RANDY RICHARDSON v. JAMIE RICHARDSON (NOW SHIELDS)
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RENDERED: April 14, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002924-MR
RANDY RICHARDSON
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JR., JUDGE
ACTION NO. 95-CI-00501
v.
JAMIE RICHARDSON (NOW SHIELDS)
APPELLEE
OPINION and ORDER
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BUCKINGHAM, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Randy Richardson has appealed from the judgment
of the Warren Circuit Court entered on October 17, 1997, which
denied his motion pursuant to CR1 60.02(f) to set aside the
property settlement agreement resolving the issues arising from
the parties’ dissolution action.
After a thorough review of the
record, we affirm.
Randy and the appellee, Jamie Richardson, were married
on April 8, 1994.
The parties separated on March 1, 1995,
shortly before the birth of their only child, Michael, on March
1
Kentucky Rules of Civil Procedure.
20, 1995.
Jamie, who was nineteen-years old and unemployed,
filed a petition seeking the dissolution of the marriage in May
of that year.
Randy was twenty-years old and had a seventh grade
education and a limited work history as a roofer and an auto
mechanic.
Randy was served with a summons on September 27, 1995.
In December 1995, no further action having been taken since the
filing of the petition, the Domestic Relations Commissioner,
Brian Reeves, gave notice to the parties of the action’s
impending dismissal.
appeared.
Neither Jamie nor her attorney of record,
Randy, who did not have an attorney, appeared at the
show cause hearing and informed the commissioner that he wanted
the action to proceed.
The commissioner continued the hearing
until January 1996.
After a hearing, the commissioner entered a report on
January 29, 1996, recommending that Jamie be given temporary sole
custody of Michael, that Randy have visitation every other
weekend, and that Randy pay child support of $56.57 per week.
Jamie moved to amend the commissioner’s report with respect to
visitation, and after a hearing that Randy did not attend, the
commissioner altered his previous recommendation pertaining to
visitation.
He eliminated overnight visits and allowed Randy
temporary visitation with Michael between 10:00 a.m. and 6:00
p.m. on both Saturday and Sunday of alternate weekends.
The case was scheduled for trial to commence on March
26, 1996.
Randy appeared and told the commissioner that he had
tried, unsuccessfully, to obtain an attorney.
He requested that
the commissioner enter an order for a social worker to come to
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his home for the purpose of evaluating his home to assist the
commissioner in ruling on the issue of visitation.
Commissioner
Reeves expressed his frustration with Randy’s failure to be
prepared to try the case.
He denied Randy’s request for a social
worker to assess his residence, and began a trial on all issues.2
The commissioner explained to Randy how the trial would proceed
and suggested that Randy might want to discuss the possibility of
settlement with Jamie’s attorney.
After conferring for a short
time, Randy and Jamie’s attorney informed the commissioner that
they had reached an agreement on all issues, which Jamie’s
counsel recited to the commissioner, including Randy’s agreement
to pay child support of $56.57 per week and to exercise his
visitation during the days of alternate weekends under the
supervision of his sister, Marie Whobrey.
Several months passed without a decree of dissolution
being entered.
In October 1996, Jamie moved for entry of a
property settlement agreement and for a finding that Randy was in
contempt for failing to pay child support.
A hearing was
conducted on these motions before Commissioner Ralph Beck on
December 5, 1996.
At this hearing Randy, still without counsel,
informed the commissioner that he had not signed the agreement
prepared by Jamie’s attorney because he could not read.
The
commissioner read the various provisions to Randy, and Randy
stated that he had previously agreed to the terms as written.
2
The parties had no property to divide; there was no request
for maintenance; and, Randy did not challenge Jamie’s desire for
sole custody of Michael. The only issues to be litigated between
Randy and Jamie concerned visitation and child support.
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At the same hearing, Randy told the commissioner that
he was having problems exercising visitation.
Although he
acknowledged that he had previously agreed to visitation
supervised only by his sister, he testified that his sister
worked on weekends and he had therefore been unable to visit with
Michael for many months.
The commissioner told Randy that he was
not going to modify the parties’ agreement that day, that he was
only going to ascertain what terms Randy had previously agreed
to, and that if Randy wanted to modify the visitation arrangement
he would need to file a motion to modify.
The commissioner
suggested that Randy obtain legal counsel to advise him in those
matters.
The commissioner then proceeded to hear Jamie’s motion
to hold Randy in contempt.
At no time did the commissioner
inform Randy that he was entitled to an appointed attorney to
represent him in the civil contempt hearing.3
In his own
defense, Randy explained that he had been unemployed for many
months, that he had not received unemployment compensation and
that he lived with his parents.
He stated that he had started
working the previous week at a garage and earned $6 per hour.
The commissioner told Randy that if he would agree to pay $103 a
week, ($56.57 for current child support, $43.43 towards the
$2,262.73 arrearage, and $3 for administrative fees), and to a
wage assignment, he would recommend that Randy not be found in
3
See Lewis v. Lewis, Ky., 875 S.W.2d 862 (1993).
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contempt.4
Randy so agreed and executed the property settlement
agreement which was entered on January 30, 1997.
Randy’s job at the garage did not last long.
On
January 29, 1997, Jamie filed another motion for contempt
alleging that Randy had not paid any child support.
Randy
finally obtained counsel who alleged that Randy was under duress
4
Randy characterizes the exchanges between the commissioner
and Jamie’s attorney with him at this hearing to a “good cop/bad
cop” routine. Regardless of the accuracy of that
characterization, given Randy’s level of education, his
immaturity and low IQ, the commissioner’s failure to inform him
of his right to have appointed counsel before the issue of
contempt could be considered, and the added fact that the
commissioner had required Randy’s mother to leave the courtroom,
there is no question that Randy was intimidated and overreached
when he agreed to pay the sum of $103 per week to address the
support arrearages, as is evident from the following:
Attorney Thornton: “ I don’t see why he can’t
pay $100 a week. If he lived off of nothing
at home before, ah, but I’ll do whatever you
think appropriate.
Commissioner Beck: “It’s not me. It’s
whatever you can agree on. If you can’t
agree, I’ll let you take him before Judge
Minton to see if he’ll lock him up for it.
Randy: “I can’t afford no $100 cause I got
other bills I owe.”
Commissioner Beck: “Tell me which one of
those bills will put you in jail if you don’t
pay it?”
Randy: “Child support.”
Commissioner Beck: “Then why are you telling
me about other bills?”
. . .
Randy: “I guess I’ll just pay $100 a week.
That’s all I can do.”
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when had agreed to pay more support that he was able to pay.
He
also filed a counter motion and asked the commissioner to find
Jamie in contempt for failing to allow him visitation.
The
commissioner denied Randy’s motion and gave him 30 days to find
employment before imposing sanctions for failing to pay child
support.
On March 26, 1997, Randy moved the trial court to
modify visitation and to reduce child support nunc pro tunc.
He
alleged that he had been unable to keep a job because he
“lack[ed] the necessary skills,” and further, that “[u]nless his
child support [was] reduced retroactively and presently, [he]
[would] never be able to overcome the child support arrearages he
was forced to agree to by being threatened with jail time.”
The hearing before the commissioner on April 17, 1997,
on these issues is not contained in the record on appeal.
At the
conclusion of that hearing, the commissioner recommended that
visitation continue to be supervised by Randy’s sister, Marie
Whobrey.
With respect to the issue of child support, the report
stated as follows:
IT IS FURTHER RECOMMENDED that the Motion to
Reduce Child Support be overruled, as it
appears from the initial discussions of the
parties that had the respondent not withdrawn
the Motion to Reduce Child Support, it would
have actually increased [emphasis original].
The commissioner further recommended that the matter be continued
to May 16, 1997, to determine whether or not Randy had made
significant progress on the arrearage, and to recommend sanctions
to be imposed, if necessary.
At the next hearing conducted by the commissioner on
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May 16, Jamie testified that Randy was, in her opinion, capable
of working and that he had not paid any support since the April
hearing.
Randy did not testify, but his attorney informed the
commissioner that Randy was attempting to obtain Supplemental
Security Income (SSI) based on his mental disability.
Randy’s
counsel asked the commissioner to hold the contempt motion in
abeyance until the social security administration made a ruling
on his application for benefits.
She argued that Randy did not
have the funds to obtain the expert proof necessary to presently
establish his disability to work.
The commissioner found that Randy had not made
significant progress on his arrearage.
He determined that the
child support arrearage had accumulated to $3,496.28, and
recommended that Randy be incarcerated for thirty days unless he
purged himself within 15 days for his failure to pay the courtordered child support.
Randy filed exceptions to these
recommendations in which he alleged that his child support had
never been based on his actual earnings and that there was no
proof indicating a necessity for supervised visitation.
The
trial court found that Randy was a mechanic and able to find
employment, and overruled the exceptions.
The trial court in an
order entered on July 16, 1997, ruled that since Randy had not
paid any child support since the last hearing, he would be
ordered to jail for one week.
Randy did not appeal from the
order finding him in contempt and imposing sanctions.
The commissioner heard yet another motion for contempt
filed by Jamie on August 14, 1997.
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At that hearing, Randy
testified that he had some skills working on cars, such as
changing brake pads, putting in spark plugs and changing oil, but
he also testified that he had a difficult time keeping employment
as he “gets mad” easily and “tears up stuff” and ends up paying
more for his mistakes than he earns.
The commissioner
recommended that the action be passed for two weeks to give Randy
time to make an effort to pay his child support, and if no effort
was made, he would recommend that Randy return to jail.
Randy
filed exceptions to this report, which were again overruled.
On
August 28, the Commissioner recommended that Randy serve 30 days
in jail.
On August 28, 1997, Randy filed exceptions to the
commissioner’s report; and he also filed a motion pursuant to CR
60.02 to set aside the property settlement agreement.
Randy
alleged that at the time he entered into the agreement that he
was not represented by counsel; that he lacked the mental
capacity to match wits with the commissioner and Jamie’s attorney
at the hearing before Commissioner Beck on December 5, 1996; that
his agreement to pay child support and arrearages of $103 per
week was the result of duress and overreaching; that he lacked
the mental ability to earn an income sufficient to pay $103 per
week; that he was induced to marry Jamie; and that there was no
proof offered to justify the imposition of supervised visitation.
In support of this motion, Randy submitted an evaluation prepared
by Ollie Dennis, a clinical psychologist, who examined Randy in
July 1997, in connection with his application for SSI benefits.
The report indicated that Randy has an overall IQ of 72, which
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falls within the “borderline range” and which exceeds only 3% of
other individuals his age; that he has marked “deficits in
reading and math ability;” that he had “an emerging alcohol abuse
problem;” and, that he suffers from depression.
In its order of October 17, 1997, from which this
appeal has been taken, the trial court stated that it was “simply
not moved” by any of Randy’s arguments.
It further stated that
[Randy] could have secured counsel prior to
trial, but for some unknown reason chose not
to employ an attorney. Like everyone,
[Randy] must live with and accept
responsibility for the decisions he has made.
. . .
Further, the Court need not remind
[Randy] that it takes two people to enter
into a marriage and, obviously enough,
conceive children. Therefore, the Court is
unsympathetic to [Randy’s] contentions that
he was “wooed by [Jamie]” into marrying her.
In conclusion, the Court simply does not
consider any of the above-mentioned
allegations as a “reason of extraordinary
nature” justifying the relief now sought by
[Randy].
The trial court did not address the issue of duress or
overreaching, or Randy’s argument that he did not have sufficient
intellectual abilities to appreciate the agreement he had made.
Randy makes the same arguments in this appeal that he
made in the trial court and one new argument.
He now argues for
the first time that Commissioner Reeves had a conflict of
interest that he did not disclose.
Randy states that
Commissioner Reeves was represented in his own post-dissolution
litigation by a member of the same firm representing Jamie in
this case.
Although Jamie’s attorney contends that Randy “is
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mistaken and flatly misrepresents this matter to this court,” he
does acknowledge that his firm did represent Commissioner Reeves
as recently as the fall of 1995.
The civil rule upon which Randy relies, CR 60.02(f),
provides that:
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: . . . (f) any other reason of an
extraordinary nature justifying relief.
The standard this Court employs in reviewing an order denying
relief under CR 60.02 is whether the trial court abused its
discretion.5
The two factors which the trial court should
consider in exercising that discretion are “(1) whether the
moving party had a fair opportunity to present his claim at the
trial on the merits and (2) whether the granting of CR 60.02(f)
relief would be inequitable to other parties.”6
In the context
of setting aside a property settlement agreement, the trial court
must consider the “‘economic circumstances of the parties and any
other relevant evidence’” and determine whether the separation
agreement is “‘manifestly unfair and unreasonable.’”7
While we are not unsympathetic to Randy, or
5
Bethlehem Minerals Co. v. Church & Mullins Corp., Ky., 887
S.W.2d 327 (1994).
6
Id. at 329 (citing Fortney v. Mahan, Ky., 302 S.W.2d 842
(1957)).
7
Shraberg v. Shraberg, Ky., 939 S.W.2d 330, 333 (1997)
(trial court’s order granting husband’s motion for relief from
property settlement agreement in which he agreed to pay $160,000
of his $200,000 annual earnings for child support and maintenance
affirmed by this Court and Supreme Court) (citing McGowan v.
McGowan, Ky.App., 663 S.W.2d 219 (1983)).
-10-
unappreciative of his situation, we are not able to conclude that
the trial court abused its discretion in denying the motion to
set aside the agreement.
That is, Randy has not convinced this
Court that the terms of the agreement of which he complains are
unfair, much less manifestly unfair.
For that matter, we are not
convinced from our review of the record, that Randy’s support
obligation or his visitation rights would have been resolved any
differently had he litigated these issues instead of settling
them by agreement.
Randy argues that “[p]ublic policy should not require a
person with [his] mental ability and who is functioning on a
second grade level, to be bound by an agreement that placed an
obligation on him to pay child support in excess of his earnings
per week.”
The problem with this argument is that there was no
evidence before the trial court that Randy was “functioning on a
second grade level.”
There was testimony at the various hearings
from which the trial court could glean that Randy was not able to
read, that he had limited skills, that he was easily frustrated
and could not cope when things did not go as he expected, and
consequently, that he had difficulty keeping employment.
However, the record reveals that it would not have been unfair
and unreasonable for the trial court to have imputed minimum wage
earnings to Randy had he not agreed to pay $56 per week in
support.
In fact, Randy does not argue that $56 per week exceeds
the amount he would have been required to pay under the
guidelines if minimum wages had been imputed to him.
Our
statutory scheme allows a trial court to impute potential
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earnings to support obligors with only two exceptions, those who
are physically or mentally incapacitated and those caring for a
child three years of age or under.8
Randy argued below, as he
argues in this appeal, that he is mentally incapacitated.9
However, the record, including the psychological evaluation, does
not definitively establish that Randy was incapacitated from
performing all minimum wage jobs that would allow him to meet his
obligation to support his child, or which would compel the trial
court to conclude his agreement to pay $56 weekly to be
unreasonable.
With respect to visitation, we are again unable to find
an abuse of discretion.
The commissioner conducted a hearing in
February 1996 and heard some disturbing information implicating
serious health and safety issues at the home of Randy’s parents
where he resided.
Randy did not attend this hearing.
He alleges
that he was not provided notice of the hearing, yet the record
indicates otherwise.
In any event, Randy attempted to get the
visitation agreement modified, but he has not provided this Court
with a transcript of the April 1997 hearing in which that request
was denied.
Simply, there is nothing in the record suggesting
that the restrictions on Randy’s visitation to which he agreed
are unfair.
In conclusion, any possible breach in ethics committed
by Commissioner Reeves is beyond the purview of this appeal for
8
Kentucky Revised Statutes 403.212(2)(d).
9
We have been informed by Randy’s counsel that he was
awarded SSI during the pendency of this appeal.
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several reasons, including the fact that it was not raised below,
there is no factual predicate established for the issue in the
record, and Randy does not contend how the alleged breach
affected the fairness of the agreement he reached.
Further,
while we do not endorse the action taken by Commissioner Beck in
getting Randy to agree to a schedule to pay the arrearages, the
terms of the agreement which Randy contends are unconscionable
were reached prior to Commissioner Beck’s involvement in the
matter and thus his conduct is not germane to the issue at hand.
Further, both the issues of visitation and child support are
matters that are subject to modification by the trial court.
The
fact that Randy has been unsuccessful in his efforts to obtain
modification of these issues, efforts made after he obtained
counsel and was given an opportunity to present any evidence he
had, further suggests that the original agreement he wishes to
avoid was not so unfair as to warrant relief under CR 60.02(f).
Finally, Randy has moved this Court for an oral
argument.
He contends that since the judgment was entered he was
awarded SSI “based in part on his lack of intelligence.”
He
states that the “Court needs to be updated on the status of [his]
child support” and that his SSI must not be considered in
calculating his child support.
The fact that Randy has been
awarded SSI benefits does not bear on the issue of whether the
trial court abused its discretion in ruling on his CR 60.02
motion.
Also, any effort to modify Randy’s child support
obligation must be made in the Warren Circuit Court.
Modification is not a matter within this Court’s jurisdiction.
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Accordingly, the judgment of the Warren Circuit Court
is affirmed and the motion for oral argument is hereby DENIED.
ALL CONCUR.
Entered:
April 14, 2000
/s/
Rick A. Johnson
Judge, Court of Appeals
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Nancy Oliver Roberts
Bowling Green, KY
Kenneth P. O’Brien
Bowling Green, KY
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