LINDA SUE BAKHIT v. CYRUS E. BAKHIT
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RENDERED:
April 27, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000083-MR
LINDA SUE BAKHIT
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 97-CI-00171
v.
CYRUS E. BAKHIT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND HUDDLESTON, JUDGES.
BUCKINGHAM, JUDGE: Linda Sue Bakhit appeals from an order and a
supplemental decree of dissolution of marriage entered by the
McCracken Circuit Court subsequent to her divorce from Cyrus E.
Bakhit.
The principal issue involves whether or not the trial
court should have set aside the settlement agreement entered into
by the parties before the entry of the order and supplemental
decree.
Finding no error in the trial court’s refusal to set
aside the agreement, we affirm.
On February 20, 1997, Cyrus, a physician at Pain
Management Center in Paducah, Kentucky, filed a petition for
dissolution of marriage in the McCracken Circuit Court.
On July
29, 1997, the trial court entered an interlocutory decree
dissolving the marriage of Cyrus and Linda.
After an extensive
period of discovery and hearings before a domestic relations
commissioner (DRC), a final hearing was set for June 24-25, 1999.
On June 22, 1999, the DRC held a pretrial conference
with the attorneys that resulted in renewed settlement
negotiations.
On June 23, 1999, the day before the final hearing
was to begin, Linda met with her attorney at his office to review
the final settlement offer made by Cyrus.
She signed off on a
letter laying out the terms of the settlement agreement and then
went with her attorney to the courthouse where a videotape was
made in which she indicated that she had voluntarily signed the
agreement.
Linda further stated that she understood and accepted
the terms of the agreement.
After leaving her attorney, Linda allegedly went home
and informed family members that she was going to commit suicide.
Later that evening, she voluntarily signed herself into Lourdes
Hospital.
She remained hospitalized there until July 16, 1999,
when her insurance ran out.
On June 24, the day after Linda signed the settlement
agreement, her sister from Texas and her nephew from North
Carolina met with the DRC.
They informed the DRC that Linda
would be obtaining new counsel, and the DRC provided a list of
five names of local attorneys who practiced domestic relations
law.
On July 2, Cyrus filed a motion to have the settlement
agreement entered by the court. On July 6, Linda’s attorney filed
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a motion to withdraw as her counsel, alleging that the attorneyclient relationship was broken.
On July 13, the DRC met with the
attorneys and set Cyrus’s motion to enter the settlement
agreement for a hearing on August 11.
On July 16, the trial
judge entered an order granting Linda’s attorney’s motion to
withdraw.
The court indicated in the order that Cyrus would be
allowed to proceed against Linda at the August 11 hearing
regardless of whether or not she had retained new counsel.
The
record indicates that the attorney’s motion to withdraw, as well
as the court’s order granting the motion, were mailed to Linda at
her address.
On August 5, Stephani Allen, Linda’s private nurse,
appeared at the circuit clerk’s office, presented her power of
attorney from Linda, and attempted to withdraw money being held
there for Linda.
After the clerk informed Allen that the funds
could not be released without Linda’s presence, the clerk and
Allen visited the trial judge.
The trial judge was led to
believe that Linda was in North Carolina, and he informed Allen
that he would not release the funds without Linda’s presence.
Approximately one hour later, Linda appeared with Allen at the
clerk’s office to sign for the money.
On August 9, Linda’s new attorney entered her
appearance on the record and filed a motion for a continuance of
the August 11 hearing and a response to Cyrus’s motion to enter
the settlement agreement.
In an affidavit supporting her
response to Cyrus’s motion to enter the settlement agreement,
Linda alleged that her previous attorney had coerced her into
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signing the agreement and that she had not been competent to sign
it due to depression and thoughts of suicide.
Cyrus’s motion to
enter the settlement agreement came before the DRC for hearing as
scheduled on August 11.
Linda was not present at the hearing.
The DRC was informed that her nurse, Stephani Allen, had been
required to return to her home in Texas and that Linda had
returned to Texas with her.
Acknowledging that Linda’s attorney
likely would not have been able to prepare for the hearing in two
days, the DRC nonetheless denied the continuance motion on the
grounds that Linda had been aware of the hearing date for some
time and had indicated to the DRC through her relatives on June
24 that she would be replacing her attorney.
The DRC subsequently reviewed the videotape in which
Linda acknowledged that she had voluntarily signed the letter
laying out the terms of the settlement agreement, that she
understood the terms, and that she accepted them.
The DRC then
advised the parties that the agreement should be enforced and
directed Cyrus’s attorney to draft a DRC’s report incorporating
the terms of the agreement.
Subsequent to the hearing on
August 11, the DRC decided not to sign the draft report submitted
by Cyrus.
As a result, the attorneys and the DRC appeared before
the trial judge on September 2 for instructions.
The judge
instructed the DRC to act on the motion presently before him and
decide whether to accept or reject the settlement agreement based
on the record as it existed following the August 11 hearing.
The
judge further noted that while he could not state if Linda had
been competent or not when she signed the agreement, he assumed
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that the issue would be raised following the DRC’s report.
The
judge indicated that he would have a hearing on her competence
when the issue was raised.
The DRC’s report was filed on September 10, and Linda
filed exceptions on September 17.
On November 19, a hearing was
held before the trial court on Linda’s exceptions and Linda was
permitted to testify concerning the circumstances surrounding her
signing the settlement agreement.1
On December 10, the trial
court entered an order which provided in pertinent part that:
4.
The Court further finds that Respondent,
Linda Sue Bakhit, knowingly, freely, and
voluntarily entered into the settlement
agreement of June 23, 1999. The Court
finds that there is no evidence that she
was incompetent at the time of the
agreement or that she was incapable of
understanding the terms of the
agreement. The Court specifically finds
that Linda Sue Bakhit entered the
settlement agreement on June 23, 1999
with open eyes, with full disclosure of
the effect of accepting the agreement,
and that she understood the terms of the
bargain.
5.
The Court further finds that
Respondent’s claim that she was coerced
into entering the agreement by her
former counsel, Hon. Mark Bryant, is
without merit. The Court finds that
there is no credible evidence whatsoever
that Linda Sue Bakhit was coerced or
forced to enter into the agreement.
6.
The Court notes that in making these
findings, it has reviewed the videotape
of the proceedings of June 23, 1999,
wherein Respondent, Linda Sue Bakhit,
testified in open court that she was
entering into the agreement voluntarily
1
According to the circuit clerk’s certification of the
record, there is no tape of this hearing.
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and that she and [sic] understood and
accepted the terms of the agreement.
7.
The Court has thoroughly reviewed the
entire record in this cause and finds
that the agreement entered into by
Respondent is not unconscionable or in
any way unfair to her. In light of the
limited duration of the marriage and the
limited assets brought into the
marriage, the Court finds that the
Petitioner’s obligation to pay
maintenance to Respondent as set forth
in the settlement agreement is
substantial and generous. Accordingly,
the Court finds that the settlement
agreement of June 23, 1999, as set forth
in the Commissioner’s Report is not
unconscionable and that it is fair and
reasonable to both parties.
Following the entry of the supplemental decree incorporating the
terms of the settlement agreement, this appeal by Linda followed.
Linda’s first argument is that the trial court erred in
enforcing the settlement agreement despite her testimony that she
was incompetent and subject to coercion when she signed the
agreement.
As we have noted, the trial court specifically found
that there was no evidence that Linda was incompetent when she
signed the agreement and no credible evidence that she was
coerced or forced to enter into it.
These determinations are
findings of fact that are subject to CR2 52.01.
That rule
provides in pertinent part that
Findings of fact shall not be set aside
unless clearly erroneous, and due regard
shall be given to the opportunity of the
trial court to judge the credibility of the
witnesses. The findings of a commissioner,
to the extent that the court adopts them,
2
Kentucky Rules of Civil Procedure.
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shall be considered as the findings of the
court.
CR 52.01.
Furthermore, “the findings of the trial court will not
be disturbed unless there exists no substantial evidence in the
record to support the findings.”
R.C.R. v. Com. Cabinet for
Human Resources, Ky. App., 988 S.W.2d 36, 38 (1999).
The
videotape of Linda’s statement that she voluntarily signed the
letter laying out the terms of the settlement agreement, that she
understood the terms, and that she accepted them are substantial
evidence to support the trial court’s findings in this regard.3
Therefore, we cannot say that the court’s findings were clearly
erroneous and subject to being set aside.
Linda’s second argument is that the DRC erred in
denying her motion to continue the August 11 hearing because she
was unaware of the hearing and was not properly notified that her
attorney had withdrawn from the case.
She further argues that a
continuance should have been granted because her attorney had
been retained only two days before the hearing.
To again review
the facts, we note that her previous attorney’s motion to
withdraw was mailed to Linda’s address as was the court’s July 16
order granting the motion.
We again note that Linda’s relatives
met with the DRC on June 24 and informed him at that time that
Linda would be retaining a new attorney to represent her.
Linda
claims, however, that she was in Lourdes Hospital and then in
3
The record contains only the initial portion of this
testimony. However, the record reflects that both the DRC and
the trial judge reviewed the full tape prior to making their
respective findings.
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Texas and did not receive her attorney’s motion or the court’s
order until her return from Texas on August 5.
“The decision whether to grant or to deny a motion for
continuance lies within the sound discretion of the trial court.”
Ky. Farm Bureau Mut. Ins. Co. v. Burton, Ky. App., 922 S.W.2d
385, 388 (1996).
Based on the facts stated above, the DRC denied
Linda’s motion for continuance.
Based on those facts, we
conclude that the DRC acted within his discretion in denying the
motion.
Linda’s third and final argument is that the denial of
the continuance motion by the DRC effectively denied her the
opportunity to present medical evidence to support her claim that
she was incompetent when she signed the settlement agreement.
Although she acknowledged that she was allowed to testify
concerning this matter before the trial judge at the hearing on
her exceptions to the DRC’s report, she cites Haley v. Haley, Ky.
App., 573 S.W.2d 354 (1978), and asserts that the trial court
would not have allowed her to present medical evidence to support
her claim had she sought to do so4.
See id. at 356.
The
settlement agreement was binding on the court unless the court
found it to be unconscionable based on the economic circumstances
of the parties or other relevant evidence.
KRS5 403.180(2).
Linda had the opportunity at the August 11 hearing to present
4
CR 53.06(2) provides in part that after a hearing on
exceptions to a commissioner’s report, the court “may adopt the
report, or may modify it, or may reject it in whole or in part,
or may receive further evidence, or may recommit it with
instructions.” (Emphasis added.)
5
Kentucky Revised Statutes.
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relevant evidence to persuade the court to reject the agreement.
She failed to present such evidence at that time, and the court
was within its discretion in denying her motion for continuance.
Therefore, we conclude that the DRC and the court did not
erroneously deny Linda the opportunity to present medical
evidence.
The order and supplemental decree of the McCracken
Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Anne M. Smith
Paducah, Kentucky
Brian S. Katz
Paducah, Kentucky
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