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13-P-1741                                               Appeals Court

              REBECCA KELCOURSE    vs.   LAWRENCE KELCOURSE.


                              No. 13-P-1741.

            Essex.      October 6, 2014. - January 21, 2015.

               Present:    Graham, Brown, & Sullivan, JJ.


Husband and Wife, Antenuptial agreement. Contract, Antenuptial
     agreement. Divorce and Separation, Division of property.



     Complaint for divorce filed in the Essex Division of the
Probate and Family Court Department on August 20, 2010.

    The case was heard by Amy L. Blake, J.


    William M. Driscoll for the husband.
    Joel Rosen for the wife.


    BROWN, J.        This is an appeal by the husband from an amended

judgment of divorce nisi.       The central question on the appeal is

whether the antenuptial agreement between the parties was

enforceable.     In addition, the husband claims the judge abused

her discretion by awarding the wife $400,000 as, essentially,

the principal residence substitute.
                                                                   2


    In the circumstances presented here, we are called upon to

explore the underlying rationale of the so-called "second look"

as specifically explicated in DeMatteo v. DeMatteo, 436 Mass.

18, 37-38 (2002).   See Austin v. Austin, 445 Mass. 601, 607

(2005).

    Upon review of the briefs and record appendix, we discern

nothing inconsistent with the so-called "second look" teachings

of DeMatteo v. DeMatteo, supra, nor do we think the Probate and

Family Court judge abused her discretion or otherwise committed

an error of law.

    1.    Background.   The husband and the wife were married on

July 6, 1991.    At the time of the marriage, the husband was in

his forties and owned and operated a business, Larry's Marina,

Inc.; the wife was in her mid-twenties, pregnant with the

parties' second child and a homemaker.    Prior to the marriage,

the parties lived together for five years in a residence located

at the marina.   The marina residence contained three bedrooms

and was situated on the water.   This was the husband's second

marriage and the wife's first.   The husband's first marriage

ended by divorce.

    In mid-1990, the husband informed the wife that he wanted

to execute an antenuptial agreement to protect his existing

assets.   In the spring of 1991, the husband notified the wife

that he no longer wanted to live at the marina; the parties
                                                                      3


moved to Amesbury and rented a residence there.    The husband

promised the wife that the rental would be temporary.     The

parties executed the antenuptial agreement on July 2, 1991, four

days prior to their wedding.    They each were represented by

independent counsel when negotiating the agreement.

    The antenuptial agreement waived the husband's and the

wife's interest in all premarital property separately owned by

the other spouse.   The wife owned no appreciable assets at the

time the agreement was executed.    The agreement provided that a

principal residence, if purchased during the course of the

marriage, would be deemed the wife's separate property

irrespective of how title was held.    The agreement left the

issue of spousal support open and no waiver of same was

contained in the agreement.

    The parties remained married for nearly twenty years.        In

2005, after the parties had rented the residence in Amesbury for

about fifteen years, the landlord decided to sell the property.

The parties engaged an inspector who determined that the house

was substandard and needed an estimated $80,000 to $100,000 in

repairs.   The husband promised the wife that he would secure

funding to make the repairs.    In 2006, anticipating repairs, the

wife acquiesced, and the parties purchased the home for

$320,000, a discounted price.    Repairs were never made to the

home, and in 2010, the parties separated; the husband moved to
                                                                      4


the marina.    The marina residence, inclusive of Larry's Marina,

was valued at $1.7 million and was not encumbered by a mortgage.

The residence in Amesbury was encumbered by a $256,000 mortgage

and had deteriorated further.    It contained boarded-up windows,

chipped paint, hanging utility wires, and black mold, and was

rodent infested.    By August, 2011, there had been a further

reduction in the property value of the residence1 and in

December, 2011, it was estimated that repairs in an amount

around $300,000 needed to be completed.    Three children were

ultimately born to the parties.2

     2.    The agreement.   An antenuptial agreement is enforceable

if it was valid when executed, and is conscionable at the time

of divorce.    See DeMatteo v. DeMatteo, supra at 26-38.3   A

"second look" at the agreement during divorce proceedings

ensures that it "has the same vitality at the time of the

divorce that the parties intended at the time of [the

agreement's] execution."    Id. at 37.   A prenuptial agreement

will not be enforced if enforcement, "due to circumstances

occurring during the course of the marriage, . . . would leave


     1
       In August, 2011, the home was appraised at $190,000,
approximately $66,000 less than the current mortgage.
     2
         Child support is not at issue here.
     3
       The judge stated in her findings that the validity of the
antenuptial agreement was governed by the principles set forth
in DeMatteo.
                                                                     5


the contesting spouse 'without sufficient property, maintenance,

or appropriate employment to support' herself."     Ibid., quoting

from 1 H.H. Clark, Jr., Domestic Relations in the United States

§ 1.9 (2d ed. 1987).     The Probate and Family Court judge found

that the prenuptial agreement was valid when entered into by the

parties, but upon taking a second look, the judge found that it

could not be enforced.4    She determined that the purchase of the

principal residence and its subsequent neglect constituted a

change in circumstance beyond what the parties contemplated when

they executed the agreement, and that enforcement of the

agreement would be unconscionable.

     The record contains sufficient evidence to support the

judge's determination.    Crucial to this finding is that

enforcement of the agreement would, as the judge noted, leave

the wife "a house with negative equity,[5] with documented

structural issues, with documented code violations, and with

needed repairs and/or renovations approximated to be upwards of

$300,000."



     4
       The parties are not contesting the agreement's fairness
and reasonableness at the time of execution.
     5
       The husband asserts, among other things, that the former
marital home has a "positive equity" of $62,000. The provisions
of the agreement on which the husband relies in making his claim
are not a model of clarity and, in all events, the husband's
position does not appear, on the papers before us, to have been
pressed below.
                                                                    6


     If the agreement is enforced, the wife, who makes $300 per

week, would be left without sufficient property and appropriate

employment to support herself.6    The judge's determination that

enforcement of the agreement would be unconscionable was not in

error.

     3.   Marital property.    In a divorce action, a judge must

fairly consider the relevant factors outlined in G. L. c. 208,

§ 34, when dividing marital property.     The division must be an

honest exercise of judicial discretion, but "need not proceed on

any precise mathematical formula."     Downing v. Downing, 12 Mass.

App. Ct. 968, 969 (1981).     Finding the agreement to be

unconscionable, the judge appropriately applied the factors

enumerated in G. L. c. 208, § 34.     Cf. Austin v. Austin, 62

Mass. App. Ct. 719, 731 (2004), rev'd on other grounds, 445

Mass. at 607.   The judge considered, inter alia, the wife's

occupation, opportunity for future income, age, and contribution

as a homemaker, as well as the needs of the couple's dependent




     6
       That the wife was also awarded $1,352 per week as alimony,
an award that is to terminate upon the first to occur of certain
contingencies, including the husband's attainment of full Social
Security retirement age as defined by G. L. c. 208, § 48 (at the
time of trial the husband was sixty-five years old), see G. L.
c. 208, § 49(f), would not, in the circumstances presented, lead
us to a different conclusion.
                                                                  7


children.7   We find no abuse of discretion, or other error of

law, in the division of assets.

     The wife seeks the costs associated with producing the

supplemental appendix.   The request for additional costs is

denied.

     Accordingly, the amended judgment is affirmed.   The request

for additional costs is denied.

                                    So ordered.




     7
       The judge also made reference in her findings to the
"spirit and intent of the agreement," a point that the husband
does not meaningfully challenge in his brief. At all events, it
would appear that the judge's language in some respects
implicates the contribution factor in § 34, and would not cause
us to reach a different result in this case.
