ARMINIA AGEE FITE v. HARRY SANFORD FITE, JR.
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RENDERED: November 24, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001489-MR
ARMINIA AGEE FITE
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY NOBLE, JUDGE
ACTION NO. 88-CI-02497
HARRY SANFORD FITE, JR.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON, and GUIDUGLI, Judges.
COMBS, JUDGE: The appellant, Arminia Agee Fite (Arminia), appeals
from the order of the Fayette Circuit Court denying her motion to
set aside her Property Settlement Agreement with her former
husband, Harry Sanford Fite, Jr. (Harry), the appellee.
Having
reviewed the record and finding no error, we affirm the order of
the circuit court.
On September 9, 1988, the eleven-year marriage of the
parties was dissolved by order of the Fayette Circuit Court.
court awarded Arminia custody of their two minor children.
The
the division of the marital property, the court approved and
As to
incorporated by reference a Property Settlement Agreement
executed by Arminia and Harry.
Pursuant to the agreement,
Arminia received the marital residence and all interest in her
retirement benefits; she assumed responsibility for the mortgage
and one of the parties’ two cars.
Harry was awarded the other
car, all interest in his retirement benefits, and all interest in
a stock option plan with his employer, Proctor & Gamble.
On March 18, 1996, Arminia filed a motion to set aside
the agreement, contending that it was unconscionable in that
there was a disproportionate disparity in the value as to the
properties which each had received under the agreement.
Specifically, Harry received all interest in the stock option
plan with his employer, which Arminia alleged was valued at
$58,251.16 as of the time of the dissolution.
Conversely, she
was given all interest in the marital residence, which at the
time of the dissolution had a negative equity value of
-$4,503.86 (the assessed value of the house was $60,700.00 and
the unpaid balance of the mortgage on the house totaled
$65,203.86).
Arminia asserted that she was not represented by an
attorney during the dissolution proceedings and that she had not
claimed any interest in the stock option plan based on Harry’s
claim that the stock option plan was not marital property and
that thus she could not claim any interest in the stock.
January 22, 1997, the court denied her motion.
On
Arminia filed a
motion for reconsideration, which the court denied on May 19,
1997.
This appeal followed.
Arminia argues on appeal that the court erred in
failing to set aside the parties’ settlement agreement on the
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basis of unconscionability.
She also maintains that the court
had failed to give proper consideration to the issues raised in
her motion when it found that she had failed to prove fraud or
misrepresentation.
However, she did not raise these issues in
her motion for setting aside the agreement; she admits that she
raised only the issue of whether the settlement agreement was
unconscionable.
KRS 403.250(1) provides, in pertinent part, that the
provisions of a dissolution decree regarding property
dispositions “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.”
CR 60.02 provides relief
from final judgment on specific, narrow grounds:
On motion a court may, upon such terms as are
just, relieve a party or his legal
representative from its final judgment,
order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise
or excusable neglect; (b) newly discovered
evidence which by due diligence could not
have been discovered in time to move for a
new trial under Rule 59.02; (c) perjury or
falsified evidence; (d) fraud affecting the
proceedings, other than perjury or falsified
evidence; (e) the judgment is void, or has
been satisfied, released, or discharged, or a
prior judgment upon which it is based has
been reversed or otherwise vacated, or it is
no longer equitable that the judgment should
have prospective application; or (f) any
other reason of an extraordinary nature
justifying relief. The motion shall be made
within a reasonable time, and on grounds
(a),(b), and (c) not more than one year after
the judgment, order, or proceeding was
entered or taken. A motion under this rule
does not affect the finality of a judgment or
suspend its operation.
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In this case, Arminia filed her motion approximately
eight years after entry of the court’s decree.
She maintains
that she is not asserting fraud or misrepresentation, and it
appears that CR 60.02(f) is the only ground of relief upon which
she might rely.
Thus, she must demonstrate the existence of a
reason of an extraordinary nature justifying relief -- a
provision which has been narrowly construed by the courts.
Due
to the “desirability of according finality to judgments, this
clause must be invoked only with extreme caution, and only under
most unusual circumstances.”
Cawood v. Cawood,Ky., 329 S.W.2d
569, 571 (1959).
In denying Arminia’s motion to set aside the settlement
agreement, the court found: (1) that she had produced no evidence
that Harry had made any misrepresentations to her regarding the
stock option plan and (2) that she had failed to establish any
grounds for setting aside the settlement agreement.
The circuit
court also noted that the settlement agreement had been found to
be equitable at the time of the dissolution and that the parties
had not filed any objections to the agreement.
We find no error.
As an appellate court, “[w]e are constrained from overturning the
findings of the trial judge unless they are clearly erroneous.”
Aton v. Aton, Ky. App., 911 S.W.2d 612, 615 (1995).
Morever, the
court’s order indicates that it carefully considered not only the
issues of fraud and misrepresentation but also any other grounds
for relief that arguably may have been present.
Contrary to Arminia’s contentions, Shraberg v.
Shraberg, Ky., 939 S.W.2d 330 (1997) is inapplicable to this
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case.
Shraberg addressed the “scope of trial court discretion
with respect to holding separation agreements unconscionable
pursuant to KRS 403.180(2).”
Id. at 331.
KRS 403.180 provides
that the parties may enter into settlement agreements regarding
the disposition of property, maintenance, and custody, support,
and visitation as to minor children.
The statute authorizes a
trial court to review the parties’ settlement agreement for
conscionability.
Arminia’s motion was filed eight years after
the decree of dissolution, and the only grounds for relief
available to her are set forth in CR 60.02.
As she has failed to
demonstrate the existence or relevance of CR 60.02 criteria with
respect to her settlement agreement, we have no basis for
assigning error to the trial court.
We therefore affirm the judgment of the Fayette Circuit
Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
David A. Nunery
Ramona C. Hieneman
Campbellsville, KY
Steven A. Wides
Lexington, KY
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