JIMMY LEE GARDNER v. ANNIE MAE GARDNER
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RENDERED: January 29, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001078-MR
JIMMY LEE GARDNER
APPELLANT
APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 96-CI-000187
v.
ANNIE MAE GARDNER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; HUDDLESTON, KNOX, JUDGES.
KNOX, JUDGE: Appellant, Jimmy Lee Gardner (Jimmy Lee), appeals an
order of the Logan Circuit Court affirming the recommendation of
the domestic relations commissioner that the terms of the
Gardeners’ separation agreement, incorporated into their
dissolution decree, were not unconscionable.
Jimmy Lee and appellee, Annie Mae Gardner (Annie Mae),
were married on March 3, 1984.
Annie Mae commenced receiving
disability benefits and a nominal retirement sometime during
1985, as a result of mental illness.
Jimmy Lee was employed by
the Tennessee Valley Authority (TVA) until he suffered some form
of injury on or about October 5, 1990.
In 1991 and 1992, Jimmy
Lee was granted disability and retirement benefits respectively.
Further, as a result of his injury, Jimmy Lee filed a workers’
compensation claim in 1991.
The claim was denied and, in 1994,
Jimmy Lee appealed this unfavorable decision which remained
pending at the time the present appeal was briefed by the
parties.
Initially, the parties intended to dissolve their
marriage in May 1995.
At this time, Annie Mae sought the advice
of an attorney, Lela Shepherd (Shepherd), who counseled Annie Mae
on dissolution proceedings.
Jimmy Lee and Annie Mae met with
Shepherd and communicated their desires with respect to the terms
of a separation agreement.
Jimmy Lee signed an affidavit
affirmatively stating that he specifically waived any objection
to Shepherd’s representation of Annie Mae.
For reasons that are
not clear to this Court, the parties requested attorney Shepherd
withdraw the dissolution documents, although same had been
delivered to the circuit clerk’s office but not opened.
The parties, again, sought to dissolve their marriage
in May 1996.
Shepherd.
Once more, they sought the assistance of attorney
The original separation agreement of May 1995 was
provided to Jimmy Lee for his review and approval.
Apparently,
he sought a third party’s opinion with respect to the contents
and conditions set forth in the documents.
Upon return to
Shepard’s office, the only revision Jimmy Lee requested was that
Annie Mae be removed as recipient of the survivor benefits under
Jimmy Lee’s TVA retirement plan.
In Jimmy Lee’s presence,
Shepard contacted the TVA who informed that since Jimmy Lee
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elected retirement status in 1992, at which time he exercised the
survivor option, he was precluded from altering his contract.
Other than this request, neither party made any noteworthy
modification to the original separation agreement of 1995.
The findings of fact, conclusions of law, and decree of
dissolution of marriage were entered on June 6, 1996, and
provided, inter alia: (1) life time maintenance to Annie Mae in a
sum of $496.50 per month; (2) one-half of Jimmy Lee’s workers’
compensation award to Annie Mae, should Jimmy Lee prevail on
appeal; (3) division of marital property; and, (4) identification
of marital debts.
In November 1996, Jimmy Lee filed a motion to vacate,
alter or amend the dissolution decree, alleging that since he
retained only minimal reading and writing skills, he did not
understand the contents and consequences of the legal documents
he had executed.
The matter was heard before the domestic
relations commissioner on November 19, 1996, who concluded the
agreement was not unconscionable and, thus, not subject to be set
aside.
Several hearings were subsequently held in this matter
with, ultimately, the circuit court holding the agreed findings
of fact, conclusions of law and decree enforceable.
It is from
that order this appeal ensued.
Jimmy Lee argues the separation agreement as
incorporated in the decree of dissolution is unconscionable
within the meaning of KRS 403.180, respecting the issues of
division of personal property, any workers’ compensation award
Jimmy Lee may receive, and the award of lifetime maintenance.
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He
further contends that he understood his maintenance obligation
was to remain in effect only through December 1996. He posits his
illiteracy hindered his ability to comprehend the nature and
ramifications of the agreement which he entered into and
permitted Annie Mae to engage in overreaching.
On the other hand, Annie Mae, proceeding pro se,
asserts Jimmy Lee was fully aware of the terms and conditions of
the separation agreement, having entered into same voluntarily.
She asserts Jimmy Lee had ample opportunities to obtain legal
counsel had he any doubts as to the implications of the agreement
and chose to forego that avenue.
Rather, Annie Mae believes
Jimmy Lee’s new romantic interest prompted him into welching on
his prior promises.
The separation agreement, as incorporated in the final
decree provides, in pertinent part:
IX.
That Respondent/Husband, Jimmy Lee
Gardner, should be required to pay
maintenance to Petitioner/Wife, Annie Mae
Garner, in the amount of $496.50 per month
beginning 5th of month following month of
sale of marital residence and both move from
said marital residence; the $496.50 per month
is calculated by adding together Annie’s and
Jimmy’s retirements and Annie’s and Jimmy’s
Social Security benefits received[,] then
dividing by two and Jimmy’s paying to Annie
the amount which gives to both Annie and
Jimmy the same amount of money. At the time
the Social Security checks amounts change,
this calculation shall be made and the amount
which will cause Annie and Jimmy each to have
the same amount, shall be paid by Jimmy to
Annie. Further, Jimmy shall not change his
retirement contract which states that should
Jimmy predecease Annie that Annie shall
continue to receive Jimmy’s TVA retirement
benefit but in the amount of one-half the
amount Jimmy receives.
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. . . .
That marital property should be set
aside as follows:
7.
½ of Jimmy’s Workers Compensation
claim yet to be settled[.]
The remaining provisions respecting the division of
property grant Annie Mae her automobile, a lawnmower, a weed
eater, wrought iron table, chairs and swing, two (2) antique
chairs from the front porch, all household items excepting an
antique dresser, the Chow Chow dog “Blackie,” and her personal
items.
Similarly, Jimmy Lee received his automobile, a pick-up
truck, a fiberglass boat, a John Deere riding lawnmower, a John
Deere garden tiller, a satellite dish, an antique dresser, onehalf (1/2) of Jimmy Lee’s pending workers’ compensation award,
and personal items.
The law concerning modification of separation
agreements is codified in KRS 403.180 and KRS 403.250.
Specifically, KRS 403.180(2) addresses modification “[i]n a
proceeding for dissolution of marriage[,]” providing that the
court may direct a separation agreement to be modified, prior to
entering the final decree, where the court deems the agreement
unconscionable. The gist of this statutory provision is to permit
the trial court to ascertain the reasonableness of the agreement
where the parties offer no proof of economic circumstances, in
that the proceeding is “uncontested.”
Trial courts can request
such information, but as a general practice, viewing the matter
as “agreed,” usually decline to do so.
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Here, the domestic relations commissioner made a
specific finding that the terms of the original findings of fact
and conclusions of law were not unconscionable.
This finding
followed a hearing on Jimmy Lee’s motion to alter, amend or
vacate the dissolution decree, which the domestic relations
commissioner treated as a motion under CR 60.02.
Jimmy Lee’s
challenge goes to both aspects of maintenance and property
division. Ordinarily, since the request for modification has
arisen post-decree, KRS 403.250(1)1 would be applicable.
However, because KRS 403.180 contemplates a challenge of
unconscionability by a party to the agreement, our analysis
focuses on the factors necessary to support such an argument.
We first note that KRS 403.180 was designed to permit
parties to a dissolution proceeding the ability to divide their
property and interests by way of contract.
KRS 403.180(1)
provides that in order to promote amicable settlement of disputes
between parties attendant to their separation or dissolution of
their marriage, they may enter into a separation agreement
containing provisions for maintenance, disposition of property,
custody, support and visitation of children.
1
KRS 403.250(1) provides:
Except as otherwise provided in subsection
(6) of KRS 403.180, the provisions of any
decree respecting maintenance may be modified
only upon a showing of changed circumstances
so substantial and continuing as to make the
terms unconscionable. The provisions as to
property disposition may not be revoked or
modified, unless the court finds the
existence of conditions that justify the
reopening of a judgment under the laws of
this state.
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(2) In a proceeding for dissolution
of marriage or for legal separation, the
terms of the separation agreement, except
those providing for the custody, support, and
visitation of children, are binding upon the
court unless it finds, after considering the
economic circumstances of the parties and any
other relevant evidence produced by the
parties, on their own motion or on request of
the court, that the separation agreement is
unconscionable.
(3) If the court finds the
separation agreement unconscionable, it may
request the parties to submit a revised
separation agreement or may make orders for
the disposition of property, support, and
maintenance.
KRS 403.180(2)(3).
Modification cases analyzed under KRS 403.250 have
defined unconscionable as “manifestly unfair and inequitable.”
Wilhoit v. Wilhoit, Ky., 506 S.W.2d 511, 513 (1974).
In Peterson
v. Peterson, Ky. App., 583 S.W.2d 707, 712 (1979), this
definition was deemed applicable to a court’s initial ruling on
agreements under KRS 403.180.
“Thus, an agreement could clearly
be set aside on the basis of fraud, undue influence, or
overreaching.
On the other hand, an agreement could not be held
unconscionable solely on the basis that it is a bad bargain.”
Id.
Further, deceit, mental instability, threats, inducement of
guilt, and economic provisions are additional factors to be
considered in ascertaining the reasonableness of the agreement.
Shraberg v. Shraberg, Ky., 939 S.W.2d 330, 333 (1997). In that
the law favors stability with respect to these agreements (KRS
403.110, KRS 403.180), the party challenging same bears a
“definite and substantial burden” of proof.
at 711. (Citations omitted).
Peterson, 583 S.W.2d
As such, the trial court’s decision
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on conscionability, or lack thereof, should not be set aside
unless clearly erroneous.
In the instant case, the domestic relations
commissioner, after considering the circumstances surrounding the
agreement and hearing the evidence regarding the parties’
economic positions concluded: (1) the parties announced their
agreement to attorney Lela Shepherd, who “reduced it to a written
form, and each of them signed it as having not only agreed to it
but also having read it and understood it[;]” (2) the 1996 decree
was really a second attempt at a divorce the parties initiated in
1995, the only distinction between the entered decree and the
original 1995 proposal being several amendments the parties made
during the interim period; (3) there was no merit to Jimmy Lee’s
position that he believed attorney Shepherd was acting as his
attorney, hence providing him with legal advice regarding the
agreement, in that (a) Shepherd’s own testimony refuted this
notion and, in fact, (b) Jimmy Lee signed a waiver in 1995
indicating his understanding of Shepherd’s representation of
Annie Mae, and there being no indication that he believed any
differently in 1996; (4) there was ample opportunity in which to
have the proposed agreement reviewed by another, whether an
attorney or not, so as to negate his position that he neither
read nor understood the agreement; specifically, the fact that
Jimmy Lee desired to have the beneficiary provision of his TVA
retirement plan changed, to exclude Annie Mae as the recipient of
same should he predecease her, underscored the fact that Jimmy
Lee was fully aware of the benefits and form of maintenance
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contained in the agreement; and, (5) while Jimmy believed the
agreement to be a bad bargain, such was not a legal basis to set
aside the agreement, and upon review the terms to which the
parties agreed, as set out in the findings of fact and
conclusions of law and decree of dissolution of marriage, were
not unconscionable.
The circuit court thoroughly reviewed the
commissioner’s report and, following several hearings on the
matter, entered an order on April 8, 1997, directing, inter alia:
[T]hat as it pertains to the above motions
filed on behalf of the Respondent for
exceptions to the previous Commissioner’s
Report dealing with his maintenance
obligation, the Court specifically finds that
the Respondent was aware of the terms set
forth in the Agreed Findings of Fact and
Conclusions of Law, and was specifically
aware that the parties had negotiated a
method by which they would have an
equalization of income after the divorce and
the attempts now raised by the Respondent to
set aside those provisions so as to deprive
the Petitioner the benefit of such bargain
and receiving a maintenance in the amount of
$496.50 per month for the rest of her life on
the basis that he either did not understand
same, or did not think the provisions would
last beyond December of 1996 are without
merit.
Our review of the record reflects that Jimmy Lee falls
short in meeting his burden of proof.
There is no evidence of
fraud, deception, overreaching or otherwise a showing of
fundamental unfairness.
There is no evidence Jimmy Lee’s
economic circumstances had changed from the time he executed the
agreement, or that the terms of the agreement cast him into
financial straits.
Rather, as the court correctly concluded, the
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agreement merely equalized the income of both parties, as
intended.
Further, with respect to the division of any potential
workers’ compensation award Jimmy Lee may receive, or the
allocation of marital property, we believe the parties’ right and
ability to contract controls.
In construing a contract, and the
manner in which it is to operate, the court must acknowledge the
parties’ intent at the time of the agreement as governing.
See
Leathers v. Ratliff, Ky. App., 925 S.W.2d 197, 198-99 (1996).
There is not so disparate a division of property as to render the
separation agreement noticeably lopsided.
Rather, the record
reflects Annie Mae to have entered the marriage with substantial
non-marital equity in her former home.
As such it is reasonable
to perceive the parties divided their belongings and financial
resources according to their knowledge of specific financial
facts.
Since the trial court is in the best position to discern
the evidence and circumstances surrounding the agreement, as well
as to ascertain the credibility of the witnesses, its findings
will not be disturbed absent evidence of fraud, undue influence,
overreaching, emotional distress, or a change in circumstances
from the time the original agreement was executed. Peterson, 583
S.W.2d at 712.
Applying that standard to the facts and
circumstances before us leads to the conclusion that the decision
below was not clearly erroneous.
The judgment of the Logan Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
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Zachary M. Kafoglis
Bowling Green, Kentucky
Annie Mae Gardner, pro se
Russellville, Kentucky
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