the agreement. Richard testified

that at the time the parties entered into the antenuptial agreement that he was aware that

Ellen owned the house in which she lived at 259 South Arlington Avenue in Springfield,
                                                                                        -8-


Ohio, the furniture in the house, and a motor vehicle. Richard also testified that he was

aware that Ellen was receiving Social Security payments on a monthly basis. Other than

the house, furniture, and vehicle, which were not specifically listed in the antenuptial

agreement or attached documentation, Richard testified that he was unaware of any

additional assets or property, real or personal, owned by Ellen at the time the agreement

was executed or thereafter.

      {¶ 19} Significantly, evidence was adduced that Ellen had undisclosed bank

accounts at Key Bank, West Bank, and Huntington Bank. One of those bank accounts

contained over $17,000.00 at the time of Ellen’s passing. Richard testified that he was

unaware that any of these bank accounts existed until they were revealed during

discovery in the instant case. As a result of the discovery process, Richard testified that

he also learned that Ellen owned an interest in two real estate properties along with one

of her sons, Mark Wright.     Finally, evidence was adduced that Ellen was receiving

payments from the sale of Thomas Tape, a business that she co-owned with her previous

deceased husband. Admittedly, none of these assets were disclosed to Richard in the

antenuptial agreement or at any point thereafter. Thus, the evidence of record supports

the conclusion that assets were not disclosed. Messer at ¶ 32.

      {¶ 20} Upon review, we conclude that the trial court improperly placed the burden

on Richard of proving that he was not sufficiently appraised of Ellen’s assets at the time

that the parties entered into the agreement.

      {¶ 21} Richard’s sole assignment of error is sustained.

      {¶ 22} Richard’s sole assignment of error having been sustained, the judgment of

the trial court is reversed, and this matter is remanded to the trial court for further
                                                  -9-


proceedings consistent with the opinion.

                                     ..........

HALL, P.J., and FROELICH, J., concur.

Copies mailed to:

David D. Herier
William D. West
Hon. Richard P. Carey
