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ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2007-2008

2060339


Ann Hall Tyler

v.

Henry Tyler


Appeal from Jefferson Circuit Court
(DR-05-2772)

THOMPSON, Presiding Judge.

On November 14, 2005, Henry Tyler ("the husband") filed

a complaint for a divorce from Ann Hall Tyler ("the wife").

In his complaint, the husband alleged that no children had

been born of the parties' marriage and that the issues of

property division and alimony had been addressed in an
antenuptial agreement.  Attached to his complaint, the husband
submitted a copy of an antenuptial agreement entered into by
the parties on February 12, 2001.  The wife answered and
counterclaimed for a divorce.  She later amended her
counterclaim to challenge the validity of the February 12,
2001, antenuptial agreement.  

The trial court conducted an ore tenus hearing on, among
other things, the issue of the validity of the antenuptial
agreement.  On July 17, 2006, the trial court entered an order
in which it, among other things, determined that the February
12, 2001, antenuptial agreement was valid and enforceable.  On
November 8, 2006, the trial court entered a final judgment
divorcing the parties and disposing of the parties' property
pursuant to the terms of the February 12, 2001, antenuptial
agreement.  The wife filed a postjudgment motion, which the
trial court denied.  The wife timely appealed.

The record indicates that the parties dated for a number
of months before becoming engaged.  While they were dating,
the parties discussed the possibility of marrying, and during

at least one such conversation, the husband indicated that he
wanted the parties to enter into an antenuptial agreement.

The parties later became engaged, and they scheduled
their wedding for February 14, 2001.  On February 12, 2001,
the husband drove the wife to his attorney's office.  The wife
testified that since initially discussing a general desire to
enter into an antenuptial agreement, the parties had not again
discussed the matter.  The wife stated that she did not
realize where the parties were going before the husband took
her to the attorney's office. The husband disputed that
testimony, stating that he had informed the wife of the
appointment with the attorney and that she knew they were
going to his attorney's office on February 12, 2001.  The
husband further testified that the parties had completed
financial-disclosure forms together in early February 2001 for
the purpose of drafting the antenuptial agreement.

It is undisputed that the husband's attorney drafted the
antenuptial agreement and that the husband's attorney arranged
for another attorney to be present to represent the wife.
Both attorneys were present when the parties arrived at the
office of the husband's attorney.  The wife went with her

attorney into a conference room to discuss the terms of the
antenuptial agreement.  

The wife's attorney testified that he did not remember
the specific events of February 12, 2001.  However, he
testified that it was his practice to review an antenuptial
agreement before its execution and to meet with the spouse he
was representing to review the terms of the agreement.  He
believed that he had received a copy of and had reviewed the
antenuptial agreement at least one day before the February 12,
2001, meeting. The wife's attorney believed that the February
12, 2001, antenuptial agreement was the worst he had ever seen
in regard to the manner in which it favored the husband over
the wife.  The wife's attorney testified that he recalled that
his intention was to advise the wife not to sign the
antenuptial agreement.

The wife testified that when she arrived at the husband's
attorney's office and received the antenuptial agreement, she
was so nervous and anxious that her heart raced and she had
difficulty with her vision. According to the wife, her
attorney read the antenuptial agreement to her and they
discussed her concerns about its terms and effect.  The wife

stated that, at one point, her attorney left the room to
attempt to negotiate terms more favorable to her but that the
husband refused to negotiate.  The wife acknowledged that her
attorney advised her against signing the antenuptial
agreement, and she admitted that she could have refused to
sign the agreement.  The wife stated that she signed the
agreement despite her anxiety about it.

The wife testified that she did not believe that the
antenuptial agreement encompassed the plans the parties had
made for their married life together.  However, it does not
appear from the record that the parties discussed the possible
terms of an antenuptial agreement when they were making plans
for their marriage.  The husband, who has a substantial
individual estate, testified that he would not have married
the wife absent the execution of an antenuptial agreement.
After the parties signed the February 12, 2001, antenuptial
agreement, they were married as scheduled on February 14,
2001.  The parties separated in October 2005.

On appeal, the wife argues that the trial court erred in
determining that the antenuptial agreement was valid and
enforceable.  It is well settled that antenuptial agreements

are enforceable in Alabama.  Ex parte Walters, 580 So. 2d 1352

(Ala. 1991); Brown v. Brown, [Ms. 2050748, July 27, 2007]

So. 2d  (Ala. Civ. App. 2007); and Barnhill v. Barnhill,

386 So. 2d 749 (Ala. Civ. App. 1980).

This court has explained the circumstances in which an

antenuptial agreement may be enforced as follows:

"An ante-nuptial agreement will be held valid as
just and reasonable if the [proponent of the
antenuptial agreement] is able to show that certain
conditions have been met. The husband, in this
instance, has the burden to show that the
consideration was adequate and that the entire
transaction was fair, just and equitable from the
wife's point of view or that the agreement was
freely and voluntarily entered into by the wife with
competent independent advice and full knowledge of
her interest in the estate and its approximate
value. Allison [v. Stevens, 269 Ala. 288, 112 So.
2d 451 (1959)].   Meeting the requirements of either
of the above tests is sufficient to give effect to
an antenuptial agreement."

Barnhill v. Barnhill, 386 So. 2d at 751 (emphasis added). An

antenuptial agreement must satisfy at least one of the two

tests discussed in Barnhill v. Barnhill in order to be

determined to be valid and enforceable.  Brown v. Brown,

supra; Lemaster v. Dutton, 694 So. 2d 1360, 1363 (Ala. Civ.

App. 1996); Woolwine v. Woolwine, 519 So. 2d 1347, 1349 (Ala.

Civ. App. 1987); and Barnhill v. Barnhill, supra.  However, as

has been noted by this court, "the elements of the second test
are considered as proof of the overall fairness required by"
the first test.  Brown v. Brown,  So. 2d at    ; see also
Lemaster v. Dutton, supra.

In Barnhill v. Barnhill, supra, the husband's attorney
drafted the antenuptial agreement and advised the wife
concerning its terms and effects.  The evidence indicated that
the wife had a general knowledge of the extent of the
husband's estate and that "the wife knew what the effect of
the agreement would be and was not happy with it."  386 So. 2d
at 751.  However, the wife signed the agreement when the
husband informed her he would not marry her if she did not
sign.  Based on that evidence, this court affirmed the trial
court's judgment enforcing the antenuptial agreement,
concluding that the evidence pertaining to whether the
antenuptial agreement was freely and voluntarily entered into
by the wife was also evidence that the agreement was "fair,
just and equitable from the wife's point of view."  Barnhill

v. Barnhill, 386 So. 2d at 752.

In Ex parte Walters, supra, the wife lived with the
husband for six months before she signed an antenuptial

agreement; she had had the agreement for approximately one
month before she decided to sign it.  During that month in
which she had the antenuptial agreement, the wife elected not
to seek independent legal advice.  The trial court upheld the
validity and enforceability of the antenuptial agreement, and
this court affirmed that determination.  Walters v. Walters,
580 So. 2d 1350 (Ala. Civ. App. 1990).  Our supreme court
affirmed this court's judgment.  In reaching its holding, the
supreme court concluded that evidence indicated that the wife
had had the opportunity to obtain legal advice and to "form an
opinion" regarding the extent of the husband's assets.  Ex
parte Walters, 580 So. 2d at 1354.

In Brown v. Brown, supra, the wife argued that the
parties' antenuptial agreement should not be enforced because
she had failed to read the agreement and her attorney was not
available to advise her concerning the agreement, which she
signed the day before she married the husband.  The wife also
argued that the atmosphere in which the husband had asked her
to sign the agreement was coercive and that he did not fully
disclose his assets in the antenuptial agreement.  The trial
court determined the antenuptial agreement to be valid and

enforceable, and this court affirmed.  This court noted that
the wife's failure to obtain legal advice, while regrettable,
was not alone sufficient to negate the validity of the
agreement she willingly signed. The court also concluded that
the wife had a general knowledge of the substantial nature of
the husband's estate and, therefore, that she had a general
knowledge of the rights she was relinquishing.  So. 2d at

.  This court also rejected the wife's argument that the
husband's presenting her with the antenuptial agreement the
day before the wedding was coercive; in doing so, this court
cited the ore tenus rule and concluded that the trial court
"must have determined that the atmosphere surrounding the
execution of the antenuptial agreement ... was not so coercive
as to warrant finding that the antenuptial agreement was
unenforceable."  Brown v. Brown,  So. 2d at  .

In reaching its holding in Brown v. Brown, supra, this
court distinguished the facts of that case from those of
Roberts v. Roberts, 802 So. 2d 230 (Ala. Civ. App. 2001).  In
Roberts v. Roberts, the husband presented the wife with an
antenuptial agreement approximately one month before the
parties were scheduled to marry.  The wife did not agree with

the terms of the antenuptial agreement, and she did not sign
the agreement.  For reasons not disclosed in the record, the
parties' wedding was postponed for several months.  The day
before the rescheduled wedding, the husband presented the wife
with a document entitled "Preliminary Agreement," which
provided that the parties would, within 30 days of their
marriage, execute the original antenuptial agreement and that,
if they failed to do so, the original antenuptial agreement
would be enforceable.  The wife signed the preliminary
agreement and the parties married.  The husband never
presented the wife with a copy of the antenuptial agreement
referred to in the preliminary agreement to sign.  The trial
court held the antenuptial agreement to be invalid.  This
court, noting that appellate courts must presume that the
trial court made those findings necessary to support its
judgment, affirmed.  This court concluded that the evidence
supported a finding that the wife had had little time between
receiving the antenuptial agreement and the wedding to consult
an attorney and that the facts would support a conclusion that
the wife did not "freely and voluntarily" sign the preliminary
agreement.  Roberts v. Roberts, 802 So. 2d at 234.

In Brown v. Brown, supra, this court distinguished the
facts of that case from those of Roberts v. Roberts, supra, by
pointing out that in Roberts v. Roberts this court had relied
on principles associated with the ore tenus rule and had
affirmed a judgment in which the trial court had found that
the antenuptial agreement was invalid and unenforceable. In
affirming the trial court's judgment declaring the antenuptial
agreement in Brown v. Brown to be valid and enforceable, this
court noted that "[w]e are likewise bound by the ore tenus
presumption in the present case."  Brown v. Brown,  So. 2d
at     (citing Tibbs v. Anderson, 580 So. 2d 1337, 1339 (Ala.
1991)).

The wife in this case concedes that, given this state's
caselaw, the antenuptial agreement must be said to have been
supported by consideration. See Barnhill v. Barnhill, 386 So.
2d at 751 ("Marriage may, under appropriate circumstances, be
sufficient consideration for an antenuptial agreement," as may
the proponent's relinquishment of rights in his or her
spouse's estate); Brown v. Brown, supra (same).  The wife
argues, however, that she did not have knowledge of the value
of the husband's estate at the time she entered into the

antenuptial agreement, that she did not have competent counsel
representing her at the time she entered into the antenuptial
agreement, and that she did not have sufficient time to
consider the antenuptial agreement and was coerced into
signing it.  In addressing those arguments, we must remember
that when, as here, the trial court has received ore tenus
evidence, its findings of fact are presumed to be correct and
will not be reversed absent a showing that they are plainly
and palpably wrong.  Brown v. Brown, supra (citing Tibbs v.
Anderson, 580 So. 2d at 1339).  When the trial court fails to
make specific factual findings, this court must assume that it
made those findings necessary to support its judgment, unless
those findings would be clearly erroneous. Roberts v.
Roberts, 802 So. 2d at 234.

In this case, the wife testified that while the parties
were dating she understood that the husband had a substantial
separate estate, that he owned his own business, and that he
had a generous income.  She testified that she did not object
to the general theory of an antenuptial agreement and that,
given his separate estate, she understood the husband's desire
to have an antenuptial agreement. The husband's financial

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