In re the Marriage of CHERYL A. and GEORGE CHICK IVERSON. CHERYL A. IVERSON, Appellant, v. GEORGE CHICK IVERSON, Respondent, 11 Cal. App. 4th 1495

Opinion SILLS, P. J. Cheryl Iverson appeals from a judgment dissolving her marriage of 15 years to George Chick Iverson. Primarily she challenges the trial court’s finding that a premarital agreement signed by the parties was valid. She also challenges the granting of a protective order limiting discovery and the

interpretation of the agreement. Chick cross-appeals from a portion of the judgment directing him to maintain a $1 million life insurance policy in favor of Cheryl. The oral statement of decision of the judge who presided over the trial of the validity of the premarital agreement—and who acted as trier of fact in that proceeding—is so replete with gender bias that we are forced to conclude Cheryl could not have received a fair trial. Accordingly, we must reverse and direct the matter be retried before a different judge. All other issues follow in the wake of this determination.

I Cheryl and Chick separated in April 1987. Shortly thereafter, Cheryl filed this action to dissolve the marriage. Chick obtained an order to bifurcate the proceeding and try the validity of a premarital agreement each had signed. During the trial, Chick testified he did not want to get married, told Cheryl he did not want to get married, and made it clear to his associates he was perfectly happy not getting married. Cheryl told a somewhat different story. Chick first brought up the subject of marriage.

He asked her to marry him in front of the late actor John Wayne, just after Chick had asked Wayne to be his best man. Marriage was the reason she moved in with Chick. He told her he wanted the couple to live together and be married. The testimony also differed on the circumstances surrounding Cheryl’s signing of the agreement. Chick presented the testimony of Rita Cruikshank, wife of the late William Cruikshank, Chick’s attorney. She testified that in June 1972, Cheryl and Chick met on her husband’s boat. William Cruikshank read the agreement to them. He asked if they understood what he was reading to them.

They answered yes. This happened several times while he was reading the agreement. After he finished, he turned to Cheryl and told her, “Cheryl, I think maybe it’s advisable you see another attorney, make sure this is what you want to do.” Cheryl said, “No, no, no. Whatever Chick wants.” He then handed Cheryl a pen. She signed. Cheryl testified she never discussed the contents of the agreement with an attorney before she signed it. Nor could she recall ever being advised by any attorney about her rights to property that might be acquired during her marriage to Chick.

She had no recollection of ever signing the agreement (though she acknowledged signing it, because her name was on it). After the testimony was finished, the trial judge noted there was “too much money” involved in the case “for it not to be appealed.” He then said, “I want whoever reviews this to be able to have the benefit of my reasoning for how I get to where I got.” He then elaborated: “One of the things that struck me, first of all, was that the petitioner in this case, Cheryl Iverson, only had five or six luncheon dates with Chick Iverson before she decided to move into his home.

Now, he sure as heck does not look like John Wayne and he doesn’t look like John Derek. And even if we take 17 years off him, I don’t think he looks like Adonis. “And, so, we have a situation in the beginning where we have a girl who has been testified to [sic] was lovely, and is lovely, but who did not have much of an education, and did not have much of a background in business, and did not have much by way of material wealth. Had nothing going for her except for her physical attractiveness. Who, somehow or other, comes to the attention of Mr.

Iverson and, after five or six luncheon dates, is invited to move into his home. “It seems to me that the process of marrying is one in which there is some mutual advantages from the act of getting married, maybe different ones from the act of establishing a relationship, a live-in type, spousal-type relationship. “But, in light of the testimony that Mr. Iverson had come out of a very unpleasant, very unhappy marriage, his statement that he was reluctant to get married again adds some dimension here. ‘Once burned, twice cautious.’ He had just gone through a divorce which cost him a million dollars.

He does not want to get in one of those things again. He has talked to his important friends in the film industry and other areas, where living together is the common situation rather than marriage. And, so, decides that’s the best thing for him. He makes an offer to petitioner, who thinks it’s good. And then she moves in. “I cannot accept the fact that, as she said, he was the one that proposed marriage to her. That would be the last thing that would be on his mind. And why, in heaven’s name, do you buy the cow when you get the milk free, as we used to.say. And, so, he’s getting the milk free.

And Cheryl is living with him in his home. “And the impetus for marriage must be coming from her side, because there’s nothing Mr. Iverson is going to get out of it. Marriage is a drag on the market. It’s a deprivation of his freedom. He’s got everything that he would want out of a relationship with none of the obligations.

Now, I am of the opinion that the impetus for the marriage in the home, prior to the incident of the birthday party for John Wayne, came almost entirely from the petitioner in this case, resisted by respondent.” II We quote the judge’s statement at length to show that, in resolving disputed issues of fact, it is reasonably clear that he entertained preconceptions about the parties because of their gender. These perceptions appear to have made it impossible for Cheryl to receive a fair trial. (Cf. Webber v.

Webber (1948) 33 Cal.2d 153 [199 P.2d 934] [trial court perceptions required reversal of decision to award no alimony or attorney fees]; see also People v. Van Gorden (1964) 226 Cal.App.2d 634, 638 [38 Cal.Rptr. 265] [appellate court may inspect reasons given by trial judge to determine how result was reached].) In the first place, the statement that Cheryl was a “lovely girl” shows gender bias toward her as a witness. The judge did not use a similar description for Chick. The resolution of the credibility issues in the case thus may have been based, at root, on Cheryl’s gender and physical attributes.

As the validity of the prenuptial issue depended on the resolution of conflicting testimony, this possibility contaminates the subsequent disposition of the case. The day is long past when appellate courts can disregard judicial action rooted in racial or sexual bias as harmless error (see Powers v. Ohio (1991) 499 U.S. _ , _[113 L.Ed.2d 411, 428, 111 S.Ct. 1364] [importance of eliminating racial discrimination from “official acts” within the judicial system]). Additionally, use of the word “lovely” reveals gender bias.

While the word is usually complimentary, in context here it was used in juxtaposition to “education," “background in business,” and “material wealth,” to indicate Cheryl’s limited credibility as a witness. There is thus more than a faint whiff of “ ‘romantic paternalism’ ” in the choice of the word. (See Frontiero v.

Richardson (1973) 411 U.S. 677, 684 [36 L.Ed.2d 583, 590, 93 S.Ct. 1764] [traditionally, sex discrimination “was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage”].) Furthermore, it cannot be gainsaid that, whatever the judge’s actual gender bias, the description of Cheryl—a woman in her 40’s—as a “girl” seriously detracts from the appearance of justice. Our Supreme Court has directed that “ ‘ [t]he trial of a case should not only be fair in fact, but it should also appear to be fair.’ ” (Webber v.

Webber, supra, 33 Cal.2d at p. 155, quoting Pratt v. Pratt (1903) 141 Cal. 247, 252 [74 P. 742].) Besides the use of language indicating gender bias, the judge also appears to have employed gender-based stereotypes in his decisionmaking process. (See Frontiero v. Richardson, supra, 411 U.S. at p. 685 [36 L.Ed.2d at p. 591] [reference to “gross, stereotyped distinctions between the sexes”].) His reasoning appears to have been that “lovely” women are the ones who ask wealthy men who do not look like “Adonis” to marry, and therefore Cheryl was not credible when she testified Chick asked her to marry him.

The error here is the application of a generality to specific individuals.

(2) It is the essence of our system of justice that individuals shall be judged on their own merits, not on some characteristic they happen to share with other people. (See Frontiero v. Richardson, supra, 411 U.S. at p. 686 [36 L.Ed.2d at p. 592] [“the sex characteristic frequently bears no relation to ability to perform or contribute to society”].) Next, the reference to not buying the “cow” when the “milk is free” cannot be countenanced.

There is, in the reference, an obvious double standard based on stereotypical sex roles. (Both Chick and Cheryl were living together, but only Chick was seen as benefitting from the relationship, simply because he was a man.) And we hardly need elaborate that in the context in which it was used, the reference was plainly demeaning to Cheryl, analogizing her to a cow. Again we find a “predetermined disposition” to rule against her based on her status as a woman. (See Webber v.

Webber, supra, 33 Cal.2d at p. 158.) In Webber, a trial judge indicated he had prejudged a request for alimony arising out of a 36-year marriage when, three times in rapid succession, he described the testimony regarding the claim as the washing of “dirty linen.” (See 33 Cal.2d at pp. 156-157.) Our Supreme Court said this conduct indicated an “unsympathetic attitude toward the litigation” that did “not accord with recognized principles of judicial decorum consistent with the presentation of a case in an atmosphere of fairness and impartiality,” and could not, therefore, “be condoned.” (33 Cal.2d at p. 163.) And in Pratt, on which Webber relied, our Supreme Court said that where the trial of a case does not appear to be fair, “it shocks the judicial instinct to allow the judgment to stand.” (141 Cal. at p. 252.) We follow Webber and Pratt and likewise decline to condone the gender bias revealed in the statement of decision here.

Moreover, even if we say the judge in this matter harbored no direct bias against Cheryl as an individual, his statements still, like those in Webber and in Pratt, do not accord with recognized principles of fairness. It goes without saying that the appearance of justice, required by Webber and Pratt, is clearly absent. The gender bias evidenced in the resolution of the validity of the prenuptial contract contaminated not only that issue but the balance of the case which depended on it. The judgment is therefore reversed and remanded for a new trial on all issues.

The Presiding Judge of the Orange County Superior Court is directed to assign the matter to a different judge. (Code Civ. Proc., § 187; see also People v. Swanson (1983) 140 Cal.App.3d 571, 575 [189 Cal.Rptr. 547].) An additional issue, however, should be addressed for the benefit of the trial court on remand—the problem of who has the burden of proof on the validity of the prenuptial agreement. The parties devoted a considerable portion of their briefs to this issue and deserve an answer. Under Evidence Code

section 500, “[A] party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” This provision applies to family law proceedings. (Evid. Code, § 300; Cal. Rules of Court, rule 1207; In re Marriage of Mehlmauer (1976) 60 Cal.App.3d 104,108 [131 Cal.Rptr. 325].) Before enactment of the Uniform Premarital Agreement Act (UPAA) (Civ. Code, § 5300 et seq.), contracts between parties contemplating marriage that governed their property rights were generally considered to be valid. (Civ.

Code, former §§5133-5134; In re Marriage of Dawley (1976) 17 Cal.3d 342, 349 [131 Cal.Rptr. 3, 551 P.2d 323].) Also, under, general contract rules, the burden of establishing a particular contract is illegal is on the party claiming the illegality. (Fellom v. Adams (1969) 274 Cal:App.2d 855, 863 [79 Cal.Rptr. 633]; Sweeney v. KANS, Inc. (1966) 247 Cal.App.2d 475, 480 [55 Cal.Rptr. 673].) Although the parties’ agreement is not covered by the UPAA (Civ. Code, § 5302), the act codified prior case law. The comment to

section 6 of the act, enacted as Civil Code

section 5315, states it “is framed in a manner to require the party who alleges that a premarital agreement is not enforceable to bear the burden of proof as to that allegation. . . .” (9B West’s U.Laws Ann.

(1987) U. Premarital Agreement Act, § 6, com., at p. 377.) We thus conclude the burden of proof is properly placed on the party attacking the validity of the agreement, here Cheryl. Wallin, J., concurred. It is ironic that these very comments are precisely what mandates reversal in this case. This language, particularly the more egregious comments, was quoted extensively in Cheryl’s opening brief to demonstrate that the judge injected his “own personal opinion of the parties conduct and appropriate reasons for marriage” into his decisionmaking.

We think these quotations, combined with related references in the opening brief to the trial judge’s “opinion,” “antediluvian philosophy,” and “view toward marriage,” adequately raise the issue of gender bias.

See Report of the Judicial Council Advisory Committee on Gender Bias in the Courts (1990), tab 2—Introduction, at page 3: “The advisory committee’s working definition of gender bias is: behavior or decision making of participants in the justice system that is based on or reveals (1) stereotypical attitudes about the nature and roles of women and men . . . .” See also Preliminary Report of the Ninth Circuit Gender Bias Task Force (1992) at page 17: “Gender affects litigants in a variety of ways.

One problem relates to women’s credibility as witnesses ....’’ ln Pratt, a wife sued her husband for an accounting of his management of certain of her property. He sought to put the couple’s 17-year-old daughter on the stand to testify about the husband’s receipt of the rents.

The judge then told the husband’s counsel he was sinking to the lowest “depth of infamy” to put the couple’s child on the stand, and nothing “would condemn [his] client” in the judge’s eyes more than that. (141 Cal. at p. 250.) The Supreme Court, on appeal, characterized the judge’s statements as a threat to “prejudge” the husband’s own testimony unless the daughter was withdrawn as a witness. (141 Cal. at p. 251.) Such a prejudging of the case was so contrary to the appearance of fairness that the Supreme Court simply could not allow the judgment to stand. (141 Cal. at p. 252.) We respectfully

part company with the suggestion made by our concurring colleague that the judge’s comments showing gender bias were taken out of context. These comments were central to, and part and parcel of, his statement of decision. The “lovely girl" statement was part of weighing the parties’ respective credibility as to why they got married in the first place, a question which must necessarily be the core of any resolution of the validity of a premarital contract inextricably linked to that decision.

Likewise, the “cow” comment was part of the judge’s analysis of the difference between cohabitation and marriage, which affected his evaluation of the same central factual issue. At oral argument, Justice Moore asked Cheryl’s counsel: “You’re not charging the judge with bias are you?” In response, Cheryl’s counsel opined that the judge was not “specifically biased against my client.” However, counsel then quickly drew a distinction between bias against Cheryl individually and bias against women generally, when she added: “But I do think he showed an attitude of bias toward women.

And I don’t think that this court has heard me before arguing gender bias in any case—and I’ve been up here a lot of times. But this particular case, it seems to scream out.” We agree with counsel that this is a case not of prejudice against an individual party for reasons which may be peculiar to that person, but rather of gender bias which taints the decisionmaking process itself.