COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59254 LOU ANN VOLK : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION MYRON VOLK, Co-Executor of the: Estate of David Volk, Dec'd.: et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 24, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 131,349 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: DAVID B. SHILLMAN Attorney at Law 720 Leader Building Cleveland, Ohio 44114 For defendant-appellees: HAROLD H. READER III Attorney at Law 900 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1583 (Cont.) For defendant-appellees NANCY A. SHAW (cont.): Attorney at Law 2000 Huntington Building Cleveland, Ohio 44115 - 1 - FRANCIS E. SWEENEY, J.: Plaintiff-appellant, Lou Ann Volk, appeals from the judgment of the common pleas court which found in favor of defendant- appellee, Myron Volk, Co-Executor of the Estate of David Volk, on appellant's complaint. For the reasons set forth below, we affirm. Appellant, the surviving spouse of David Volk (hereinafter "appellee"), brought suit seeking cancellation and/or rescission of an antenuptial agreement. After a bench trial, the court ruled in favor of appellee, finding that appellant "entered into the Agreement voluntarily and without fraud, coercion, duress or overreaching; that there was full disclosure as to the nature, extent and value of Dr. Volk's assets prior to the execution of the Agreement; and that the Agreement was fair and reasonable in light of the totality of the circumstances at the time it was entered into." The relevant testimony at trial is as follows: Appellant and appellee were married on May 31, 1982. The antenuptial agreement in question was executed three days pre- viously, on May 28, 1982. Appellant testified that she had previously been married twice to Jack Upson and had two children from those prior mar- riages. During that period, appellant, a college graduate, executed a consent judgment with respect to her first divorce from Upson, a separation agreement, and a second separation - 2 - agreement stemming from her second divorce from Upson. During her second divorce from Upson, appellant was represented by James T. Flaherty, a Professor of Domestic Relations Law at the Cleveland-Marshall College of Law. Professor Flaherty repre- sented appellant during all relevant times concerning the present antenuptial agreement. Appellee was also previously married. He had been divorced from his first wife thirteen years earlier and had five adult children from that marriage. Appellant and appellee became engaged in April of 1982. The couple then proceeded to make their wedding plans known to friends and relatives. Appellant testified that on May 16, 1982, appellee requested, without explanation, that appellant accompany him on the following day to his attorney's office. On May 17, 1982, the couple went to Jordan C. Band's office where, appellant stated, she was told she would have to sign an antenuptial agree- ment, waiving all rights to appellee's property other than a specified percentage of his estate or there would be no wedding. Thereafter, on May 21, 1982, a proposed draft was sent to appellant's attorney, Professor James T. Flaherty, for his re- view. On May 25, 1982, appellant, appellee, Band and Flaherty met at Band's office to discuss the terms of the agreement. During the two-hour meeting, Flaherty proposed numerous changes, to which Band agreed. After further discussion between Flaherty and Robert Fein, a member of Band's law firm, a final draft of - 3 - the agreement was prepared and executed on May 28, 1982 by the parties herein. Jordan C. Band testified that on May 14, 1982, appellee contacted him and informed him of his plans to marry appellant. He also indicated that he wanted to enter into an antenuptial agreement. Appellee told Band that if he were to predecease appellant, he wanted her to receive about the same share of his estate as each of his children. Band suggested to appellee that he should bring appellant to Band's office so they could discuss appellee's proposal and appellant could begin the process of hiring her own attorney. On May 17, 1982, Band met with appellant and appellee and explained in general terms the nature and purpose of the ante- nuptial agreement. Band informed appellant that appellee's estate was worth approximately $1 million. Band further denied telling appellant that if she did not sign the agreement, there would be no wedding. Finally, Band advised appellant to obtain her own counsel. Thereafter, on May 21, 1982, Band forwarded a proposed draft to Flaherty, which included an exhibit listing appellee's assets. Band and Flaherty discussed the agreement on May 24, 1982. Finally, Band testified that at the May 25, 1982 meeting, he agreed to certain changes proposed by Flaherty. Band stated that because he was leaving town, he turned the matter over to his - 4 - partner, Robert Fein. Mr. Fein testified that he spoke with Flaherty concerning additional changes to the agreement which were made a part of the final draft. Fein also testified as to the events surrounding the execution of the agreement. James T. Flaherty testified that he did very little work on the antenuptial agreement. Flaherty stated he advised appellant not to sign the agreement, to which she replied that if he made any waves, the marriage would be off. Flaherty met with appellant on May 27, 1982 to discuss with her what she could expect to receive if she signed the agreement and what she could expect to receive if she did not sign the agreement. Flaherty advised appellant that he estimated appel- lee's gross estate to be worth approximately $1.2 million and that under the terms of the agreement, she could expect to re- ceive $10,000 to $12,000 per year if she survived appellee. It appears undisputed that the actual value of the appellee's estate at the time of his death in 1987 was $1,221,797.53. Finally, Flaherty also testified as to the events surround- ing the execution of the agreement on May 28, 1982. The agreement, in essence, provides that if appellee were to predecease appellant, he would create a testamentary trust for her consisting of fifteen percent of his net estate, and she would receive the net income from the trust for life. It is undisputed that appellee's will did create such a testamentary trust. The other eighty-five percent of his net estate was - 5 - reserved for his five sons, giving each approximately seventeen percent of the net estate. Based on the above evidence, the trial court found in favor of appellee. Appellant timely appeals, raising three assignments of error as follows: I. THE TRIAL COURT ERRED IN HOLDING THAT THREATENED CANCELLATION OF A WEDDING DOES NOT, AS A MATTER OF LAW, CONSTITUTE SUCH DURESS AS WILL VITIATE AN ANTENUP- TIAL AGREEMENT. II.THE TRIAL COURT'S FINDING THAT DAVID VOLK'S ASSETS HAD BEEN FULLY DISCLOSED TO PLAINTIFF AT THE TIME SHE ENTERED INTO THE ANTENUPTIAL AGREEMENT IS CLEARLY ERRONEOUS AND IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. III. THE TRIAL COURT'S FINDING THAT THE VOLK ANTENUPTIAL AGREEMENT WAS FAIR AND REA- SONABLE UNDER ALL THE CIRCUMSTANCES IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant contends she is entitled to cancellation or rescission of the instant antenuptial agreement in that it was entered into under duress, without full disclosure, and because it was not fair and reasonable under all the surrounding circum- stances. In short, appellant argues the verdict is against the manifest weight of the evidence. This argument lacks merit. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. We will make every reasonable - 6 - presumption in favor of the trial court's judgments. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77. Furthermore, the weight to be given the evidence and witness credibility are primarily for the factfinder. Shore Shirley & Co. v. Kelly (1988), 40 Ohio App. 3d 10. Ohio has for over one hundred forty years recognized the validity of antenuptial agreements when the death of a spouse is involved. See, Stilley v. Folger (1846), 14 Ohio 610. The agreement, however, must meet certain levels of good faith and will be set aside as invalid as a matter of law if the agreement is not fair and reasonable under the circumstances. Gross v. Gross (1984), 11 Ohio St. 3d 99; Zimmie v. Zimmie (1984), 11 Ohio St. 2d 94; Hook v. Hook (1982), 69 Ohio St. 2d 234. "An ante- nuptial contract voluntarily entered into during the period of engagement is valid when the provision for the wife is fair and reasonable under all the surrounding circumstances." Hook, supra, at 235, quoting from Juhasz v. Zuhasz (1938), 134 Ohio St. 257, paragraph 2 of the court's syllabus. However, courts will uphold the validity of an antenuptial agreement, upon the death of a spouse, when the amount provided to the wife is wholly disproportionate to the property of the prospective husband where the party claiming the validity of the agreement shows that before it was entered into, he made full disclosure to her of the nature, extent and value of the property or that she then had full knowledge thereof without such disclosure. Gross, supra, at - 7 - 103; Hook, supra, at 235; Troha v. Sneller (1959), 169 Ohio St. 397; and Juhasz, supra, at 257. In appellant's first assignment of error, she contends she did not voluntarily enter into the agreement. Rather, she states she was coerced, by threat of cancellation of the wedding, to enter into the agreement despite her lawyer's advice. This, appellant argues, is contrary to the law of Ohio. It is well settled that antenuptial agreements are enforce- able if they have been entered into freely without fraud, duress, coercion or overreaching. Gross, supra, at 105. These terms are read with their generally accepted meaning being applicable. Id. Thus, it has been held that "to avoid a contract on the basis of duress, a party must prove coercion by the other party to the contract." Blodgett v. Blodgett (1990), 49 Ohio St. 3d 243, 246. Further, it has been declared that "threats may be held to constitute duress '. . . if such threats overcome the will of such person, remove his capacity to act for himself and cause him to perform an act he is not legally bound to perform . . ..'" Id., at 245, quoting from Tallmadge v. Robinson (1952), 158 Ohio St. 333. Appellant argues that the present factual situation is closely analogous to Zimmie v. Zimmie (1984), 11 Ohio St. 3d 94. In Zimmie, the plaintiff was presented with the antenuptial agreement for the first time one day prior to her wedding; signed the agreement without reading its entire contents; was not - 8 - represented by counsel; had no one explain to her the value of the defendant's corporate assets; and had no one tell her that by signing the agreement, she was giving up her marital rights in her husband's property. Id., at 98. Therefore, the court held that the evidence was sufficient to support the conclusion "that plaintiff did not voluntarily enter into the agreement with a full disclosure of defendant's financial worth." Id. In the present case, appellant was first presented with the antenuptial agreement two weeks prior to the wedding; had ample opportunity to read the agreement prior to signing it; was represented by competent counsel, a Professor of Domestic Rela- tions Law, who fully explained to her what rights she would be giving up by signing the agreement; and was fully appraised as to the nature, extent and value of appellee's estate. Thus, appel- lant's reliance upon Zimmie is unpersuasive. Additionally, competent, credible evidence exists supporting the trial court's determination that the agreement was entered into freely and without fraud, duress, coercion or overreaching. Although appellant alleges she was told by Jordan Band that there would be no wedding unless she signed the agreement, Band denies making such statement. In any event, we agree with the trial court, and with other jurisdictions, which held that "[t]he mere threat of the embarrassment and humiliation which could occur if a party would have to cancel a publicly-announced wedding does not constitute duress so as to void the effect of the antenuptial - 9 - agreement even when the occurrence of the marriage is made con- tingent upon the execution of the antenuptial agreement." See, e.g., DeLorean v. DeLorean (1986), 211 N.J. Super. 432; Howell v. Landry (1989), 96 N.C. App. 611; Hengel v. Hengel (1985), 122 Wisc.2d 737; and Barnhill v. Barnhill (1980), 386 So.2d 749. Appellant's contention that appellee failed to fully dis- close his assets at the time she entered into the agreement is equally uncompelling. Competent, credible evidence exists sup- porting the trial court's finding that there was full disclosure of appellee's assets at the time of execution of the document. Jordan Band testified he informed appellant that appellee's estate was worth about $1 million. Further, an exhibit listing appellee's assets was attached to the agreement. Finally, James T. Flaherty testified he informed appellant that he estimated appellee's estate at approximately $1.2 million. The evidence discloses that five years later, at the time of appellee's death, his estate was actually worth $1,221,797.53. Finally, appellant's contention that the agreement was not fair and reasonable under all the circumstances is without merit. Competent, credible evidence exists supporting the trial court's finding that the agreement was fair and reasonable under all the circumstances. Initially, we note that since appellee fully disclosed his assets, the agreement could still be upheld despite being wholly disproportionate to the wife. See, Gross, supra, at 235; Troha, - 10 - supra, at 397; and Juhasz, supra, at 257. Nonetheless, the instant agreement provided that appellee was to create a testa- mentary trust consisting of fifteen percent of his net estate and that appellant would receive the net income from the trust for life. Further, the other eighty-five percent of his net estate was reserved for his five sons, giving each approximately seven- teen percent of the net estate. Furthermore, the present case is quite similar to the Juhasz case. In Juhasz, the court noted several factors to be consi- dered on the subject of disproportionateness. Among those are the age of the parties at the time of entering the agreement. In Juhasz, the husband was sixty-four and the wife fifty-one; while in the present case, appellee was sixty-five and appellant fifty- one. The court further noted that "Juhasz had five children, all by his first marriage, and in marrying a third wife he would in the ordinary course of human affairs give consideration to the natural objects of his bounty." Id., at 265. Moreover, that court could "hardly say that an antenuptial agreement giving the third wife somewhat less than each of the children by a former marriage would receive is necessarily unfair and unreasonable to the prospective wife . . .." Id., at 266. Likewise, appellee had five children, all by his first marriage, and in marrying a second wife, "he would in the ordinary course of human affairs give consideration to the natural objects of his bounty." Id. Furthermore, the present agreement can hardly be said to be - 11 - unfair and unreasonable in that said agreement provides appellant with a lifetime interest in the income generated by a trust com- posing of fifteen percent of appellee's property. Notably, each of appellee's son's shares in his estate was approximately seventeen percent of the net estate at the time of execution of the agreement. Therefore, appellant's three assignments of error are over- ruled. Judgment affirmed. - 12 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KRUPANSKY, C.J. JAMES D. SWEENEY, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .