This section contains the nature of the case and procedural background.

H and W were married in November 1988. H had an affair with another woman. The parties separated but did not divorce. Instead, they entered into a written 'Marital Settlement Agreement' (hereafter the agreement) intended to 'preserve, protect and assure the longevity and integrity of an amicable and beneficial marital relationship between them.' They agreed in writing that their marriage was intended to be an exclusive relationship with emotional and sexual fidelity, and mutual trust. The agreement considered a breach of sexual fidelity to involve volitionally engaging in any act of kissing on the mouth or touching in any sexual manner of any person outside of said marital relationship, as determined by a trier of fact. The parties acknowledge their mutual understanding that any such breach of fidelity by one party hereto may cause serious emotional, physical and financial injury to the other.' The agreement provided for 'Liquidated Damages' in the sum of $50,000, over and above, and irrespective of, any property settlement and/or support obligation imposed by law as a result of said divorce proceeding. The agreement was drafted by Hs attorney, and both H and W signed it voluntarily in December 1993. They resumed living together. H couldn't keep his dick in his pants and again had an affair with another woman. The parties separated in August 1998 and thereafter divorced. W sued for breach of contract in February 2000, seeking to enforce the liquidated damages clause of the agreement. On the first day of trial, the trial court, on its own motion, granted a judgment on the pleadings in favor of H. W appealed.

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