                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                              Assigned on Briefs May 14, 2002

           CAROL L. SOLOMAN v. KLEBBER DUNKLIN MURREY

                      Appeal from the Circuit Court for Davidson County
                          No. 99D-403     Donald P. Harris, Judge



                    No. M2001-00806-COA-R3-CV - Filed October 16, 2002


Before their marriage, the parties signed a pre-nuptial agreement, which among other things, declared
their intention to “equally divide any and all living expenses.” When they divorced, the trial court
enforced the agreement, and ordered the husband to reimburse the wife for her far greater
contribution to such expenses during the course of the marriage. The husband argues on appeal that
the living expenses provision should not have been enforced, because it is contrary to public policy.
We affirm the trial court.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Affirmed and Remanded

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

Thomas Jay Norman, Nashville, Tennessee, for the appellant, Klebber Dunklin Murrey.

D. Scott Parsley, Nashville, Tennessee, for the appellee, Carol L. Soloman.

                                              OPINION

                                 I. AN ANTENUPTIAL AGREEMENT

        Carol L. Soloman and Klebber Dunklin Murrey entered into an Antenuptial Agreement on
March 22, 1991, and married in April. The agreement recites the parties’ intentions to protect the
interest that each had in separate property, for their own benefit and that of their children from prior
marriages.

        One clause provides that in the event of separation or divorce, all items of property (whether
real, personal or mixed) titled in their separate names will be retained by the title-holder, and that
any appreciation in the value of such property will likewise belong to the party having title. Another
clause declares that property acquired during the marriage and titled in their joint names will be
divided equally. Still another declares that the individual provisions of the agreement are separable,
and that if any provision should be held to be invalid, unenforceable or void, the remaining
provisions will not be affected.

       An attachment to the agreement, executed on the same day, contains additional provisions.
One provides that the parties will reside at the homeplace of the wife, located at 521 Skyview Drive
in Nashville. However, if that property is sold, and the funds invested in a new homeplace, the
agreement states that the new property will be jointly owned, in proportion to the contribution each
party makes to it. A further provision reads as follows:

                                       LIVING EXPENSES

              The parties agree to equally divide any and all living expenses, including but
       not limited to all utilities and repairs.
              While the parties are residing together at 521 Skyview Drive, Nashville,
       Tennessee the wife shall pay the mortgage payments on said homeplace.

                                   II. Divorce and Enforcement

         The parties did not stay at Skyview Drive, but built a new home on Lickton Pike. After about
eight years of marriage, they separated, and Ms. Soloman sued for divorce. On September 1, 1999,
the trial court granted the parties a divorce on stipulated grounds. See Tenn. Code. Ann. § 36-4-129.
The court reserved the issues regarding the division of marital property for a later date.

        During the later hearing, the court heard detailed testimony as to the property of the parties,
and their personal finances. The couple had jointly acquired four pieces of real property during their
marriage: the marital home on Lickton Pike, a beach house in Florida, an office building in Gallatin,
and a lot on St. George Island, Florida. The marital home was titled in Ms. Soloman’s name alone.
The other properties were titled in both their names.

       Ms. Soloman produced detailed financial records, and testified that her husband made almost
no contribution to the acquisition of any of these properties, or to the parties’ living expenses, while
she paid for virtually all the food, the utility bills, extensive repair bills, a housekeeper, insurance
premiums and vehicle expenses, as well as for Mr. Murrey’s boat and airplane, which he later sold,
pocketing the proceeds. Mr. Murrey disputed his wife’s testimony, and claimed that he made a
substantial contribution of labor to the improvement of the marital property, and regular
contributions to the living expenses.

        In its order of March 5, 2001, the trial court stated that it interpreted the jointly acquired
property provision of the antenuptial agreement to apply without regard to the respective
contributions of the parties. The court accordingly made an equal division of the $187,000 equity
in the beach house, office building and island lot. The agreement provided, however, that the marital
home was to be divided according to the contribution of the parties. On the basis of the evidence,


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the court found that 75% of the $39,000 equity in the Lickton Pike home should go to the wife, and
25% to the husband.

         The court also found that Ms. Soloman had paid $130,313.76 in documented living expenses
and home repairs during the course of the marriage, while Mr. Murrey had paid $5,042. The court
noted that both parties “owned separate real properties at the time of their marriage and acquired
others subsequent thereto,” and reasoned that failure to enforce the living expenses agreement would
result in inequity. The court observed that the party that did not pay his share would be able to use
the money to invest in separate property, and thus take unfair advantage of the provision of the
agreement that allows each party to retain the property held in his own name. The court accordingly
ordered the husband to reimburse the wife $62,635 from his share of the marital estate, representing
half of the difference between her contribution to the living expenses and his. This appeal followed.

                                III. THE ANTENUPTIAL STATUTE

       The sole issue on appeal is whether the living expenses provision in the antenuptial
agreement may be enforced. The appellant argues that it should be held void and unenforceable, in
part because Tenn. Code. Ann. § 36-3-501, which provides for the enforcement of antenuptial
agreements in Tennessee, refers specifically only to the separate property of the parties prior to
marriage. That statute reads in pertinent part,

       . . . any antenuptial or prenuptial agreement entered into by spouses concerning
       property owned by either spouse before the marriage which is the subject of such
       agreement shall be binding upon any court having jurisdiction over such spouses
       and/or such agreement if such agreement is determined, in the discretion of such
       court, to have been entered into by such spouses freely, knowledgeably and in good
       faith and without exertion of duress or undue influence upon either spouse. The
       terms of such agreement shall be enforceable by all remedies available for
       enforcement of contract terms. [1980 Pub. Acts, ch. 492, § 1].

        Mr. Murrey implies that by enforcing the disputed provision, we thereby transform living
expenses into an element of marital property, and introduce a chaotic new element into domestic
relations law. He asks rhetorically,

       “. . . is the payment of living expenses now a factor to be considered by the trial
       courts of this state in determining a division of marital property? Does every divorce
       in this state hereafter contain an inquiry into the total expenditures of each spouse
       throughout the course of the marriage? Do marriages hereafter contain an element
       of accounting for each penny spent by each spouse during the marriage in preparation
       for a possible future divorce?”




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       With all due respect to the appellant, we do not believe that the enforcement of the clause at
issue would change living expenses into a species of marital property subject to division, in the
absence of a prenuptial agreement so providing.

        We also find it instructive that even though alimony is not mentioned in Tenn. Code. Ann.
§ 36-3-501, our Supreme Court has declared agreements waiving or limiting alimony to be
enforceable, “so long as the antenuptial agreement was entered into freely and knowledgeably, with
adequate disclosure, and without undue influence or overreaching . . . .” Cary v. Cary, 937 S.W.2d
777, 782 (Tenn. 1996).1 It thus appears to us that the subject matter of prenuptial agreements is not
limited to the disposition of property owned by the parties before their marriage, and that the
inclusion of questions of support into such agreements does not lead to a change in the statutory
definitions of marital and separate property. See Tenn. Code. Ann. § 36-4-121(b)(1).

                                   IV. PUBLIC POLICY CONSIDERATIONS

        The appellant contends that enforcement of the living expenses provision would be in
violation of the clearly enunciated public policy interest in protecting the institution of marriage. See
Thomasson v. Thomasson, 755 S.W.2d 779 (Tenn. 1988); Farrar v. Farrar, 553 S.W.2d 741, 744
(Tenn. 1977). He argues that to hold each party accountable to the other for expenditures made
during the course for the marriage would be destructive to the institution. We do not agree.

        Perhaps his argument would be valid if reimbursement for living expenses became a general
rule to be followed whenever property was divided following divorce, for we can easily imagine
situations where such a rule could lead to absurd results or work severe hardships on the parties. But
Ms. Soloman is not asking for a radical change in the law of domestic relations. She is merely
asking the court to enforce the terms of an agreement to which both parties freely assented.

        The State of Tennessee now recognizes the validity of antenuptial agreements, and allows
them to be interpreted and enforced like any other contracts. Minor v. Minor, 863 S.W.2d 51 (Tenn.
Ct. App. 1993); Kahn v. Kahn, 756 S.W.2d 685 (Tenn. 1988). Because of the confidential nature
of the marriage relationship, however, the courts must closely examine the circumstances of their
formation, to make sure they have been entered into freely, knowledgeably and in good faith, without
duress or undue influence. Randolph v. Randolph, 937 S.W.2d 815 (Tenn. 1996); Wilson v. Moore,
929 S.W.2d 367 (Tenn. Ct. App. 1996).

       In the present case, there is no suggestion of compulsion, deception or overreaching in the
formation of the agreement, and no evidence of disparity in the bargaining power of the parties.
Instead, we have two mature and knowledgeable adults, each with his own career and property, who
wished to equalize the financial burdens and rewards incident to their marriage. They freely entered


         1
           The Cary v. Cary decision does add one more requirement for the enforcement of alimony provisions in a
prenuptial agreement: that it not deprive one spouse of support that he or she cannot otherwise obtain, resulting in that
spouse becoming a public charge.

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into an agreement for that purpose, and both acknowledge the validity of that agreement, except one
wishes us to invalidate a provision that would be to his disadvantage. We see no reason to do so.

                                                 V.

      The order of the trial court is affirmed. Remand this cause to the Circuit Court of Davidson
County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant,
Klebber Dunklin Murrey.




                                               _________________________________________
                                               BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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