PAUL EVAN BATES

v.

MAGDA JHOVANNA BATES

Third District Court of Appeal State of Florida

Opinion filed February³, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D19-1884 Lower Tribunal No. 17-258-P ________________

Paul Evan Bates, Appellant,

vs.

Magda Jhovanna Bates, Appellee.

An Appeal from a non-final order from the Circuit Court for Monroe County, Sharon I. Hamilton, Judge.

Ross & Girten, and Lauri Waldman Ross, for appellant.

Law Office of Jack Bridges, P.A., and James R. (Jack) Bridges, for appellee.

Before LOGUE, SCALES and LINDSEY, JJ.

SCALES, J.

2 In this marital dissolution action, Paul Evan Bates appeals an August 30, 2019 non-final order finding the parties’ prenuptial agreement invalid because it was the product of duress and coercion. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iii)c. (“Appeals to the district courts of appeal of nonfinal orders are limited to those that . . . determine . . . in family law matters . . . that a marital agreement is invalid in its entirety[.]”). Concluding that the trial court’s findings as to coercion are supported by competent, substantial evidence, we affirm.¹

I.

RELEVANT FACTS AND PROCEDURAL BACKGROUND²

On May 29, 2001, Paul Evan Bates (“Husband”) and Magda Jhovanna Bates (“Wife”) met in Cali, Colombia through a matchmaking website called Latin Connection. At the time, Husband was a divorced, forty-one-year-old commercial airline pilot with a net worth of approximately $4 million. Husband was looking for a “Christian based woman of child-bearing age” to marry, bring to the Florida Keys and start a family. Wife, who was a virgin

A.

The prenuptial agreement and the parties’ marriage During their whirlwind courtship, Husband told Wife that he wanted her to sign a prenuptial agreement. Husband obtained a form prenuptial agreement from a co-pilot acquaintance and modified the agreement to

B.

The verified petition for dissolution of marriage

In May 2017, Wife filed a verified petition for dissolution of marriage with minor children in the Monroe County Circuit Court. Therein, Wife sought to set aside the prenuptial agreement “on the grounds that it was reached under fraud, deceit, duress, coercion, misrepresentation or

C.

The trial on the validity of the prenuptial agreement The trial court held a bench trial on the validity of the prenuptial agreement on March¹², 15, 19 and June¹⁰, 2019. The court heard live testimony from three witnesses: Wife, Husband, and a former employee of one of Husband’s businesses. The parties also introduced the deposition testimony of Wife, Husband and Attorney Ceballos.³ Consistent with her deposition testimony, Wife testified that she was a virgin prior to her June 2001 trip to Cartagena with Husband; that she became pregnant from having sex with Husband; that Husband paid for her to have an abortion in mid-August 2001; and that she was raised in a strict Catholic household that did not approve of premarital sex or abortion. Further, Wife was in severe pain and distress related to the abortion both on August 29, 2001, when she retrieved the Spanish translation of the

3 Because the trial court based its findings of duress and coercion on the court’s acceptance of Wife’s testimony and rejection of Husband’s testimony, this opinion focuses on Wife’s testimony.

D.

The non-final order invalidating the prenuptial agreement On August 30, 2019, the trial court entered a non-final order invalidating the parties’ prenuptial agreement because it “was the product of duress and coercion.” As to “coercion” the trial court held: 15. Mrs. Bates was in a vulnerable emotional position at the time of executing the prenuptial agreement. She had endured an abortion only a couple of weeks before the legal wedding was scheduled. Mrs. Bates had already scheduled an appointment

(Emphasis added). As to “duress” the trial court held:

19. The fact that Mrs. Bates would have signed anything to marry Mr. Bates appears to benefit Mr. Bates’ argument that the agreement was executed freely and voluntarily. However, it can conversely be used to show the disparity of the parties’ bargaining positions. Mrs. Bates came from a strict Catholic family. Mr. Bates testified that she had to be home at a certain hour or her mother would throw all her clothes out into the alley. Mrs. Bates was desperate to marry Mr. Bates and come to the United States. She had given her virginity to Mr. Bates, got pregnant, [and] had an abortion, all while supposedly expertly negotiating the terms of the prenuptial agreement.[4] These circumstances coupled with the fact that Mrs. Bates came from a strict Catholic family that would not condone having sex prior to the wedding day (not to mention what her family would have done had they known of the abortion), added more emotional stress and duress to Mrs. Bates during that time.

(Emphasis added). Husband timely appealed this August 30, 2019 non-final order.

II.

STANDARD OF REVIEW

We review the trial court’s invalidation of the subject prenuptial agreement for competent, substantial evidence. See Ziegler v. Natera, 279

4 The trial court discounted Husband’s testimony that the parties had discussed and negotiated the agreement, concluding that “no meaningful negotiations could have occurred with the complex legal language contained in the document with the language barriers.”

III.

ANALYSIS

There are two distinct grounds for invalidating a prenuptial agreement: (1) where the defending spouse has engaged in “fraud, deceit, duress, coercion, misrepresentation, or overreaching”; and (2) where “the agreement makes an unfair or unreasonable provision for [the challenging] spouse, given the [relative] circumstances of the parties.” Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987).5 In this case, Wife’s verified petition argued that the prenuptial agreement was invalid on both grounds, arguing that the agreement was the product of duress and coercion (ground¹) and that the agreement contained provisions that were grossly inequitable (ground²).

5 Although Casto involved a postnuptial agreement, the legal analysis employed therein applies to prenuptial agreements as well. See Waton, 887 So. 2d at 423 n.1. Effective October¹, 2007, the grounds for invalidating a prenuptial agreement outlined by the Florida Supreme Court in Casto were codified in section 61.079(7) of the Florida Statutes. See Ch. 2007-171, § 1, Laws of Fla.

6 Husband would have this Court apply a more strenuous definition for “duress” and require that the defending spouse’s conduct not only be “improper,” but also be “unlawful.” See Fuller v. Roberts, 35 Fla. 110 (Fla. 1895) (defining duress in the context of a claim for duress of goods, determining the compelling party’s actions must be “unlawful or wrongful”). We disagree. There is a clear distinction between an action for duress of goods – discussed in Fuller – and a petition to invalidate a prenuptial agreement based on the actions of the defending spouse. Certainly, unlawful conduct is improper; nevertheless, Husband cites no family law case that has defined “duress” as requiring the defending spouse’s conduct be unlawful.

7 Not surprisingly, Florida’s appellate courts have used the term “undue influence” when considering whether the challenging spouse executed a prenuptial agreement voluntarily. See Lutgert v. Lutgert, 338 So. 2d 1111, 1116 (Fla. 2d DCA 1976) (determining that “sufficient coercive circumstances” surrounding the execution of a prenuptial agreement “g[a]ve rise to a presumption of undue influence and overreaching”); Flaherty, 128 So. 3d at 923 (same).

1. Duress

The trial court concluded that Wife’s premarital sex with Husband, her pregnancy and her subsequent abortion, coupled with Wife coming from a strict Catholic family that would not condone her actions and, perhaps, would exact some form of reprisal upon learning of the abortion, constituted duress. We disagree with the trial court’s conclusions in this regard.

2. Coercion

But our inquiry does not end because the trial court separately concluded that Wife was coerced by Husband into signing the prenuptial agreement. The trial court essentially concluded that Husband exploited the

8 In the August 30, 2019 non-final order, the trial court highlighted numerous “red flags” that influenced the court’s determination, including: “Mrs. Bates [sic] receipt of the prenuptial agreement translated into Spanish on August 29th; the prenuptial agreement being signed by the parties on August 30th with the wedding on August 31st; . . . and the timing of the demand to execute the agreement or there would be no immigration processing and no wedding.”

9 In the August 30, 2019 non-final order, the trial court found that Husband’s demand that Wife “sign the translated prenuptial agreement the day before the wedding or the consequence would be no wedding and no immigration, [was] clear coercion.” Given our determination, supra, that the primary difference between “duress” and “coercion” is the degree of compulsion exerted by the defending spouse, we conclude that coercion, like duress, can arise where the defending spouse threatens an action for the defending spouse’s own pecuniary gain. See Berger, 466 So. 2d at 1151; Paris, 412 So. 2d at 953. We, therefore, examine the lower court’s finding of coercion within this context. To this end, we conclude further that the legal principles espoused in the “duress” cases cited in this section are, to the extent discussed herein, equally applicable to “coercion.”

A. Out of there.

Q. So it was a prenup or bust?

A. There is a lot of bust but that was definitely a bust. She knew about them ahead of time. . . .

Husband’s ultimatum, by itself, did not constitute the level of compulsion necessary for coercion. See Doig v. Doig, 787 So. 2d 100, 103 (Fla. 2d DCA 2001) (concluding that an ultimatum that there would be no wedding without a prenuptial agreement “does not, in itself, constitute duress”); Eager v. Eager, 696 So. 2d 1235, 1236 (Fla. 3d DCA 1997) (“It is not a threat or duress for the proponent to make it clear that there will be no marriage in the

10 See footnote⁸, supra.

21

Finally, we recognize that Wife’s testimony that she would have signed anything Husband presented her is an indication that her signing the prenuptial agreement was a volitional act. Nevertheless, under the particular facts and circumstances of this case, we conclude there were “sufficient coercive circumstances” surrounding the execution of the prenuptial agreement to give rise to a presumption that Wife did not execute the agreement of her own free will. Lutgert, 338 So. 2d at 1115-16; Flaherty, 128 So. 3d at 923. The trial court clearly found that Husband did not sufficiently rebut this presumption at trial. On this record, we do not disturb this finding.

IV.

CONCLUSION

We are “mindful that it is not within the province of an appellate court to substitute its judgment for that of the trier of fact.” Baker, 394 So. 2d at 466. Taking, as we are required to do, the facts most favorably in support of the trial court’s decision, Waton, 887 So. 2d at 422, we conclude there is not competent, substantial evidence to support the trial court’s determination that the parties’ prenuptial agreement was the product of duress; there is, however, competent, substantial evidence to support the trial court’s determination that the agreement was the product of coercion. Accordingly,

Affirmed.

LOGUE, J., concurs.

LINDSEY, J., dissenting in part.

I agree there is no competent substantial evidence to support the trial court’s finding of duress, but I respectfully dissent from the majority’s conclusion that there is competent substantial evidence that the parties’ prenuptial agreement was the product of coercion. I would reverse the order on appeal because the trial court’s findings established that the wife voluntarily signed the prenuptial agreement, and the trial court committed legal error when it relied on the expansive definition of coercion set forth in a special concurrence to an unwritten per curiam affirmance. See Gribbin v. Gribbin, 499 So. 2d 858, 862 (Fla. 4th DCA 1986) (Glickstein, J., concurring specially).

As an initial matter, the trial court’s order appears to conflate two separate grounds by which a spouse may challenge a prenuptial agreement. The first ground, which is applicable here, requires the challenging spouse to establish “fraud, duress, coercion, mispresenting or over-reaching.” Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987) (citations omitted). The second ground has to do with unreasonableness. Id.; see also § 61.079(7)(a) (setting forth grounds under which a premarital agreement is not enforceable). To establish unreasonableness, the challenging spouse must

With respect to duress and coercion, I agree with the majority that “[i]n either instance (duress or coercion), the act of compulsion must be sufficient to overcome the recipient’s free will such that the recipient’s actions are not of his or her own volition.” See also Dienstag v. Dienstag, 864 So. 2d 9, 11 (Fla. 3d DCA 2003) (“Whether the terms of the agreement are fair is of no consequence providing that the wife entered into the contract freely and voluntarily.”). Here, the trial court’s findings establish that Mrs. Bates acted voluntarily. More specifically, although Mrs. Bates testified that she went to Latin Connection to practice her English, the trial court found that “Mrs. Bates did not go to the Latin Connection merely to practice her English as she contends. It was her intention to sign up with the Latin Connection dating service to search for an American husband who was wealthy and who would help her leave Colombia with legal immigration status in the United States.” Moreover, the court also found that the legal wedding was performed at an

The trial court also improperly relied on Judge Glickstein’s special concurrence to a per curiam, unwritten affirmance in Gribbin to get around the evidence that the agreement was voluntary. This special concurrence, citing a case from the Ohio Supreme Court,¹¹ asserts that “[c]oercion is

11 The special concurrence in Gribbin relied on State v. Woods, 357 N.E. 2d 1059 (1976), an opinion that considered the meaning of duress and coercion in the context of mitigating a death sentence under Ohio law where the

Because the special concurrence in Gribbin has no precedential value, I would hold that the trial court committed legal error when it relied on the definitions of duress and coercion set forth in Gribbin. See Dep’t. of Legal Affs. v. Dist. Ct. of Appeal, Fifth District, 434 So. 2d 310, 311 (Fla. 1983) (holding that an unwritten per curiam affirmance has no precedential value); St. Fort ex rel. St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So. 2d 244, 245 (Fla. 4th DCA 2005) (“We reiterate that a per curiam affirmance without written opinion, even one with a written dissent, has no precedential value and should not be relied on for anything other than res judicata.”); see also Philip J. Padovano Appellate Practice § 20:7 (2019 ed.) (“The value of an appellate decision as a precedent is derived from the written opinion of the court. A per curiam decision without a supporting opinion is binding on the defendant claimed he would not have committed the crime if he had not been under duress or coercion.