JOHN NEIL PINSON v. CHERRY LYNN PINSON
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RENDERED: June 11, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001164-MR
JOHN NEIL PINSON
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NO. 96-CI-00049
v.
CHERRY LYNN PINSON
APPELLEE
OPINION AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
COMBS, KNOX, AND SCHRODER, JUDGES.
KNOX, JUDGE:
Appellant, John Neil Pinson, appeals from an order
of the Floyd Circuit Court issued pursuant to a show cause
hearing addressing appellant’s alleged failure to comply with the
parties’ property settlement agreement.
The court ordered
appellant to comply with the provisions therein, and to apprise
the court upon doing so.
Appellant and appellee, Cherry Lynn Pinson, divorced in
January 1996.
At the time, appellant was earning $55,000.00 per
year as an officer at a local bank, and appellee was earning
$30,000.00 as a teacher. They incorporated into their divorce
decree a property settlement agreement they had entered into,
wherein appellant agreed to be responsible for numerous debts,
including: (1) all debt and other expenses associated with the
parties’ house; (2) all other marital debt; (3) appellee’s
expenses incurred in the course of obtaining her rank I status;
(4) all college expenses incurred by the parties’ grown
daughters; and, (5) all debt and expenses associated with the
vehicles driven by appellee and the parties’ daughters.
The
evidence in the record indicates appellant’s monthly obligations
under the agreement totaled $2,778.00.
Appellant lost his job in April 1997 and was unemployed
for four (4) months, eventually accepting a position that paid
$40,000.00 annually, $15,000.00 less than he had previously been
earning.
Apparently, he fell behind in his obligations under the
property settlement agreement.
In February 1998, appellee moved
the court for a show cause order, alleging appellant had failed
to comply with certain terms of the property settlement
agreement.
The court granted appellee’s motion, ordering
appellant to appear in court on March 13th.
Shortly thereafter,
appellant moved the court under KRS 403.250 to modify the
parties’ agreement, alleging the terms were now unconscionable
given appellant’s reduced income.
Appellant noticed his motion
for March 13th, the same day he was to appear in court pursuant
to the show cause order.
It appears there was, indeed, a hearing on March 13th,
although it is not clear from the record what issues were
addressed, nor does the record reflect any testimony taken or
evidence introduced during the course of the hearing.
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On March
24, 1998, the circuit court ordered appellant to comply with
those terms of the property settlement agreement alleged by
appellee to have been violated.
However, in its order of March
24th, the court did not summarize either the testimony or
evidence introduced at the hearing, nor did it reference, or
otherwise address, appellant’s motion to modify the agreement
based upon appellant’s changed economic circumstances.
Appellant filed a CR 59 motion, asking the court to set
aside its order and, again, asking for modification of the
parties’ property settlement agreement.
The court denied
appellant’s CR 59 motion, again making no specific reference to
appellant’s motion for modification of the property settlement
agreement.
On appeal, appellant asks this Court to reverse the
circuit court’s order denying his motion to modify the agreement.
The record before us contains no videotape of the
hearing on March 13, 1998, nor is there a transcript of the
proceeding reflecting the issues addressed or the evidence
introduced, if any.
Further, appellant has prepared no narrative
statement reducing the testimony of the parties to writing,
pursuant to CR 75.13.
Finally, neither appellant’s nor
appellee’s brief references any testimony introduced at the
hearing.
Under the circumstances, we are limited to determining
whether the pleadings support the circuit court’s order denying
appellant’s motion to modify the parties’ property settlement
agreement.
See Porter v. Harper, Ky., 477 S.W.2d 778, 779 (1972)
(“Without the evidence being presented to us, we are confined in
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our review to a determination as to whether the pleadings support
the judgment . . . .”).
Porter further admonishes us that “on
all issues of fact in dispute ‘ . . . we are required to assume
that the evidence supports the finding of the lower court.’”
(Citations omitted).
Id.
In this case, however, the court made no
findings pursuant to its denial of appellant’s motion to amend
the parties’ property settlement agreement.
While we believe
such findings would have proven helpful under the circumstances,
they are not required, as a matter of law, when a motion under
KRS 403.250 is denied.
330, 332 (1974).
See Burnett v. Burnett, Ky., 516 S.W.2d
As such, our review is limited to the pleadings
in the record.
The record in this matter is minimal, containing a
total of fifty-seven (57) pages.
The only evidence in the record
establishing appellant’s current financial situation is the
information contained in appellant’s two (2) affidavits, one
attached to appellant’s motion to modify and the other attached
to his CR 59 motion.
The facts contained therein were neither
disputed nor contradicted by appellee.1
The affidavit reflects
that appellant had obligated himself under the property
settlement agreement in the amount of $2,778.00, which appellant
had evidently been paying on a regular basis prior to losing his
job, but which now constitutes over eighty percent (80%) of his
1
While appellee did not respond in writing to appellant’s
motion to modify, she did respond to appellant’s CR 59 motion, in
which response she neither contradicted nor attacked appellant’s
allegations concerning his income.
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current monthly gross income and, in fact, exceeds his monthly
net income.
Appellant argues that under Shraberg v. Shraberg, Ky.,
939 S.W.2d 330 (1997), he was entitled to modification of the
parties’ original property settlement agreement.2
In Shraberg,
psychiatrist-husband entered into a separation agreement, without
advice of counsel, in which he obligated himself to pay in excess
of eighty percent (80%) of his gross income for the support of
his children and ex-wife.
After operating under the agreement
for only nine (9) months, husband moved to have it set aside on
the ground it was unconscionable.
The ex-wife argued husband had
merely made a “bad bargain” and could not, on that basis, be
relieved of the terms therein.
Our Supreme Court, however, disagreed with ex-wife.
Noting the definition of unconscionable as “manifestly unfair or
inequitable,” the Court focused solely on the economic impact of
husband’s agreement to obligate himself for so large a percentage
of his income.
Likewise, in the case we now review, the evidence
in the record indicates that appellant’s monthly obligations
under the parties’ property settlement agreement exceed his
current monthly net income.
We believe such a situation is
manifestly unfair, and constitutes cause for modification of the
agreement.
2
While the Shraberg opinion addresses unconscionability
under KRS 403.180, with respect to an original separation
agreement, it is relevant to an analysis of unconscionability
under the modification statute, KRS 403.250. In fact, the
opinion defines unconscionability pursuant to case law
interpreting KRS 403.250.
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Appellee counters that it was appellant’s own counsel
who drafted the property settlement agreement, and that, further,
appellant desired an expedited divorce, which he received, in
return for his promises of support under the agreement.
maintains appellant simply made a “bad bargain.”
Appellee
However, given
the evidence in the record, albeit minimal, we must disagree.
Despite the circumstances under which the agreement was entered
into, we do not believe the law in Kentucky supports the
situation in which appellant has little, or no, income left over
for himself after satisfying his obligations under the property
settlement agreement.
Given the minimal evidence in the record and the
failure by both parties to more adequately inform this Court, we
would have preferred to order the matter remanded for further
findings and a clearer disposition of the issue before us.
However, we believe the law requires that we dispose of this
appeal pursuant to the method we have used.
As such, we
determine that the pleadings in the record do not support the
circuit court’s denial of appellant’s motion to modify the
parties’ property settlement agreement.
For the foregoing reasons, we affirm so much of the
order of the Floyd Circuit Court obligating appellant to comply
with the terms of the agreement for the period prior to
appellant’s filing his motion to amend.
However, we reverse that
portion of the court’s order denying appellant’s motion to amend
the parties’ property settlement agreement, and remand with
instructions to modify the agreement accordingly.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John David Preston
Paintsville, Kentucky
Pamela Robinette-May
Penelope Justice Turner
Pikeville, Kentucky
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