Rudnick v. Rudnick

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22-P-133 Appeals Court

DORIS RUDNICK vs. LEONARD W. RUDNICK.

No. 22-P-133.

Norfolk. October 13, 2022. – March 30, 2023.

Present: Sullivan, Neyman, & Brennan, JJ.

Husband and Wife, Antenuptial agreement. Contract, Antenuptial
agreement, Marital agreement. Divorce and Separation,
Amendment of judgment.

Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on July 12, 2019.

Entry of partial judgment was ordered by George F. Phelan,
J., and the remaining issues were heard by Jacqueline M.
Burchill, J.

Michael G. Xavier (Katie M. Walsh & Peter A. Kuperstein
also present) for the husband.
David E. Cherny (Joana L. Stathi also present) for the
wife.

BRENNAN, J. Following a bifurcated trial, a judge of the

Probate and Family Court found that the antenuptial agreement

(agreement) executed by Doris Rudnick (wife) and Leonard W.

Rudnick (husband) was fair and reasonable when it was signed,
2

but unconscionable and therefore unenforceable at the time of

divorce. Partial judgment entered accordingly on May 12, 2020.1

After a second trial, a different judge entered an amended

judgment of divorce nisi on December 17, 2021, that, among other

things, divided the marital estate. The husband appeals from

the partial judgment that invalidated the agreement.2 Concluding

that the judge did not err in determining that the agreement was

unconscionable at the time of enforcement, we affirm.

1. Background. We summarize the facts as found by the

trial judge. The parties married on November 28, 1992. This

was a second marriage for both parties. Each had children from

prior marriages, but no children were born of this marriage.

When their relationship began, the wife, who was fifty-eight

years old, worked as an administrative assistant at a Boston

hospital. The husband, who was sixty-five years old, had been a

successful self-employed businessman. The husband retired

1 The judgment was dated April 27, 2020.

2 Although the husband's notice of appeal included the
amended judgment of divorce nisi, on appeal, he makes no
separate argument as to the division of assets or other aspects
of the amended judgment of divorce nisi. Because the husband
did not brief these issues, they are waived. See Kilnapp
Enters., Inc. v. Massachusetts State Auto. Dealers Ass'n, 89
Mass. App. Ct. 212, 222 n.4 (2016), quoting Smith v. Bell Atl.,
63 Mass. App. Ct. 702, 725 n.8 (2005)("An argument that is not
raised in a party's principal brief may be deemed waived").
3

before the marriage and the wife retired the year after the

marriage.

The day before their marriage, at the husband's request,

the parties signed the agreement. The husband claimed that he

would not have married the wife without the agreement in place.

The agreement was drafted by the husband's attorney. The wife's

attorney -- with whom she only had one contact -- recommended

that she not sign the agreement; there were no further

discussions between the wife and her attorney about

Massachusetts law or the division of assets. Nevertheless, the

judge found that both parties signed the agreement freely and

voluntarily. The agreement contained, among other things,

provisions for the treatment of individual property, ownership

of property in which the parties would reside during the

marriage, and provided that there would be no claim for alimony,

separate maintenance or support, or a division or assignment of

income or assets.3 A statement of each party's assets was

attached to the agreement and incorporated therein.

3 The agreement provided in pertinent part that "the parties
expect to reside together in a location, style, and manner
mutually suitable to them," and "[o]wnership of any homes,
residences, or other real property acquired by [husband and
wife] shall be held by the parties as Tenants in Common with no
rights of survivorship." If the wife survived the husband and
they were still married and living together at his death, the
wife was to be granted the right to remain living "in a jointly
acquired marital residence for life to the extent of any
interest in the residence owned by (husband) at the time of his
4

During the marriage, the parties acquired homes in Canton,

Massachusetts, and Lake Worth, Florida. The couple split their

time relatively equally between the two properties. Although

the wife was involved in the purchase of the Florida property,

she did not contribute any of her individual funds and, without

her knowledge, the title was in the husband's sole name. Again

without the wife's knowledge, the title to the Canton property

was held in a trust for the benefit of the husband's adult

children. The husband alleged that his adult children provided

the funds to purchase the property. Throughout the marriage,

the husband paid "rent" to the trust in amounts ranging from

$1,800 to $5,000 per month.

The parties met with an architect to design the Canton home

and traveled out of State to select furnishings together,

including kitchen countertops, cabinets, appliances, and window

treatments. The wife contributed approximately $20,000 of her

premarital funds towards these purchases. Unfortunately, the

death." The right would terminate if the wife remarried,
cohabitated with another person other than a blood relative,
discontinued her occupation as a primary residence, or died. In
the event one of those disqualifying events occurred, or if the
wife predeceased the husband, any such jointly acquired marital
residence was to be liquidated and the proceeds distributed to
the parties pro rata based on their respective contributions to
the purchase price and construction costs of the residence. The
agreement defined "jointly acquired marital residence" as "the
home purchased, constructed, or otherwise contracted for
together by the parties subsequent to their marriage, including
property acquired as Tenants in Common" (emphasis added).
5

Canton home was destroyed by a fire in 2007. The wife was

involved in decisions regarding rebuilding the home. She

believed the Canton property was owned jointly but learned

otherwise when the parties separated in 2017. The property was

sold in 2018 for $1.28 million and the proceeds of the sale were

paid to the husband's adult son.

On July 12, 2019, the wife filed a complaint for divorce

wherein she sought, among other things, an equitable division of

the marital estate pursuant to G. L. c. 208, § 34. The husband

filed a counterclaim for divorce seeking, among other things,

enforcement of the agreement. A judge of the Probate and Family

Court allowed the husband's motion to bifurcate the case to

determine first the validity and enforceability of the

agreement. Following a one-day trial, the judge issued a

partial judgment finding that the agreement was fair and

reasonable at the time of execution, but that it was

unconscionable at the time of the divorce4 because of "material

and substantial events" that "essentially stripped [the wife] of

substantially all her marital interests." The judge ultimately

concluded that the agreement was invalid and unenforceable.

4 The judge determined that the agreement was fair and
reasonable at the first-look stage, despite finding that the
husband failed to make a full financial disclosure at the time
of execution of the agreement. The wife does not argue on
appeal that the judge erred in this regard, and thus we do not
reach the issue.
6

After the second trial, a different judge issued an amended

judgment of divorce nisi that, as relevant here, divided the

marital estate between the parties. This appeal followed.

2. Discussion. a. Antenuptial agreement. For an

antenuptial agreement to be enforceable, it must be both (1)

fair and reasonable at the time of execution (the "first look"),

and (2) conscionable at the time of enforcement (the "second

look"). DeMatteo v. DeMatteo, 436 Mass. 18, 35-38 (2002).

Here, the husband challenges the judge's determination that the

agreement was unconscionable at the second-look stage.

Contract principles apply to antenuptial agreements, and

the interpretation of an antenuptial agreement is a question of

law, which we review de novo. See DeMatteo, 436 Mass. at 26

n.16; Matter of the Estate of Stacy, 96 Mass. App. Ct. 447, 448,

453 (2019); Greenspun v. Boghossian, 95 Mass. App. Ct. 335, 341

(2019). The Probate and Family Court judge's findings of fact

are reviewed for clear error. See Adams v. Adams, 459 Mass.

361, 380 (2011), S.C., 466 Mass. 1015 (2013). In interpreting

an antenuptial agreement, we consider it as a whole. See

Tompkins v. Tompkins, 65 Mass. App. Ct. 487, 494 (2006).

In DeMatteo, 436 Mass. at 36-37, the Supreme Judicial Court

described the second look as follows:

"In Massachusetts, a valid antenuptial agreement is not
unenforceable at the time of divorce merely because its
enforcement results in property division or an award of
7

support that a judge might not order under G. L. c. 208,
§ 34, or because it is one sided. . . . Rather, we follow
the majority of courts and require that a judge may not
relieve the parties from the provisions of a valid
agreement unless, due to circumstances occurring during the
course of the marriage, enforcement of the agreement would
leave the contesting spouse 'without sufficient property,
maintenance, or appropriate employment to support' herself.
. . . The 'second look' at an agreement is to ensure that
the agreement has the same vitality at the time of the
divorce that the parties intended at the time of its
execution. . . . [W]e will not recognize the validity of
an antenuptial agreement that essentially strips the
contesting spouse of substantially all of her marital
interests. For the same reason -- that marriage is a
special status from which certain obligations arise -- we
will not enforce an antenuptial agreement that prevents a
spouse from retaining her marital rights, of which
maintenance and support, however disproportionately small,
are the most critical" (citation omitted; emphasis added).

Here, the judge on the second look found that the agreement

was unconscionable, and thus unenforceable, because it stripped

the wife of all marital interests and left her with insufficient

financial resources to support herself. Specifically, the judge

found that the husband twice had breached the agreement by

failing to take title to the Canton and Florida properties as a

tenant in common with the wife. He further found that the

husband either acquiesced to, or actually engineered, the

purchase of the Canton property by the trust in order to

"circumvent" the agreement, and that taking title to the Florida

property in his individual name was a "naked breach" of the

agreement. We are not persuaded by the husband's contention

that these findings are clearly erroneous. It is apparent, upon
8

reading the agreement as a whole, that the parties intended to

live together in a "jointly acquired marital residence" in which

the wife would have a property interest. As a result of the

husband's actions during the marriage, however, the wife was

left with no marital property interests,5 and no right to seek

alimony.

The conscionability requirement of the second-look analysis

is tied in large measure to the contesting spouse's ability to

retain at least some marital interests, whether those interests

comprise some marital property, a right to seek alimony, or a

combination of both (notwithstanding that those retained

interests might be less than what a judge would award pursuant

to G. L. c. 208). See DeMatteo, 436 Mass. at 36-37. DeMatteo

makes it clear that an agreement that strips a spouse of

substantially all marital interests is contrary to public policy

5 We are unpersuaded by the husband's contention that, even
if the Canton property was held by the parties as tenants in
common consistent with the intent of the agreement, the wife
would not have been entitled to any equity therein because she
did not contribute toward the purchase price and construction
costs. The judge found that the husband engaged in conduct to
prevent the wife from acquiring equity in their marital homes;
accordingly, the husband cannot avail himself of the very
circumstances that he arranged in violation of the spirit of the
parties' agreement. Moreover, the record reflects that the wife
was involved in the construction and furnishing of the Canton
property (contributing approximately $20,000 of her own funds),
thus, she likely would have been entitled to some equity had the
husband not orchestrated the rental, rather than the outright
purchase, of the Canton property.
9

and is thus unenforceable.6 Id. In DeMatteo, the antenuptial

agreement -- which provided the wife with the marital home free

of encumbrance, alimony with cost of living increases and

medical insurance until her death or remarriage, a car, and one-

half of all property jointly acquired during the marriage -- was

not held to be unconscionable because there was no evidence

"that circumstances during the marriage led to any changes of

any significance: the wife suffered no debilitating illness and

she [was] not unable to work should she [have chosen] to

supplement her income." Id. at 38. In Austin v. Austin, 445

Mass. 601, 606 (2005), an antenuptial agreement that allowed the

wife to retain her premarital property, "permitted [her] a joint

interest in marital assets and provided that 'any appreciation

on the marital home' . . . be divided as a marital asset, even

if the husband held sole title to the property" was not deemed

unconscionable. Notably, that agreement "entitled the wife to

relocation and 'support' from the husband if there were no

6 This is true both at the first-look stage when reviewing
the language of the agreement, and at the second-look stage,
when considering events occurring during the marriage that
render enforcement of the agreement unconscionable at the time
of the divorce. See DeMatteo, 436 Mass. at 31, 37. While we
acknowledge that the language of the agreement here left the
wife vulnerable to the very misconduct by the husband that
resulted in her being stripped of substantially all marital
interests, the question of the agreement's validity at the
first-look stage was not raised in this appeal, so we do not
address it.
10

jointly owned marital home at the time of a divorce . . . . In

short, the agreement provided for either funds from a capital

asset or access to support" in the event of a divorce. Id. The

court reasoned that, "[g]iven the assets [the wife had] been

awarded" under the agreement -- namely, the marital home worth

$1.275 million, tangible personal property worth $74,000, and

$525,000 in cash -- "we cannot say that the agreement [left] the

wife without sufficient property and maintenance." Id. at 608.

Finally, we upheld a Probate and Family Court judge's conclusion

that an agreement was unconscionable where, although the wife

was not stripped of all marital interests, the only marital

asset she was awarded had negative value and needed costly

repairs. Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33, 35-36

(2015).

Here, enforcement of the agreement would leave the wife

with no marital assets and no alimony, in direct contravention

of DeMatteo. She was eighty-six years old at the time of trial,

ailing, and unable to earn income. Notably, the wife waived her

right to alimony with the understanding that she would be

entitled to the appreciation of the value of any real property

acquired during the marriage -- here the Canton and Florida

homes. However, the manner in which the husband took title to

those properties placed them out of the wife's reach and thus

prevented her from "retaining her marital rights." DeMatteo,
11

436 Mass. at 37. The record amply supports the judge's findings

that, as a result of the husband's actions to "circumvent" the

agreement, the wife (1) would get "nothing after 27 years of

marriage" and would be "essentially stripped of substantially

all her marital interests," and (2) was in a worse situation due

to her "age and health circumstances," "had to tap her assets to

support herself in a modest lifestyle," and "now does not have

sufficient property, maintenance or suitable employment for

self-support." If the agreement were enforced, the wife would

be in the same position as if she had never been married at all,

in direct contravention to the intent of the parties that the

wife retain at least some marital property interests, as set

forth in their agreement. See id. (agreement should have same

vitality when executed and at time of divorce). Simply put,

enforcement of the agreement would deprive the wife of her

marital interests. See id. (recognizing special status of

marriage gives rise to obligations and antenuptial agreements

that cause a spouse to retain no marital interest are invalid).

The partial judgment dated April 27, 2020, and the amended

judgment of divorce dated December 17, 2021, are affirmed.7

So ordered.

7 The husband's and the wife's requests for appellate
attorney's fees are denied.