In re Marriage of Takusagawa

Decision Date07 September 2007
Docket NumberNo. 95,508.,95,508.
PartiesIn the Matter of the Marriage of Fusao TAKUSAGAWA, Appellee, and Mieko Takusagawa, Appellant.
CourtKansas Court of Appeals
166 P.3d 440
In the Matter of the Marriage of Fusao TAKUSAGAWA, Appellee, and
Mieko Takusagawa, Appellant.
No. 95,508.
Court of Appeals of Kansas.
September 7, 2007.

[166 P.3d 442]

Paul T. Davis, of Skepnek, Fagan, Meyer & Davis, P.A., of Lawrence, for appellant.

John M. Knox, of Knox, Johnson, Rockwell, & Babbit, Chartered, of Lawrence, for appellee.



Mieko Takusagawa appeals the trial court's decision approving and enforcing an oral separation agreement in this divorce case. She raises several claims. First, she claims that she was coerced into making the agreement, a claim the trial court rejected after an evidentiary hearing. Second, she challenges the trial court's failure to inquire directly of the parties about whether the agreement was fair. Third, she argues that the trial court's independent finding that the agreement was fair is in error. Last, she argues that the separation agreement should be held ineffective in transferring interests in real estate on the basis that the parties' oral settlement agreement did not comply with the statute of frauds.

Mieko and Fusao Takusagawa were married in 1977. Fusao filed for divorce in May 2002. A divorce decree was granted on June 23, 2003. Financial issues remained unresolved, however, and a trial on those matters was set for October 15, 2003.

Two days before trial, no settlement had been reached. The events leading up to an apparent settlement were recounted in the trial court's findings:

"Two days before the scheduled hearing, [Mieko] received an email from her adult son, Ken, who forwarded to her a message that he and his sister had received from [Fusao] requesting that the children assist their mother prior to the final hearing with advice about what [Fusao] believed was an illegal action, a purported tax violation which occurred when [Mieko] failed to disclose to United States customs approximately $100,000 U.S.D. in Japanese yen which she brought into the United States from Japan. [Fusao] asked the children to advise [Mieko] about the situation so she could decide whether she wanted to settle the property issues out of court. In the email [Fusao] told the children that his attorney would raise this issue at trial. [Fusao] neither sent the email to [Mieko] nor did he ask their children to do so.

"On the day of the final hearing, the parties reached an agreement and the specifics of the agreement were put on the record. Both parties stated under oath that this was their understanding of the agreement. The hearing concluded with the attorneys agreeing to finalize the settlement paperwork according to the agreed-upon terms.

"[Mieko] later refused to sign the agreement and subsequently filed a motion to set aside the settlement agreement, alleging that [Fusao's] email constituted a threat, that her agreement to the settlement was made under duress or coercion, and that the terms were unfair, unjust, and inequitable and, as such, were void."

The trial judge, the Honorable Jean Shepherd, found no coercion. Judge Shepherd made several specific findings about the weight of the evidence on key issues. She specifically held that there was "no evidence" supporting any of these conclusions:

• that the email "was sent with the purpose of threatening or coercing" Mieko;

• that Fusao "intended to secure an undue advantage over [Mieko] or deprive her of her exercise of free will"; and

• that the email "caused [Mieko] to act to her detriment."

Judge Shepherd held that Mieko had "failed to establish with substantial evidence" that the "email was a threat that induced [her] to act to her detriment under strain of duress or coercion." Judge Shepherd concluded that the terms of the settlement were "highly favorable" to Mieko and that the email "was little more than an attempt to prevent [Mieko's] potential liability from coming to light at the hearing." After finding no basis

166 P.3d 443

to set aside the separation agreement due to coercion, Judge Shepherd approved the agreement as fair and equitable to the parties.

The Claim of Coercion

Mieko claims that she felt she had to accept Fusao's settlement offer so that she would not be subjected to potential criminal or immigration sanctions due to her failure to report bringing foreign currency into the country. We must review both the trial court's fact findings and the applicable law to determine whether her claim provides a basis for setting aside the settlement agreement. "When, as here, ... the district court has made findings of fact as a basis for its legal conclusions, our function merely is to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support the conclusions of law." U.S.D. No. 233 v. Kansas Ass'n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003).

Kansas law has long recognized that a husband and wife may make enforceable agreements during a marriage, even with no divorce action pending. E.g., In re Estate of Loughmiller, 229 Kan. 584, 592, 629 P.2d 156 (1981); Hoch v. Hoch, 187 Kan. 730, 731, 359 P.2d 839 (1961). Once a divorce action has been filed, K.S.A. 60-1610(b)(3) explicitly sanctions such agreements and provides that any "valid, just and equitable" separation agreement between the parties "shall be incorporated in the [divorce] decree." These agreements are subject to the normal rules of contract law, Drummond v. Drummond, 209 Kan. 86, 91, 495 P.2d 994 (1972), and may be set aside when one of the parties entered into the agreement under duress or coercion. Libel v. Libel, 5 Kan.App.2d 367, 368, 616 P.2d 306 (1980).

Judge Shepherd concluded factually that Mieko's entry into the agreement was not due to duress or coercion. We have previously set out in some detail her specific findings. After review of the transcript of both hearings and the full record, it is clear that her findings are supported by substantial competent evidence.

Given Judge Shepherd's fact findings, it is equally clear that the applicable legal standard cannot be met in this case; the standard for setting aside a separation agreement based on a claim of duress or coercion is not a low one. As Professor Linda Elrod and the late Judge James Buchele have aptly noted, "[s]ome degree of pressure exists in every negotiation." 2 Elrod & Buchele, Kansas Law and Practice: Kansas Family Law § 11.32 (1999). Thus, this court determined in Libel that to constitute duress so as to justify setting aside an otherwise valid agreement, the threats must be purposely coercive, designed to secure undue advantage, deprive the other party of the exercise of free will, and cause the other party to act to his or her detriment. Libel, 5 Kan.App.2d at 368, 616 P.2d 306, (citing Motor Equipment Co. v. McLaughlin, 156 Kan. 258, Syl. ¶ 1, 133 P.2d 149 [1943]). The factual record in this case does not support such a claim.

The Claim of Inadequate Inquiry of the Parties by the Judge

Mieko next argues that the agreement should be set aside because the trial judge did not ask each of the parties whether he or she considered the settlement a fair one. This issue raises questions of interpretation of the Kansas divorce statutes. Thus, this court's review is unlimited. See Foster v. Kansas Department of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).

In support of her argument, Mieko relies upon a West Virginia case, Gangopadhyay v. Gangopadhyay, 184 W.Va. 695, 403 S.E.2d 712 (1991). In that case, the West Virginia Supreme Court of Appeals held that a trial judge must make "inquiries... to ascertain that the parties understand [the] terms and have voluntarily agreed to them without any coercion" before an oral settlement agreement may be approved. 184 W.Va. at 699, 403 S.E.2d 712.

We do not find the Gangopadhyay case persuasive in Kansas because there is a key difference between the West Virginia statutes discussed in that case and the statutes of Kansas. West Virginia's statute literally required that all divorce separation agreements be in writing. 184 W.Va. at 696, 403

166 P.3d 444

S.E.2d 712. After noting this statutory requirement and several "cogent policy reasons which cause us to encourage the use of written separation agreements," 184 W.Va. at 698, 403 S.E.2d 712, the court concluded that "[f]or these reasons ... certain safeguards should attend the acceptance of an oral separation agreement." 184 W.Va. at 699, 403 S.E.2d 712.

Unlike West Virginia, Kansas has no statute requiring that separation agreements be made in writing. Although it is difficult to prove a negative-and the Kansas statute does not explicitly reference oral separation agreements-both of the leading practice treatises note that Kansas allows oral separation agreements. 2 Elrod & Buchele, Kansas Family Law § 11.31; Short, Settlement Agreements, in Practitioner's Guide to Kansas Family Law § 8.12 (Leben ed. Supp. 2002). This is a crucial distinction between the rationale of the Gangopadhyay court and the case now before us.

This court has previously recognized that there are some explicit procedural and substantive requirements in the Kansas divorce statute. Substantively, K.S.A. 60-1610(b)(3) allows approval of a separation agreement only if the "court finds [it] to be valid, just and equitable." Procedurally, in In re Marriage of Kirk, 24 Kan.App.2d 31, 941 P.2d 385, rev. denied 262 Kan. 961 (1997), we held that there must of necessity be some basis in the record for this conclusion. Thus, there must be "evidence in the record sufficient to support the finding that the separation agreement is valid, just, and equitable." 24 Kan.App.2d 31, Syl. ¶ 1, 941 P.2d 385. If we demanded that trial judges go through a new set of magic questions before accepting a separation agreement, then we would be adding a requirement to the Kansas divorce statutes that simply cannot be found in the text. So long as there is a sufficient...

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