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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0001074
                                                              11-AUG-2014
                                                              02:15 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


       SANDRA C.J. BALOGH, Respondent/Plaintiff-Appellant,

                                    vs.

     DONALD RAYMOND BALOGH, Petitioner/Defendant-Appellee.


                            SCWC-11-0001074

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-11-0001074; FC-D NO. 10-1-0149)

                            AUGUST 11, 2014

    AMENDED CONCURRING AND DISSENTING OPINION BY POLLACK, J.


                               I. Background

          In the period leading up to the signing of the

“agreements” at issue in this case, Sandra Balogh’s (Sandra) and

Donald Balogh’s (Ray) marriage was deteriorating.           “There was

constant shouting and screaming.         It was an ugly situation with



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no communication between the parties.”1         Id.   Ray was under heavy

stress as he was unable to control his exhibitionist behavior

even though he knew it was wrong.2        Ray was also out of work at

the time of the signing of the “agreements” in October 2008,

having just retired a few months earlier.

           After months of arguments, Sandra told Ray “if he were

serious about being committed to the marriage, then they should

‘write something up.’”      On October 6, 2008, Sandra dictated to

Ray the terms of an “agreement” to save their marriage, which

Ray handwrote on a single sheet of blank paper (October 6

Document).    The October 6 Document provided that if the couple

separated, Sandra would receive 75% of the proceeds from the

sale of the couple’s residence, the entire contents of the house

      1
            The quoted statements are from the findings of facts (FOF) of the
family court and were not contested on appeal. Sandra challenged only two of
the family court’s FOF. First, Sandra challenged FOF 48, in which the family
court determined that on August 15, 2009, Sandra told Ray he should leave,
and Ray reluctantly agreed. Second, Sandra challenged FOF 53, which credited
Ray’s explanation for the Quitclaim deed: “After discussions with Sandra, Ray
thought the Quitclaim Deed would protect the home from potential lawsuits,
but title would be transferred back to joint ownership when thing[s] returned
to normal.” The majority concluded that this finding was not clearly
erroneous, and therefore binding on this court. Majority at 25.
            All of the family court’s remaining FOF are binding on this
court. See Bremer v. Weeks, 104 Hawaiʻi 43, 63, 85 P.3d 150, 170 (2004)
(“findings of fact that are not challenged on appeal are binding on the
appellate court” (quotation marks, brackets, and ellipsis omitted)).
            Sandra challenged Conclusions of Law N, O, P, Q, R, and S.
     2
            Exhibitionism, which involves exposing one’s genitals to an
unsuspecting person, falls under the psychiatric sexual disorders category of
paraphilias, “any intense and persistent sexual interest other than . . .
with . . . consenting human partners.” See American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 685, 689 (5th ed. 2013)
available at http://dsm.psychiatryonline.org/content.aspx?bookid=
556&sectionid=41101785, http://dsm.psychiatryonline.org/content.aspx?bookid=
556&sectionid=41101785#103442356.



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excluding Ray’s tools and clothes, and the couple’s vehicles.

“Ray believed that if he did not sign the note, he would lose

his wife of 30 years and everything they had worked for

together.”      Ray “was not in his right mind” when he signed the

October 6 Document.        The express terms of the handwritten

“agreement” provided no consideration for Ray’s relinquishment

of half of his interest in their home.3           The family court found

that when Sandra signed the October 6 Document, she “was not

thinking about divorce, she took Ray’s signing as a show of his

commitment to the marriage.”

              Less than three weeks after the October 6 Document had

been signed, Sandra and Ray signed a second “agreement,”

entitled “Memo of Understanding” (MOU).            During this two-week

interval, there was no change in Ray’s emotional state.               Indeed,

the family court’s uncontested finding was that “[t]he parties

signed the MOU with the intent that they would work on the

marriage, especially Ray.         Sandra believed Ray would tell her

the truth and stop his inappropriate behavior by signing the

MOU.       Ray signed it in his desperate attempt to hold the

marriage together.”        The MOU provided that in the event of a

divorce, in addition to Sandra receiving the 75% share of the

property, contents of the home, and vehicles, Ray was required


       3
              The fair market value of the residential property was 1.6 million
dollars.



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to give Sandra $100,000.00 “in lieu of Alimony and court

proceedings.”    There was no consideration stated in the MOU for

the additional property that Sandra would receive in the event

of a divorce.

           By August 2009, the marriage had reached its breaking

point.   Ray admitted to Sandra that he was continuing to expose

himself, and he “reluctantly agreed to move” after Sandra told

him that “he should leave.”4       Before leaving, Ray called his

relatives, and during the call, Sandra overheard Ray say to his

sister “maybe divorce.”       As a result of overhearing this

comment, “Sandra got upset and demanded [Ray] sign over the

house as security.”      Sandra wanted Ray to work on the marriage,

and Ray agreed to sign a quitclaim deed both to protect the

asset and to show further commitment to the marriage.             As

“security,” Ray and Sandra executed a deed dated September 1,

2009, purporting to transfer 100% interest in the property to

Sandra (Quitclaim Deed).       Sandra conceded in her brief to the

ICA that the Quitclaim Deed was one-sided.          Sandra believed Ray

signed the Quitclaim Deed because he was serious about saving

the marriage.

           Ray stated that he was “not in his right mind when

[he] signed these documents.”        It is uncontested that “[e]ach


     4
            As noted, see supra note 1, Sandra contested the family court’s
finding in FOF 48 that she told Ray that he should leave.



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time, Ray believed he could salvage the marriage by signing

these agreements.     He would have signed anything to save their

thirty-year marriage.      He was in a panic.”      (Emphasis added).

The family court found that Ray also believed the Quitclaim Deed

was only a temporary agreement that would protect the home from

potential lawsuits, and the title would eventually transfer back

to joint ownership.5

           The family court concluded that Ray and Sandra

           were motivated to save their marriage when they signed the
           various agreements. When Ray signed the Quitclaim Deed,
           Ray was protecting their marital home from potential
           lawsuits and had no intent of permanently transferring his
           interest to Sandra. Neither party intended their marriage
           to result in a divorce and to divide their marital estate
           accordingly.

           Not surprisingly, based upon these uncontroverted

facts, the family court concluded that all three “agreements”

were not enforceable based upon the combined influence of

numerous stressors that were affecting Ray when the “agreements”

were signed.    The family court concluded that “Ray was suffering

from extreme distress” due to: (1) the ongoing construction of

the Kahala Kua residence; (2) the contractor’s walk-off and

lawsuit in 2006; (3) the penalties assessed by the couple’s

homeowner’s association, Association of Owners of Kahala Kua aka



      5
            As noted, see supra note 1, Sandra contested the family court’s
finding in FOF 53 that “[a]fter discussions with Sandra, Ray thought the
Quitclaim Deed would protect the home from potential lawsuits, but title
would be transferred back to joint ownership when thing[s] returned to
normal.”



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Kahala Kua Community Association (AOAO) and the parties’ lawsuit

against the AOAO; (4) his high security clearance job that also

required twenty-four hour/seven days on call one week a month;

(5) the continuing issues with the subcontractors; (6) his

uncontrollable obsessive behavior that escalated from his

backyard nudity to public display; (7) his shame and

embarrassment; (8) his fear of being discovered; and (9) the

constant argument with Sandra about his inappropriate behavior.

The tenth reason stated by the family court was that while all

of the other circumstances were occurring, Sandra suspected Ray

of infidelity, which further exacerbated the marital

relationship and escalated the tension and the friction in their

home.    Accordingly, the family court concluded that “Ray was

thus under duress and coercion when he signed the agreements.”

            The family court also concluded that “[a]fter 30 years

of marriage . . . it would be unconscionable to award Sandra the

[home] by enforcing the Quitclaim Deed.”          The family court based

its conclusion of unconscionability on its finding that Ray

“would in essence receive 0% of the marital estate if” the

agreements were enforced.6




     6
            As noted, see supra note 1, Sandra contested the foregoing
conclusion of law (COL) of the family court, except that Sandra did not
challenge the conclusion that Ray would “in essence” receive 0% of the
marital property if the home were awarded to Sandra, in COL M.



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              In vacating the family court’s detailed findings and

analysis, the majority’s decision to uphold the MOU implies that

a contract between spouses in a deteriorating marriage should be

evaluated as if the partners were engaging in arm’s length

negotiations, without appropriate consideration of the

vulnerabilities and unequal power inherent in a breakdown of a

marriage.      By applying a standard used to evaluate contracts in

a commercial context and requiring Ray to show specific evidence

of an “improper threat” and the absence of a “reasonable

alternative” to prove involuntary assent to a contract between

marital partners, the majority’s decision unduly constricts the

law.       Moreover, by not acknowledging the emotional nature of a

marriage and its effects on “bargaining” between the spouses,

the decision creates a precedent that permits an emotionally

stronger spouse to take advantage of a more vulnerable one.

                               II.   Discussion

              I would affirm the family court’s determination that

the Quitclaim Deed was unconscionable and therefore

unenforceable.7      Based on the determination that the Quitclaim

Deed was unenforceable as unconscionable, I would not reach the


       7
            I concur with the ultimate result of the majority’s holding that
the “quitclaim deed did not bar the family court from equitably dividing [Ray
and Sandra’s] property,” Majority at 26, inasmuch as that holding renders the
Quitclaim Deed as essentially without legal effect, although I would find the
Quitclaim Deed unenforceable because of unconscionability. I dissent as to
the majority’s treatment of the remaining two “agreements.”



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majority’s conclusion that that Quitclaim Deed did not alter the

division of property.      Majority at 23-24.

           I would also uphold the family court’s implicit

conclusion that Ray’s assent to the October 6 Document and the

MOU was involuntary.      The family court’s conclusion that the

agreements were unenforceable is sustained by the family court’s

detailed FOFs that were largely uncontested on appeal and firmly

supported by the record.       These uncontested facts provide

multiple bases to support the family court’s determination that

Ray’s assent to the October 6 Document and the MOU was

involuntary.    Further, in line with the approach taken by many

other states, I would hold that spouses are fiduciaries of each

other, and therefore contracts between spouses that affect the

division of property in the event of a divorce should be

evaluated under that standard.        Alternatively, I would hold

that, as a threshold matter, the October 6 Document and the MOU

are void for lack of consideration.

A.   The Quitclaim Deed is unconscionable

           A postmarital or separation agreement is enforceable

if it is not unconscionable and has been voluntarily entered

into by the parties with knowledge of the financial situation of

the other spouse.     See Lewis v. Lewis, 69 Haw. 497, 500-01, 748

P.2d 1362, 1366 (1988).

           Unconscionability has generally been recognized to include
           an absence of meaningful choice on the part of one of the


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           parties together with contract terms which are unreasonably
           favorable to the other party. Whether a meaningful choice
           is present in a particular case can only be determined by
           consideration of all the circumstances surrounding the
           transaction.

Siopes v. Kaiser Found. Health Plan, Inc., 130 Hawaiʻi 437, 458,

312 P.3d 869, 890 (2013) (quoting City & Cnty. of Honolulu v.

Midkiff, 62 Haw. 411, 418, 616 P.2d 213, 218 (1980)).

Unconscionability typically encompasses two principles: one-

sidedness and unfair surprise.       Lewis, 69 Haw. at 502, 748 P.2d

at 1366.   In the context of postmarital agreements, however,

one-sidedness alone can render an agreement unconscionable and

therefore unenforceable.      See Kuroda v. Kuroda, 87 Hawaiʻi 419,

428, 958 P.2d 541, 550 (App. 1998); Majority at 29-30.

           Here, it is the uncontested COL of the family court

that Ray “would in essence receive 0% of the marital estate if

Sandra is awarded [the home].”       Furthermore, Sandra acknowledged

that enforcing the Quitclaim Deed “would be ‘one-sided’ . . . .”

It is hard to envision an agreement that is more one-sided than

an agreement that gives one spouse 100% of the marital estate

and the other spouse 0%.      The family court correctly concluded

that:

           It would be unconscionable to award Sandra the [home] by
           enforcing the Quitclaim Deed. Kuroda v. Kuroda, 87 Hawaiʻi
           419, 958 P.2d 547 (App. 1998); Lewis v. Lewis, 69 Haw. 497,
           748 P.2d 1362 (1988).

Therefore, the finding of the family court should be affirmed.




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B.   The “agreements” are unenforceable because Ray’s assent was
     involuntary.

            Although the family court concluded that Ray was

“under duress and coercion when he signed the agreements,” the

majority determines that Ray’s assent was “voluntary” because

the family court’s findings are not sufficient to support

duress.   Majority at 35-36.      According to the majority, duress

cannot be shown because: (1) the trial court did not make

specific findings that Sandra had improperly threatened Ray; and

(2) Ray could not show that he had no reasonable alternative to

signing the MOU.     In so concluding, the majority errs by

incorrectly restricting its involuntariness inquiry to duress.

     1.     The correct Hawaiʻi standard for the enforceability of
            postmarital agreements

            A postmarital agreement is not enforceable if it is

entered into involuntarily.       “When a premarital agreement

setting forth support and property division in the event of

divorce is not unconscionable and has been voluntarily entered

into by the parties with knowledge of the financial situation of

the prospective spouse, enforcement of the agreement does not

violate the principle of a ‘just and equitable’ award under

[Hawaiʻi Revised Statutes (HRS)] § 580–47.”8          Lewis, 69 Haw. at


      8
            At the time the “agreements” in this case were signed, this
statute provided, in relevant part:


                                                              (continued. . .)


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500-01, 748 P.2d at 1366.       “Involuntariness is shown by evidence

of ‘duress, coercion, undue influence, or any other circumstance

indicating lack of free will or voluntariness.’”            Chen v.

Hoeflinger, 127 Hawaiʻi 346, 357, 279 P.3d 11, 22 (App. 2012)

(emphasis added) (quoting Prell v. Silverstein, 114 Hawaiʻi 286,

298, 162 P.3d 2, 14 (App. 2007)).          Therefore, under Hawaii’s

controlling legal standard for the enforceability of postmarital

contracts, involuntariness may be shown not only by duress, but

also by coercion, undue influence, or any other circumstance

indicating lack of free will or voluntariness.

      2.    The family court found that Ray’s assent was
            involuntary.

            After listing ten contributing factors to Ray’s

stress, as noted above, Conclusion of Law (COL) P determined

that:9


      (. . .continued)
            Upon granting a divorce . . . the court may make any
            further orders as shall appear just and equitable . . .
            finally dividing and distributing the estate of the
            parties, real, personal, or mixed, whether community,
            joint, or separate[.]

HRS § 580-47 (1997). This language was identical at the time of Lewis.
HRS § 580-47 (Supps. 1969, 1986).
      9
            Although COL P is set out as a conclusion of law, “the trial
court’s label is not determinative of the standard of review.” Crosby v.
State Dep’t of Budget & Fin., 76 Hawaiʻi 332, 340, 876 P.2d 1300, 1308 (1994).
      A circuit court’s FOF are reviewed on appeal under the “clearly
erroneous” standard whereas its COL are not binding upon an appellate court
and are usually reviewed under the right/wrong standard. Estate of Klink ex
rel. Klink v. State, 113 Hawaiʻi 332, 351, 152 P.3d 504, 523 (2007).


                                                              (continued. . .)


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            Ray was thus under duress and coercion when he signed the
            agreements. Prell v. Silverstein, 114 Haw. 286, 162 P.3d 2
            (Haw. App. 2007).

(Emphasis added).      While the family court referred to “duress

and coercion” without using the word “involuntary,” its specific

citation to Prell makes it plain that the family court intended

“duress and coercion” to convey involuntariness.10            This is

manifest because Prell defines duress and coercion as sufficient

to demonstrate involuntariness, but not as the exclusive method

of doing so.     In the context of evaluating a premarital

agreement, Prell states: “[n]o evidence was adduced that

[spouse] signed the premarital agreement under duress, coercion,

undue influence, or any other circumstance indicating lack of

free will or voluntariness.”        114 Hawaiʻi at 298, 162 P.3d at 14.

That is, Prell references “duress” as one “circumstance” of

several “indicating [a] lack of free will or voluntariness.”

Id.




(. . .continued)
      A COL that “is supported by the trial court’s FOFs and that reflects an
application of the correct rule of law will not be overturned.” Id.
(brackets omitted). “However, a COL that presents mixed questions of fact
and law is reviewed under the clearly erroneous standard because the court’s
conclusions are dependent upon the facts and circumstances of each individual
case.” Id.
      In other words, because the family court’s COL P is a “determination
that embraces an ultimate fact[,]” it “is a factual finding subject to the
clearly erroneous standard of review even though classified as a COL.”
Crosby, 76 Hawaiʻi at 340, 874 P.2d at 1308.
      10
            This same test is utilized by the majority in its analysis.      See
Majority at 35.



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           Thus, by describing the totality of the circumstances,

including Ray’s uncontrollable behavior, extreme stress, fear of

being discovered, and the escalating tension in the

relationship, then concluding that Ray was under duress and

coercion, and then citing to Prell, the family court implicitly

found that Ray’s assent to the agreements was involuntary.              To

conclude otherwise infers that the family court, despite citing

the controlling authority that sets forth the standard for

voluntariness in postmarital contracts, did not understand and

apply the law that it cited.11

           Voluntariness is a question of fact.          See State v.

Price, 55 Haw. 442, 443, 521 P.2d 376, 377 (1974) (in the

context of a search, holding that voluntariness is a question of

fact).   The family court was in the best position to make

factual findings.     In re Doe, 95 Hawaiʻi 183, 190, 20 P.3d 616,

623 (2001) (“[I]t is well-settled that an appellate court will

not pass upon issues dependent upon the credibility of witnesses

and the weight of the evidence; this is the province of the

trier of fact.”)).

      11
            Assuming arguendo that COL P is ambiguous as to whether the
family court intended “duress and coercion” to mean involuntariness, then the
case should be remanded to the family court for clarification. “‘Because
. . . findings [of fact] are imperative for an adequate judicial review of a
lower court’s conclusions of law,’ we have held ‘that cases will be remanded
when the factual basis of the lower court’s ruling cannot be determined from
the record.’” State v. Hutch, 75 Haw. 307, 331, 861 P.2d 11, 23 (1993)
(quoting State v. Anderson, 67 Haw. 513, 514, 693 P.2d 1029, 1030 (1985)).




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           A family court’s FOF are reviewed under the “clearly

erroneous” standard.      In re Doe, 101 Hawaiʻi 220, 227, 65 P.3d

167, 174 (2003).     A FOF is only “clearly erroneous” when “(1)

the record lacks substantial evidence to support the finding, or

(2) despite substantial evidence in support of the finding, the

appellate court is nonetheless left with a definite and firm

conviction that a mistake has been made.”12          Id.   Therefore, it

is improper for this court to disregard the family court’s

findings of fact regarding voluntariness if the findings of the

family court are supported by substantial evidence.

     3.    Substantial evidence supports finding that Ray’s
           assent was involuntary

           The family court’s uncontested FOFs support a

conclusion that Ray’s assent to the “agreements” was

involuntary.13    First, as noted above and set forth in COL P, the

family court found that among the multiple factors contributing

to the coercion and duress that led to Ray’s involuntary assent
      12
            Substantial evidence is credible evidence of sufficient quality
and probative value to enable a person of reasonable caution to support a
conclusion. In re Doe, 101 Hawaiʻi at 227, 65 P.3d at 174.

     13
            The “agreements” should be examined together for several reasons.
First, the circumstances under which the “agreements” were executed were
virtually identical. The October 6, 2008 agreement and the MOU were signed
within three weeks of each other, during which time the tension between Ray
and Sandra was high and had not dissipated. As noted above, “Each time, Ray
believed he could salvage the marriage by signing these agreements. He would
have signed anything.” Second, the subject matter of the agreements is also
the same, providing essentially the same triggering event, i.e. separation or
divorce. Finally, three of the four provisions of the MOU are the same as
the three provisions of the October 6 Document. Therefore, all the
“agreements” should be considered together when evaluating the voluntariness
of Ray’s assent.



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were: his exhibitionist behavior and the associated

repercussions from that behavior, including the letters from the

AOAO, confrontations with the police at Makapuʻu, and being

banned from Ala Moana; the litigation and construction problems

associated with the home; and his “high security clearance job.”

           Second, the facts demonstrate that Ray’s mental state

was extremely vulnerable.       The family court described Ray as

“unable to control his inappropriate behavior”; “extremely

embarrassed but still unable to control his impulses”; and

“distraught that he had no control over and did not know what to

do about his inappropriate behavior.         He “felt his brain was

fried”; “fearful of his behavior being made” public; “not in his

right mind”; “desperate”; and “in a panic.”           Following the first

two “agreements,” Ray’s exhibitionist behavior escalated,

including two letters from the homeowners’ association; an

incident at Makapuʻu Trail; and an incident at Ala Moana.             These

findings of fact are uncontested.          Therefore, Ray’s mental state

was plainly vulnerable, increasing the likelihood that duress or

undue influence was instrumental in gaining his assent and

reducing the likelihood that his assent to the agreements was

voluntary.14


      14
            The majority notes Ray’s education, degrees, and high-level
security clearance as an indication that Ray was aware of what he was doing.
Majority at 41. However, Ray never asserted that he was not aware; instead
his contention is that his stress and efforts to preserve his marriage
                                                              (continued. . .)


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           Third, Sandra was drafting the “agreements.”            Sandra

dictated the October 6 Document to Ray.          Sandra also prepared

the MOU, which added the $100,000 payment to her in the event of

a divorce.    Therefore, in light of Sandra having drafted the

“agreements,” the likelihood that Ray’s assent to the

“agreements” was involuntary was increased.

           Fourth, the uncontested facts are that Ray felt he had

no choice but to sign the “agreements.”          As to the October 6

Document, “Ray believed if he did not sign this note, he would

lose his wife of thirty years and everything they had worked for

together.”    As to the MOU, “Ray signed it in his desperate

attempt to hold the marriage together.”          As to all three

“agreements,” “each time, Ray believed he could salvage the

marriage by signing these agreements.         He would have signed

anything to save their thirty-year marriage.           He was in a

panic.”

           Thus, there is substantial evidence in the record

indicating that Ray’s assent to the three “agreements” was

induced by circumstances indicating a lack of free will or




(. . .continued)
indicated a lack of free will. The majority also notes that Ray “expressly
testified that he agreed to all the terms of the MOU.” Id. Again, Ray never
denied agreeing to the terms of the “agreements.” The issue was whether his
assent was voluntary under the circumstances.




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voluntariness.15    Accordingly, the family court’s implicit

finding that Ray’s assent was involuntary was not clearly

erroneous and should be upheld.

     4.    “Other circumstances” indicates that Ray’s assent was
           involuntary

           Involuntariness in postmarital contracts may be shown

by evidence of “any other circumstance indicating lack of free

will or voluntariness.”       Chen, 127 Hawaiʻi at 357, 279 P.3d at

22; Prell, 114 Hawaiʻi at 298, 162 P.3d at 14.           Because “other

circumstances” is broadly inclusive, it is similar to a totality

of the circumstances rule, under which a court’s “inquiry will

not be unfairly limited.”       Maguire v. Hilton Hotels Corp., 79

Hawaiʻi 110, 117, 899 P.2d 393, 400 (1995) (defining totality of

the circumstances as a part of determining, in a tort action,

the foreseeability of a criminal act committed by a third

party).   A totality of the circumstances “inquiry is broad

enough to examine other factors as well.”          Id.   Other states


     15
            The majority suggests that because Ray waived the defense of lack
of capacity, he also waived the defense of involuntariness. Majority at 40.
However, involuntariness is distinct from a defense of lack of capacity. See
Grace M. Giesel, A Realistic Proposal for the Contract Duress Doctrine, 107
W. Va. L. Rev. 443, 448 (2005) (“Situations of limited decisional capacity or
flawed decisional capacity are not duress and should be irrelevant to
duress.”). Incapacity to contract means that the person was “incapable of
understanding the nature and effect of the transaction at the time the
instrument was executed.” Pontes v. Pontes, 40 Haw. 620, 623 (Haw. Terr.
1954). See also 5 Williston on Contract § 10:3 (4th ed.) (Mental
incompetence renders transactions voidable); Restatement (Second) of
Contracts § 15 (1981). Consequently, a capacity to enter into contracts does
not invalidate an involuntariness defense. Ray never waived the issue of
whether his assent was voluntary.



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have used a totality of circumstances approach in assessing the

enforceability of postmarital agreements.

            For example, in Pacelli v. Paccelli, 725 A.2d 56 (N.J.

Super. Ct. App. Div. 1999), the New Jersey Superior Court

closely scrutinized and carefully evaluated a “mid-marriage”16

agreement because it left the husband, a sophisticated

businessman, and wife, a much younger, uneducated immigrant, in

disparate financial situations.        Id. at 62.     After ten years of

marriage and two children, the husband informed the wife that he

would divorce her unless she agreed to certain terms regarding

their economic relationship.        Id. at 58.    The wife’s overriding

concern was preserving her family—“she would [have] sign[ed]

anything[.]”    Id.   (emphasis added).

            Thus, [the wife] faced a more difficult choice than the
            bride who is presented with a demand for a pre-nuptial
            agreement. The cost to [the wife] would have been the
            destruction of a family and the stigma of a failed
            marriage. She testified on several occasions that she
            signed the agreement to preserve the family and to make
            sure that her sons were raised in an intact family.

            [The wife’s] access to eminent counsel is of little
            relevance because her decision was dictated not by a
            consideration of her legal rights, but by her desire to
            preserve the family.

Id. at 59.    Based on these circumstances, the court found that

the context in which the husband made his demand was “inherently

coercive” because the wife’s decision “was dictated not by a


     16
            A “mid-marriage” agreement is the same as a “postmarital”
agreement in the context of these cases as both occur after the date of
marriage but prior to a final divorce.



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consideration of her legal rights, but by her desire to preserve

the family.”   Id.   Therefore, the Pacelli court looked to the

totality of the circumstances in reaching its determination that

the postmarital agreement was unenforceable.          Id. at 63.

          In In re Marriage of Baltins, 212 Cal. App. 3d 66

(Cal. Ct. App. 1989), a California appeals court examined the

totality of the circumstances in finding that the husband

intentionally used coercion to induce the wife’s consent to an

unconscionable contract.      Id. at 87.    The court found that the

wife was “effectively” deprived of independent counsel, in a

distraught and weakened condition emotionally, and had no

reasonable alternative.     The husband had undermined the wife

psychologically by repeatedly telling her she had not

contributed as much as he did to the marriage and was not an

equal partner; he had made threats and misrepresentations; and

he pressured the wife into taking immediate action.            Id.

Therefore, the Baltins court looked at the totality of the

circumstances to find the husband had intentionally used duress

to induce the wife’s consent to the agreements.          Id.

          Other states have used a series of factors to measure

the enforceability of postmarital agreements.          For instance,

Kansas courts have looked to whether:

          (1) each party had an opportunity to obtain separate legal
          counsel of each party’s own choosing; (2) there was fraud
          or coercion in obtaining the agreement; (3) all material
          assets were fully disclosed by both parties before the


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          agreement was executed; (4) each spouse knowingly and
          explicitly agreed in writing to waive the right to a
          judicial equitable division of assets and all marital
          rights in the event of a divorce; (5) the terms of the
          agreement were fair and reasonable at the time of
          execution; and (6) the terms of the agreement are not
          unconscionable at the time of dissolution.

In re Marriage Traster, 291 P.3d 494, 507 (2012).           See also

Ansin v. Craven-Ansin, 929 N.E.2d 955, 963-64 (2010) (using the

first five factors to measure enforceability but not

unconscionability).

          In the application of the totality of circumstances

and factor-based analyses, courts are not arbitrarily limited to

a single test when analyzing postmarital contracts for

involuntariness, but look to all the relevant conditions in a

given case.    Similarly, under the Chen/Prell standard,

involuntariness can be found by evaluating “any other

circumstance indicating lack of free will or voluntariness.”

Chen, 127 Hawaiʻi at 357, 279 P.3d at 22; Prell, 114 Hawaiʻi at

298, 162 P.3d at 14.     Therefore, a court’s analysis of the

enforceability of postmarital contracts should not be “unfairly

limited” and should be “broad enough to examine other factors.”

Maguire, 79 Hawaiʻi at 117, 899 P.2d at 400.

            In the present case, the other circumstances

specified in the uncontested findings firmly support the

determination that Ray’s assent to the “agreements” was

involuntary.   Like Pacelli, Ray’s motivation was not preserving



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financial assets, but at saving the emotional relationship at

any cost.    Further, both the Pacelli court and the family court

found that the vulnerable spouse would have signed “anything.”

See Pacelli, 725 A.2d at 58.      Similar to Baltins, Sandra

pressured Ray into immediate action, and, as discussed, Ray

believed he had no other choice.         212 Cal. App. 3d at 87.      Ray

was in a distraught and weakened emotional state and did not

have the opportunity to consult with independent counsel, again

similar to the wife in Baltins.       Id.

            Additionally, at least three of the six Traster

factors were also present.      First, Ray did not obtain separate

legal counsel before signing the “agreements.”          Second, Ray did

not knowingly and explicitly agree in writing to waive the right

to a judicial equitable division of material assets and all

marital rights in the event of a divorce.         Third, the terms of

the agreement were not fair and reasonable at the time of

execution.

            Therefore, construing Prell’s “any other

circumstances” element as not “unfairly limit[ing]” and broad

enough to examine other factors, would result in the same

conclusion as the family court: that the “agreements” were

involuntary and thus unenforceable.




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     5.     The record demonstrates Ray’s assent was unduly
            influenced

            Under Chen and Prell, an agreement may also be

involuntary if it is the result of undue influence.17             Chen, 127

Hawaiʻi at 357, 279 P.3d at 22; Prell, 114 Hawaiʻi at 298, 162

P.3d at 14.     Undue influence is defined as the improper use of

power or trust in a way that deprives a person of free will and

substitutes another’s objective.           Cvitanovich-Dubie v. Dubie,

125 Hawaiʻi 128, 160, 254 P.3d 439, 471 (2011).           It is

            the misuse of a position of confidence or the taking
            advantage of a person’s weakness, infirmity or distress to
            change improperly that person’s actions or decisions.
            While it is impossible to define or describe with precision
            and exactness what is undue influence, it matters that the
            quality and the extent of the power of one mind over
            another must be to make it undue. Thus, false
            representations, or misrepresentations of law or fact, are
            not essential to a showing of undue influence, for a
            person’s will may be overborne without false
            representation.

Cvitanovich-Dubie, 125 Hawaiʻi at 160-61, 254 P.3d at 471-72

(emphasis added) (citations, brackets and quotation marks

omitted).     Undue influence is “coercive in nature, persuasion

which overcomes the will without convincing the judgment.”

Odorizzi v. Bloomfield Sch. Dist., 246 Cal. App. 2d 123, 130

(1966) (cited approvingly in Cvitanovich-Dubie, 125 Hawaiʻi at

160-61, 254 P.3d at 471-72).        Therefore, the critical elements
      17
            The majority notes that the family court did not make an express
finding of undue influence. Majority at 41. However, undue influence is an
enumerated “circumstance indicating lack of free will or involuntariness.”
Chen, 127 Hawaiʻi at 357, 279 P.3d at 22. As the family court’s finding of
“duress and coercion” was an implicit finding of involuntariness, undue
influence was encompassed within the court’s findings.



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of undue influence are (1) the abuse of a position of confidence

or taking advantage of a person’s weakness, in order to (2)

improperly change that person’s actions or decisions; actual

fraud is not necessary.     Cvitanovich-Dubie, 125 Hawaiʻi at 160-

61, 254 P.3d at 471-72.

          As a spouse, Sandra was in a position of confidence in

regards to Ray and it was an abuse of that confidence to

influence her spouse to sign over significant property in order

to demonstrate his commitment to the marriage.          Furthermore,

Ray’s actions were improperly changed by Sandra; that is, he

would not have promised her half of his interest in the house,

all of the vehicles and contents of the house, and $100,000 in

lieu of court proceedings, except for Sandra having told Ray “if

he were serious about being committed to the marriage, then they

should ‘write something up.’”       None of the facts found by the

family court suggest that Ray was convinced the “agreements”

were in good judgment; rather, it is unchallenged that “[e]ach

time, Ray believed he could salvage the marriage by signing

these agreements.    He would have signed anything to save their

thirty year marriage.”     (Emphasis added).      Thus, Ray would not

have signed over his share of the home in the “agreements” and

the additional monetary payments to Sandra if it had not been on

Sandra’s insistence that he do so in order to demonstrate his

commitment to save the marriage.


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           There is substantial evidence that Sandra’s actions

took advantage of her position as Ray’s wife of 30 years and

Ray’s troubled emotional state in order to induce Ray to sign

the “agreements.”     There is no indication that Ray would have

otherwise spontaneously gifted essentially 100% of the marital

estate to Sandra.     Therefore, Sandra unduly influenced Ray’s

assent to the “agreements”, and Ray’s assent to the “agreements”

is indicative of a lack of free will or voluntariness.             Thus,

the family court’s implicit conclusion that Ray’s assent was

involuntary should be affirmed.

C.   Measuring involuntariness through a fiduciary relationship
     between spouses

           The confidential relationship between spouses should

require contracts to be subjected to a fiduciary standard to

protect spouses against self-dealing and overreaching by the

more dominant spouse.      “Unlike parties to a premarital agreement

or a separation agreement, parties to a postmarital agreement

have stated their intention to remain part of an existing

marriage in which they already share a vested interest, personal

intimacy, and mutual trust.”       Traster, 291 P.3d at 503.        In

Traster, the Kansas Court of Appeals explained that the

“trusting and confidential nature of this existing relationship

exposes the parties to a greater risk of unfair advantage in the

bargaining process for two reasons”:



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          First, spouses who intend to stay married are unlikely to
          view the marital interest as distinct from their own
          interest. As a result, spouses to a postmarital agreement
          run the risk of putting the interests of the couple ahead
          of their own which, in turn, will make them less cautious
          than they would be if negotiating at arm’s length with an
          ordinary contracting party. Second, spouses who intend to
          stay married run a greater risk of unfair advantage in the
          bargaining process because the spouse who has the stronger
          desire to preserve the marriage necessarily becomes more
          vulnerable to the financial demands of the other.

Id. at 503 (emphasis added) (citation omitted).          Therefore,

Traster recognized two concerns: (1) spouses who wish to stay

married are likely to put the marriage ahead of their individual

interest; and (2) such spouses may be exploited because their

commitment to the marriage will lead them to make greater

financial sacrifices to preserve the relationship.           Because of

these concerns, the voluntariness of postmarital agreements

should be evaluated with closer scrutiny.

          Sixteen states and Puerto Rico impose greater burdens

on postnuptial agreements than they impose on prenuptial

agreements.   Sean Hannon Williams, Postnuptial Agreements, 2007

Wis. L. Rev. 827, 838 (2007).       The state courts and legislatures

that have imposed additional procedural and substantive burdens

on postnuptial agreements recognize that postmarital agreements

“increase the potential for fraud and deception, often leaving

the spouse with less economic leverage (usually the wife) with

no choice but to sign an agreement presented by the wealthier

spouse (usually the husband),” as opposed to premarital

agreements.   Id. at 830 (parentheticals in original).


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            Other jurisdictions have required review under a

fiduciary standard, based on the fact that spouses stand in a

confidential relationship with each other, and postmarital

agreements are “executed when the parties do not contemplate

divorce and when they owe absolute fidelity to each other.”

Ansin, 929 N.E.2d at 968 (emphasis added).         See In re Estate of

Wilber, 75 A.3d 1096, 1101 (N.H. 2013) (“spouses are

traditionally regarded as fiduciaries of one another”); Tremont

v. Tremont, 827 N.Y.S.2d 309, 311 (2006) (“courts carefully

scrutinize marital agreements based on the fiduciary

relationship of the parties”); Dawbarn v. Dawbarn, 625 S.E.2d

186, 191 (N.C. Ct. App. 2006) (“The relationship between a

husband and wife creates a fiduciary duty.”); Marsh v. Marsh,

949 S.W.2d 734, 739 n.4 (Tex. App. 1997) (“in post-marital

agreements a fiduciary duty exists that is not present in

premarital agreements between prospective spouses”); In re

Marriage of Bonds, 5 P.3d 815, 831 (Cal. 2000) (“persons, once

they are married, are in a fiduciary relationship to one

another”).

            A fiduciary duty between spouses means that agreements

between them “must meet the high standards of fiduciary trust,

which means that there must be full disclosure and fair

dealing.”    Howard O. Hunter, Modern Law of Contracts § 2:24

(2014).   Courts holding spouses to a fiduciary standard require


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“the highest degree of good faith, candor and sincerity in all

matters bearing on the terms and execution of the proposed

agreement, with fairness being the ultimate measure.”            Wilber,

75 A.3d at 1101 (emphasis omitted).        “Because of the

confidential relationship between a husband and a wife, courts

have imposed the same duties of good faith and fair dealing on

spouses as required of partners and other fiduciaries.”            Daniel

v. Daniel, 779 S.W.2d 110, 115 (Tex. App. 1989).           “When an

interspousal transaction advantages one spouse, the law . . .

presumes such transactions to have been induced by undue

influence.    Courts of equity view gifts and contracts which are

made or take place between parties occupying confidential

relations with a jealous eye.”       In re Marriage of Haines, 33

Cal. App. 4th 277, 293-94 (1995) (citations, brackets, ellipsis,

and quotation marks removed).       For example, based on concerns

over the uneven power dynamics in a mid-marriage context,

California appellate courts have instituted a presumption of

duress when considering the enforceability of postmarital

agreements.   Bonds, 5 P.3d at 831.       “Whenever [married persons]

enter into an agreement in which one party gains an advantage,

the advantaged party bears the burden of demonstrating that the

agreement was not obtained through undue influence.”           Id.

(emphasis added).




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            In keeping with the twin concerns expressed by Traster

that spouses who wish to stay married are likely to put the

marriage ahead of their individual interest and that such

spouses may be exploited, transactions between spouses should be

subject to the general rules governing fiduciary relationships,

which guide the actions of persons occupying confidential

relations with each other.       See Cal. Fam. Code § 721 (2002).18

This requirement would impose a duty of good faith and fair

dealing on each spouse, such that neither could take an unfair

advantage of the other.        The confidential relationship and

     18
            The California code provide the following definition of a
fiduciary relationship between spouses:

            [I]n transactions between themselves, a husband and wife
            are subject to the general rules governing fiduciary
            relationships which control the actions of persons
            occupying confidential relations with each other. This
            confidential relationship imposes a duty of the highest
            good faith and fair dealing on each spouse, and neither
            shall take any unfair advantage of the other. This
            confidential relationship is a fiduciary relationship
            subject to the same rights and duties of nonmarital
            business partners . . . including, but not limited to, the
            following:

            (1) Providing each spouse access at all times to any books
            kept regarding a transaction for the purposes of inspection
            and copying.

            (2) Rendering upon request, true and full information of
            all things affecting any transaction which concerns the
            community property. Nothing in this section is intended to
            impose a duty for either spouse to keep detailed books and
            records of community property transactions.

            (3) Accounting to the spouse, and holding as a trustee, any
            benefit or profit derived from any transaction by one
            spouse without the consent of the other spouse which
            concerns the community property.

Cal. Fam. Code § 721 (2003).



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fiduciary relationship would be subject to the same rights and

duties of non-marital business partners.

           I would hold that an agreement that was not in

accordance with fiduciary standards should be presumptively

involuntary and unenforceable, and such agreements would be

enforceable only if the defending spouse could demonstrate that

the agreements in question were executed under a fiduciary

standard of good faith and fair dealing.          Given Ray’s extreme

mental distress and vulnerable state of mind described by the

uncontested findings of the family court and the financial

advantage gained by Sandra, the record before this court is

clear that the agreements between Sandra and Ray do not meet the

highest fair dealing standard of fiduciary trust, and the

agreements are therefore presumptively involuntary and

unenforceable.

D.   The October 6 “agreement” and MOU are invalid and
     unenforceable for lack of consideration

           As an alternative basis for affirming the judgment of

the family court, I would examine the threshold issue of whether

the October 6 Document and MOU were supported by consideration

sufficient to form a contract.        Ray raised the defense of lack

of consideration as a defense at trial.          The family court’s

declination to make a determination as to lack of consideration

was plain error, under the standards adopted by this court.



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          In civil cases, the plain error rule is only invoked when
          “justice so requires.” We have taken three factors into
          account in deciding whether our discretionary power to
          notice plain error ought to be exercised in civil cases:
          (1) whether consideration of the issue not raised at trial
          requires additional facts; (2) whether its resolution will
          affect the integrity of the trial court’s findings of fact;
          and (3) whether the issue is of great public import.

U.S. Bank Nat’l Ass’n v. Castro, 131 Hawaiʻi 28, 42, 313 P.3d

717, 731 (2013) (emphases added) (quoting Montalvo v. Lapez, 77

Hawaiʻi 282, 290, 884 P.2d 345, 353 (1994)).         Here, with respect

to the first two factors, no additional facts must be considered

to determine the issue and finding a lack of consideration will

not affect the integrity of the family court’s FOFs.           As to the

final factor, the adequacy of consideration in postmarital

agreements is of great public import because upholding such

contracts without true bargained-for exchange does not allow the

family court to exercise its authority to effect “just and

equitable” distributions of the marital estate.          See HRS § 580-

47 (“the [family] court may make any further orders as shall

appear just and equitable . . . finally dividing and

distributing the estate of the parties”); Gussin v. Gussin, 73

Haw. 470, 478, 836 P.2d 484, 488-89 (1992) (noting the wide

discretion conferred upon the family court by HRS § 580-47);

Lewis, 69 Haw. at 500-01, 748 P.2d at 1366 (holding that

premarital agreements are enforceable when they do not violate

the principle of a “just and equitable” award under HRS § 580–




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47).    Therefore, invoking plain error is appropriate in this

case.

       1.    Consideration in postmarital contracts

             All contracts made between spouses, not otherwise

invalid because of any other law, are valid.             HRS § 572-22

(1987).     However, the formation of a contract requires a bargain

in which there is a manifestation of mutual assent to the

exchange and consideration.         Restatement (Second) of Contracts §

17 (1981) (emphasis added).         This court has stated that “[a]

compromise, like any other contractual agreement, must be

supported by consideration.”         Sylvester v. Animal Emergency

Clinic of Oahu, 72 Haw. 560, 567, 825 P.2d 1053, 1057 (1992).

Therefore, consideration is a threshold issue in determining

whether a contract exists.

             “It is well-settled that consideration is an essential

element of, and is necessary to the enforceability or validity

of, a contract.”       Douglass v. Pflueger Haw., Inc., 110 Hawaiʻi

520, 534, 135 P.3d 129, 143 (2006) (quoting Shanghai Inv. Co.,

Inc. v. Alteka Co., Ltd., 92 Hawaiʻi 482, 496, 993 P.2d 516, 530

(2000), overruled on other grounds by Blair v. Ing, 96 Hawaiʻi

327, 31 P.3d 184 (2001)).         To constitute consideration, a

performance or a return promise must be bargained for.

Restatement (Second) of Contracts § 71 (1981).             Consideration

may take many forms; it is well established that “[f]orbearance


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to exercise a right is good consideration for a promise.”

Shannon v. Waterhouse, 58 Haw. 4, 7, 563 P.2d 391, 393 (1977).

            Although the family court did not address the issue of

the lack of consideration, the determination of lack of

consideration is a question of law for the court to decide,

reviewable de novo.      Stern v. Stern, 243 A.2d 319, 320 (Pa.

1968); Colligan v. Smith, 366 S.W.2d 816, 818 (Tex. App. 1963);

Farmers Union Oil Co. of New England v. Maixner, 376 N.W.2d 43,

48 n.2 (N.D. 1985).      This court has not examined what

constitutes consideration for a postnuptial contract between

spouses.    Other courts have held that neither the marriage

itself, nor continuation of the marriage, can act as sufficient

consideration for a postnuptial agreement because past

consideration cannot support a current promise.             See Bratton v.

Bratton, 136 S.W.3d 595, 600 (Tenn. 2004); Whitmore v. Whitmore,

778 N.Y.S.2d 73, 75 (2004).19

            In Bratton, a husband signed a letter in which he

promised “never to be the cause of a divorce.”             Bratton, 136

S.W.3d at 597.     In the event that he broke the promise, he

promised to give to the wife “50% of my present belongings and

50% of my net future earnings.”          Id.   The Supreme Court of


      19
            But cf. Zagari v.   Zagari, 746 N.Y.S.2d 235, 238 (2002) (declining
to find lack of consideration   in a post marital agreement where the agreement
recited consideration and the   spouse seeking to invalidate the agreement
offered no proof on the issue   of consideration).



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Tennessee found that a promise to stay in a marriage is not

consideration.

          Ms. Bratton’s promise not to leave her husband is clearly
          not consideration for the agreement. Both parties’
          admitted that they were not having marital difficulties at
          the time the agreement was signed. Therefore, this was not
          a reconciliation agreement where separation or divorce was
          imminent, making the wife’s promise to remain in the
          marriage a meaningful act.

Id. at 603 (emphases added).      Similarly, in Whitmore, 16 years

before actually divorcing, the husband and wife executed a

document entitled “Marital Agreement” in which the wife “waived

her right to any business property owned by the husband,

regardless whether it was acquired before or after the

marriage.”   Whitmore, 778 N.Y.S.2d at 74.        The court found that:

          Here, the wife received no consideration for signing the
          postnuptial agreement. The postnuptial agreement does not
          recite any consideration, and does not contain any mutual
          promises. Although the wife released her claims on the
          husband’s business property, he did not relinquish any
          rights to any of her property or give the wife anything in
          return. The husband claims that his continuing to remain
          married to the wife provided adequate consideration. We
          disagree.

Id. at 75 (emphases added).      Therefore, when there is no actual

intent or contemplation of divorce, postmarital contracts, in

which one spouse promises to relinquish significant property

rights in the event of divorce, and the other side only promises

to remain in the marriage or to not get divorced, are void for

lack of consideration.




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     2.   The “agreements” lack consideration

          Here, it is not clear as to what was the bargained-for

exchange that would support the existence of a contract in the

first two agreements.20     The October 6 Document provided that in

the event of a separation, Ray would give up half of his

interest in the couple’s home worth approximately $1.6 million,

plus the contents of the home (except his clothes and tools),

plus any interest in the couple’s vehicles.          In the MOU, Ray

additionally agreed to pay $100,000 in lieu of alimony and court

proceedings.   Therefore, Ray’s promise in the first two

“agreements” is clear; in the event of a divorce or separation,

he would relinquish or pay significant property to Sandra.

          However, it is not clear what constituted Sandra’s

return performance or promise.       The documents themselves do not

recite an exchange of promises.       Intuitively, it would seem that

Sandra’s return “promise” was forbearance of her right to

divorce Ray.   However, divorce was not on Sandra’s mind—it is

the uncontested findings of the family court that “Sandra was

not thinking about a divorce; she took Ray’s signing [of the

October 6 Document] as a show of his commitment”; “[t]he parties

signed the MOU with the intent that they would work on the

marriage”; “Sandra believed Ray signed the Quitclaim Deed



     20
          The Quitclaim Deed contained its own recitation of consideration.



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because he was serious about saving the marriage.”            (Emphases

added).    The family court found “that the parties were motivated

to save the marriage when they signed the various agreements

. . . .    Neither party intended their marriage to result in a

divorce and to divide their marital estate accordingly.”              Even

after overhearing Ray say “maybe divorce” to his sister, Sandra

still “wanted Ray to work on the marriage[.]”           As it is the

uncontested findings of the family court that when Sandra signed

the first two agreements she did not intend to divorce Ray,

Sandra’s return promise could not have been to forbear from

acting on her legal right to divorce Ray.

            At oral argument, counsel for Sandra characterized the

consideration for the October 6 “agreement” as the exchange of

mutual promises: “You promise to work hard on the marriage, and

I promise to work hard on the marriage, and if this thing

doesn’t work, this promise for promise, then this is how we’re

going to divide our assets.”21       When pressed on the issue of

consideration for the subsequent agreements, counsel conceded,

“We really didn’t delve into what the consideration was . . . We

really didn’t delve into that.”22          Moreover, a promise to work

hard or stay in the marriage would not serve as consideration

      21
            MP3: Oral Argument, Hawaiʻi Supreme Court, at 31:40 (Mar. 4,
2013), http:// www.courts.state.hi.us/courts/oral_arguments/archive/
oasc_11_1074.html.
      22
            Id.   at 33:10.



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under Whitmore or Bratton.      Whitmore, 778 N.Y.S.2d at 75;

Bratton, 136 S.W.3d at 600, 603.         Sandra and Ray were already in

a legal union, therefore, a promise by either to remain in the

relationship would not constitute a new promise.

          Such promises by Sandra would also be illusory.              An

illusory promise is not consideration.

          A promise or apparent promise is not consideration if by
          its terms the promisor or purported promisor reserves a
          choice of alternative performances unless

          (a) each of the alternative performances would have been
          consideration if it alone had been bargained for; or

          (b) one of the alternative performances would have been
          consideration and there is or appears to the parties to be
          a substantial possibility that before the promisor
          exercises his choice events may eliminate the alternatives
          which would not have been consideration.

Restatement (Second) of Contracts § 77 (1981).          That is,

promises which allow the promisor to choose from a range of

alternative return performances, at least some of which would

not constitute consideration, cannot constitute consideration.

          Words of promise which by their terms make performance
          entirely optional with the ‘promisor’ do not constitute a
          promise. In such cases there might theoretically be a
          bargain to pay for the utterance of the words, but in
          practice it is performance which is bargained for. Where
          the apparent assurance of performance is illusory, it is
          not consideration for a return promise.

Id. at cmt. a (citation omitted).        Consequently, a return

performance that is fully optional cannot constitute

consideration.    Therefore, a promise of return performance that

allows for alternative performances that include not performing,

cannot constitute consideration.



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          Here, the promise, “I promise to work hard in the

marriage,” would be illusory because Sandra reserved a right to

alternative performances—i.e., divorce or separation—which would

not constitute consideration.       Further, Sandra’s performance of

the “promise” was entirely optional; that is, there was no

consequence or detriment to Sandra for a decision to “breach”

the contract by not working hard in the marriage.

          Sandra did not make a valid return promise in exchange

for Ray’s promise to relinquish marital property or make certain

payments in the October 6 Document and the MOU.          Therefore, the

October 6 “agreement” and MOU are voidable by Ray for lack of

consideration.

                            III. Conclusion

          The facts demonstrate that all of the “agreements” are

unenforceable.    First, the family court correctly found that the

Quitclaim Deed was unenforceable as unconscionable.           Second, the

family court implicitly found that Ray’s assent to all of the

agreements was involuntary.      As involuntariness is a question of

fact, the family court may be overturned only if its findings of

fact are clearly erroneous.      Here, the family court’s findings

are not clearly erroneous because there is substantial evidence

supporting a finding of involuntariness as there is both ample

evidence of other circumstances demonstrating involuntariness

and the record supports a finding of undue influence.            Moreover,


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this court should require closer scrutiny of postmarital

contracts, by holding that spouses are fiduciaries of the other.

Finally, the October 6 Document and the MOU are invalid and

unenforceable for lack of consideration.         Instead of protecting

vulnerable parties to a postmarital agreement, the majority’s

holding allows an overreaching spouse seeking to circumvent

equitable distribution of marital assets to take financial

advantage of a committed partner who is desperately trying to

save the marriage.

                                      /s/ Richard W. Pollack




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