Pegram v. Pegram

• Decision Date: 25 February 1949
• Citation: 219 S.W.2d 772,310 Ky. 86
• Parties: PEGRAM v. PEGRAM.
• Court: Kentucky Court of Appeals

219 S.W.2d 772

310 Ky. 86

PEGRAM v. PEGRAM.

Court of Appeals of Kentucky

February 25, 1949

Rehearing Denied May 13, 1949.

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division; W. Scott Miller, Judge.

Divorce action by Dorothy Rose Pegram against Charles Fleming Pegram Jr. From a judgment vacating part of judgment of divorce which incorporated an agreement of parties settling property rights and fixing alimony and allowances for their children and from a new award to wife and children, defendant appeals.

Affirmed.

Hughett & Hughett, of Louisville, for appellant.

Daniel B. Boone and Henry J. Tilford, both of Louisville, for appellee.

STANLEY Commissioner.

The appeal is by Charles F. Pegram from a judgment vacating a part of a judgment of divorce which incorporated an agreement of the parties settling property rights and fixing alimony and allowances for their children, also from a new award to the wife and children.

The suit was filed by the wife, Dorothy Rose Pegram the husband entered his appearance, saying he 'declines to plead.' The original judgment was rendered June 7, 1948. On the thirtieth day thereafter the divorced wife filed a motion to set aside so much of the judgment as pertained to property rights, alimony and maintenance of the children. She charged that she had signed the contract of settlement under duress and through the fraud of her husband. An amended petition sought judgment on the items de novo. In the meantime, twelve days after the judgment of divorce was rendered, the defendant, Pegram, had remarried. The court set aside the part of the judgment that was attacked, and then adjudged that the net proceeds of the sale of the parties' home, $3,718.07, should be equally divided and that the plaintiff recover alimony of $30 a week. The defendant was directed to pay her $15 a week for the support of their children. The award was allowed from the date of the filing of the petition of divorce subject to be credited by $781 received by the wife as the proceeds of the furniture sold pursuant to the contract of settlement.

At the threshold we note material preliminary considerations.

The judgment of divorce settled the issue as to who was responsible for the disintegration of the home. The husband had not denied his cruel treatment and settled aversion to his wife. The right to the divorce establishes also the right to alimony, the need being manifest. Maher v. Maher, 295 Ky. 263, 174 S.W.2d 289; Burke v. Burke, 298 Ky. 292, 182 S.W.2d 786; Furgerson v. Furgerson, 307 Ky. 394, 211 S.W.2d 161.

Children of divorced parents are in a large measure wards of the court, and their welfare is paramount. It is the first duty of divorced parents, particularly the father, to support those for whose existence they are responsible. Therefore, their father's legal responsibility to support them cannot be avoided or diminished by his contract. The court is not bound by any agreement though it is, of course, a proper consideration. Gothard v. Lewis, 235 Ky. 117, 29 S.W.2d 590; Bishop v. Bishop, 238 Ky. 702, 38 S.W.2d 657; Renick v. Renick, 247 Ky. 628, 57 S.W.2d 663. And this matter of maintenance continues within the jurisdiction and control of the court, subject to modification as circumstances and conditions may demand, for there can be no final judgment as to infant children. KRS 403.070; Beutel v. Beutel, 305 Ky. 683, 205 S.W.2d 489.

As a general rule the exercise of the power of the court to modify a decree for alimony is not affected by the fact that it is based upon an agreement entered into by the parties, for the agreement became merged into the judgment and lost its contractual nature. 27 C.J.S., Divorce, § 238d; Hoskins v. Hoskins, 201 Ky. 208, 256 S.W. 1; McGuffin v. Chapman, 212 Ky. 579, 279 S.W. 987.

The proceeding opening up the former judgment was begun during the same term of court while the chancellor still had control of it. The court acted upon timely application for a rehearing. KRS 451.130; Sheffer v. Speckman, 305 Ky. 627, 205 S.W.2d 305. It is within the inherent power and discretion of a trial court to set aside a judgment rendered during the term, and the appellate court will not interfere with that action unless it is shown to have been unreasonable or arbitrary, or will adversely affect legal rights of the parties. Gribben v. Gribben, 227 Ky. 96, 11 S.W.2d 998; Equitable Life Assur. Society v. Goble, 254 Ky. 614, 72 S.W.2d 35. This takes the case out of the usual class where there was an independent action or suit to impeach a judgment for fraud or to set aside a separation settlement after the court had lost jurisdiction of the initial case.

Under the foregoing conditions and rules of law the measure of evidence required to vacate the judgment is less than it would be otherwise. Upon this phase of the case, there was full justification.

We reach the point as to whether or not the agreement as to the property rights and alimony should have been confirmed by the court de novo.

Separation agreements are upheld when untainted by fraud, undue influence or duress if the terms are fair, reasonable and equitable, considering the circumstances of the parties at the time they were made. Sparks v. Sparks, 215 Ky. 508, 284 S.W. 1111; Whisman v. Whisman, 228 Ky. 277, 14 S.W.2d 1061. But such agreements will be closely scrutinized, and the court will not suffer the wife to be over-reached. It will not sustain a contract that is unfair or prejudicial to her when obtained while she is under her husband's domination. Parsons v. Persons, 62 S.W. 719, 23 Ky.Law Rep. 223; Kline v. Kline, 105 S.W. 1189, 32 Ky.Law Rep. 492; Keach v. Keach, 217 Ky. 723, 290 S.W. 708; Clark v. Clark, 301 Ky. 682, 192 S.W.2d 968; Corrigan v. Corrigan, 305 Ky. 695, 205 S.W.2d 495.

The parties were married very young. They have two children, aged seven and five years. It is apparent that after nine years of married life Pegram had grown tired of his wife and that it was he who really sought relief from the bonds of matrimony. One evening in January, 1948, he told his wife in the presence of her sister that he wanted a divorce and it would look better if she should bring the suit. In this conversation, and others, he had threatened that, if she did not bring the suit, he would do so and would take the children away from her and leave her without anything. This came as a severe shock. Manifestly so. The next morning the parties went to the office of a lawyer who was then representing the husband in a damage suit. Pegram had previously consulted the lawyer about this matter, but his wife had never seen him before. The agreement was then drafted and executed. This was on January 16, 1948. The terms of the paper were that the wife should take such part of the furniture as she desired and that the rest would be sold with their home, which they owned jointly subject to a mortgage; the wife should receive $1,000 from the proceeds as her separate estate; and the balance would be placed in trust for the benefit of herself and children and be disbursed to her at the rate of $100 a month. The parties lived together two or three weeks afterward. In April suit was filed by that attorney for the wife, and the evidence was presented upon interrogatories.

It is clear that at all times the wife greatly desired reconciliation. The attorney had joined in her efforts, but it was without avail. It is due the attorney to say that the record does not reflect any improper or unethical conduct. He had made it clear to Pegram that he was representing his wife in the case. He had only put in writing what he was advised was the agreement. He had advised the wife, as she testified, that he believed it was a good settlement. It was a good settlement as far as it went, for it stripped the husband of all the property he possessed. But it ignored the very important factor of sustenance or support after the small fund should be exhausted. It took no cognizance of the husband's earning capacity or his...