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RENDERED: APRIL 17, 2009; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2007-CA-000933-MR AND NO. 2007-CA-000992-MR RONALD J. BAMBERGER, EXECUTOR OF THE ESTATE OF JAMES T. HINES, JR.

APPELLANT/CROSS-APPELLEE

v.

APPEAL AND CROSS-APPEAL FROM DAVIESS CIRCUIT COURT HONORABLE THOMAS O. CASTLEN, JUDGE ACTION NO. 04-CI-00307 APPELLEE/CROSS-APPELLANT

LESLIE K. HINES

OPINION AFFIRMING ** ** ** ** ** BEFORE: LAMBERT, WINE, AND CLAYTON, JUDGES. CLAYTON, JUDGE: Ronald J. Bamberger, executor of the estate of James T. Hines, Jr. (Jim) appeals from an order of the Daviess Circuit Court upholding the Domestic Relations Commissioner's (DRC) recommendation to award Leslie K. Hines (Leslie) pendente lite maintenance. Leslie has filed a cross-appeal

challenging the ruling that found the antenuptial agreement valid and enforceable and the ruling determining that the horse, Leslie's Lady, was Jim's property. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND The parties met and began dating in 1992. At the time they met, Leslie was separated from her second husband and living with her two daughters. Jim had been married twice. After they began dating, Jim hired Leslie to be the manager of his property, the Athenian Racket and Fitness Center. Later, he sold the fitness center, constructed the Hines Wellness Center, which Leslie then supervised. She worked for Jim the entire time that they lived together and were married. During some periods, her actual work requirements were more symbolic than actual. In April 1993, Leslie and Jim began living together with Leslie's two daughters. They became engaged in May 1994. After moving out of Jim's home so that it could be renovated, they lived together in another home. But when the original home was completed in October 1997, Leslie did not move back into the home with Jim. According to Leslie's testimony, she did not want to move into the home until they were married. Subsequently, after some apparent persuasion by friends, Jim did agree to marry Leslie, and they set the wedding date (December 7, 1997). Meanwhile, Jim contacted his attorney to prepare an antenuptial agreement, which was then sent to Leslie's attorney. Upon learning of the proposed antenuptial agreement, Leslie attempted through her attorney to negotiate the -2-

terms. Jim was not willing to negotiate, and Leslie said she would not sign the agreement. Leslie states that friends of the couple again intervened and encouraged her to sign the agreement on December 4, 1997. After listening to them and Jim, she did sign the agreement against the advice of her own attorney. Three days later, Leslie and Jim were married. The marriage experienced problems almost immediately. As early as February 1998, Jim filed his first petition for dissolution of the marriage. Ultimately, on February 27, 2004, Jim filed the petition for the dissolution that resulted in the parties' divorce. On February 7, 2005, the trial court entered a decree of dissolution of marriage, reserving all other issues. Following the filing of the final petition, Leslie contested the validity of the antenuptial agreement. The DRC held an evidentiary hearing on December 2 and 9, 2004, to ascertain the validity of the agreement. Following the July 1, 2005, DRC's recommendations holding the agreement to be a valid contract and the trial court's adoption of the recommendations on August 22, 2005, Leslie and Jim appealed and cross-appealed the decision. Thereafter, our Court, on January 11, 2006, dismissed the action as interlocutory (2005-CA-001976). Another disputed issue between the parties was the DRC's recommendation to award pendente lite maintenance to Leslie and the court's incorporation of the recommendation in an order, which required Jim to pay Leslie

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$6,000 per month in pendente lite maintenance. Jim believed that the antenuptial agreement waived all maintenance including temporary maintenance. Finally, following a hearing May 23, 2006, to resolve additional issues related to the dissolution of the marriage, the DRC determined with regard to one of those issues that the horse, claimed by Leslie, was owned by Jim. Leslie asserted that the horse, named "Leslie's Lady" and purchased prior to the marriage by Jim, had been a gift to her from Jim. As Jim died on February 20, 2006, during the pendency of the action, Bamberger, the executor of the estate, has no personal knowledge as to whether Jim gave Leslie the horse. The DRC outlined the known facts in his recommendation and noted that Leslie's Lady was purchased on September 27, 1997, with two other animals from the Keeneland Association, Inc. The invoice was made out to James T. Hines, Jr. Leslie had no evidence that Jim ever transferred the horse to her. The DRC, based on the evidence, found that Jim was the owner of the horse. The circuit court upheld the DRC's recommendation in its order of October 30, 2006. This appeal and cross-appeal follow. In summary, the issues appealed are as follows: Jim's executor is appealing the decision to award pendente lite maintenance, and Leslie is appealing the decisions that the antenuptial agreement was valid and that the horse, "Leslie's Lady," was Jim's property. ANALYSIS 1. Antenuptial Agreement

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The unconscionability of a prenuptial agreement is a question of law to be determined by the court. 41 C.J.S. Husband and Wife,

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