Delchamps v. Delchamps

• Decision Date: 11 April 1984
• Citation: 449 So.2d 1249
• Parties: Peggy Hensarling DELCHAMPS v. John Randolph DELCHAMPS. Civ. 4019.
• Court: Alabama Court of Civil Appeals

Page 1249

449 So.2d 1249

Peggy Hensarling DELCHAMPS v. John Randolph DELCHAMPS.

Civ. 4019.

Court of Civil Appeals of Alabama.

April 11, 1984.

Barry A. Friedman, Mobile, for appellant.

Joseph C. Sullivan, Jr., Mobile, for appellee.

BRADLEY, Judge.

This is an appeal from the setting aside of a divorce decree.

The parties to this appeal were first divorced on December 3, 1982 by a decree of the Circuit Court of Mobile County. The decree incorporated an agreement of the parties which, among other things, divided the parties' real and personal property and awarded the wife alimony in gross and periodic alimony.

On March 9, 1983 the husband filed a motion to vacate, set aside, amend, or alter the judgment of divorce, alleging the agreement incorporated into the divorce decree was obtained by fraud and duress. Rule 60(b), Alabama Rules of Civil Procedure.

After an ore tenus hearing on March 29, 1983, the court entered an order granting husband's motion to set aside the decree on grounds of duress. Thereafter, on August 31, 1983, a second judgment of divorce was rendered by the Circuit Court of Mobile County. This decree awarded the wife considerably less than she received in the first decree. Wife appeals.

The only argument here is that the trial court erred to reversal in setting aside the first judgment of divorce on grounds that husband signed the agreement under duress. Wife contends that husband entered into and signed the settlement agreement of his own free will and she did not coerce him into signing it.

We have held that where the trial court alone hears disputed evidence a presumption of correctness attends the court's findings and such findings will not be overturned except for palpable error, manifest unjustness, or where unsupported by the evidence. Cotton States Mutual Insurance Co. v. Conner, 387 So.2d 125 (Ala.1980). In deciding a rule 60(b) motion to set aside a judgment of divorce, the trial court has wide discretion, and its determination will be reversed only for an abuse of that discretion. Tucker v. Tucker, 403 So.2d 273 (Ala.Civ.App.1981); McSween v. McSween, 366 So.2d 293 (Ala.Civ.App.1979).

It is also the rule in this state that a settlement agreement given effect by a divorce decree must be fair, reasonable and just, and free from fraud, duress or other coercion. Cary v. Cary, 257 Ala. 431, 59 So.2d 659 (1952). "Duress" has been defined as subjecting a person to improper pressure which overcomes his will and coerces him to comply with demands to which he would not yield if acting as a free agent, and is a ground on which to support a setting aside of a divorce decree and underlying agreement. Cary v. Cary, supra; Head v. Gadsden Civil Service Board, 389 So.2d 516 (Ala.Civ.App.1980); see, 17 C.J.S. Contracts § 168. The party seeking to set aside an agreement on grounds of duress must prove by clear and convincing evidence that the duress existed at the time of execution. Johnson v. Johnson, 182 Ala. 376, 62 So. 706 (1913); Reiss v. Reiss, 46 Ala.App. 422, 243 So.2d 507 (Ala.Civ.App.1970). Moreover, the moving party must prove that he was free from fault or negligence in suffering the judgment to be entered. Stephens v. Stephens, 251 Ala. 431, 37 So.2d 918 (1948); Lindsey v. Lindsey, 48 Ala.App. 495, 266 So.2d 298 (Ala.Civ.App.1972).

In the instant case the trial court found that the evidence supported a setting aside of the judgment of divorce based on duress.

The parties were married in September 1978 after having lived together since 1975. No children were born of the marriage. In August 1982 the couple separated, and on November 22, 1982 they signed a settlement agreement that was adopted by the court in its divorce decree of December 3, 1982. The agreement was signed by both parties in the office of husband's attorney.

On December 29, 1982 husband's second wife intervened in the parties' divorce action on the ground that her son's and her support rights would be materially affected by the settlement agreement of the parties which was incorporated into the December 3, 1982 divorce decree. The trial court subsequently denied the relief sought by the second wife; however, it should be noted that at the hearing on second wife's petition, husband testified that he did not want the December 3, 1982 divorce set aside.

On March 9, 1983 husband filed his motion seeking to have set aside the December 3, 1982 divorce decree on the grounds of fraud and duress. In support of his claim of duress, husband points to many instances of verbal and physical assaults and threats of grievous bodily harm.

Although the evidence relating to the threats and assaults is in sharp dispute, there is substantial testimony supporting the husband's charges.

The incident precipitating the parties' separation occurred on August 13, 1982. The husband was at the Terminal Restaurant in Mobile with some friends when wife came into the restaurant and commenced cursing and berating husband, and demanded that he leave. They left the restaurant and got in wife's car. They got into a fight in the car. Husband persuaded wife to return to the restaurant so that he could get his car. Husband followed wife home.

On arrival at home, wife physically attacked husband, got a gun, threatened to kill him, and then locked him in the house. The house had deadbolts on all outside doors. Wife had taken husband's glasses and keys to the house, so husband had to break out a window to escape from the house. Being fearful of his wife, he hid in a ditch for several hours to be sure wife would not find him. Thereafter, he caught a ride to the Hilton Hotel where he spent the night. He telephoned a friend to get a car for him so that he could leave Mobile. He spent the next two nights in a hotel near Pensacola, Florida.

The friend...