GRIGGS (JOSEPH WARREN) VS. GRIGGS (MARY BETH)
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RENDERED: SEPTEMBER 11, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001169-MR
JOSEPH WARREN GRIGGS
v.
APPELLANT
APPEAL FROM CLARK FAMILY COURT
HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 03-CI-00547
MARY BETH GRIGGS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, DIXON AND LAMBERT, JUDGES.
DIXON, JUDGE: Appellant, Joseph Warren Griggs, appeals from an order of the
Clark Family Court denying his motion to modify a separation agreement. Finding
no error, we affirm.
Joseph Griggs and Appellee, Mary Beth Griggs, were married on May
3, 2002. One child, Trevor Warren Griggs, was born on February 11, 2003. On
October 3, 2003, Joseph filed a petition for dissolution of marriage in the Clark
Circuit Court. The parties thereafter took no further action for approximately one
year.
Joseph claims in his brief that on February 3, 2005, his attorney
received a copy of a separation agreement, signed by Mary, containing a provision
allowing the parties to alternate the tax exemption for the minor child each year.
However, it was not until October 17, 2005, that Joseph, at the direction of his
attorney, went to the office of Mary’s attorney to sign the settlement agreement.
The record indicates that there had been no further discussions between the parties’
counsel relating to the terms of the settlement agreement, and that Joseph believed
he signed the agreement that he and his counsel had received in February 2005.
Apparently, according to Joseph’s brief, at some point, he and/or his
attorney realized that the October 2005 separation agreement was, in fact, different
from the February 2005 version. In particular, the October 2005 agreement
provided that Mary would receive the child tax exemption every year as opposed to
alternate years as had been negotiated. Thereafter, on August 18, 2006, Joseph
filed a motion to modify the terms of the separation agreement as it pertained to the
tax exemption. The motion was noticed for September 26, 2006. In the interim,
however, Mary filed proof of her attendance at the required parent education clinic
and the Decree of Dissolution incorporating the separation agreement was entered
of record on September 1, 2006, per prior court order. A notation in the record
indicates that Joseph’s motion was passed by agreement of counsel.
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It was not until February 2008, that Joseph renewed his motion to
modify the separation agreement, stating that the parties had been unable to reach
an agreement as to the tax provision. Following a March 18, 2008, hearing, the
Family Court denied the motion finding:
At the time the agreement was signed and entered
into the record the Petitioner was represented by counsel.
The Petitioner has not asserted any disability that might
have prevented him from reading or understanding the
agreement at the time he signed it. Failing to read the
agreement is not a valid reason for modifying a
Separation Agreement almost two years after it was
signed.
The Petitioner argues that the original agreement
that was proposed almost six months before one was
signed included a provision, which alternated the
claiming of the minor child for tax purposes. The
Petitioner believed he had signed the original agreement
from February and that is why he did not read it again.
The Court compared the two documents, the Separation
Agreement from February and the Separation Agreement
from October, and finds that they appear fundamentally
different.
Joseph thereafter appealed to this Court.
Joseph argues on appeal that the trial court erred in refusing to modify
the settlement agreement relating to the tax exemption. Joseph does not claim the
agreement was procured by fraud, but rather that the revised agreement was a
mistake and not what was originally negotiated by the parties. Furthermore,
Joseph takes issue with the trial court’s finding that he should have realized the
settlement agreement he signed was entirely different in appearance from the one
he and his attorney had previously reviewed. Joseph points out that several months
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had passed since he had received the original agreement and he contends that it
was the responsibility of Mary’s attorney to inform him that the document he
signed was different.
KRS 403.180 provides, in relevant part:
(1) To promote amicable settlement of disputes between
parties to a marriage attendant upon their separation or
the dissolution of their marriage, the parties may enter
into a written separation agreement containing provisions
for maintenance of either of them, disposition of any
property owned by either of them, and custody, support
and visitation of their children.
(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.
...
(4) If the court finds that the separation agreement is not
unconscionable as to support, maintenance, and property:
(a) Unless the separation agreement provides to the
contrary, its terms shall be set forth verbatim or
incorporated by reference in the decree of dissolution or
legal separation and the parties shall be ordered to
perform them[.]
...
(5) Terms of the agreement set forth in the decree are
enforceable by all remedies available for enforcement of
a judgment, including contempt, and are enforceable as
contract terms.
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In accordance with KRS 403.180, the decree of dissolution specifically states,
“The Separation Agreement filed herein is incorporated as part of this Decree, as
the Court finds the Separation Agreement not to be unconscionable, and the parties
are ordered to perform the terms of this Agreement.”
Clearly, under KRS 403.180, the parties bear the burden of insuring
that the settlement agreement that they submit to the court accurately reflects the
terms of their agreement. Furthermore, “[q]uestions relating to the construction,
operation and effect of separation agreements between a husband and wife are
governed, in general, by the rules and provisions applicable to the case of other
contracts generally.” Richey v. Richey, 389 S.W.2d 914, 917 (Ky. 1965) (internal
citation omitted).
The plain language of the October 2005 settlement agreement that
Joseph signed states, “I have read the above Separation Agreement and agree with
its terms and conditions . . . .” Other than the fact that the February 2005 draft of
the settlement agreement was signed by Mary, we find absolutely no evidence of
record to support Joseph’s claim that the parties mutually agreed to the terms set
forth in that draft. Therefore, Joseph is bound by the clear language to which he
agreed. As such, the trial court properly denied his motion to modify the
separation agreement.
The order of the Clark Circuit Court denying Appellant, Joseph
Warren Griggs’ motion to modify the separation agreement is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ronald D. Bowling
Lexington, Kentucky
No Brief for Appellee
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