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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


9th Circuit Court – Manchester Family Division
No. 2013-199


       IN THE MATTER OF CHERYL SERODIO AND ARTHUR PERKINS

                          Argued: February 19, 2014
                        Opinion Issued: August 22, 2014

      Primmer Piper Eggleston & Cramer, PC, of Manchester (Doreen F.
Connor on the brief and orally), for the petitioner.


      Dianne Martin, of Bedford, by brief, and Brennan, Caron, Lenehan, &
Iacopino, of Manchester (William E. Brennan orally), for the respondent.

       BASSETT, J. In this interlocutory appeal from an order of the Circuit
Court (Introcaso, J.), the respondent, Arthur Perkins, challenges the court’s
dismissal of his motion to enforce the terms of a prenuptial agreement
(Agreement). See Sup. Ct. R. 8. In its order granting the motion to dismiss
filed by the petitioner, Cheryl Serodio, the trial court ruled that the
respondent’s failure to produce the original or a copy of the Agreement signed
by the petitioner was fatal to his effort to enforce its terms. We reverse and
remand.

       We accept the statement of the case and facts as presented in the
interlocutory appeal statement and rely upon the record for additional facts as
necessary. See Lawrence v. Philip Morris USA, 164 N.H. 93, 95 (2012). The
parties married in 1988. In 2010, the petitioner filed for divorce. In October
2011, the respondent moved to enforce the Agreement, attaching to his motion
a copy of the Agreement that had been signed only by him, and requesting that
the court schedule an evidentiary hearing. In his motion, he alleged, in part,
that:

      1. The Parties entered into [a] Prenuptial Agreement prior to their
         October 8, 1988 marriage, which Agreement identified and
         protected certain assets in the event the marriage ended in
         divorce;

      2. One original document was signed by both parties and was kept
         in the possession of the Petitioner;

      3. Petitioner claims that she is unable to locate the original
         document;

      4. The Respondent possesses a copy of the original Prenuptial
         Agreement and requests that the copy be admitted as evidence
         of the Prenuptial Agreement should the original not be found;

      5. It would be in the best interests of judicial economy to
         determine the validity of the Prenuptial Agreement prior to a
         final hearing to limit the issues to be finally determined and to
         enable the parties to engage in meaningful settlement
         negotiations . . . .

The petitioner objected, stating that she did not recall signing the Agreement,
and that she never possessed an original signed document. She further argued
that, even if she had signed the Agreement, her agreement was not voluntary,
but rather was the product of duress and undue influence.

      In April 2012, the petitioner moved to dismiss the respondent’s motion to
enforce, arguing, among other things, that she should prevail as a matter of
law under the statute of frauds because the respondent had failed to produce a
copy of the Agreement signed by her. She also asserted that the trial court had
no statutory power to consider — or enforce — an oral or unsigned prenuptial
agreement. The respondent objected, arguing that the allegations contained in
his motion to enforce were reasonably susceptible of a construction that would
permit recovery. He also argued that the petitioner could not prevail on her
statute of frauds argument because he had acted in reasonable reliance upon
the existence and enforceability of the Agreement.

       The court held a hearing on November 30, 2012. At that time, counsel
for the respondent acknowledged that the respondent had not been able to
locate the original or a copy of the Agreement that had been signed by the
petitioner. After considering the offers of proof and legal arguments, the trial


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court ruled from the bench, granting the motion to dismiss. In a subsequent
written order, the trial court stated:

      Here, no final, executed Prenuptial Agreement exists. There is a
      request that the Court accept a copy of a draft agreement that is
      not signed by the person against whom it is to be enforced. The
      Court agrees with the Petitioner that this Court has no statutory
      power to consider an oral antenuptial agreement, nor does it have
      statutory power to consider an unexecuted antenuptial agreement.
      The Respondent’s common law and evidentiary arguments that
      might suggest otherwise present such uncertainties that the Court
      could not credibly maintain its standards of fairness in enforcing
      these types of agreements.

(Quotation and citation omitted.) The trial court denied the respondent’s
motion for reconsideration, and this appeal followed.

       On appeal, the respondent argues “[t]hat the trial court overlooked the
standard of review for a motion to dismiss when it failed to assume the truth of
the facts alleged by the [respondent], including the truth of the allegation that a
written, executed [prenuptial] agreement was entered into by the Parties.” The
respondent also argues that the trial court erred because the threshold issue is
whether the signed Agreement, in fact, had existed, not, as the trial court
ruled, whether the signed Agreement presently exists. The petitioner responds
that, since the respondent did not produce a prenuptial agreement signed by
the petitioner, the trial court properly concluded that it had no statutory
authority to enforce the terms of the Agreement. See RSA 506:2 (2010); RSA
460:2-a (2004). The petitioner also argues that the court does not have the
statutory power to enforce an oral or unsigned prenuptial agreement.

       As an initial matter, we observe that the petitioner’s arguments regarding
the enforcement of an oral or unsigned prenuptial agreement focus on the
wrong issue. The respondent is not requesting that the trial court enforce an
oral or unsigned agreement; rather, he is seeking to enforce the terms of a
written, signed prenuptial agreement, notwithstanding the fact that neither a
signed original nor a copy thereof has been produced in court. Accordingly, we
turn to the question before us: whether the factual allegations in the
respondent’s pleadings are reasonably susceptible of a construction that would
permit recovery.

       “In reviewing a motion to dismiss, our standard of review is whether the
allegations in the [respondent’s] pleadings are reasonably susceptible of a
construction that would permit recovery.” Signal Aviation Servs. v. City of
Lebanon, 164 N.H. 578, 582 (2013) (quotation omitted). We assume the
respondent’s allegations to be true and construe all reasonable inferences in
the light most favorable to him. Id. However, we need not accept allegations


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that are merely conclusions of law. Id. “We then engage in a threshold
inquiry, testing the facts alleged in the pleadings against the applicable law.”
Id. (quotation omitted). “We will uphold the trial court’s grant of a motion to
dismiss if the facts pleaded do not constitute a basis for legal relief.” Id.
(quotation omitted).

      The respondent’s motion to enforce the Agreement alleges that a written
prenuptial agreement existed, and that both parties signed it. Assuming, as we
must, the truth of the respondent’s allegations, we conclude that the
allegations in the respondent’s motion are reasonably susceptible of a
construction that would permit recovery. See Signal Aviation Servs., 164 N.H.
at 582. The petitioner contends that the statute of frauds, RSA 506:2,
precludes the trial court from considering the Agreement unless a copy signed
by the petitioner presently exists. We disagree. Accordingly, the trial court
erred in granting the motion to dismiss.

       Resolution of this issue requires us to engage in statutory interpretation.
In the Matter of Lyon & Lyon, 166 N.H. ___, ___ (decided May 30, 2014). We
review the trial court’s interpretation de novo. Id. In matters of statutory
interpretation, we are the final arbiter of the legislature’s intent as expressed in
the words of the statute considered as a whole. Id. When examining the
language of a statute, we ascribe the plain and ordinary meaning to the words
used. Id. We interpret legislative intent from the statute as written and will
not consider what the legislature might have said or add language that the
legislature did not see fit to include. Id. Further, we interpret a statute in the
context of the overall scheme and not in isolation. Id. When the language of a
statute is plain and unambiguous, we do not look beyond it for further
indications of legislative intent. Id. However, we review legislative history to
aid our analysis when the statutory language is ambiguous or subject to more
than one reasonable interpretation. Id.

      The relevant statute of frauds provision provides that:

      No action shall be brought . . . upon any agreement made in
      consideration of marriage . . . unless such promise or agreement,
      or some note or memorandum thereof, is in writing and signed by
      the party to be charged or by some person authorized by him.

RSA 506:2. Thus, in order to bring an action upon a prenuptial agreement, the
agreement must be in writing. RSA 506:2 does not, however, require the
production of the writing; nor does it speak to the method of proving that a
written agreement existed.

      Our prior cases establish that it is unnecessary to produce a signed copy
of an agreement in order to prove that the agreement existed. See
MacThompson Realty v. City of Nashua, 160 N.H. 175, 178 (2010); Brooks v.


                                         4
Toperzer, 122 N.H. 139, 142 (1982). For instance, in MacThompson, the
intervenors argued that the statute of frauds barred enforcement of a lost
settlement agreement for the sale of land. MacThompson, 160 N.H. at 178. We
ruled that the trial court could find the existence of the written settlement
agreement based upon testimony of attorneys present during the creation of
the agreement and a subsequent letter written by one of those attorneys that
confirmed the existence of the settlement agreement. Id. Similarly, in Brooks,
a deed transferring ownership of land had been lost. Brooks, 122 N.H. at 141.
We held that the statute of frauds did not bar enforcement of the deed because
the defendant had proved that a writing which satisfied the statute of frauds
existed through the conduct and statements of the parties. Id. at 142; see also
Skaling v. Remick, 97 N.H. 106, 108 (1951) (“The absence of the original being
satisfactorily accounted for, the office copy was admissible as the best evidence
available,” even though the office copy had no witnesses). We find this analysis
equally applicable in the context of a prenuptial agreement.

      The petitioner argues that Brooks is distinguishable because it did not
involve a contract between parties in a confidential relationship. Brooks, 122
N.H. at 141. We agree with the petitioner that a court must closely scrutinize a
prenuptial agreement because such an agreement involves persons in a
confidential relationship, and therefore, fairness must be the ultimate measure.
However, although courts must scrutinize prenuptial agreements more closely
than commercial contracts, In re Hollett, 150 N.H. 38, 42-43 (2003), this does
not mean that a greater quantum of proof is required to prove the existence of
a prenuptial agreement than is required to prove the existence of other types of
contracts.

       The petitioner has not cited, nor could we find, any case in which a court
has precluded a party from presenting evidence that a lost or destroyed
prenuptial agreement had, in fact, existed. Indeed, there is case law that
supports the reverse proposition: that a party may introduce an incomplete
and unsigned prenuptial agreement as evidence that a written prenuptial
agreement once existed. In re Devoe’s Estate, 84 N.W. 923, 924-26 (Iowa
1901). As the Supreme Court of Iowa observed in Devoe, construing the
statutes as the petitioner suggests would create an insurmountable obstacle
for a party seeking to enforce an agreement that, through no fault of his own,
has been lost or destroyed:

      [W]hile it is a general principle, firmly established in the interests of
      justice, that the best evidence capable of production shall be required,
      this rule in no way conflicts with the admission of secondary evidence of
      a lost instrument, even though it be one which the law requires to be in
      writing; for, if the instrument were lost without the fault of either party,
      or if it were wantonly destroyed or secreted by one, it would be a
      manifest subversion of justice to deny oral proof of its contents after
      satisfactory proof of its loss or destruction.


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Id. at 926. Accordingly, we hold that the prior existence of a written, signed
prenuptial agreement may be shown through secondary evidence. Given our
ruling, we need not address the parties’ additional arguments.

                                                 Reversed and remanded.

      DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.




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