Filed 3/4/24 Marriage of Kandah and Diaz CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of TAISIR
KANDAH and ALVA DIAZ.
D081730
TAISIR KANDAH,
Appellant, (Super. Ct. No. 22FL000292C)
v.
ALVA DIAZ,
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Terrie E. Roberts, Judge. Affirmed.
Bickford Blado & Botros and Andrew J. Botros for Appellant.
Procopio, Cory, Hargreaves & Savitch and Kendra J. Hall for
Respondent.
Taisir Kandah appeals the trial court’s ruling in a bifurcated
proceeding that a premarital agreement (Agreement) he entered into with
Alva Diaz, his former wife, was valid. He contends the court erroneously
ruled the Agreement was enforceable because (1) under Family Law1 section
1615, subdivision (c), he was not afforded a seven-day waiting period between
the day he received a final version of the Agreement and when he signed it;
and (2) he was not represented by independent counsel when he signed the
Agreement. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Kandah and Diaz became engaged in 2011 and set a marriage date of
May 5, 2012. Kandah was an engineer who was twice divorced. Diaz was a
bank employee for several years, and she had been divorced once. They both
had children from prior relationships and owned separate real estate.
Kandah and Diaz lived together for approximately six months before they
married.
In approximately April 2012, the parties began discussing the
Agreement, which they both wanted in order to protect their premarital
assets for their respective children.
On April 12, 2012, after consulting Kandah, Diaz provided her
attorney, Richard Thorn, detailed statements of assets and liabilities
regarding the parties’ finances. Kandah understood that the list of his assets
and liabilities would form part of the Agreement.
Diaz testified she provided Kandah a copy of each of three drafts of the
Agreement for his review. On April 23, 2012, she e-mailed him the third
draft. As Kandah agreed to the Agreement’s terms, she scheduled an
appointment for them to sign the final Agreement at Attorney Thorn’s office
on April 26, 2012. In consultation with Attorney Thorn, Diaz retained
Attorney Charles Ward, a family law specialist, to represent Kandah in the
negotiation and execution of the Agreement.
1 Undesignated statutory references are to the Family Law.
2
Attorney Ward reviewed a draft of the Agreement and based on his
suggestion, a provision based on section 1615 subdivision (c) was added to it:
“[T]he parties acknowledge that they had not less than seven calendar days
between the time [they] were first presented with the [A]greement and
advised to seek legal counsel and the time the [A]greement was signed.” On
April 26, 2012, before Kandah signed the Agreement, Attorney Ward went
over each paragraph of it with Kandah in a separate room at Attorney
Thorn’s office.
At trial, Attorney Ward was asked separate questions about whether
Kandah indicated he: “did not want to sign” the Agreement; “felt tricked” into
signing it; “needed more time to view” it; “wanted to consult with another
attorney”; or was “agitated in any way.” Attorney Ward answered each
question in the negative. Asked whether Kandah expressed disagreement
with any part of the Agreement, Attorney Ward responded, “No. Quite the
contrary. From what I recall, he was pretty on board with the whole idea of
getting married and keeping assets and everything else separate.”
The Agreement provides that the parties “do not intend to create any
community property.” Accordingly, they agreed that all property belonging to
each party, “whenever or wherever acquired or located, together with the
income from and proceeds thereon shall be and remain the sole and separate
property of” that party. It also provides that all income earned by each party
“shall be and remain the sole and separate property of” that party. Each
party waived “the right to post-marriage spousal support to the extent
allowed by law.” The Agreement provides: “The parties acknowledge and
agree that each has had independent counsel who has advised him or her of
the meaning and effect of this agreement, wife by Richard D. Thorn, Esquire
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and husband by Charles Ward, Esquire.” Both parties and their attorneys
signed the Agreement.
After the parties separated in 2021, Kandah petitioned for dissolution.
The parties stipulated to bifurcate the issue of the Agreement’s validity.
Kandah argued the Agreement was unenforceable because under section
1615, subdivision (c), he was not represented by independent counsel when
he signed it. Diaz contended the Agreement was enforceable. Diaz, Kandah,
and attorneys Thorn and Ward testified to the facts set forth above.
The court denied Kandah’s request that it deem the Agreement invalid.
In ruling from the bench, it found: “[A]ccording to both [parties], they had
talked about [the Agreement] weeks before, but the documentation shows
they had done more than talk about it, at least by April 12 [, 2021], where
they were exchanging respective assets and liabilities to include in [the
Agreement].” It concluded Kandah was not credible in some respects: “I do
not find Mr. Kandah’s testimony that he—I believe he has attempted to
downplay his understanding, to downplay his role in this. I do not find it
credible when he said, ‘I think [Diaz] was going to hire an attorney, I
suggested that we write [the Agreement] ourselves.’ I think he was well
aware of what they were going to do. [¶] He testified that he didn’t even
remember how they got to the office, if they went together. Ms. Diaz was
very clear that they went together to the office, they left the office together.
And what is significant to the [c]ourt is Mr. Kandah acknowledged he did not
read the Agreement. He said he may have skimmed through it but, yet, his
testimony was that he told Mr. Ward that he objected to portions of it. But,
yet, he signed it. He did not make his objections known when they came out
of the room. And, frankly, I don’t find it credible that he had any objections.”
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The court stated it “found it significant that the parties conducted their
finances during their marriage in the exact way the [Agreement] provided.
Also significant to the court is the [parties’] intention in entering [the
Agreement] in the first place. Both parties were previously married and
wanted to protect their assets and maintain their financial independence.”
The court found Attorney Ward’s testimony credible, and that he
independently represented Kandah and met with him privately to review the
Agreement, and also inserted the statutory language into the Agreement to
help protect both parties and comply with the law. The court concluded that
as Kandah was represented by counsel, under the version of section 1615 in
effect when he signed the Agreement, he was not entitled to a seven-day
waiting period between when he was presented with its final version and
when he signed it.
The court stated in its findings and order after hearing that Kandah
was represented by independent counsel, pointing out there was no indication
“Mr. Thorn or Ms. Diaz’s conduct interfered with Mr. Ward’s ability to
represent Mr. Kandah.” Further, it found nothing unusual about Diaz paying
Kandah’s attorney fees.
DISCUSSION
I. Validity of the Agreement
Kandah contends: “The sole issue on appeal is whether the premarital
agreement was voluntarily executed within the meaning of [ ] section 1615[,
subdivision] (c). Specifically, the questions presented to this [c]ourt are 1)
whether [he] had not less than seven calendar days between the time he was
first presented with the final agreement and advised to seek independent
legal counsel and the time the agreement was signed . . . and; 2) whether [he]
was represented by independent counsel at all.”
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A. Applicable Law
Generally speaking, “[t]he version of the statute in force at the time the
parties executed [a premarital agreement] governs.” (Knapp v. Ginsberg
(2021) 67 Cal.App.5th 504, 526, fn. 6.) Here, the version of section 1615 in
effect when the parties executed the Agreement was enacted effective
January 1, 2002, and provides a premarital agreement “is not enforceable if
the party against whom enforcement is sought proves . . . [t]hat party did not
execute the agreement voluntarily.” (Former § 1615, subd. (a)(1).) Section (c)
of former section 1615 provides: “For the purposes of subdivision (a), it shall
be deemed that a premarital agreement was not executed voluntarily unless
the court finds in writing or on the record all of the following: [¶] (1) The
party against whom enforcement is sought was represented by independent
legal counsel at the time of signing the agreement or, after being advised to
seek independent legal counsel, expressly waived, in a separate writing,
representation by independent legal counsel. [¶] (2) The party against whom
enforcement is sought had not less than seven calendar days between the
time that party was first presented with the agreement and advised to seek
independent legal counsel and the time the agreement was signed. [¶] (3)
The party against whom enforcement is sought, if unrepresented by legal
counsel, was fully informed of the terms and basic effect of the agreement as
well as the rights and obligations he or she was giving up by signing the
agreement, and was proficient in the language in which the explanation of
the party’s rights was conducted and in which the agreement was written.
The explanation of the rights and obligations relinquished shall be
memorialized in writing and delivered to the party prior to signing the
agreement. The unrepresented party shall, on or before the signing of the
premarital agreement, execute a document declaring that he or she received
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the information required by this paragraph and indicating who provided that
information. [¶] (4) The agreement and the writings executed pursuant to
paragraphs (1) and (3) were not executed under duress, fraud, or undue
influence, and the parties did not lack capacity to enter into the agreement.
[¶] (5) Any other factors the court deems relevant.”
Section 1615, subdivision (c) “ ‘places an evidentiary burden upon the
party seeking to enforce a premarital agreement: [h]e or she must be prepared
to present evidence sufficient for the court to make the . . . findings;
otherwise, the premarital agreement must be held unenforceable as having
been involuntarily executed.’ ” (In Re Marriage of Cadwell-Faso & Faso
(2011) 191 Cal.App.4th 945, 956 (Cadwell-Faso).) A trial court’s factual
findings regarding the voluntariness of a premarital agreement are reviewed
under the substantial evidence standard, which requires that all legitimate
and reasonable inferences be indulged to uphold the ruling below. (In re
Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 1059.) We review
the trial court’s interpretation of a statute de novo. (In re Marriage of
Vaughn (2018) 29 Cal.App.5th 451, 455-456.)
In interpreting the 2002 version of section 1615, the court in Cadwell-
Faso, supra, 191 Cal.App.4th 945 held the seven-day requirement is
inapplicable to parties who were represented by counsel when they were first
presented with the premarital agreement. In reaching that conclusion,
Cadwell-Faso focused on the statutory language measuring the seven-day
waiting period “from the time the party against whom enforcement is sought
‘was first presented with the agreement and advised to seek independent
legal counsel’ . . . . The conjunctive phrase, requiring both presentment and
advice, implies that the waiting period is for the benefit of a party not
represented by counsel at the time the agreement is presented, thereby
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affording time to obtain counsel and enjoy the benefit of counsel’s review of
the agreement and advice prior to signing it.” (Id. at pp. 959-960; accord, In
re Marriage of Hill & Dittmer, supra, 202 Cal.App.4th at p. 1057.)
Cadwell-Faso explained the logic of its interpretation as a matter of
policy: “[T]he seven-day period makes sense as a necessary condition to
finding voluntary execution on the part of an unrepresented party because
the requirement affords a reasonable period of time to obtain and consult
with independent counsel prior to signing a premarital agreement. On the
other hand, when a party is already represented by counsel in the
transaction, obtaining the requisite advice can occur very quickly and no
purpose is served by imposing a statutory waiting period.” (Cadwell-Faso,
supra, 191 Cal.App.4th at p. 960.)
In enacting the 2019 amendments, the Legislature expressed its intent
to leave the Cadwell-Faso holding undisturbed for pre-2020 agreements.
Thus, section 1615, subdivision (c)(2)(B), provides that, for agreements
executed after January 1, 2020, the party against whom enforcement is
sought must have seven days “between the time that party was first
presented with the final agreement and the time the agreement was signed,
regardless of whether the party is represented by legal counsel.” (Italics
added.) “Further, the Legislature expressly declared that the addition of that
subdivision ‘is intended to supersede, on a prospective basis, the holding in
[Cadwell-Faso].’ ” (Estate of Eskra (2022) 78 Cal. App. 5th 209, 233-234;
accord, Caldwell-Faso, supra, 191 Cal.App.4th 945.)
B. Analysis
Under the above authority, as Attorney Ward represented Kandah and
reviewed the Agreement with him before he signed it, the court did not err by
concluding that under section 1615, subdivision (c), the Agreement was
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executed voluntarily. Kandah also relies on the current provision of section
1615, subdivision (c)(1) for his contention that he did not receive the benefit
of a seven-day period between the date he received the final version of the
Agreement and when he signed it. However, he does not fall within the scope
of that provision, which only applies to unrepresented parties.2 Accordingly,
his contentions that the court erroneously failed to make a finding that the
seven-day rule was followed, and that the Agreement cannot be validated by
the parties’ last-minute addition of the Agreement’s recital stating that the
parties complied with the seven-day requirement, are unavailing.
In arguing the seven-day rule applies here and he was deprived of it,
Kandah contends: “Since the only evidence before the [c]ourt was that
[Kandah] first met Mr. Ward on April 26, 2012, the evidence does not support
that he was represented by counsel at the time he was presented with any of
the agreements. In any event, the only conclusion supported by the evidence
is that the [A]greement was entirely negotiated prior to the beginning of any
representation. There is no evidence that anyone discussed the final changes
with [him] before they were added, and there is no evidence that Mr. Ward
represented [him] when the changes were made. The lack of a written fee
agreement only adds to the uncertainty.”
2 We grant Diaz’s request for judicial notice of legislative history
material related to the enactment of the 2020 amendments to section 1615.
We agree with another court that stated: “However, it would not affect the
result were we to conclude the present version of . . . section 1615, subdivision
(c)(2)(A) controls due to its express reference to agreements ‘executed
between January 1, 2002, and January 1, 2020.’ In addition to the
Legislature’s express declaration of intent to supersede Cadwell-Faso only
prospectively, the Legislature’s retention of the conjunctive phrase that was
decisive to Cadwell-Faso’s reasoning is further indication the Legislature did
not intend to change the decision’s holding[.]” (Estate of Eskra, supra, 78
Cal.App.5th at p. 234, fn. 19.)
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Relying on language contained in Cadwell-Faso, Kandah argues
Attorney Ward did not represent him “from the outset.” The court in
Cadwell-Faso stated the issue it addressed: “[W]e are concerned with the
threshold matter addressed below, namely does section 1615[, subdivision]
(c)(2) apply to parties such as Faso who, from the outset, are represented in
the transaction by independent counsel, or does it apply only to
unrepresented parties?” (Cadwell-Faso, supra, 191 Cal.App.4th at p. 956,
italics added.) The court added, “Section 1615[, subdivision] (c)(2) is
ambiguous. We cannot ascertain from its face whether the seven-day rule is
confined to unrepresented parties, or whether it also covers those represented
from the outset by independent counsel.” (Cadwell-Faso, supra, 191
Cal.App.4th at p. 957, italics added.) After analyzing the legislative history,
the court concluded the statute does not pertain to “a party who was
represented in the transaction from the outset.” (Id. at p. 962.)
Kandah misconstrues the references to “from the outset” in Caldwell-
Faso, supra, 191 Cal.App.4th 945. It does not create a requirement separate
from section 1615, subdivision (c)(1), which simply requires that the “party
against whom enforcement is sought was represented by independent counsel
at the time of signing the agreement.” “In the construction of a statute or
instrument, the office of the Judge is simply to ascertain and declare what is
in terms or in substance contained therein, not to insert what has been
omitted, or to omit what has been inserted.” (Code Civ. Proc., § 1858.) The
statute’s plain terms were satisfied here when Attorney Ward reviewed the
Agreement with Kandah before they both signed it.
II. Independence of Kandah’s Counsel
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Kandah contends the term “independent legal counsel” is “ambiguous.”
and, “Nowhere in the statute is that term defined or qualified. There is no
indication of where the line is between being represented and being
unrepresented.” Specifically, he contends Attorney Ward did not provide him
independent counsel within the meaning of section 1615, subdivision (c)(1):
“The [L]egislature wanted parties to be effectively represented by genuine
advocates who had a reasonable opportunity to negotiate on behalf of their
clients, not empty suits. In this case, Mr. Thorn per his own words, ‘selected’
Mr. Ward. . . . The attorney that Mr. Thorn ‘selected’ finished negotiating
the agreement with his long-time colleague prior to ever meeting or
communicating with his client. That is not ‘independent.’ There is no
evidence that suggests that [Kandah] even knew Mr. Ward was going to be at
the meeting on April 26th.” Kandah adds: “[I]t was entirely within Mr.
Thorn’s power to ensure that whoever he dealt with actually represented [ ]
Kandah and that negotiations did not begin before [ ] Kandah was actually
represented. Given that the entire ‘representation’ of [ ] Kandah took place
in Mr. Thorn’s office while Mr. Thorn was present at the office, it was entirely
within Mr. Thorn’s power to make sure the representation was not a token 30
minutes.”
The court in Cadwell-Faso quotes a treatise stating that section 1615
“ ‘places an evidentiary burden upon the party seeking to enforce a premarital
agreement: [The party] must be prepared to present evidence sufficient for
the court to make the . . . findings; otherwise, the premarital agreement must
be held unenforceable as having been involuntarily executed.’ ” (Cadwell-
Faso, supra, 191 Cal.App.4th at p. 956.) “[I]t is well established that the trial
court weighs the evidence and determines issues of credibility and these
determinations and assessments are binding and conclusive on the appellate
11
court.” (In re Marriage of Hill & Dittmer, supra, 202 Cal.App.4th at pp. 1051-
1052.) Here, the court made a credibility determination rejecting Kandah’s
claim he did not voluntarily execute the agreement. It specifically concluded
that Kandah “was well aware of what [the parties] were going to do [when
they went to sign the Agreement].” The critical point here is that even if
Kandah did not specifically know Attorney Ward would be the one
representing him in the negotiations, once he found out, he did not oppose
such representation. Further, the court concluded Kandah did not object to
any of the Agreement’s provisions. Attorney Ward testified Kandah appeared
to be “pretty on board” with it, and willing to enter into it, as it protected his
separate property interests. We conclude that Diaz, as the party seeking to
enforce the Agreement, met her burden of showing Kandah voluntarily
agreed to it. Accordingly, the trial court did not err by denying Kandah’s
motion to invalidate the Agreement.
The evidence showing Attorney Ward was Kandah’s independent
counsel is not undermined by Attorney Thorn’s selection of Attorney Ward, or
by the fact the meeting took place in Attorney Thorn’s office and lasted for a
short time.3 We conclude that the important consideration on this record is
that Attorney Ward exercised his independent judgment on Kandah’s behalf
by amending the Agreement to include a provision based on section 1615.
Further, he separately reviewed the Agreement’s provisions with Kandah in
private, providing Kandah an opportunity to decide whether he agreed with
it before signing it.
3 As Kandah does not challenge Attorney Ward’s independence based on
the fact Diaz retained him, we have no occasion to address this issue.
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DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
DATO, J.
KELETY, J.
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