2014-0794, In the Matter of Marianna Nizhnikov and Alexander Nizhnikov

appeal. We affirm in part, reverse in part, vacate in part, and remand. Hampshire Division for Children, Youth and Families (DCYF) administrative geographical distance from one another; and (9) admit ting into evidence a New parenting counseling; (8) refusing to require the parties to live a certain to pay 100 percent of the children’s uninsured medical expenses and co the petitioner to eventu ally have “near equal” parenting time; (7) ordering him issuing a mutual restraining order; (6) issuing a pare nting plan that allowed insurance; (4) ordering him to pay for the lease of the petitioner’s vehicle; (5) alimony to the petitioner; (3) ordering him to pay for the petitioner’s health by: (1) refusing to enforce the parties’ prenuptial agreement; (2) awarding from the petit ioner, Marianna Nizhnikov. He contends that the trial court erred order of the Circuit Court (Cooper, M., approved by Carbon, J.) in his divorce CONBOY, J. The respondent, Alexander Nizhnikov, appeals the final

Piela on the brief, and Mr. Rauseo orally), for the respondent. Hamblett & Kerrigan, P.A., of Nashua (Kevin P. Rauseo and Andrew J.

Shaughnessy on the brief, and Ms. Crusco orally), for the petitioner. Crusco Law Office, PLLC, of Bedford (Kysa M. Crusco and Kimberly A.

No. 2014 - 0794 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

enforce the agreement. together with the timing of the agreement’s execution, and properly declined to that the trial cou rt correct ly considered the lack of financial statements, alternative, waived her right to a financial disclosure. The petitioner argues petitioner had knowledge of the respondent ’s financial condition or, in the agreeme nt’s execution was not an issue. The respondent also argues that the prior plans to be married when the agreement was signed, the timing of the in declining to enforce the agreement because, given that the parties had no agreement was unenforceable. The respondent argues that the trial court erred We first address the trial court’s ruling that the parties ’ prenuptial

executed the agreement. financial statements, the parties did not attach financial statements when they married. Although the prenuptial agreement references the attachment of February 3. The parties signed the pre nuptial agreement the day they were marr iage license on January 30, and were married, in Mont Vernon, on her divorce decree from a prior marriage in Russia. The parties applied for a be married in Mont Ve rnon upon production of the petitioner ’s passport and she could not provide such a document, but the parties learned that they could was necessary in or der to be married in Russia. The clerk informed them that respondent was not married in the United States, which the two understood went to the Mont Vernon Town Hall to obta in a document stating that the The petitioner returned to the U nited States on January p. 2 27. The parties

married. They still desire d to be ma rried in Russia. p. 2 23. At this time, the parties had no specific plan or date on which to be language. She received the Russian translation of the agreement on January and the petitioner had it translated from English into Russian, her primary respondent immediately fo rwarded the document to the petitioner, in Russia, counsel sent the respondent a draft agreement on January 18, 2006. The The respondent retained counsel to p repare the prenuptial agreement;

a prenuptial agreement. discussed their respective f inancial positions, and the petitioner agreed to sign children who m he wanted to protect in the event the two divorced. The parties require a prenuptial agreement before being married, because he had three In December p. 2 2005, the respondent informed the petiti oner that he would

each other in both Russia and the United States. During this time, t he petitioner remained in Rus sia, but the two would visit Afterward, they began investigating how they could get married in Russia. became engaged in October p. 2 2005 and agreed to get married in Russia. living in R ussia and the respondent was living in the United States. Th ey petitioner b egan their romantic rela tionship in 200 p. 3 3, while the petitioner was The trial court found the following relevant facts. The respondent and 3

that the contra ct should be presented well in advance of the ceremony, usually avoid invalidation on grounds of involuntariness, it has been recommended reasonable time to reflect on the proposed terms.” Id. (quotation omitted). “To the agreement have an opportunity to seek independent advice and a was voluntary.” Id. at 4 p. 3 3. “Fairness demands that the par ty presented with timing of the agreement is of paramount importance in assessing whether it “Under the heightened scrutiny afforded to prenuptial agreements, the

fairness being the ult imate measure.” Id. at 42 - 4 p. 3 3 (quotation omitted). matters bearing on the terms and execution of the proposed agreement, with must exercise the highest degree of good faith, candor and sincerity in all agreements often involve persons in a confidential relationship, the parties contracts.” Id. (quotation and brackets omitted). “Moreover, because such courts tend to scrutinize them more closely than ordinary commercial State has a special interest in the subject matter of prenuptial agreements and to accept the terms set out by the other party.” Id. (quotation omitted). “[T] he wrongfully, and that under the circumstances the party had no alternative but were the result of the other party’s acts, that the other party exerted pressure “involuntarily accepted the ot her party’s terms, that the coercive circumstances (quotation omitted). To establish duress, a party must ordinarily show that it that the agreement was not signed voluntarily.” Hollett, 150 N.H. at 42 “As a practical matter, the claim of undue duress is essentially a claim

Yannalfo, 147 N.H. 597, 599 - 600 (2002). duress. See Hollett, 150 N.H. at 42 - 4 4; see also In the Matter of Yannalfo and tria l court found that the agreement was obtained involuntarily as a product of statements that the parties never executed. These concerns su ggest that the disclosures, including the fact that the agreement references financial leading up to the marriage, as well as the in adequacy of the financial that the agreement was unenforceable based upon the “collapsed time frame” which it was refusing to enforce the prenuptial agreement. The court ruled In this case, t he trial court did not expli citly state the legal grounds upon

(201 p. 3 3) (quotation omitted). plainly erroneous as a matter of law.” Estate of Wilber, 165 N.H. 2 p. 4 46, 251 disturb the . . . court’s decree unless it is unsupported by the evidence or not be reasonably made.” Id. (quotation omitted). “Consequently, we will not the trial court unless “t hey are so plainly erroneous that such findings could of Hollett, 150 N.H. 39, 42 (2003). We will defer to the findings of fact made by agreement was executed as to make the agreement unenforceable. In re Estate uncons cionable; or (3) the facts and circumstances have so changed since the misrepresentation or nondisclosure of a material fact; (2) the agreement is agreement was obtained through fraud, duress or mistake, or through the party seeking the invalidation of the agreement proves that: (1) the contemplation of marriage.” A prenuptial agr eement is presumed valid unless RSA 460:2 - a (2004) permits parties to enter into a written contract “in 4

the timing of the agreement’s execution and the absence of financial counsel; the record discloses no effort by the petitioner to do so. She relies o n opportunity to investigate the respondent ’s finances and to obtain the advice of time the petitioner received the translated agreement, she had ample execution, render ed it involuntary. W ith no definite wedding date set at the statement s to the agreement, even coupled with the timing of the agreement ’ s Further, we cannot conclude that the parties’ failure to attach financial

M., 1 p. 4 48 N.H. 83, 85 - 86 (2002). before the trial court, and, therefore, we decline to consider it. See In re Adam the United States. However, she fails to cite where she raised this argument marriage had not taken place, it may have affected her ability to immigrate to N.H. at 600. T he petitioner also makes refer ence to the fact that, if the standing by itself, is insufficient to support a finding of duress.” Yannalfo, 147 we have stated that “the threat that the marriage would not take place, because the respondent required it as a condition of the marriage. However, The petitioner argues that she was pressured into signing the agreement

invalidating the agreement. the mere fact that it was executed the day they were married does not support immediate plans to be married when the prenuptial agreement wa s exchanged, the town clerk in Mont Vernon. In view of the fact that the parties had no date. They decided to get married in the United States only after speaking with date, and they were planning to get married in Russia at some unknown future received a copy of the translated agreement, the two still had not set a wedding petitioner returned to the United States in January 2006, she had already to enter a prenuptial agreement as early as December 2005. W hen the duress or that she signed it involuntarily. T he two had discussed and agreed agreement do not support a finding that the petitioner was under undue In this case, the circumstances leading to the petitioner’s signature of the

guest wedding.” Id. at p. 4 44. agreement, she “stood to face the embarrassment of canceling a two hundred Id. at 40. In that case, we observed that, if the wife chose not to sign the before the wedding, and the agreement was signed the morning of the wedding. prenuptial agreement before the two could marry until less than t wo days example, in Hollett, the wife did not learn that the husband required a that a prenuptial agreement was involuntary.” Id. (quotation omitted). For that “additional circumstances coupl ed with . . . timing may compel a finding decided upon the totality of its own circumstances.” Id. We have suggested immediately before the wedding,” instead holding “that each case must be However, we have “rejected a per se invalidation of agreements signed

wedding.” Id. automatically invalidate any prenuptial agreement signed immediately before a thirty days.” Id. (quotation and brackets omitted). “Some S tates, in fact, p. 5 5

the businesses inasmuch as she was the general manager and had full access t he court also found that the petitioner “was aware of the financial condition of whether to enter into the agreement. Regarding the respondent ’s businesses, “[t] he parties discussed their respective financial positions” when discussing assets of which she later became aware. Additionally, the court found that parties discussed their respective assets, and that the respondent did not hide ‘obtained through’ such nondisclosure.” Id. The petitioner admits that the ‘material’ fact was withheld from [a spouse] or that the agreement was document accompanying the Agreement does not suffice to show either that a have previously held that “t he fact that there is no fina ncial disclosure financial affidavits, we reach the same result. See Wilber, 16 p. 5 5 N.H. at 252. We separate grounds of nond isclosure of material fact based upon the la ck of To the extent that the court may have invalidated the agreement on the

finding that the agreement was obtained involuntarily as a pr oduct of duress. For these reasons, we conclude that the evidence does not support a

married. lawyer.” The petitioner received the draft agreement 16 days before the y were agreement to the petitioner “less than an hour after [it was] sent [to him] by his engaged, before any marriage date had been set. He also forwarded th e draft the petitioner about a prenuptial agreement a few months after their becoming dealing with” his wife. Id. In this case, however, the respondent approached stated that this conduct “raise[d] serious questions regarding his good faith in and did not inform her of it until just a few days before the ceremony. Id. We nonetheless had his attorney draft an agreement a month before the wedding Hollett, the husband knew that his wife opposed a prenuptial agreement, but bad faith in obtaining the petitioner ’s consent regarding the agreement. In N or does the evidence support a conclusion that the respondent acted in

worked as a logistic group leader for [a] wholesale company in St. Petersburg.” respondent ’s] company she owned her own fitness business in M o scow and employees and subcontractors in Russia.” Further, “[p]rior to working for [the [respondent ’s] company, overseeing and being responsible for over 200 in Russia. T he petitioner worked as “the general manager for the to be “a well - educated, sophisticated individual” who obtained her law degree meet a high standard of procedural fairness.”). Th e court found the petitioner agreements that result from . . . a vast disparity in bargaining power must bar gaining po wer between the parties. See Hollett, 1 p. 5 50 N.H. at 44 (“Prenuptial Moreover, we note that this is not a case involving unequal education or

“had she decided to do so.” Yannalfo, 147 N.H. at p. 6 600. consult with an attorney” or o therwise investigate the respondent ’s finances presume on the e vidence presented that the petitioner had insufficient time to involuntarily irrespective of the circumstances. However, “we decline to statements as dispositive evidence that the agreement was obtained 6

alim ony, payment of the petitioner ’s health insurance, or the leased vehicle. issue, we do not address the respondent’s specific arguments regarding property consistent with the parties’ agreement. Because we remand on this trial court’s property distribution and remand for the court to distribute the enforce the terms of a valid agreement. Given this conclusion, we vacate the ruling that the agreement was unenforceable: T he respondent is enti tled to argument that the respondent still “got a fair deal” despite the trial court’s disclosure of material fact. Additi onally, we decline to consider the petitioner’s and enforceable, and not the product of duress or obtained through non - In sum, we conclude that the parties’ prenuptial agreement was valid

Therefore, we conclude that the agreement is not ambiguous. property or, in the alternative, waive the opportunity to inve stigate the same. need for a provision indi cating that the parties have knowledge of the other’s agreement. If financial statements were absolutely required, there would be no statements were not executed is exp lai ned by the waiver provision in the meaning of the language.” Id. (quotation omitted). Here, the fact that financial is ambiguous if the parties to the contract could reasonably disagree as to the Hosp. Corp. of America, 1 p. 6 65 N.H. 168, 172 (2013). “The language of a contract a question of law entitled to de novo review.” Found. f or Seacoast Health v. 251. “The determination of wheth er contract ual language is ambiguous is. . . Ordinary principles of contract law govern prenuptial agreements. Id. at

argument is properly before us, w e disagree that the agreement is ambiguous. ambiguity in the trial court. Assuming, without deciding, that the petitioner ’s conside r this argument because the petitioner did not raise the issue of the agreement is ambiguous. The respondent argues that we should not waiver clause but also references financial statements that were not attached, The petitioner also contends that, bec ause the agreement contains the

failed to disclose. that the absence of an ascribed value is a material fact that the respondent right to investigate the value of the respondent ’s assets, and cannot now claim postnuptial agreement). Therefore, we conclu de that the petitioner waived her parties were not required to hire independent counsel before entering into a was free to enter into the contract without doing so. Cf. id. (noting that the the petitioner had the opport unity to invest igate the respondent’ s finances, and thereby waived and does hereby waive and relinquish the right to do so.” Thus, respondent ’s property “but has declined to examine and investigate and has the petitioner “h ad a reasonable opportunity to ascertain” the value of the respondent ’s assets. We conclude, however, that, as recited in the agreement, The petitioner argues that she was unaware of the value of many of the

the businesses.” to all the information” and, “[i]n fact, [the petitioner] prepared the budge t s for p. 7 7

DALIANIS, C.J.