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RENDERED: MAY 29, 2009; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2007-CA-001283-MR MARTIN GREGORY PRICE APPELLANT

v.

APPEAL FROM MADISON CIRCUIT COURT HONORABLE JEAN CHENAULT LOGUE, JUDGE ACTION NO. 06-CI-01122 APPELLEE

ANGELA M. PRICE

OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON AND MOORE, JUDGES. KNOPF,1 SENIOR JUDGE. MOORE, JUDGE: Martin Gregory Price appeals the order of the Madison Circuit Court setting aside a separation and property settlement agreement. After a careful review of the record, we affirm.

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Senior Judge William L. Knopf, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

I. FACTUAL AND PROCEDURAL BACKGROUND After eight years of marriage, Angela M. Price filed a petition for dissolution of marriage. The parties entered into a separation and property settlement agreement. Angela and Martin signed the agreement in the presence of their respective attorney. The agreement divided the marital property, as well as provided for the care and custody of the couple's four minor children. The document included a provision acknowledging that neither individual was subjected to any coercion, duress or overreaching in negotiating the terms of the agreement. Approximately ten days after the parties signed the agreement, Martin shot Angela with a firearm, injuring her. Subsequently, Angela moved to set aside the separation and property settlement agreement, asserting that she was previously under extreme duress from Martin at the time she signed the agreement. Angela claimed that Martin had, on numerous occasions, threatened her life if she did not sign the settlement agreement. After a hearing on Angela's motion, the circuit court found that Martin's attack on Angela provided "credence to Angela's claims that she was in fear for her safety and that Martin had threatened her in the past." The court found credible Angela's testimony that Martin's threats of violence caused her to be under duress at the time she signed the separation and property settlement agreement. The circuit court concluded that Angela would not have signed the agreement otherwise. Martin timely filed an appeal. -2-

II. STANDARD OF REVIEW The party claiming that a separation agreement is unconscionable has the burden of proving that the agreement is "manifestly unfair and inequitable." Peterson v. Peterson, 583 S.W.2d 707, 711 (Ky. App. 1979) (quoting Wilhoit v. Wilhoit, 506 S.W.2d 511 (Ky. 1974)). The family court is in the best position to judge the circumstances surrounding the agreement, and this Court must defer to its findings regarding whether the property settlement agreement is unconscionable unless those findings are clearly erroneous. Id. at 712. On appeal, deference is given to the trial court's exercise of its discretion, as it is in the best position to make the analysis. Shraberg v. Shraberg, 939 S.W.2d 330, 333 (Ky. 1997). III. ANALYSIS Martin argues that the trial court erred in setting aside the separation and property settlement agreement on the basis of duress. Kentucky Revised Statute (KRS) 403.180 provides that while separation agreements that are not unconscionable are binding upon a court, fraud, duress, or undue influence may operate to void a separation agreement. Accordingly, an agreement may be set aside if a court finds the agreement to be unconscionable. See McGowan v. McGowan, 663 S.W.2d 219 (Ky. App. 1983). A party challenging a settlement agreement as unconscionable bears the burden of proof. Peterson, 583 S.W.2d at 711. Duress has also been defined as "violence or threats made by the party or some person acting for or though him, or by his advice or counsel, as are calculated to produce on a person of ordinary -3-

intelligence a just fear of great injury to person." Hargis v. Hargis, 66 S.W.2d 59, 61 (Ky. 1933). In order for a movant to establish that duress occurred, there must be "an actual or threatened violation or restraint on a man's person, contrary to law, to compel him to enter into a contract or to discharge one." Boatwright v. Walker, 715 S.W.2d 237, 243 (Ky. App. 1986) (quoting Bond State Bank v. Vaughn, 44 S.W.2d 527, 528 (Ky. 1931)). During the hearing on Angela's motion, she could not testify regarding any specific dates of threats by Martin which caused her duress, but pointed to incidents that had occurred in the months prior to the signing of the separation agreement that caused her to be fearful of her husband. Angela also submitted an affidavit to the circuit court in which she stated in relevant part as follows: That my husband, Martin Gregory Price, the Respondent herein, has threatened my life on numerous occasions. That Mr. Price specifically threatened me in regards to the signing of a property settlement agreement . . . . That I signed the Property Settlement Agreement against the advice of my attorney and against my better judgment because I was afraid if I did not sign the document that my husband would kill me. That Mr. Price has warned me against trying to obtain an Emergency Protective Order in the past by telling me it would not do me any good and that he would not be stopped by a piece of paper if he wanted to get to me. That in the early morning hours of October 14, 2006, Mr. Price entered my residence without my consent or permission and terrorized and shot me, causing me -4-

serious bodily injury and extreme emotional and mental anguish. That my husband had our four (4) minor children in his care at the time of the shooting. That I would have never entered into the Property Settlement Agreement had I not been in fear of my life and the safety of my children. (Numeration omitted). Martin argues that Angela was not under duress at the time she signed the agreement because he did not cause her to be fearful in closer proximity to the time of negotiations. Martin further argues that there may have only been some arguments or physical encounters, but they occurred months prior to the signing of the agreement. He claims Angela merely motioned for the court to set aside the agreement as a response to Martin's actions in shooting her. Ultimately, it is within the discretion of the trial court to make the final determination regarding the credibility of a witness. [T]he trier of fact has the right to believe the evidence presented by one litigant in preference to another. The trier of fact may believe any witness in whole or in part. The trier of fact may take into consideration all the circumstances of the case, including the credibility of the witness. Bissell v. Baumgardner, 236 S.W.3d 24, 29-30 (Ky. App. 2007). In the present case, the decision of the circuit court in granting the motion to set aside the agreement was based on the credibility of the parties. After hearing the testimony from Angela, the court chose to believe her version of

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events, concluding that Martin's actions caused her to sign the agreement while under duress. The circuit court was familiar with the entirety of the events surrounding the nature of the divorce proceedings between the couple and found Angela's testimony to be credible. The circuit court in this case was in the best position to analyze the circumstances surrounding the agreement. Given this and the deference we must afford a circuit court's factual findings and credibility determinations, we cannot say that the circuit court's conclusion that Angela was under duress at the time she signed the settlement agreement was clearly erroneous. Therefore, for the reasons as stated, the Madison Circuit Court is affirmed. ALL CONCUR. BRIEFS FOR APPELLANT: Jimmy Dale Williams Richmond, Kentucky BRIEF FOR APPELLEE: Joan Deaton Grefer Richmond, Kentucky

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