Kunkel v. Kunkel

• Decision Date: 01 March 1989
• Citation: 547 So.2d 555
• Parties: George Douglas KUNKEL v. Terri Angela KUNKEL. Civ. 6465.
• Court: Alabama Court of Civil Appeals

Page 555

547 So.2d 555

George Douglas KUNKEL v. Terri Angela KUNKEL.

Civ. 6465.

Court of Civil Appeals of Alabama.

March 1, 1989.

Rehearing Denied April 5, 1989.

John L. Capell III of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.

Daniel F. Carmichael, Jr. of Weatherford & Carmichael, Enterprise, for appellee.

INGRAM, Judge.

Terri Angela Kunkel (mother) and George Douglas Kunkel (father) were divorced on June 15, 1987. The divorce decree placed custody of their one-year-old daughter, Heather Nicole Kunkel (minor child), with her father, as agreed to by the parties' separation agreement.

Less than two months after the divorce decree was rendered, the mother petitioned the trial court to change custody of the minor child to her. Her petition was filed as a Motion for Relief from Judgment or, alternatively, as a Petition to Modify Divorce Decree. Her motion alleged that fraud and duress were perpetrated upon her by the father at the time she signed the separation agreement. Her petition alleged that a material change in circumstances had occurred since the divorce.

The post-judgment motion and petition were heard on September 30, 1987. The trial court took the case under advisement and entered an order on March 30, 1988, transferring custody of the child from the father to the mother. The custody change was made effective on April 15, 1988. The father filed a motion for reconsideration, which was heard on April 12. He attempted to present the testimony of several witnesses, but was largely unable to do so. His offers of proof indicate that the witnesses would have testified regarding the relative fitness of each party to be the child's custodial parent. His motion was denied that same day. The father then filed a motion to stay the judgment pending appeal, which was also denied. This appeal followed.

Rule 60(b)(3), Alabama Rules of Civil Procedure, authorizes relief from a judgment based on the "fraud ..., misrepresentation, or other misconduct of an adverse party." Although not denominated as such, the mother's post-judgment motion was apparently a 60(b)(3) motion which sought in the alternative to modify the divorce decree.

We will first address the 60(b)(3) motion. A separation agreement incorporated into a divorce decree must be fair, reasonable, and just, and free from fraud, duress, or other coercion. Delchamps v. Delchamps, 449 So.2d 1249 (Ala.Civ.App.1984); Cary v. Cary, 257 Ala. 431, 59 So.2d 659 (1952). If the agreement was obtained through duress and fraud, then the divorce decree is void. Cary, supra.

The mother maintained that she and the father had an oral understanding that differed from the terms of the written agreement. She also contended that she did not fully understand the contents of the agreement and the consequences of her signing it. She stated that she signed the agreement as drafted by the father's lawyer, however, because of certain threats made to her by the father.

The mother testified on direct examination as follows:

"Q. [D]id you have an occasion to talk to Mr. Whittaker [the father's lawyer] prior to signing any agreement?

"A. No, sir, I did not.

"Q. How did you come to go sign the agreement? ...

"....

"A. Well, I signed the agreement that afternoon [June 5]. I signed the agreement that I would give him full custody, because he had said a few things to me. If I gave him full custody, that this would just be on paper. That that would not be considered custody. That I would get to see Heather just as much as he did. And, that we would tell people that it was joint custody. He said that he would take Heather away if I did not sign joint [sic] custody.

"Q. How did he say that he would take her away?

"A. He said that he would leave with her. Take her from me if I did not sign full custody. And, he also said that he would not pay child support to me at all even if he was ordered to do so....

"....

"Q. At the time or prior to signing the agreement, Terri, did you read the agreement?

"A. I did not, no. I did not read it for the full content. I was told to read over each page and to initial under his initials, which I did. After I would initial each page, he [Whittaker] said, do you understand what was read. And, I would say yes. But, it was not read to me out loud or anything like that....

"....

"Q. Did you tell Mr. Whittaker what you have just testified that George told you concerning the signing of this agreement?

"A. No, sir, I did not.

"Q. Did your--did Mr. Kunkel ever say anything to you concerning litigating the divorce case in court?

"A. Oh, he said that this would avoid a court battle if I would give him full custody of Heather.

"Q. Do you know of any witnesses that he was going to subpoena in court?

"A. I don't know any personally. But, he said that he would try to prove that I was mentally unstable to be a mother--unfit to be a mother if I would take him to court. That I wouldn't be able to win. That he was going to get Heather. He said he had written little things down and he would bring them in himself."

On cross-examination, however, the following testimony was elicited from the mother:

"Q. Mrs. Kunkel, you testified that you were not represented by an attorney at the time that you signed the agreement giving your former husband the full care, custody, and control of this minor child? Is this right?

"A. Yes, sir.

"Q. Had you talked to anyone before that?

"A. Yes, sir, I had.

"Q. Who had you talked to?

"A. I talked to a Mr. Reese in Daleville about joint custody.

"Q. Had you talked to Mr. Carmichael before that?

"A. Yes, sir, about me getting full custody of Heather.

"Q. And, when you went over there to Mr. Whittaker's office, you didn't go over there totally ignorant about what was going on, did you?

"A. No, sir, I didn't.

"Q. You knew what was going on?

"A. I knew what I was signing, yes.

"Q. You knew what you were signing, and you knew the contents of it too, didn't you?

"A. Yes, sir.

"Q. And, you knew that it said that your husband was to have the full care, custody, and control of this child until she reached nineteen, married, or became self-supportive?

"A. Yes, sir.

"Q. You didn't have any quarrel with that at that time, did you?

"A. No, sir.

"....

"Q. You talked to them [Reese and Reese] about joint custody and full custody?

"A. Yes, sir, the reason I talked to them about joint custody, because I knew these papers would be considered joint custody.

"Q. Is that all you did in furtherance?

"A. I had him draw up papers about joint custody.

"Q. Who did you have draw up papers?

"A. Mr. Reese in Daleville.

"Q. What did you do with them?

"A. Those papers were torn up, sir. Because my husband said he would not sign those papers at all.

"....

"Q. Now, when you talked with these lawyers, didn't they talk to you about child support?

"A. Yes, sir, and joint custody. Yes, they did.

"....

"Q. Mrs. Kunkel, isn't it true that in the separation agreement that you had prepared by Reese and Reese lawyers over in Daleville, that it had a provision in there for him to pay child support?

"A. Yes, sir.

"Q. So, they had, in fact, talked to you about that?

"A. Yes.

"Q. You understood that he could be required to do that?

"A. Yes, I did."

The testimony of the lawyer who prepared the separation agreement, Richard Whittaker, further contradicted the mother's testimony:

"Q. And, under what circumstances [were] those documents [separation agreement and answer and waiver] signed by Mrs. Kunkel?

"....

"A. ... She read through the agreement. I went over the points with her.... I remember asking her specifically about whether or not she was in agreement with the custody provision of her husband versus keeping it in her. She said she was. I asked her if she had talked to her lawyer about this. She said she had spoken to her lawyer. I said if you want to take this to your lawyer and let him look at it, feel free to do so. I don't represent you. Do you understand that? I represent your husband. But, I can draw this paperwork if you have already talked to your lawyer. She said, I've talked to them about it, and they know what they are doing. I said, well, you understand--all I wanted to make sure is the girl understood that she was giving up custody. That her husband was going to be getting custody, and that she would have visitation rights. And, I even went so far to indicate to her that it was my understanding that George had made some type of arrangements for someone to take care of the child while he was working, because he was in the military. She said she understood that.

"....

"Q. Dickey, were you made aware by anyone of any prior agreement that she and her husband might have had?

"A. When George Kunkel first came to see me, he brought to me some documents that Reese and Reese law firm had prepared.

"Q. That concerned joint custody, didn't it?

"A. ... The agreement had something to do with probably some joint custody and some division of property. But, George advised me that he was not in agreement with that. And he had talked back to his wife on it. And, then later we drew up the agreement that has been filed. And that's when I went over it with Mrs. Kunkel that one time. And, she told me that she had talked to her lawyers about it and was aware that she was giving up custody."

The father responded as follows to the mother's allegations that he made threats to get her to sign the agreement.

"Q. Mr. Kunkel, you heard Terri testify as to the reasons she signed the agreement. And, you're saying none of those things are true. Is that what you are saying?

"A. That's correct.

"....

"Q. She stated to this court that you said that if she attempted to get custody or she got custody that you would take the child away, and she would never see the child again?

"A. Yes, sir, that is an untrue statement.

"Q. You told her that you could not be ordered or made to pay her child support?

"A. Yes, sir.

"....

"Q. Did you also tell her that you would consider the agreement that she...