2013-0199, In the Matter of Cheryl Serodio and Arthur Perkins

parties married in 1988. In 2010, the petitioner filed for divorce. I n October necessary. See Lawrence v. Philip Morris USA, 164 N.H. 93, 95 (2012). The interlocutory appeal statem ent and rely upon the record for additional facts as We accept the statement of the case and facts as presented in the

remand. by the petitioner was fatal to his effort to enforce its terms. W e reverse and respondent ’s failure to produce the original or a copy of the Agreement signed filed by the petitioner, Cheryl Sero dio, t he trial court ruled that t he (Agreement). See Sup. Ct. R. 8. In its order granting the motion to dismiss dismissal of his m otion to enforce the terms of a prenuptial agreement Court (Introcaso, J.), t he respondent, Arthur Perkins, challenges the court’s BASSETT, J. In this interlocutory appeal from an order of the Circuit

Iacopino, of Manchester (William E. Brennan orally), for the respondent. Dianne Martin, of Bedford, by brie f, and Brennan, Caron, Lenehan, &

Connor on the brie f and orally), for the petitioner. Primmer Piper Eggleston & Cramer, PC, of Manchester (Doreen F.

No. 2013 - 199 9th Circuit C ourt – Manchester Family Division

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

petitioner. After considering the offers of proof and legal arguments, the trial locate the original or a copy of the Agreement that had been signed by the for t he respondent ackn owledged that the respondent had not been able to The court held a hearing on November 30, p. 2 2012. At that time, c ounsel

the existence and enforceability of the Agreement. s tatute of f rauds argument because he had acted in reasonable reliance upon permit recovery. He also argued that the petitioner could not prevail on her his m otion to enforce were reasonably susceptible of a construction that would agreement. T he respondent objected, arguing that th e allegations contained in no statutory power to consider — or enforce — an oral or u nsigned pre nuptial copy of the Agreement signed by her. She also asserted that the trial court had law under the statute of f rauds because the respondent had failed to produce a enforce, arguing, among other things, that she should prevail as a matter of In April p. 2 2012, the petitioner moved to dismiss the respondent’s motion to

but rath er was the product of duress and undue influence. that, even if she had signed the Agreement, her agreement was not voluntary, and that she never possessed an original signed document. S he further argued The petitioner objected, stating that she did not recall signing the Agreement,

negotiations. . . . enable the parties to engage in mean ingful settlement final hearing to limit the issues to be finally determined and to determine the validity of the Prenuptial Agreement prior to a 5. It would be in the best interests of judicial economy to

of the Prenuptial Agreement should the original not be found; Agreement and requests that the copy be admitted as evidence 4. The Respondent possesses a copy of the original Prenuptial

document; 3. Petitioner claims that she is unable to locate the original

in the possession of the Petitioner; p. 2 2. One original document was signed by both parties and was kept

divorce; protected certain assets in the event the marriage ended in October 8, 1988 marriage, which Agreement identified and 1. The Parties entered into [a] Prenuptial Agreement prior to their

that: the court schedule an evidentiary hearing. In his motion, he alleged, in part, a copy of the Agre ement that had been signed only by him, and requesting that p. 2 2 011, t he respondent moved to enforce the Agreement, attaching to his motion p. 3 3

the light most favorable to him. Id. However, we need not accept allegat ions respon dent’s allegations to be true and construe all reasonable inferences i n Lebanon, 164 N.H. 578, 582 (201 p. 3 3) (quotation omitted). We assume the construction that would permit recovery.” Signal Aviation Servs. v. City of allegations in the [respondent ’ s] pleadings are reasonably susceptible of a “In reviewing a motion to dismiss, our standard of review is whether th e

permit recovery. respondent’s pleadings are reasonably susce ptible of a constructio n that would turn to the question before us: whether the factual allegations in the signed original n or a copy thereof has been produced in court. A ccordingly, we written, signed p renuptial agreement, notwithstanding the fact that neither a oral or unsigned agreement; r ather, he is seeking to enforce the terms of a wrong issue. T he respondent is not requesting that the trial court enforce an the enforcement of an oral or unsigned prenuptial agreement focus on the As an initial matter, we observe that t he petitioner’s argument s regarding

statutory power to enforce an oral or unsigned prenuptial agreement. 460:2 - a (2004). T he petitioner also argues that the court does not have the authori ty to enforce the terms of the Agreement. See RSA 506:2 (2010); RSA the petitioner, the trial court properly concluded that it had no statutory that, since the respondent d id not produce a prenuptial agreement signed by ruled, whether the signed Agreement presently exists. Th e petitioner responds whether the signed Agreement, in fact, had existed, not, as the trial court respondent also argues that the trial court erred because the threshold issue is written, executed [prenuptial] agreement was entered into by the Parties.” The the facts alleged by the [respondent], including the truth of the allegation that a standard of review for a motion to dismiss when it failed to assume the truth of On appeal, the respondent argues “[t] hat the t rial court overlooked the

m otion for reconsideration, and this appeal followed. (Quotation and citation omitted.) The trial court denied the respondent’s

these types of agreements. could not credibl y maintain its standards of fairness in enforcing might suggest otherwise present such uncertainties that the Court The Respondent’s common law and evidentiary arguments that statutory power to consider an unexecuted antenuptial agreement. power to consider an oral antenuptial agreement, nor does it have Court agrees with the Petitioner that this Court has no statutory no t signed by the person against whom it is to be enforced. The request that the Court accept a copy of a draft agreement that is Here, no final, executed Prenuptial Agreement exists. The re is a

written order, the trial court stated: court ruled from the bench, granting the motion to dismiss. In a subsequent p. 4 4

MacTh ompson Realty v. City of Nashua, 160 N.H. 175, 178 (2010); Brooks v. of an agreement in order to prove that the agreement existed. See Our prior cases establish that it is unnecessary to produce a signed copy

written agreement exist ed. pro duction of the writing; nor does it speak to the method of proving that a agreement must be in writing. RSA 506:2 does not, however, require the RSA 506:2. Thus, in order to bring an action up on a prenuptial agreement, the

the party to be charged or by some person authorized by him. or some note or memorandum thereof, is in writing and signed by consideration of marriage. . . unless such promise or agreement, No action shall be brought. . . upon any agreement made in

T he relevant statute of f rauds provision provides that:

than one reasonable interpretation. Id. aid our analysis when the statutory language is ambiguous or subject to more indications of legislative intent. Id. However, we review legislative history to statute is plain and unambiguous, we do not look beyond it for further context of the overall scheme and not in isolation. Id. When the language of a legislature did not see fit to include. Id. Further, we interpret a statute in the not consider what the legislature might have said or add language that the used. Id. We interpret legislative intent from the statute as written and will language of a statute, we ascribe the plain and ordinary meaning to the words the words of the statute considered as a whole. Id. When examining the interpretation, we are the f inal arbiter of the legislature’ s intent as expressed in review the trial court’ s interpretation de novo. Id. In matters of statutory In the Matter of Lyon & Lyon, 166 N.H. ___, ___ (decided May 30, 201 p. 4 4). W e Resolution of this issue requires us to engage in statutory interpretation.

erred in granting the motion to dis miss. by the petitioner presently exists. We disagree. Accordingly, the trial court precludes the trial court from considering the Ag reement unless a copy signed at 582. The petitioner contends that the statute of frauds, RSA 506:2, construction that would permit recovery. See Signal Aviation Servs., 16 p. 4 4 N.H. allegations in the respondent’s motion are reasonably susceptible of a must, the truth of the respondent’s allegations, we conclude that the prenuptial agreement existed, and that both parties signed it. Assuming, as we The respondent’s motion to enforce the Agreement alleges that a written

(quotation omitted). dismiss if the facts pleaded do not consti tute a basis for legal relief.” Id. Id. (quotation omitted). “We will uphold the trial court’ s grant of a motion to inquiry, testing the facts alleged in the pleadings against the applicable law.” that are merely conclusions of law. Id. “We then engage in a threshold p. 5 5

satisfactory proof of its loss or destruction. manifest subversion of justice to deny oral proof of its contents after or if it were wantonly destroyed or secrete d by one, it would be a writing; for, if the instrument were lost without the fault of either party, a lost instrument, even though it be one which the law requires to be in this rule i n no way conflicts with the admission of secondary evidence of justice, that the best evidence capable of production shall be required, [W]hile it is a general principle, firmly established in the interests of

has been lost o r destroyed: for a part y seeking to enforce an agreement that, through no fault of his own, statutes as the petitioner suggests would create an insurmountable obstacle 1901). A s the Supreme Court of Iowa observed in Devoe, construing the agreement once existed. In re Devoe’ s Estate, 84 N.W. 923, 924 - 2 6 (Iowa and unsigned prenuptial agreement as evidence that a written prenuptial supports the reverse proposition: that a party may intro duce an inc omplete prenuptial agreement had, in fact, existed. Indeed, there is case law that has precluded a party fro m presenting evidence that a lost or destroyed T he petitioner has not cited, nor could we find, any case in which a court

contracts. a prenuptial agreement than is required to prove the existence of other types of not mean that a greater quantum of proof is required to prove the existence of than commercial contracts, In re Hollett, 1 p. 5 50 N.H. 38, 42 - 43 (2003), this does However, although courts must scrutinize prenuptial agreements more closely confidential relationship, and therefore, fairness must be the ultimate measure. prenuptial agreement because such an agreement involve s persons in a N.H. at 141. W e agree with t he petitioner that a court must closely scrutinize a involve a contract between parties in a confidential relationship. Brooks, 122 The petitioner argues that Brooks is disting uishable because it did not

equally applicable in the context of a prenuptial agreement. available,” even though the office copy had no witness es). We find this analysis satisfactorily accounted for, the office copy was admissible as the best evidence Skaling v. Remick, 97 N.H. 10 p. 6 6, 108 (19 p. 5 51) (“The absence of the original being existed through the conduct and statements of the parties. Id. at 142; see also t he defendant had proved that a writing which satisfied the statute of f rauds W e held that the statute of frauds did not bar enforcement of the deed because a deed transferring ownership of land had been lost. Brooks, 122 N.H. at 141. confirmed the existence of the settlement agreement. Id. Similarly, i n Brooks, the agreement and a subsequent letter written by one of those attorneys that agreement based upon testimony of attorneys present during the creation of ruled that the trial court could find the existence of the written settlement settlement agreement for the sale of land. MacThompson, 160 N.H. at 178. We intervenors argued that the statute of f rauds barred enforcement of a lost Toperzer, 122 N.H. 139, 142 (1982). For instance, in MacThompson, the 6

DALIANIS, C.J.