Foster v. Foster

ROBERTS, Justice,

concurring.

I join in the court’s decision to vacate the divorce judgment. I write separately to express an additional reason for vacating the judgment.

*1173 In her complaint, Joy Foster asks inter alia for an award of alimony. That request was denied without any express reasoning, but presumably on the basis of the premarital agreement. Nowhere in the operative language or in the recitals does the agreement refer to alimony. I am unwilling to extend the reference to rights acquired by marriage in “the property or estate” of Charles Foster to include Joy Foster’s claim for alimony. As a result, even if the divorce court were correct in finding the agreement applicable to the divorce situation, nothing in that agreement can reasonably be construed as a waiver of any claim for alimony.

CLIFFORD, Justice, with whom GLASSMAN, Justice, joins, dissenting.

I respectfully dissent. I agree with the court that the Superior Court did not abuse its discretion in its award of child support and the amount of attorney fees it ordered to be paid by Charles Foster. I also agree with the court that defendant’s cross-appeal is without merit. In my view, however, we should not review the premarital agreement de novo, as the court has done, but rather should defer to the Superior Court’s construction of the agreement and affirm the judgment.

Giving effect to the intent of the parties is the cardinal rule of construction of contracts. If the contract is unambiguous (the question of whether it is ambiguous being a question of law), the trial court’s interpretation on the basis of the four corners of the contract is a question of law reviewable de novo on appeal. Pelletier v. Jordan Assocs., 523 A.2d 1385,1386 (Me.1987). If, on the other hand, the contract is ambiguous and extrinsic evidence relevant to the interpretation of the agreement is before the court, the interpretation is a question of fact reviewable under a deferential clear error standard. Titcomb v. Saco Mobile Home Sales, 544 A.2d 754, 757 (Me.1988); see Estate of Wilson, 542 A.2d 838, 839 (Me.1988). Such is the case here.

The agreement’s preamble provides:

WHEREAS, Foster desires to evoke a reasonable and sufficient provision for [then Joy] Mitchell in release of and in full satisfaction of all rights which, after the solemnization of their marriage, she might or could have by any reason of the marriage in the property which Foster has or may hereafter acquire or in his estate upon death, and WHEREAS, Mitchell desires to accept this provision in lieu of all rights which she would otherwise acquire by reason of the marriage in the property or estate of said Foster....

(Emphasis added). In Paragraph 1 of the agreement, Joy Mitchell gives up her dower rights to Foster’s real estate and agrees to execute any deeds or other instruments to allow Foster to transfer his real estate free from any claim of hers. Paragraph 3 provides that Joy Mitchell releases all rights “which by reason of the marriage she may acquire in the property or estate of Foster,” as well as her rights as a widow. Such language at the very least creates an ambiguity as to whether the parties intended the $50,000 payment to Joy Foster to be in lieu of any claim she may have to alimony or Foster’s property in the event of a divorce. See Brackett v. Middlesex Ins. Co., 486 A.2d 1188, 1189 (Me.1985); Portland Valve, Inc. v. Rockwood Sys. Corp., 460 A.2d 1383, 1387 (Me.1983) (contract ambiguous if reasonably susceptible of different interpretations).

Implicit in the Superior Court decision, as shown by the receipt of extrinsic evidence on the validity and intent of the agreement, is a determination that the premarital agreement is ambiguous. That evidence showed that Joy Foster had been divorced twice after marriages of short duration, and that Charles Foster had been through a divorce involving substantial alimony and division of property. There was direct testimony from the drafter of the agreement, Charles Foster’s attorney, that the agreement was drafted to allow Charles Foster to convey his property freely without his wife’s signature, and to provide for the possibility of a divorce. The Superior Court considered that evidence, upheld the agreement, and found the agreement applicable to the divorce. Because the agreement is ambiguous and the Superior Court *1174 considered extrinsic evidence in construing it, we should review that decision for clear error. Titcomb, 544 A.2d at 757 . I discern no such error, and would affirm the divorce judgment.