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Herbener v. Herbener

Court of Appeals of Kentucky

October 11, 2019



          BRIEFS FOR APPELLANT: Bonnie M. Brown Louisville, Kentucky

          BRIEF FOR APPELLEE: Melanie Straw-Boone Louisville, Kentucky



          LAMBERT, JUDGE:

         In this dissolution action, Janet Herbener appeals from the orders of the Jefferson Family Court dividing real and personal property, dividing her retirement benefits, awarding attorney's fees to her former husband, Marc Herbener, and finding her in contempt. Finding no error or abuse of discretion, we affirm.

         Janet and Marc were married in Louisville, Kentucky, on November 23, 2001. They separated in 2015, and Janet filed a petition to dissolve the marriage on May 12, 2016. She requested that the court equitably divide the parties' marital property and debts. In his response, Marc requested that the court enforce the terms of the parties' prenuptial agreement and distribute the marital property as agreed upon by the parties prior to the marriage. The prenuptial agreement, signed by both parties and notarized on November 21, 2001, stated as follows:

THIS AGREEMENT, made this nineteenth day of November 2001 is between Janet L. Gunderson and Marc P. Herbener
1. PURPOSE. The parties expect to be married in the near future. Each has separate property, the nature and extent of which is fully disclosed in the statements of assets and liabilities [i]n exhibits 1 and 2 attached to this agreement. Janet L. Gunderson hereby claims to own assets with a net value of at least sixty thousand dollars ($60, 000.00) on this date, and Marc P. Herbener hereby claims to own assets with a net value of at least nine hundred thousand dollars ($900, 000.00) on this date. The parties are setting forth in this Agreement their respective rights in and to all property of either owned at the date of their marriage and in and to all property that may be acquired by either or both of them after their marriage. They are also setting forth their rights regarding spousal support of maintenance.
2. EFFECT OF AGREEMENT. This Agreement shall take effect only upon the solemnization of the marriage between the parties. Thereafter, each of the parties shall separately retain all rights in the property he or she now owns, including all appreciation, as well as property and income acquired separately in the future ("Separate Property"), and each of them shall have the unrestricted right to dispose of such Separate Property, free and clear of any claim that may be made by the other by reason of their marriage and with the same effect as if no marriage had been consummated between them. Separate Property shall include substitutions and exchanges for such property now in existence, and income from property acquired separately hereafter, and any proceeds there from, and from any income derived from such property, and any property purchased from the proceeds or income from such property. Separate property shall also include gifts or inheritances one party receives from a third party.
3. DISPOSITION OF PROPERTY. In the event either party should desire to sell, encumber, convey or otherwise dispose of or realize upon his or her Separate Property or any part or parts thereof, the other will, upon request, join in such deeds, bills of sale, mortgages, renunciations or survivorship or other rights created by law or otherwise, or other instruments, as the party desiring to sell, encumber, convey or otherwise dispose or realize upon my request and as may be necessary and appropriate.
4. JOINT PROPERTY, ETC. This Agreement does not restrict, prohibit or condition any conveyance or transfer by the parties, or either of them alone, of the Separate Property of either party into tenancy in common, joint tenancy, tenancy by the entireties or any other form of concurrent and/or undivided estate or ownership between the parties, or the acquisition of any property in any such form of ownership by the parties. Contributions to joint expenses and joint property made in relation to income of the respective parties shall be considered proportionally and, in the event of distribution, shall be distributed proportionally. The incidents and attributes of ownership and other rights of the parties with respect to any property so conveyed, transferred or acquired shall be determined under State law and shall not be governed by or otherwise determined with reference to this Agreement.
5. SEPARATE PROPERTY. The parties agree that the rights and obligations created by this Agreement have monetary value to each of the parties and each of the parties agrees to make no claim to the Separate Property of the other party, either during the joint lives of the parties hereto or thereafter, and, if a party is not a prevailing party (as may be legally finally determined) with respect to any such claim, to indemnify the other party against all costs, fees and expenses arising from any such claim.
6. WAIVER OF RIGHTS. Except as otherwise provided in this Agreement, each part hereby waives, releases and relinquishes any and all right, title or interest whatsoever, whether arising by common law or present or future statute of any jurisdiction or otherwise, in the Separate Property and probate estate of the other, including but not limited to distribution of intestacy, the right of election to take against the will of the other, any rights accruing by reason of the events occurring prior to their marriage, and any right to dower, curtesy, statutory allowances, and spousal support. Such waiver, release and relinquishment shall not apply and is not effective with respect to any rights or entitlements a party may have as a surviving spouse under the Social Security laws or with respect to any other governmental benefit or governmental program of assistance. This Agreement shall not limit the right of either party to make such transfers of property to the other as he or she may wish during their respective lifetimes, or by will, or to acquire property jointly or in any other form of ownership referenced in section 4.
7. DISSOLUTION/SEPARATION/ANNULMENT. Except as otherwise provided in this Agreement, each party specifically agrees that neither shall make any claim for or be entitled to receive any money or property from the other as alimony, spousal support, or maintenance in the event of separation, annulment, dissolution or any other domestic relations proceeding of any kind or nature, and each of the parties waives and relinquishes any claim for alimony, spousal support or maintenance, including, but not limited to, any claims for services rendered, work performed, and labor expended by either of the parties during any period of cohabitation prior to the marriage and during the entire length of the marriage. The waiver of spousal support shall apply to claims both pre- and post-judgment.
8. COHABITATION. Each party waives any and all rights or claims existing now or hereafter existing with reference to any period of cohabitation, if any, prior to the marriage of the parties, including, but not limited to, any claim to real or personal property.
9. FINANCIAL DISCLOSURE. Each party has attached a statement of assets and liabilities as exhibits to this Agreement, 1 and 2 respectively. Each party acknowledges an opportunity to inquire further as to the financial information provided by the other, and each party specifically waives any rights to any further disclosure of the property and financial obligations of the other beyond that provided by the exhibits to this Agreement.
10.RIGHT TO CONTEST. Nothing contained herein shall limit the right of either party to contest any domestic relations suit between the parties or to file a counter suit against the other party[.] However, in any hearing on such suit, this Agreement shall be considered a full and complete settlement of all property rights between the parties. In such case, neither party shall maintain any claim or demand whatsoever against the other party for property, suit money, attorney fees and costs which is either inconsistent with or not provided for in this Agreement.
11.INTEGRATION. This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. All prior agreements, covenants, representations, and warranties, expressed or implied, oral or written, with respect to the subject matter hereof, are contained herein. All prior or contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants, and warranties, with respect to the subject matter hereof, are waived, merged, and superseded hereby. This is an integrated agreement.
12.BINDING ON SUCCESSORS. Each and every provision hereof shall inure to the benefit of and shall be binding on heirs, assigns, personal representatives, and all ...

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