DEBORAH A. BOSCHERT v. GARY W. BOSCHERT
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RENDERED: January 15, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002477-MR
DEBORAH A. BOSCHERT
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 96-CI-000318
v.
GARY W. BOSCHERT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GARDNER, AND KNOPF, JUDGES.
KNOPF, JUDGE:
This is an appeal from a denial of a motion to set
aside a separation agreement pursuant to KRS 403.180.
Finding no
error, we affirm.
On May 20, 1996, the Kenton Circuit Court entered a
decree dissolving the marriage between the appellant, Deborah A.
Boschert (Deborah) and the appellee, Gary W. Boschert (Gary).
The trial court’s decree incorporated a separation agreement
previously executed by the parties.
Based upon the statements
made by both parties, the trial court found that the separation
agreement was not unconscionable.
On March 24, 1997, Deborah filed a motion to set aside
the separation agreement, alleging that it was unconscionable.
The same day, Deborah served a set of interrogatories on Gary.
However, on July 3, 1997, the trial court entered an agreed order
stating “that the matter will then be submitted upon the Court
for the purposes of the Court ruling as to whether the Respondent
has made out a case for the purposes of having a hearing on the
Respondent’s Motion to set aside the Agreement as being
unconscionable.”
Following a hearing, the trial court denied
Deborah’s motion to set aside the separation agreement, finding:
Based upon a review of the entire
record, including the Affidavits filed by the
parties on the Respondent’s Motion to vacate,
this Court finds that the Respondent has
failed to carry her burden of establishing
that the Separation Agreement is
unconscionable. The Court notes that both
parties were represented by competent counsel
throughout the dissolution proceedings,
leading to the execution of the Separation
Agreement. In addition, the Respondent is a
business person who, with the assistance of
counsel, was in a better position than most
to understand the nature of the bargain that
she entered into with the Petitioner.
Record on Appeal [ROA] at 163.
Now on appeal, Deborah first argues that the trial
court should have compelled Gary to answer her interrogatories.
A trial court has broad power to control discovery and prevent
its abuse.
(1970).
Sedley v. City of West Buechel, Ky., 461 S.W.2d 556
In the present case, the trial court determined that
Deborah should be required to present valid grounds to set aside
the settlement agreement before it compelled Gary to respond to
her interrogatories.
We agree with this approach, and find that
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the trial court did not abuse its discretion by denying Deborah’s
motion to compel.
In addition, the parties agreed to submit the matter to
the trial court on the record and affidavits.
Indeed, the agreed
order submitting the matter to the trial court was prepared by
Deborah’s counsel.
Therefore, any objection to the trial court’s
denial of the motion to compel discovery was waived.
Deborah next contends that the trial court failed to
apply the proper standard of review to her motion to set aside
the settlement agreement.
She argues that the trial court should
have followed the summary judgment standard set out in Steelvest,
Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476
(1991).
However, the provisions in a dissolution decree
regarding property disposition may not be revoked or modified,
except by agreement of the parties, or unless the court finds the
existence of conditions that justify reopening of the judgment
under CR 60.02.
KRS 403.250(1); Brown v. Brown, Ky.,
796 S.W.2d
5, 7-8, (1990).
A determination to grant relief from a judgment
pursuant to CR 60.02 is left to the sound discretion of the trial
court.
One of the chief factors guiding it is the moving party’s
ability to present her claim prior to the entry of the order
sought to be set aside.
Schott v. Citizens Fidelity Bank & Trust
Co., Ky.App., 692 S.W.2d 810, 814 (1985).
Although a motion
pursuant to CR 60.02 may ultimately involve factual questions,
the trial court’s first inquiry must be whether the motion, on
its face, states grounds for relief from the judgment.
This
matter is a question of law for the trial court to decide, and
the summary judgment standard does not apply.
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Turning to the central issue in this case, Deborah next
contends that the trial court erred in ruling that the separation
agreement was not unconscionable.
She points out that her
affidavit set out the imbalance in the assets and debts received
by her and those received by Gary.
As a result, Deborah argues
that the settlement agreement was manifestly unfair and therefore
unconscionable.
KRS 403.180(2) and (3) provide as follows:
(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.
In general, this statute invites parties to wind-up
their own affairs by entering into a comprehensive agreement.
However, in recognition of the intimate nature of the
relationship and the ability of a strong and persistent spouse to
overwhelm the other spouse, the statute broadly directs the trial
court to review the agreement for unconscionability.
In effect,
the law has established a measure of protection for parties from
their own irresponsible agreements.
Upon a determination of
unconscionability, the trial court may request submission of a
revised agreement or make its own determination as to disposition
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of property, support, and maintenance.
Shraberg v. Shraberg,
Ky., 939 S.W.2d 330, 332-33 (1997).
The provisions for modification of a separation
agreement are fairly stringent, and a "definite and substantial
burden" is placed upon the party seeking modification.
v. McKenzie, Ky.,
502 S.W.2d 657 (1973).
McKenzie
As a result, the party
challenging the agreement as unconscionable has the burden of
proof. Peterson v. Peterson, Ky.App., 583 S.W.2d 707, 711 (1979).
A separation agreement will not be set aside unless it is
"manifestly unfair and inequitable.”
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.
at 711-12.
Gary points to Deborah’s May 13, 1996 statement to the
trial court that she was satisfied that the agreement was fair in
all respects.
Yet of more significance is the fact that both
parties were represented by counsel at the time of the signing of
the agreement.
The trial court specifically noted that both
counsel were competent.
While the dissolution proceeding was
vigorously contested and highly emotional, Deborah did not allege
any fraudulent or overreaching conduct by Gary which would
justify setting aside the agreement.
Furthermore, we agree with the trial court that Deborah
failed to carry her burden of proving the separation agreement
unconscionable on its face.
Both Deborah and Gary are
experienced business persons and were capable of making choices
as to valuation and allocation of property.
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Even assuming that
Deborah’s allegations regarding the values of the marital
property and debt were accurate,1 the record does not require a
finding that the agreement was manifestly unfair or unreasonable.
Based upon the economic circumstances of the parties and the
relevant evidence of record, the trial court found that the
separation agreement is not unconscionable.
We will not
interfere with that determination on appeal.
Lastly, Gary requests that this Court impose sanctions
upon Deborah and her attorney for filing a frivolous appeal.
CR
73.02(4) permits this Court to award costs and damages upon a
determination that an appeal is so lacking in merit that it
appears to have been taken in bad faith.
If the court finds that
the appeal is totally lacking in merit in that no reasonable
attorney could assert such an argument, bad faith may be
inferred, and the appeal is frivolous.
The factors to be
considered must necessarily be in the record which can be
reviewed objectively.
Leasor v. Redmon, Ky., 734 S.W.2d 462, 464
(1987).
The central question in this appeal has always been
whether the separation agreement was unconscionable.
We agree
with the trial court that the agreement was not unconscionable.
Nonetheless, we do recognize that the agreement could be
interpreted as being substantially more favorable to Gary than to
Deborah, particularly if Deborah’s valuations are accepted.
While the trial court’s determination of conscionability is
1
None of Deborah’s valuations of property or debt, even
those assigned to her under the separation agreement, were
supported by any evidence in the record.
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entitled to considerable deference, it is still subject to review
by this Court.
The mere fact that Deborah was unsuccessful in
her challenge to the separation agreement does not mean that the
appeal is frivolous.
Based upon the record and the circumstances
of this case, we decline to impose sanctions upon Deborah or her
attorney at this stage in the appellate process.
Accordingly, the judgment of the Kenton Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bernard J. Blau
Jolly & Blau, P.S.C.
Cold Spring, Kentucky
William G. Geisen
Graydon, Head & Richey
Florence, Kentucky
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