This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-98-1576

In Re the Marriage of:

Carolyn Ann Petty, petitioner,

Appellant,

vs.

Arthur William Reese,

Respondent.

Filed May 4, 1999

Affirmed

Toussaint, Judge

Beltrami County District Court

File No. F697879

Martin L. Swaden, Swaden Law Offices, 7301 Ohms Lane, Suite 550, Edina, MN 55439 (for appellant)

Mary Kay Klein, 323 Beltrami Avenue, P.O. Box 1390, Bemidji, MN 56601 (for respondent)

Considered and decided by Toussaint, Presiding Judge, Halbrooks, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

On appeal from a marriage dissolution judgment, appellant Carolyn Petty challenges the district court's conclusion that her antenuptial agreement with respondent Arthur Reese was valid and its denial of spousal maintenance. Petty also challenges the district court's order denying her motion for a continuance and moves for an award of attorney fees incurred on appeal. Because the antenuptial agreement was procedurally and substantively fair and the district court did not abuse its discretion in denying spousal maintenance or the motion for a continuance, we affirm. Appellant's motion for appellate attorney fees is denied.

D E C I S I O N

I.

Petty first claims that the district court erred in concluding that the parties' antenuptial agreement was valid. When the factors are undisputed whether an antenuptial agreement is valid is a question of law, which this court reviews de novo. Pollock-Halvarson v. McGuire, 576 N.W.2d 451, 454 (Minn. App. 1998), review denied (Minn. May 28, 1998).

Minnesota law[1] recognizes antenuptial agreements, Minn. Stat. § 519.11 subd. 1 (1998), and views them with favor, Hafner v. Hafner, 295 N.W.2d 567, 571 (Minn. 1980). Antenuptial agreements are enforceable if they are procedurally and substantively fair. McKee-Johnson v. Johnson, 444 N.W.2d 259, 265 (Minn. 1989). An antenuptial agreement is procedurally fair if "(a) there is a full and fair disclosure of the earnings and property of each party, and (b) the parties have had an opportunity to consult with legal counsel of their own choice." Minn. Stat. § 519.11, subd. 1 (1998). The agreement must also be in writing, executed in the presence of two witnesses, and acknowledged by the parties before a person authorized to administer an oath. Minn. Stat. § 519.11, subd. 2 (1998).

An agreement is substantively fair if its terms are reasonable at the time of inception and at the time of enforcement. McKee-Johnson, 444 N.W.2d at 265, 267. An agreement will be deemed substantively unfair at the time of enforcement if the premises upon which the agreement was based have changed so drastically that enforcement would not comport with the reasonable expectations of the parties at inception and would, therefore, be unconscionable. Id. at 267.

A. Procedural Fairness

Petty claims that the parties' antenuptial agreement is procedurally unfair because (1) it does not contain a written schedule of the parties' earnings and property; (2) it was not executed in the presence of two witnesses; and (3) the parties were not represented by independent counsel. We disagree.

First, a written schedule of assets, although prudent and desirable, is not necessary to the validity of an antenuptial agreement. See Pollock-Halvarson, 576 N.W.2d at 456. A party's general knowledge of the other party's financial condition is sufficient to satisfy the disclosure requirement where the parties enter into the agreement willingly. Id. (noting Hill v. Hill, 356 N.W.2d 49, 52 (Minn. App. 1984), review denied (Minn. Feb. 19, 1985)). Here, Petty willingly entered into the agreement with Reese. In fact, she proposed it in an effort to preserve her assets for the benefit of her children from a previous marriage. Additionally, Petty testified unambiguously that she was aware of the basic nature of Reese's assets when she signed the agreement. At that time, each party owned minimal assets including a house with approximately the same equity, a car of nominal value, and miscellaneous household items. The record contains no evidence that either party concealed assets or that Reese had assets that Petty did not know about when she signed the agreement. We thus conclude that the lack of a written schedule of assets does not render the parties' agreement procedurally unfair.

Second, although the parties were not represented by independent counsel, Minnesota courts have not held that an attorney may under no circumstances represent both parties to an agreement or that dual representation necessarily renders an antenuptial agreement procedurally unfair. McKee-Johnson, 444 N.W.2d at 266. On occasion, dual representation may be questionable. Id. In this case it is not. Petty chose Russell Mattson, a Nebraska attorney whom she had known for many years, to draft the agreement. Reese freely agreed to Mattson's representation. Both parties had the opportunity to seek independent counsel but chose not to do so. Neither party was pressured into signing the agreement or prevented from contacting another lawyer. Mattson represented the parties fairly and drafted the agreement equitably using a standard form. Under the circumstances, Mattson's dual representation does not render the parties' antenuptial agreement procedurally unfair.

Finally, because the record reflects that the parties acted in good faith and had meaningful choice with respect to all aspects of the agreement, there seems to be no justification for invalidating the agreement merely because it was not executed in the presence of two witnesses. See Pollock-Halvarson, 576 N.W.2d at 457 ("We see no justification in the law for invalidating an intended and otherwise legal antenuptial contract merely because the notary is not commissioned as long as the parties acted in good faith and reasonably relied on the appearance that the notary was commissioned."). Here, the parties reasonably relied on the appearance that Nebraska law required only one witness for proper execution of the agreement, since the standard form Mattson used to draft the agreement contained only one signature line for witnesses. We decline to put form over substance by invalidating an otherwise lawful antenuptial agreement in a case where the parties acted in good faith.

B. Substantive Fairness

Petty also claims that the agreement is substantively unfair at the time of enforcement because, as a result of significantly changed circumstances, the division of property under the agreement no longer comports with the intention of the parties at inception. Specifically, Petty claims that she contracted genital herpes from Reese in 1985 and that her symptoms have become so acute that her ability to support herself is now restricted, she argues that enforcement of the agreement is, therefore, unconscionable. We disagree.

First, the circumstances have not significantly changed from the time of inception of the agreement. The district court found that genital herpes has not restricted Petty's ability to work and that the drop in Petty's income from 1997 on has been voluntary. The record reflects that Petty contracted herpes in 1985, two years after marrying Reese. For the next 12 years, Petty was able to support herself, making as much as $38,000 in 1993. She began complaining about being unable to work immediately after completing a $6,000 consulting job with Kent State University and filing the petition for dissolution of her marriage to Reese. Other than Petty's testimony, the record contains no factual basis to support her claim that her symptoms have become so acute that her ability to support herself is impaired. On this record, it cannot be said that the district court's findings are manifestly contrary to the weight of the evidence or clearly erroneous.

Second, the terms of the agreement are fair. Substantive fairness guards against misrepresentation, overreaching, and unconscionability. Pollock-Halvarson, 576 N.W.2d at 455. Petty does not allege any of these grounds for invalidating the agreement. Instead, she alleges the division of property under the agreement is inequitable because it prevents her from obtaining a share of the increased equity in the parties' marital assets. An antenuptial agreement is not substantively unfair, however, merely because it includes marital property. See Minn. Stat. § 519.11, subd. 1 (1998) (agreement is not invalid because it covers or includes marital property); McKee-Johnson, 444 N.W.2d at 263. Nor is it substantively unfair because it results in a division of property that is not equal between the parties or comparable to a division a court of law might make under statutes governing property rights. McKee-Johnson, 444 N.W.2d at 268 n.8.

Here, the parties willingly entered into the agreement to preserve their individual property for the benefit of their respective children. They specifically agreed that the word "property," as used in the agreement, included "real estate, personal and mixed property of every kind, nature and character, and all income, rents and profits, including acquisitions of either party both before and after such marriage." The parties understood that their signature bound them to the terms of the agreement. They are well educated and capable of supporting themselves. They are relatively young and in reasonably good health. They contributed equally to the marriage. In light of these facts, the district court properly concluded that the parties' antenuptial agreement is substantively fair, even though the division of property under it is not equal. See Button v. Button, 388 N.W.2d 546, 551 (Wisc. 1986) (cited with approval in McKee-Johnson, 444 N.W.2d at 267-68 and suggesting courts consider the parties' objectives in executing the agreement, their respective economic circumstances, the property they each brought to the marriage, their earning capacity, their age and health, and the contributions they each made to the marriage in evaluating substantive fairness of antenuptial agreement). We therefore affirm.

II.

Petty next claims that the district court abused its discretion by denying her request for spousal maintenance and failing to make sufficiently detailed findings to demonstrate it considered the factors in Minn. Stat. § 518.552 (1998). The district court has broad discretion in determining the amount and duration of spousal maintenance. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The district court will be found to have abused its discretion only if its decision is based on "a clearly erroneous conclusion that is against logic and the facts on record." Id. The reviewing court will not disturb the district court's maintenance award if it has a "reasonable and acceptable basis in fact and principle." DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983) (citing Bollenbach v. Bollenbach, 285 Minn. 418, 426-27, 175 N.W.2d 148, 154 (1970)). Nor will it disturb the findings on which the award is based unless they are clearly erroneous. Minn. R. Civ. P. 52.01.

In determining whether a maintenance award is indicated, the district court must consider the factors set forth in Minn. Stat. § 518.552. No single factor is dispositive. Erlandson v. Erlandson, 318 N.W.2d 36, 39-40. Instead, the court must balance the financial needs of the spouse seeking maintenance and the ability to meet those needs against the financial condition of the spouse from whom maintenance is sought. Jensen v. Jensen, 409 N.W.2d 60, 61 (Minn. App. 1987). The district court's award must be supported by specific findings that demonstrate consideration of all relevant factors. Steven v. Stevens, 501 N.W.2d 634, 637 (Minn. App. 1993).

Here, the district court made adequate findings to support its denial of maintenance. The district court found that Petty is 50 years old, has a degree in art and secondary education, and owns a consulting business known as Creative Education Consulting. She has published a book and has four manuscripts in progress. She also sells original artworks and prints of her work. Petty owns an IRA worth approximately $40,000, savings bonds with an approximate value of $13,000, and her business, which is worth approximately $11,800. Petty supported herself throughout the marriage and earned as much as $38,000 in one year. In 1997, however, her income dropped to $100. Her reasonable monthly expenses are $2,000. She has the ability to earn a net monthly income of $2,000.

The district court also found that Reese is 57 years old and suffers from osteoarthritis, an illness that limits his ability to operate heavy equipment. He owns a right-of-way clearing business known as Reese R-O-W, Inc. and a 50% interest in an Arkansas restaurant. Although these businesses own substantial assets, they have a nominal market value as a result of debt, obsolete equipment, and contamination of the land. Reese owns a house valued at $120,000, an IRA worth approximately $75,000, and several pieces of real estate worth approximately $80,000. Reese's net taxable income in 1996 was $11,129. His net taxable income in 1997 was $7,500. Reese's reasonable monthly expenses are $1,200. Like Petty, Reese was self-supporting throughout the marriage.

The district court's findings are sufficient to support denial of maintenance. Cf. Santillan v. Martine, 560 N.W.2d 749, 752 (Minn. App. 1997) (remanding for findings where the district court neglected to make findings on parties' actual income or needs and probability of spouse seeking maintenance becoming self-sufficient); Rapacke v. Rapacke, 442 N.W.2d 340, 343 (Minn. App. 1989) (remanding for findings on former wife's income, needs, probable duration of further schooling, and earning capacity upon completion of education). Based on these findings, which the record supports, we conclude the district court did not abuse its discretion in denying Petty spousal maintenance.

III.

Petty next claims the district court abused its discretion in denying her a continuance. The district court has considerable discretion in scheduling matters and in furthering the interests of judicial administration and economy. Rice Park Properties v. Robins, Kaplan, Miller & Ciresi, 532 N.W.2d 556, 556 (Minn. 1995). Its decision to grant a continuance will not be reversed absent a clear abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).

Petty substituted attorneys six weeks before trial. She argues that she should have received a continuance to allow her new counsel adequately to prepare for trial. Petty has not shown, however, that she did not have sufficient time to complete discovery in the six weeks remaining before trial or that she was otherwise prejudiced by the district court's refusal to continue the trial. Given the fact that Petty had substituted attorneys twice before in the same proceeding, the district court was well within the bounds of its broad discretion in denying Petty a continuance in the interest of judicial administration and economy.

IV.

Finally, Petty moves this court for an award of attorney fees she incurred on this appeal. This court may award reasonable attorney fees incurred on appeal pursuant to Minn. Stat. § 518.14. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. July 21, 1989). In determining whether to award attorney fees, the court must consider the financial resources of both parties and whether the fees are necessary for the good-faith assertion of a party's rights. Minn. Stat. § 518.14 (1998). Because we find that Petty has sufficient resources to pay the attorney fees she incurred on appeal, we deny her motion.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.

[1] Although the parties' agreement was executed in Nebraska, the parties did not properly raise a choice of law issue on appeal, despite Reese's assertion that he "does not agree nor concede that Minnesota law applies." We therefore apply Minnesota law.