Libel v. Libel

Decision Date12 September 1980
Docket NumberNo. 50969,50969
Citation616 P.2d 306,5 Kan.App.2d 367
PartiesJanet L. LIBEL, Appellee, v. John J. LIBEL, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. To constitute duress by threats the actor's manifestation must be made for the purpose of coercing the other; must have for its object the securing of undue advantage with respect to the other; must be of such a character that it is adapted to overpower the will of the other and is reasonably adequate for the purpose; must in fact deprive the other of free exercise of will; and must cause the other to act to his detriment.

2. Generally, absent a confidential or fiduciary relationship between the parties, one who asserts duress to avoid an agreement has the burden of proof to establish that claim, and such evidence must be of a substantial nature.

Robert D. Hecht of Scott, Quinlan & Hecht, Topeka, for appellant.

John C. Tillotson of Murray & Tillotson, Chartered, Leavenworth, for appellee.

Before FOTH, C. J., SWINEHART, J., and HARMAN, C. J. Retired, sitting by designation.

HARMAN, Chief Judge Retired:

This appeal is from an order upholding a post-divorce agreement which increased the alimony to the wife beyond that fixed in the parties' separation agreement, which was approved by the trial court and incorporated in the divorce decree.

After eleven years of marriage, the appellee-wife was granted a default divorce on July 12, 1976. Per their agreement, which contained no provision for modification, she was granted the custody of their two sons, one of whom was born in 1969 and the other in 1972; $300 per month support money was ordered for each child until each completed high school, and alimony of $400 per month through December, 1978, was decreed, both items to be paid by the appellant-husband.

Later, on November 12, 1977, the parties prepared and signed this agreement:

"I John Libel today, 11-12-77, agree to extended $400 month support, per divorce decree, thru 9-30-79. School tuition for spring 77, fall 78 and spring 79 is also included.

s/John L. Libel

s/Janet L. Libel"

Appellant balked at complying with this new agreement, triggering appellee's motion for an order directing compliance with it. She also sought increased child support while appellant asked for reduction.

After hearing, the trial court denied both requests for child support modification, but granted appellee's request to increase alimony payments in accord with the new agreement. This appeal ensued.

Appellant's basis for relief is K.S.A.1979 Supp. 60-1610(e ), which provides:

"If the parties have entered into a separation agreement which the court finds to be valid, just, and equitable, it shall be incorporated in the decree; and the provisions thereof on all matters settled thereby shall be confirmed in the decree except that any provisions for the custody, support, or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters, settled by such an agreement, other than matters pertaining to the custody, support, or education of the minor children, shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent." (Emphasis supplied.)

Appellant admits he signed the agreement, indeed he penciled the body of it himself, but he urges his consent was invalid because it was obtained under duress because of appellee's threats to curtail his visitation privileges with his two sons.

"To constitute duress by threats the actor's manifestation must be made for the purpose of coercing the other; must have for its object the securing of undue advantage with respect to the other; must be of such a character that it is adapted to overpower the will of the other and is reasonably adequate for the purpose; must in fact deprive the other of free exercise of will; and must cause the other to act to his detriment." Motor Equipment Co. v. McLaughlin, 156 Kan. 258, Syl. P 1, 133...

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13 cases
  • Bank of Am. v. Narula
    • United States
    • Court of Appeals of Kansas
    • 29 Julio 2011
    ...had in fact assumed fiduciary duties, and this assumption may be considered in the duress analysis. See [261 P.3d 915] Libel v. Libel, 5 Kan.App.2d 367, 368, 616 P.2d 306 (1980) (considering the existence of a “fiduciary relationship between the parties” when setting out the burden of proof......
  • In re Marriage of Takusagawa
    • United States
    • Court of Appeals of Kansas
    • 7 Septiembre 2007
    ...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 ......
  • Meg Props. & Invs., LLC v. Gilchrist
    • United States
    • Court of Appeals of Kansas
    • 17 Agosto 2012
    ...there was no contract. With respect to the allegations of coercion, duress can invalidate a settlement agreement See Libel v. Libel, 5 Kan.App.2d 367, 368–69, 616 P.2d 306 (1980) (considering whether a threat to curtail visitation of minor children invalidated agreement increasing alimony i......
  • Comeau v. Mt. Carmel Medical Center, Inc.
    • United States
    • U.S. District Court — District of Kansas
    • 4 Noviembre 1994
    ...show why there was an absence of such alternatives in order to avoid a contract because of economic duress. See Libel v. Libel, 5 Kan. App.2d 367, 368, 616 P.2d 306 (1980) (generally one who asserts duress to avoid an agreement has the burden of proof to establish that claim and such eviden......
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