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Kwon v. Kwon

Court of Appeals of Georgia

July 14, 2015

KWON et al.
v.
KWON

Antenuptial agreement. DeKalb Superior Court. Before Judge Becker.

Gaslowitz Frankel, Craig M. Frankel, LeAnne M. Gilbert, for appellants.

Simmons & Szczecko, Joseph Szczecko, for appellee.

OPINION

Page 612

Barnes, Presiding Judge.

Soon Ja Kwon, the widow of Phil Kwon, filed a petition against Mr. Kwon's children and his estate administrator (collectively, " the Administrator" ) to determine the heirs of the estate, and then filed a motion to deny the enforcement of an antenuptial agreement she signed before she married Mr. Kwon. The Administrator answered and counterclaimed against Mrs. Kwon for conversion of a Rolex watch and for declaratory judgment that the antenuptial agreement was enforceable.[1] The Administrator subsequently moved for summary judgment. The trial court denied the motion for summary judgment and granted the motion to deny enforcement of the agreement, finding that the evidence established that Mrs. Kwon was not fully apprised of Mr. Kwon's assets when she executed the agreement. The Administrator appeals, arguing that the trial court erred in this finding, and erred in failing to find that, even if Mrs. Kwon was not fully apprised of Mr. Kwon's assets when she signed the agreement, she waived her right to further disclosure of his assets. For the reasons that follow, we affirm.

Unlike a motion for summary judgment, in which a trial court is authorized only to determine whether an issue of material fact exists, in a motion to enforce or deny enforcement of an antenuptial agreement, [333 Ga.App. 131] " the trial court essentially sits in equity and has discretion to approve the agreement in whole or in part, or refuse to approve it as a whole." (Citations and punctuation omitted.) Alexander v. Alexander, 279 Ga. 116, 117-118 (610 S.E.2d 48) (2005). " On appeal, the trial court's disposition of a motion to enforce a prenuptial agreement is evaluated under the abuse of discretion standard of review." (Citations omitted.) Quarles v. Quarles, 285 Ga. 762 (683 S.E.2d 583) (2009).

So viewed, the evidence showed that the Kwons signed an antenuptial agreement on January 3, 2003, which included alimony provisions in the event of a divorce and provided that if Mr. Kwon died first, Mrs. Kwon would receive $200,000 and half of any life insurance proceeds for which she was a named beneficiary. They obtained a marriage license later that same day, and were married on January 11, 2003. Mr. Kwon was 62, and Mrs. Kwon was 60.

Page 613

Mr. Kwon died of a stroke on December 20, 2010. He was intestate, and nine days later, the probate court granted letters of administration to Mr. Kwon's son, the Administrator. The Administrator began paying Mrs. Kwon's bills and advancing estate funds to her, but stopped in July 2012 when he located the antenuptial agreement among his father's papers and calculated that he had distributed to Mrs. Kwon all the money she was entitled to receive from the estate. Mrs. Kwon subsequently filed the petition to determine Mr. Kwon's heirs and the motion to deny enforcement of the antenuptial agreement that is the subject of this appeal.

" As a matter of public policy, antenuptial agreements made in contemplation of divorce are not absolutely void in Georgia." (Citation omitted.) Alexander, 279 Ga. at 117. When considering whether an antenuptial agreement is valid,

the trial judge should employ basically three criteria in determining whether to enforce such an agreement in a particular case: (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) is the agreement unconscionable? (3) [h]ave the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

Scherer v. Scherer, 249 Ga. 635, 641 (3) (292 S.E.2d 662) (1982).

To satisfy the first prong of the Scherer test, the party seeking enforcement must show both that there was a full and fair disclosure of the assets of the parties prior to the execution of the antenuptial agreement, and that the party [333 Ga.App. 132] opposing enforcement entered into the antenuptial agreement freely, voluntarily, and with full understanding of its terms after being offered the opportunity to consult with independent counsel. Thus, Georgia law, like that of ...

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