IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 224
Jennie Renae Olson, Plaintiff and Appellant
v.
Jonathan Michael Olson, Defendant and Appellee
No. 20240103
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Patti J. Jensen (argued) and Ashley A. Olson (on brief), East Grand Forks, MN,
for plaintiff and appellant.
Gregory W. Liebl (argued) and James E. Nicolai (on brief), Fargo, ND, for
defendant and appellee.
Olson v. Olson
No. 20240103
Bahr, Justice.
[¶1] Jennie Olson appeals from a divorce judgment enforcing the parties’
premarital agreement. On appeal, Jennie Olson argues the district court erred in
determining the agreement is valid and enforceable. She also argues the court
abused its discretion by allowing a rebuttal witness to testify and by not
admitting a text message as evidence. Both parties request attorney’s fees and
costs. We affirm the district court’s judgment and deny both parties’ request for
attorney’s fees and costs.
I
[¶2] Jennie Olson and Jonathan Olson were married on August 22, 2020. Two
days before the wedding, Jonathan Olson presented Jennie Olson with a
premarital agreement. The agreement provided that in the event of a divorce
each party would retain ownership of their separate property, defined as the
property they owned by them on the date of their marriage. The parties signed
the agreement the same day. At the time of the agreement, Jennie Olson had a
net worth of $386,917, and Jonathan Olson had a net worth of $11,591,000. In July
2022, the parties separated, and Jennie Olson commenced this divorce action.
[¶3] The parties stipulated to bifurcate the trial. The district court approved the
stipulation and ordered the issue of the validity of the premarital agreement be
bifurcated from and held before trial on the remaining issues. After the first trial,
the court concluded the parties’ agreement was valid and enforceable. After the
second trial, the court determined the parties had no martial property.
II
[¶4] After a three-day trial, the district court found the parties’ premarital
agreement “enforceable in all respects” and declared the agreement “to be valid
and enforceable.” Jennie Olson argues the court erred in determining the
agreement is valid and enforceable.
1
[¶5] The Uniform Premarital and Marital Agreements Act, N.D.C.C. ch. 14-03.2,
governs all premarital agreements signed after July 31, 2013. N.D.C.C. § 14-03.1-
02(1). A premarital agreement is a contract, and its interpretation is a question of
law, which this Court reviews de novo on the entire record. Fercho v. Fercho, 2022
ND 214, ¶ 15,
982 N.W.2d 540. However, a district court’s findings of fact are
reviewed for clear error. In re Estate of Lutz,
2000 ND 226, ¶ 12,
620 N.W.2d 589.
“A finding of fact is clearly erroneous if it is induced by an erroneous view of the
law, if there is no evidence to support it, or if, after reviewing the entirety of the
evidence, this Court is left with a definite and firm conviction a mistake has been
made.” Fercho, at ¶ 24.
A
[¶6] Jennie Olson argues the premarital agreement is unenforceable because
she did not have access to independent legal representation. She contends the
time between when Jonathan Olson gave her the agreement and the signing of it
was not a reasonable time to access legal representation.
[¶7] Section 14-03.2-08(1)(b), N.D.C.C., provides a premarital agreement “is
unenforceable if a party against whom enforcement is sought proves . . . [t]he
party did not have access to independent legal representation” as defined in
N.D.C.C. § 14-03.2-08(2). Section 14-03.2-08(2) provides,
A party has access to independent legal representation if:
a. Before signing a premarital or marital agreement, the party
has a reasonable time to:
(1) Decide whether to retain a lawyer to provide
independent legal representation; and
(2) Locate a lawyer to provide independent legal
representation, obtain the lawyer’s advice, and consider
the advice provided; and
b. The other party is represented by a lawyer and the party has
the financial ability to retain a lawyer or the other party agrees
to pay the reasonable fees and expenses of independent legal
representation.
The presence of independent counsel is not a prerequisite to enforceability of a
premarital agreement. See Matter of Estate of Lutz, 1997 ND 82, ¶ 31,
563 N.W.2d
2
90 (citing authority from other states for the proposition that independent
counsel is not an absolute requirement for validity of an agreement). Rather, the
party had to have “access” to independent legal representation. N.D.C.C. § 14-
03.2-08(2). Jennie Olson had the burden to prove she did not have access to
independent legal representation. N.D.C.C. § 14-03.2-08(1)(b).
[¶8] The district court found Jennie Olson had a reasonable time to access
independent legal representation before signing the premarital agreement, but
chose not to retain a lawyer. The court noted the parties signed the agreement
on August 20, 2020 and married two days later. Although the agreement was
signed two days before the wedding, the court found Jonathan Olson made
Jennie Olson “aware of the need for a prenuptial agreement prior to marriage at
least several if not many times, long before their engagement and long before
their wedding.” The court further found Jonathan Olson placed a draft of the
agreement on the kitchen counter—as was the parties’ common practice—
approximately three weeks prior to the signing date. The court explained Jennie
Olson could have sought legal counsel at any time prior to the signing as she was
aware of Jonathan Olson’s requirement for a premarital agreement. Furthermore,
although Jonathan Olson scheduled a signing appointment two days before the
wedding, the court found Jennie Olson still had time to call an attorney that day
or the following day regarding the agreement. See N.D.C.C. § 14-03.2-06 (“A
premarital agreement is effective on marriage.”).
[¶9] We conclude the district court’s findings Jennie Olson had access to
independent legal representation is not clearly erroneous because there is
evidence to support it and we are not left with a definite and firm conviction a
mistake has been made.
B
[¶10] Jennie Olson argues the premarital agreement is unenforceable because
she did not receive a full and complete financial disclosure from Jonathan Olson.
[¶11] A premarital agreement is unenforceable if, “[b]efore signing the
agreement, the party did not receive adequate financial disclosure[.]” N.D.C.C.
§ 14-03.2-08(1)(d). A party has adequate financial disclosure if the party:
3
a. Receives a reasonably accurate description and good-faith
estimate of value of the property, liabilities, and income of the
other party;
b. Expressly waives, in a separate signed record, the right to
financial disclosure beyond the disclosure provided; or
c. Has adequate knowledge or a reasonable basis for having
adequate knowledge of the information described in
subdivision a.
N.D.C.C. § 14-03.2-08(4). Jennie Olson had the burden to prove she did not
receive adequate financial disclosure. N.D.C.C. § 14-03.2-08(1)(d).
[¶12] The district court found Jennie Olson had adequate knowledge or a
reasonable basis for having adequate knowledge of Jonathan Olson’s finances.
The court explained Jennie Olson and Jonathan Olson started dating in 2013 and
moved in together in 2015. The court found that since 2013 Jennie Olson observed
Jonathan Olson’s day-to-day involvement connected to his assets, including
managing his properties in Grand Forks, acquiring a lake residence, renting
properties, and managing businesses he owned. The court further found the
couple shared an office in their home where Jennie Olson would organize
Jonathan Olson’s bills, invoices, bank statements, and tax returns; and that
Jonathan Olson openly discussed his earnings, the number of businesses he
owned, and the value of his assets. The court found Jennie Olson must have
understood Jonathan Olson had significant income from his assets to maintain
the lifestyle the couple shared.
[¶13] Furthermore, the district court found Jennie Olson and Jonathan Olson
completed balance sheets, which were attached to the premarital agreement at
the time of signing. Jennie Olson testified that Jonathan Olson assisted her in
completing a balance sheet summary prior to the signing date. The balance
sheets provided a detailed list of assets and liabilities of the parties.
[¶14] We conclude the district court’s findings Jennie Olson received adequate
financial disclosure from Jonathan Olson prior to signing the premarital
agreement is not clearly erroneous because there is evidence to support it and
we are not left with a definite and firm conviction a mistake has been made.
4
C
[¶15] Jennie Olson argues the district court erred in determining she voluntarily
consented to the premarital agreement.
[¶16] A premarital agreement is unenforceable if a “party’s consent to the
agreement was involuntary or the result of duress.” N.D.C.C. § 14-03.2-08(1)(a).
Jennie Olson had the burden to prove she did not voluntarily consent to the
premarital agreement. N.D.C.C. § 14-03.2-08(1)(a).
[¶17] The district court found Jennie Olson’s consent to the premarital
agreement “was voluntary and not a result of duress.” The court found Jennie
Olson appeared to be a very intelligent and competent business woman, owns a
successful custom blind business, started a non-profit animal rescue project,
previously ran a website design business, and has owned and managed rental
properties. The court further found she has a college degree majoring in business.
Additionally, the court found it difficult to believe Jennie Olson did not know
what a premarital agreement was about because Jennie Olson entered into a
settlement agreement from a prior marriage. Jennie Olson further acknowledged
the disparity in the parties’ wealth. Based on those and other factual findings,
including that Jennie Olson was made aware of the need for the agreement long
before the wedding, the court found Jennie Olson’s consent to the agreement
“was not involuntary or the result of duress.”
[¶18] We conclude the district court’s findings Jennie Olson voluntarily entered
into the premarital agreement is not clearly erroneous because there is evidence
to support it and we are not left with a definite and firm conviction a mistake
has been made.
D
[¶19] Jennie Olson argues the premarital agreement was substantively
unconscionable.
[¶20] Under N.D.C.C. § 14-03.2-08(6), a district court may find a term of a
premarital agreement unenforceable if the term was unconscionable at the time
5
of signing. A court decides unconscionability as a matter of law. N.D.C.C. § 14-
03.2-08(7).
[¶21] The district court did “not find any terms of the prenup, or the prenup, in
whole or in part, to have been unconscionable at the time of signing.”
[¶22] Jennie Olson argues bargaining power was not equal between the parties
because Jonathan Olson was represented and Jennie Olson was not. She also
alleges she lacked the business acumen and experience Jonathan Olson
possessed. However, N.D.C.C. § 14-03.2-08(6) requires the party argue a term of
the premarital agreement was unconscionable at the time the agreement was
signed. Jennie Olson does not argue a specific term of the agreement was
unconscionable.
[¶23] We conclude the district court did not err in holding no term of the
premarital agreement was unconscionable at the time of signing.
III
[¶24] Jennie Olson argues the district court abused its discretion by allowing a
rebuttal witness to testify. She argues the witness was not on Jonathan Olson’s
witness list and was not sequestered.
[¶25] A party may request the court order witnesses be excluded from hearing
the testimony of other witnesses. N.D.R.Ev. 615. The sequestration rule applies
to rebuttal witnesses. State v. Hill, 1999 ND 26, ¶ 6,
590 N.W.2d 187. “The purpose
of sequestration is to prevent one witness’s testimony from influencing another.”
State v. Wanner,
2010 ND 121, ¶ 13,
784 N.W.2d 143. “Sequestration also permits
discovery of false testimony and credibility issues.” Id.; see also State v. Muhle,
2007 ND 132, ¶ 34,
737 N.W.2d 647 (“The sequestration rule’s purpose is to
prevent witnesses from tailoring their testimony to what has already been
presented and to assist in detecting less than candid testimony.”); 1 McCormick
on Evid. § 50 (8th ed.) (July 2022 Update) (discussing purposes of sequestrating
witnesses). A district court has discretion to allow a witness to testify even
though the witness heard prior testimony in violation of a sequestration order.
Wanner, at ¶ 13. “This Court reviews a trial court’s decision to permit a witness
6
to testify even though the witness heard prior testimony in violation of a
sequestration order under an abuse of discretion standard.” Id.; see also State v.
Skorick, 2002 ND 190, ¶ 9,
653 N.W.2d 698 (reviewing court’s admission of
rebuttal testimony under abuse of discretion standard); Ehrman v. Feist,
1997 ND
180, ¶ 21,
568 N.W.2d 747 (reviewing court’s refusal to allow testimony by
rebuttal witnesses under abuse of discretion standard).
[¶26] At the beginning of the first trial, the parties agreed witnesses should be
sequestered, and the district court ordered witness sequestration. During that
trial, Jennie Olson testified that she learned about Jonathan Olson’s desire for a
premarital agreement days before the wedding. Jonathan Olson called a witness
to rebut Jennie Olson’s testimony. Jennie Olson objected to the witness’s
testimony, arguing the witness was not on Jonathan Olson’s witness list and the
witness’s testimony violated the sequestration order because Jonathan Olson and
his attorney talked to the witness about Jennie Olson’s testimony. The court
overruled the objection. Jennie Olson filed a motion for reconsideration,
requesting the court strike and not consider the witness’s testimony. The court
denied the motion.
[¶27] In its order denying the motion for reconsideration, the district court
explained Jonathan Olson’s timely filed witness list “included a general
statement of ‘and any other person necessary to lay foundation or for rebuttal
purposes.’” The court found the witness “was called as a rebuttal witness and
was appropriately permitted to testify.” Moreover, Jonathan Olson disclosed to
Jennie Olson he was going to call the witness as a rebuttal witness thirteen days
before he called the witness to testify. The court found Jonathan Olson’s notice
to Jennie Olson that he was going to call the witness as a rebuttal witness gave
Jennie Olson “more than a reasonable amount of time” to allow her to contact
and interview the witness prior to the witness’s testimony.
[¶28] The scheduling order required the parties to exchange an index of all
prospective witnesses. The order provided, “Any witness not on this index shall
not be allowed to testify, except on a showing of good cause to include, but not
limited to, a showing why that witness was not so designated.” Some courts have
held rebuttal witnesses are a recognized exception to witness disclosure
7
requirements. See, e.g., Luxottica Grp., S.p.A. v. Airport Mini Mall, LLC, 932 F.3d
1303, 1320 (11th Cir. 2019); 62A Am. Jur. 2d Pretrial Conference § 29 (Oct. 2024
Update). We need not decide whether rebuttal witnesses are required to be
disclosed when not specifically ordered by the court. The duty to disclose a
rebuttal witness may depend on whether the party calling the rebuttal witness
could have reasonably anticipated the testimony or evidence sought to be
rebutted. See Morgan v. Com. Union Assurance Cos.,
606 F.2d 554, 556 (5th Cir.
1979) (stating “a defense witness whose purpose is to contradict an expected and
anticipated portion of the plaintiff’s case in chief can never be considered a
‘rebuttal witness,’ or anything analogous to one.”); Sirotiak v. H.C. Price Co.,
758
P.2d 1271, 1277–78 (Alaska 1988) (stating the standard for determining whether
an undisclosed rebuttal witness should be allowed to testify depends “on
whether the testimony sought to be rebutted could reasonably have been
anticipated prior to trial”); 75 Am. Jur. 2d Trial § 280 (Oct. 2024 Update) (“The
standard for determining whether a rebuttal witness should be allowed to testify
when that person was not timely identified depends on whether the testimony
to be rebutted could reasonably have been anticipated prior to trial.”).
[¶29] Here, the scheduling order specifically provided the district court may
allow an undisclosed witness to testify “on a showing of good cause,” which
included a showing why the witness was not disclosed. The court explained the
witness was not called as a fact witness but to rebut Jennie Olson’s testimony
regarding when and what Jonathan Olson told Jennie Olson about wanting a
premarital agreement. Although it did not use the words “good cause,” the
court’s analysis shows it concluded Jonathan Olson showed good cause to call
the witness to rebut Jennie Olson’s testimony. Jennie Olson did not demonstrate
the court’s conclusion was an abuse its discretion. See 75 Am. Jur. 2d Trial § 280
(Oct. 2024 Update) (stating “where the relevance and existence of rebuttal
evidence is not known until the other side has presented its case, a trial court
does not commit an abuse of discretion by permitting the rebuttal, even though
the rebuttal witness was not listed prior to trial”).
[¶30] Regarding the sequestration order, the district court wrote, “It can
reasonably be anticipated an attorney, or even the attorney’s client as a proxy of
the attorney, would need to speak with individuals to determine if they would
8
be able to refute prior testimony. It is not unforeseen that some information
regarding a specific topic or testimony would need to be disclosed in order to
determine whether a party would have the knowledge and information to serve
as a rebuttal witness.” The court further noted the witness’s testimony did not
appear to be negatively influenced or inappropriately tailored to the testimony
of prior witnesses, nor was Jennie Olson prejudiced by the witness’s testimony.
[¶31] “[T]he very function of a rebuttal witness is directed toward challenging
the prior testimony of opposing witnesses . . . [R]ebuttal examination cannot be
properly conducted without revealing, in some measure, the testimony which is
subject to refutation.” Hill, 1999 ND 26, ¶ 7 (quoting United States v. Bramlet,
820
F.2d 851, 855 (7th Cir. 1987)). The witness was not present and did not hear the
testimony of witnesses. It was necessary that Jonathan Olson disclose some
information with the potential witness to determine whether she could serve as
a rebuttal witness. The witness’s testimony was limited to responding to Jennie
Olson’s testimony. “The purpose of sequestration or exclusion of witnesses was
not frustrated in this instance.” State v. Heart,
334 N.W.2d 479, 482 (N.D. 1983);
cf. 1 McCormick on Evid. § 50 (8th ed.) (July 2022 Update) (stating some courts
have held the witness exclusion rule “does not apply to rebuttal witnesses or
witnesses called to impeach credibility”).
[¶32] We conclude the district court did not abuse its discretion in allowing the
undisclosed witness to testify as a rebuttal witness.
IV
[¶33] Jennie Olson argues the district court abused its discretion by refusing to
admit into evidence a text message discovered between the trials.
[¶34] This Court applies an abuse of discretion standard to a district court’s
evidentiary ruling. Spottie, Inc. v. Baiul-Farina, Ltd., 2024 ND 88, ¶ 11,
6 N.W.3d
582. “A district court has broad discretion in admitting or excluding evidence at
trial.”
Id. (quoting State v. Thomas,
2022 ND 126, ¶ 10,
975 N.W.2d 562). Our abuse
of discretion standard is well-established:
9
A district court has broad discretion on evidentiary matters, and we
will not overturn its admission or exclusion of evidence on appeal
unless that discretion has been abused. A district court abuses its
discretion when it acts arbitrarily, capriciously, or unreasonably, or
when its decision is not the product of a rational mental process or
if it misinterprets or misapplies the law.
Spottie, Inc., at ¶ 11 (quoting State v. Salou, 2024 ND 6, ¶ 7,
1 N.W.3d 602). This
Court will not reverse a district court’s decision whether to allow or to exclude
evidence unless the party claiming error made an offer of proof as to the
substance of the evidence and the party’s substantial rights were affected.
N.D.R.Ev. 103(a).
[¶35] At the second trial on the valuation and distribution of assets and debts,
Jennie Olson offered a text message exchange between the parties, which
included an attachment of the premarital agreement without the parties’ balance
sheets. In the text, Jonathan Olson told Jennie Olson, “This is the document we
are signing at 2:30[.]” Jonathan Olson objected to admission of the text, stating
the text went toward the enforceability of the premarital agreement and was not
relevant to the second trial. Jennie Olson argued the text went toward Jonathan
Olson’s credibility. The district court sustained the objection on the ground the
text message was not relevant to credibility and evidence should be limited to
the parties’ property. Jennie Olson’s brief does not argue that her substantial
rights were affected by the court’s refusal to admit the text message as evidence.
[¶36] We conclude the district court did not abuse its discretion in refusing to
admit the text message as evidence.
V
[¶37] Both parties request attorney’s fees and costs in conjunction with the
appeal. “Generally, each party to a lawsuit bears its own attorney’s fees, absent
statutory or contractual authority.” Trosen v. Trosen, 2022 ND 216, ¶ 43,
982
N.W.2d 527. “This Court may award attorney’s fees and costs under
N.D.R.App.P. 38 if it determines an appeal is frivolous.” Albertson v. Albertson,
2023 ND 191, ¶ 21,
996 N.W.2d 662.
10
[¶38] The parties’ premarital agreement includes a provision stating:
If either party should retain counsel for the purpose of enforcing or
preventing the breach of any provision of this agreement or for any
other judicial remedy relating to this agreement, each party shall be
responsible for his or her own attorney’s fees and costs incurred in
the proceeding, including attorney fees, expert witness fees and
court costs. All attorney fees, costs and expenses, including fees and
expenses for expert witnesses, out-of-pocket costs and court costs,
incurred respecting any proceeding for dissolution, legal separation
or declaration of invalidity shall be the sole and separate obligation
of the party incurring the same without contribution from the other
party. We each expressly waive any right to seek an award of fees
and costs from the other party in connection with any proceeding to
terminate the marriage except if and to the extent authorized herein.
(Emphasis added.)
[¶39] The premarital agreement contractually provides both parties are
responsible for their own attorney’s fees for any proceeding regarding the
agreement. “Any proceeding” includes this appeal. See LAWC Holdings, LLC v.
Vincent Watford, L.L.C., 2024 ND 16, ¶ 21,
2 N.W.3d 672 (“Because the agreement
provided fees in any action to the prevailing party, appellate fees may also be
awarded.”). Because we hold the premarital agreement enforceable, we conclude
we may not award either party attorney’s fees or costs under the premarital
agreement.
VI
[¶40] We affirm the district court’s judgment.
[¶41] Jerod E. Tufte, Acting C.J.
Daniel J. Crothers
Lisa Fair McEvers
Douglas A. Bahr
Daniel S. El-Dweek, D.J.
11
[¶42] The Honorable Daniel S. El-Dweek, D.J., sitting in place of Jensen, C.J.,
disqualified.
12
