## Facts

- Curtis Sailer and Sandra K. Sailer executed a premarital agreement on May 13, 1993, and married on May 29, 1993.
- At execution, Curtis owned substantially more property and resources than Sandra, and Sandra was aware of the disparity.
- Sandra had one child before the marriage; the parties had three children during the marriage.
- In October 2006, Sandra left the marital home with the minor children and moved to Bismarck, North Dakota.
- Curtis filed for divorce in November 2006; an interim order in January 2007 awarded him temporary legal and physical custody.
- After a December 2007 trial, the district court (1) enforced the premarital agreement as conscionable, (2) found Curtis had not waived an express term by using his income to support the family, and (3) awarded Curtis primary physical custody with joint legal custody.
- Sandra appealed the enforcement of the agreement and the custody award.

## Issues

1. Whether Sandra proved the premarital agreement was not executed voluntarily under N.D.C.C. § 14-03.1-06(1)(a).
2. Whether the agreement was unconscionable as enforced under N.D.C.C. § 14-03.1-07, and whether the district court made sufficient findings to permit appellate review.
3. Whether Curtis waived an express term of the premarital agreement by supporting the family with his income.
4. Whether awarding Curtis primary physical custody was clearly erroneous under the best-interests-of-the-child standard.

## Decision

- The Supreme Court of North Dakota affirmed in part, reversed in part, and remanded.
- It affirmed the finding that Sandra failed to prove the agreement was not executed voluntarily.
- It reversed and remanded on unconscionability as enforced because the district court’s findings were insufficient for meaningful review.
- It affirmed the ruling that Curtis did not waive an express term of the agreement by supporting the family.
- It affirmed the award of primary physical custody to Curtis as not clearly erroneous.
- On remand, the district court was instructed to value the parties’ assets, make findings on other resources, determine foreseeable needs, and equitably distribute jointly held property to decide unconscionability as enforced.

## Legal Principles

- Under N.D.C.C. § 14-03.1-06(1)(a), a premarital agreement is unenforceable if the party opposing enforcement proves the agreement was not executed voluntarily.
- Unconscionability “as enforced” under N.D.C.C. § 14-03.1-07 requires findings addressing the parties’ assets, other resources, and foreseeable needs at the time of enforcement; conclusory statements are inadequate.
- Waiver of contractual rights requires clear evidence of intentional relinquishment; routine marital support with income does not, by itself, waive an express premarital-agreement provision.
- Child-custody determinations applying the best-interests factors are reviewed for clear error and are affirmed when supported by adequate findings and record evidence.

## Conclusion

The court upheld the district court’s determinations that the premarital agreement was executed voluntarily, that no waiver occurred, and that Curtis should have primary physical custody, but it remanded for detailed factual findings and property valuation necessary to decide whether the agreement was unconscionable as enforced and to distribute jointly held property equitably.


Sailer v. Sailer, 764 N.W.2d 445 (N.D. 2009)