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In re Marriage of Hess11/4/1993
GRANT, Judge
In this appeal we must determine whether the parties' antenuptial agreement is valid. We conclude that it is not and therefore reverse the judgment of the trial court and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
Appellant Linda Marie Hess ("the wife") and Richard Alfred Hess ("the husband") met in 1973 at a Mesa hospital where the wife was employed as a respiratory technician and the husband was employed as an emergency room physician. Both parties had been previously married, and the wife had custody of her two children who were then two and four years old. When the husband entered an ophthalmology residency program in Ohio in 1974, the parties began living together.
After the husband completed his residency in 1977, the parties returned to Arizona, and the husband established a private practice in ophthalmology in November 1977. The wife helped the husband establish his office practice and worked full-time for him as the office manager.
In December 1977 the parties became engaged to be married. On March 3, 1978, while they were traveling in a car, the husband handed the wife a copy of an antenuptial agreement that had been prepared by his attorney. She read the agreement for a few minutes while riding in the car and then returned it to the husband. She was never given a copy to study or retain. Although the parties had discussed entering an antenuptial agreement, they had not discussed any specific terms of such an agreement, except for custody provisions regarding any children born during the marriage.
On March 10, 1978, the parties signed the antenuptial agreement at the office of the husband's attorney, Steve Williams, who drafted it. The parties had not previously discussed the terms of the agreement, and while they were at the attorney's office, neither they nor the attorney discussed the terms of the agreement. At the very perfunctory meeting where the agreement was signed, the attorney, Williams, suggested without elaboration that the wife could "seek outside help" but, according to the wife, he did not encourage her to do so. She did not retain her own attorney because she believed that her husband's attorney, Williams, also represented her. In fact, the record establishes that shortly thereafter Williams drafted a will for the wife and advised her regarding a personal injury matter.
The husband had told the wife that he would not marry her unless she signed the antenuptial agreement. According to the wife, when she signed the agreement, she did not understand it and did not know what the terms separate and community property meant. Her understanding of the agreement was that the husband would keep all property he had accumulated prior to that time, but she did not understand it to mean that all of his future earnings and acquisitions after their marriage would be his alone. She was not given a copy of the agreement either before or after it was signed and did not ask for one.
The antenuptial agreement provides in relevant part:
(1) All of the sole and separate property of Richard Alfred Hess, including, but not limited to, the real property described in Schedule A which is attached hereto and incorporated herein by this reference and the personal property described in Schedule B which is attached hereto and incorporated herein by this reference, shall, after the contemplated marriage, remain the sole and separate property of Richard Alfred Hess free and clear of any right, title or interest thereto on the part of Linda Marie Reed or any creditor or other person claiming any interest through Linda Marie Reed. Linda Marie Reed does hereby relinquish, re
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