concurring: I cannot agree that the antenuptial contract challenged herein is unenforceable and void.
The parties in this case were previously married and lived together for a period of approximately eleven years, during which time they had two children bom of the marriage. The first divorce resulting in a decree on July 7, 1958, was bitterly fought and protracted with both parties adequately represented by counsel.
The court was informed in argument the remarriage of the parties was in part due to efforts of the minor children of the marriage who wanted their parents together.
The second marriage lasted over eleven years when divorce proceedings were instituted. After hearing the divorce action the trial court found both parties knew the extent and value of the property of the other at the time the antenuptial contract was entered into; that there was no undue influence, overreaching, duress, threat, deception or fraud; that Helen examined the document, knew it ivas a property settlement agreement, and signed it voluntarily and of her own free will. The court in its opinion recognizes the record discloses substantial competent evidence to support the finding of the trial court that the agreement was fairly and understandingly made.
Under these circumstances I cannot agree that the antenuptial contract is void.
First, the provision for continued payment of alimony is innocuous. Continued payment of alimony pursuant to the divorce decree dissolving the first marriage after remarriage could not be required, but John M. Ranney paid the full amount in accordance with the agreement, and for present purposes any argument based upon this provision is moot.
Second, the last two paragraphs of the agreement regarding the parties’ property in the event the marriage is “dissolved or sepa*434rated,” when read together, are ambiguous in the sense that nothing is said concerning the accumulation of property by the joint efforts of the parties after the second marriage.
In view of the fact that the trial court limited discovery of the plaintiff’s financial condition and refused to admit evidence thereof, it is improper, in my opinion, to resort to hearsay suggestions in the record as to the plaintiff’s net worth in an effort to bolster the court’s decision which, in effect, overcomes the findings of the trial court.
In Frontiero v. Richardson, 411 U. S. 677, 36 L. Ed. 2d 583, 93 S. Ct. 1764, four members of the U. S. Supreme Court said statutory classifications based upon sex were inherently suspect and must be subjected to close judicial scrutiny, and under such standard of judicial scrutiny, the challenged statutes were unconstitutional as constituting invidious discrimination against servicewomen in violation of the due process clause of the Fifth Amendment. A fifth member of the court concurred in the judgment, agreeing that the statutes worked an invidious discrimination in violation of the constitution.
The Kansas Act Against Discrimination (K. S. A. 1975 Supp. 44-1001, et seq.) prohibits discrimination against individuals in employment relations, public accommodations or in housing by reason of sex, among others.
If under modern constitutional doctrine women are constitutionally recognized as free agents on an equal footing with men, certainly a corresponding equal obligation attaches to the free and voluntary acts of a woman when she enters into a legitimate contract with a man.
Such change in modern constitutional doctrine regarding the rights of women, in my opinion, foreshadows a requirement that courts shed their overzealous supervisory protecting mantle concerning women’s acts when women exercise their constitutional freedom.
In my opinion the antenuptial contract should be upheld and the trial court’s decision should be affirmed on this point. However, the judgment should be reversed and the case remanded to the trial court for a determination of the property accumulated by the joint efforts of the parties after the second marriage, with directions to make an equitable division of the property accumulated after the second marriage.
Kaul, J., joins in the foregoing concurring opinion.