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Thacker v. Thacker

Alabama Court of Civil Appeals

January 10, 2020

Jennifer Robin Thacker
v.
Orbie Alvin Thacker

          Appeal from Calhoun Circuit Court (DR-17-127)

          EDWARDS, JUDGE.

         Jennifer Robin Thacker ("the wife") appeals from a divorce judgment entered by the Calhoun Circuit Court ("the trial court) enforcing her antenuptial agreement with Orbie Alvin Thacker ("the husband").

         The parties married in December 2014; they had been living together for several years before their marriage. The marriage was apparently the wife's first marriage and the husband's third marriage. They have no children. Two days before the marriage ceremony, the parties executed an antenuptial agreement that included provisions for dividing the marital estate upon a divorce and waiving any claim to alimony, support, maintenance, property settlement (except as provided in the antenuptial agreement), and attorney's fees "regardless of the cause or reason of the dissolution of the marriage ... and regardless of who is at fault." Included among the waiver and property-settlement provisions was the following paragraph V(C):

"In the event that adultery is proven by photographic, video, or audio recording(s), and not by any other means and specifically not by oral statements or testimony of any person, and the wife initiates divorce proceedings against husband for that reason, then as part of that judgment of divorce, and only as part of the judgment of divorce, husband agrees to pay to the wife the sum of Five Hundred [Thousand] and No/100 ($500, 000.00) dollars as a property settlement award, payable in one hundred twenty (120) equal monthly installments of Four Thousand One Hundred Sixty-six Dollars ($4, 166.67) with the first payment due on the first day of the first month following the entry of the judgment of divorce."

         The husband and the wife were represented by separate counsel during the negotiation and execution of the antenuptial agreement. According to testimony from the wife's counsel for the antenuptial-agreement negotiations, paragraph V(C) was inserted into a draft of the antenuptial agreement, at the wife's request, on the day the antenuptial agreement was later signed. During negotiations over the $500, 000 additional property-settlement provision requested by the wife, which she alternatively refers to as a liquidated-damages provision and a penalty at various places in the record on appeal, the husband initially indicated that he would not agree to that provision. As negotiations progressed, however, the husband stated that he would agree to the $500, 000 additional property-settlement provision conditioned on the inclusion of evidentiary limitations regarding proof of adultery and on an installment-payment provision. According to testimony from the husband's counsel for the antenuptial-agreement negotiations, the husband would not have executed the antenuptial agreement without the inclusion of those conditions to the $500, 000 additional property-settlement provision. Also, the wife's counsel for the antenuptial- agreement negotiations testified as follows when questioned by the husband's counsel regarding the relationship between the $500, 000 additional property-settlement provision and the conditions requested by the husband:

"Q. Did you have the understanding that one was given for the other in these negotiations?
"A. Absolutely.
"Q. And without one, the other one wouldn't occur; correct?
"A. That's absolutely the truth.
"....
"Q. So you wouldn't have had one without the other?
"A. That is correct ...."

         The parties separated in August 2017, and the husband filed a complaint for a divorce in the trial court in October 2017. He alleged that the parties were incompatible and that there had been an irretrievable breakdown of marriage, and he invoked the antenuptial agreement for purposes of the division of the marital estate and the wife's waiver of any further maintenance or support. In November 2017, the wife filed an answer to the husband's complaint, admitting the existence of the antenuptial agreement, but not that it was enforceable, and effectively denying the husband's allegation regarding the grounds for the divorce. In January 2018, the wife filed an amendment to her answer and a counterclaim for a divorce on the ground of adultery. In her amended answer, the wife alleged that she had not received effective assistance of ...


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