Renick v. Renick

• Decision Date: 21 February 1933
• Citation: 57 S.W.2d 663,247 Ky. 628
• Parties: RENICK v. RENICK.
• Court: Kentucky Court of Appeals

57 S.W.2d 663

247 Ky. 628

RENICK v. RENICK.

Court of Appeals of Kentucky

February 21, 1933

Appeal from Circuit Court, Bourbon County.

Action by B. M. Renick against Elizabeth T. Renick, seeking a reduction in payments of alimony, with which was consolidated the original divorce action between the same parties.From an adverse judgment, defendant appeals.

Reversed.

Joseph Higgins, of Nashville, Tenn., and Talbott, Whitley & Cline of Paris, for appellant.

Dwight L. Pendleton, of Winchester, and E. C. O'Rear and Allen Prewitt, both of Frankfort, for appellee.

RICHARDSON Justice.

The question to be determined by this appeal is the power of the circuit court to revise or set aside, after the expiration of the term at which it is rendered, a judgment for alimony accompanying the judgment of absolute divorce, unless the court in its judgment expressly, or by necessary implication reserves the control of the question of alimony.

On the 25th day of April, 1928, B. M. Renick filed against his wife Elizabeth T. Renick, in the Bourbon circuit court, Bourbon county, Ky. a petition for a divorce a vinculo matrimonii, on the ground that she had abandoned him, March 16, 1927, without like fault on his part, and had not since resided with him.Although summonsed, she made no defense.Judgment was rendered, January 29, 1929, on the petition and depositions.This language appears in the judgment: "It is further adjudged that the plaintiff pay to the defendant, Elizabeth T. Renick, the sum of $150 per month, beginning the first day of July, 1928, and payable every succeeding month in advance until the termination by death of either party or until the remarriage of the party of the second part."

Before the rendition of the judgment, and while the action was pending, Elizabeth T. Renick filed against B. M. Renick in the state of Florida, an action to recover alimony of him.Preparations were made for the trial of the action in Florida, and the date of the trial was set, when she and B. M. Renick, on the 31st day of May, 1928, executed and delivered to each other, in duplicate, a contract by which she relinquished all claim to certain personal property described in the contract, and by a provision therein, the life insurance policies which had been issued on the life of B. M. Renick, and in which she was the designated beneficiary, were to be her property, subject to be defeated by her death or remarriage during the life of B. M. Renick.At the date of the contract he had a claim against her for $2,450, and she asserted one against him, and by the contract it is agreed that the one should be extinguished by the other.By another clause, both parties release and discharge the other "from any and all past obligations, or any future claims to maintenance, or property division, or an accounting, and all other things than those provided in the agreement."The contract contains this provision: "It is stipulated and agreed that this instrument shall be treated and considered as a final settlement and adjudgment of all property rights and money claims between the contracting parties.The party of the second part expressly renounces and relinquishes all further claims upon the party of the first part, or to his property wherever situated, including homestead and dower right; and on the other hand, the party of the second part hereby expressly relinquishes, quitclaims and disclaims all right, title or interest in and to any of the real or personal property of the party of the second part, wherever situated, excepting of course, those things provided for by this instrument, with respect to furniture, maintenance and insurance policies."

It is also stipulated in the agreement that Elizabeth T. Renick was to dismiss her plea for divorce, pending in the circuit court of Pinellas county, Fla.That portion of the agreement reads: "It is further stipulated, agreed and promised by the party of the first part that if he shall succeed in procuring a decree of divorce brought by him and now pending in the state of Kentucky, there shall be embodied in the decree such parts of this agreement as the party of the first part may desire and such as are in accordance with the laws of Kentucky, and further promises and consents that there be embodied in said decree, if and when obtained, that part of the provision of this settlement agreement, providing for the payment of one hundred and fifty ($150.00) dollars per month for the maintenance and support of the party of the second part."

Some time before the contract was signed and delivered, B. M. Renick had executed and delivered to Elizabeth T. Renick a contract by which he had agreed to pay her $200 per month.Over $2,000 was due under the latter contract, and it was this sum that extinguished the $2,450 claimed by B. M. Renick per the contract of date May 31, 1928.The former contract requiring him to pay $200 a month, and her future right thereto, are surrendered by her to him.

On the 12th day of September, 1929, he filed a petition in the Bourbon circuit court, setting forth that his earning capacity had been impaired, the value of his property and the income therefrom had depreciated, and he was unable to pay the $150 per month as decreed in his action for divorce, and he asked that the allowance be reduced to $25 a month.

Mrs. Renick was a nonresident of the state at the time of the filing of this petition; a warning order was made for the purpose of obtaining constructive service.At the regular November term, 1929, she filed an answer in which she traversed the petition, and further averred that no allegations were made in B. M. Renick's action concerning alimony, and no proof was taken on the subject; but that B. M. Renick in pursuance to, and in compliance with, their agreement of May 31, 1928, had caused to be included in the decree, the language which we have quoted.A plea of res adjudicata was presented by her answer, predicated on the judgment of the Bourbon circuit court, in the action for divorce, and the contract of May 31, 1928, was pleaded as an estoppel.After her answer was filed, the original action for divorce was redocketed and consolidated with the present action.B. M. Renick, by a reply, traversed the answer, and further alleged that the contract of May 31, 1928, "was procured by fraud and duress"; that at the time he discussed and signed it, he was in very delicate health, suffering from various painful and nerve racking carbuncles, and was physically unable to enter into any agreement; that at the time he signed it, he was in such feeble condition of mind and body, that he did not realize or properly understand the terms and conditions thereof, and did not therefore enter into the contract, and that it was not his agreement, "and he should not be bound thereby."

Subsequently he filed an amended petition in which he reiterated the affirmative allegations of his reply, and sought the annulment of the contract of date May 31, 1928, and a reconsideration of the alimony awarded in the original action.

Pending the action in the Pinellas county circuit court, both B. M Renick and Elizabeth T. Renick were residing at St. Petersburg, occupying separate apartments.B. Coleman Renick, their son, thirty years of age, a geologist by profession, residing at Houston, Tex., went to St. Petersburg for the purpose of effecting a settlement between them.His relation with each of them was that of a devoted, interested, and sympathetic son, with like affection and consideration for both of them.At that time a married sister of Elizabeth T. Renick resided at Nashville, Tenn.She and her husband also went to the state of Florida for the purpose of helping bring about a reconciliation of B. M. Renick and his wife.Without knowing that B. Coleman Renick was on the way to Florida, Mrs. Renick's sister and her husband boarded the train on which he was traveling, and the three arrived at St. Petersburg on the same train.B. Coleman Renick first went to the apartment occupied by his mother, and then shortly thereafter visited his father.As to which of them he first discussed the matter of adjusting their differences, it is not clear.He learned that his mother was demanding $200 a month, the amount she was receiving under the pre-existing contract between them, and also the settlement of their property rights.The father was willing to pay her only $100 per month, and enter into a settlement of their marital and property rights.The son proposed to each of them, separately, that the amount to be paid monthly to his mother be reduced to $150 per month, and, if they would agree to the $150 per month, he would pay $25 of it himself.Both refused to permit him to pay the $25 per month; but the father agreed to pay, and she agreed to accept, the $150 per month, and enter into the contract of settlement.Meade Frierson, the husband of the sister of Mrs. Renick, was a disinterested, lifelong friend of both Mr. and Mrs. Renick.He rendered both of them friendly advice and assistance, with a disinterestedness, and without distinguishing between them, in the making of the settlement.B. M. Renick claims that at that time he had a carbuncle "in" his nose, and also on the back of his neck, but his son and Frierson say that at that time he had a carbuncle on his neck, and there was only a scar on his nose where he had had a carbuncle.B. M. Renick had lost flesh, and was sorely afflicted with carbuncles at the time the contract was entered into between him and his wife.The lawyer who represented him in the divorce action participated in the making of the settlement and the contract between him and his wife, as did the lawyer who represented Mrs. Renick in the action for divorce.The latter prepared the...