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887 N.E.2d 272

71 Mass. App. Ct. 773


No. 06-P-1578.

Appeals Court of Massachusetts, Suffolk.

Argued January 4, 2008.

Decided May 23, 2008.

[887 N.E.2d 274]



        Wendy H. Sibbison for the plaintiff.

        John A. Moos, Cambridge (Amanda Baker Wright with him) for the defendant.

        Present: BERRY, KAFKER, & MILLS, JJ.

        KAFKER, J.

[71 Mass. App. Ct. 774]

        The defendant, Jan A. Pechenik, drafted his own prenuptial agreement. His prospective wife, the plaintiff, Linda S. Eyster, signed the agreement shortly before their wedding. Neither of the parties, who had advanced degrees in biology, sought or received prior legal counsel. The agreement did not contain an explicit waiver of marital rights or demonstrate an understanding of those rights in the absence of the agreement. A judge of the Probate and Family Court found the agreement valid and the plaintiff's appeal untimely. We reverse and remand.

        1. Background. The following facts, found by the probate judge after trial, are relevant to the present appeal.

        a. Facts pertaining to prenuptial agreement. The appellant Linda S. Eyster (wife) and the appellee Jan A. Pechenik (husband) signed a prenuptial agreement dated July 12, 1982, five days before their wedding on July 17, 1982. The husband drafted the agreement after reading articles in financial magazines and newspapers and at least one book from a local bookstore. Neither party consulted an attorney before signing the agreement. The one-page agreement, laid out in the margin,1 pertained mainly to the distribution

[887 N.E.2d 275]

of financial assets and property owned by the

[71 Mass. App. Ct. 775]

parties, with a gradual acquisition of financial interest by the wife in the property on 1578 Cambridge Street. Alimony and child support were not mentioned in the agreement.2

        At the time of signing the agreement, the husband was thirty-two years of age and had a Ph.D. in biology from the University of Rhode Island. The wife was twenty-nine years of age and was in the process of receiving her Ph.D. in biology from Northeastern University.The parties had been living together for two years and co-owned a one-week timeshare. The wife also owned stocks that were held by the husband in his brokerage account. The husband and wife had approximately equal assets. The husband's condominium, discussed in the agreement, was the most valuable asset.

        The judge found that the wife "had several months to consult with an attorney before her voluntary execution of the agreement." The wife "believed that property owned at the time of the marriage was to be retained by the person owning it at that time, and that gifts and inheritances acquired after the marriage

[71 Mass. App. Ct. 776]

would be retained by the recipient and not become part of the marital estate."

        During their marriage, both parties essentially maintained separate financial lives. Gifts and inheritances from parents were held in separate accounts by each party, and only four of their more than thirty accounts were held jointly. Their joint assets were valued at less than eight percent of their total assets. Throughout the marriage, the parties kept a running "tab" tallying the debts owed to each other.

        On March 1, 2004, after almost twenty-two years of marriage, the wife filed for divorce in the Middlesex Division of the Probate and Family Court Department (Middlesex Probate Court). At the time of the divorce, the wife's net worth totaled $852,376.76 and the husband's net worth was $2,368,468.03. In her divorce complaint, the wife sought a declaration that the prenuptial agreement was void. The husband's answer and counterclaim sought specific enforcement of the agreement. The wife filed a second complaint, for declaratory judgment, on April 1, 2005, seeking either a specified interpretation of

[887 N.E.2d 276]

the agreement or a declaration that the agreement was null and void. That same day, the complaint for divorce and the complaint for declaratory judgment were consolidated. After trial, in a combined judgment entered March 3, 2006, on the divorce complaint, the counterclaim, and the complaint for declaratory judgment, the probate judge declared the prenuptial agreement enforceable. In the accompanying memorandum of decision, the judge stated:

        "An enforceable agreement must also include a valid waiver.... In determining whether this requirement is met, the court may consider the parties' opportunity to consult counsel, the disclosure of assets and the circumstances surrounding execution of the agreement.... Both parties voluntarily and freely chose not to utilize the services of an attorney in negotiating, preparing or executing the agreement. While in hindsight they may now agree with the oft-repeated adage that a fool has himself as his lawyer, this hardly invalidates the agreement. The parties engaged in negotiations about the terms and implications of the agreement, had sufficient time to review the document, it was not fraudulently procured or the product of duress and

[71 Mass. App. Ct. 777]

was properly executed.... A waiver will be found when, as here, the circumstances demonstrate that `wife recognized that marriage conferred certain rights, and that she waived those rights by signing the agreement.'"

        b. Facts pertaining to timeliness of the appeal. On March 13, 2006, the wife filed a timely motion to amend the judgment (pursuant to Mass.R.Dom.Rel.P. 52[b] and 59) and a notice of appeal from the judgment. The notice of appeal was deemed untimely because of the pendency of the wife's motion to amend. On April 7, 2006, the probate judge endorsed the wife's motion to amend, allowing it in part and denying it in part.5

        The wife filed a second notice of appeal on April 11, 2006.6 As explained in a memorandum prepared by an assistant register of the Middlesex Probate Court register's office, docketed and submitted to the judge,7 the register's office "determined that the second