Warner v. Warner

• Decision Date: 18 May 1990
• Docket Number: No. 19039,19039
• Citation: 394 S.E.2d 74,183 W.Va. 90
• Court: West Virginia Supreme Court
• Parties: Jerri T. WARNER v. Glenn Dice WARNER.

Page 74

394 S.E.2d 74

183 W.Va. 90

Jerri T. WARNER v. Glenn Dice WARNER.

No. 19039.

Supreme Court of Appeals of West Virginia.

May 18, 1990.

Syllabus by the Court

1. When a person can establish that a threat to prosecute a criminal claim, irrespective of the individual's guilt or innocence, destroyed her ability to exercise her free will, duress may exist sufficient to set aside an agreement that was executed under the influence of such threat.

2. Since property settlement agreements, when properly executed, are legal and binding, this Court will not set aside such agreements on allegations of duress and undue influence absent clear and convincing proof of such claims.

John G. Ours, Petersburg, for Jerri T. Warner.

Jerry D. Moore, Franklin, for Glenn Dice Warner.

WORKMAN, Justice:

Jerri T. Warner appeals from a final order of divorce entered by the Circuit Court of Pendleton County on issues of child custody and equitable distribution. Appellant contends that appellee Glenn Dice Warner exerted duress and undue influence in connection with her execution of the property settlement agreement which was entered into by the parties and subsequently ratified by the circuit court. Appellant's claims of duress and undue influence are not supported by the record in this case and we therefore affirm the ruling of the circuit court.

Appellant and appellee were married in Pendleton County, West Virginia, on April 17, 1976. On June 22, 1977, appellant's parents conveyed unto her and Mr. Warner 1.2 acres of real estate on which a family home was constructed. Two boys were born of the marriage whose ages were twelve and five when the final order of divorce was entered on January 11, 1989.

After approximately ten years, the marriage began to deteriorate. Sometime in 1986, appellant purchased a Subaru automobile and executed Mr. Warner's signature on the note and financing papers without his knowledge. Sometime thereafter, appellant became involved in an adulterous relationship with another man. These events contributed, in part, to the parties' decision to obtain a divorce.

On Saturday, May 7, 1988, the parties travelled together to the law office of Mr. Jerry Moore, a Franklin, West Virginia, attorney. Appellant had already moved out of the marital home at this time and was admittedly living with the man with whom she had been engaging in an adulterous relationship. Attorney Moore advised the parties that he could not represent them both and suggested that they try to reach an agreement between themselves with regard to property distribution and child custody. He further suggested that they decide between the two of them which individual Mr. Moore would be representing.

During this same weekend, the parties reached a property settlement agreement which was reduced to writing by the appellant. The unsigned, handwritten ¹ agreement is dated May 7, 1988, and provides that Mr. Warner would receive the house and property, a 1979 Ford pickup, sole custody of the two minor children of the parties, and further provides that he would be responsible for the debts pertaining to "said property." The document further states that appellant was to receive the 1986 Subaru, personal items such as dishes, towels and bedclothes, as well as visitation rights with respect to the two children.

On Monday, May 9, 1988, the parties returned to the law office of attorney Moore at which time Mr. Warner engaged Mr. Moore to represent him in connection with the parties' divorce. Mr. Moore again advised that Mrs. Warner would have to obtain separate counsel. When Mr. Warner left Mr. Moore's office, he had both an irreconcilable differences divorce complaint and a formal property settlement agreement in hand. The parties then proceeded to the office of the circuit court clerk for the purpose of filing the complaint. The clerk assisted the appellant in preparing and filing a form answer wherein appellant admitted all the allegations set forth in the complaint, including the existence of irreconcilable differences.

After filing the complaint and answer, the parties went to the offices of M. Zelene Harman, another Franklin, West Virginia, attorney. Appellant sought the legal advice of attorney Harman in connection with the property settlement agreement. According to the testimony of Mr. Warner, when his wife emerged from attorney Harman's office she was upset because Ms. Harman had attempted to talk her out of signing the property settlement agreement. Mr. Warner testified that: "When she came back out, I asked my wife, I said, what did she say, and my wife said that she's trying to talk me out of signing the papers, and I told my wife, I said, I was hoping that that's the very thing she would do." Attorney Harman left for court and the parties went to lunch. After lunch, appellant waited on the courthouse steps for attorney Harman. When appellant conferred with attorney Harman for the second time that same day, Ms. Harman signed the property settlement agreement as appellant's attorney.

Two weeks after she executed the property settlement agreement, appellant deeded her interest in the marital real estate to Mr. Warner. Because the parties were still husband and wife, appellant was asked to sign another deed on July 19, 1988, in connection with Mr. Warner's decision to sell the marital property to appellant's parents and brother. ² The record in this case indicates that Mrs. Warner willingly executed both deeds. ³

Mr. Warner testified that he did not want the divorce. To provide his wife with the opportunity to change her mind about the divorce, he specifically requested that his attorney not schedule the hearing before the family law master for at least one month after the property settlement agreement was signed. The hearing was held before the family law master on July 19, 1988. Despite having notice of this hearing, appellant chose not to attend nor to be represented by counsel at the hearing. Following Mr. Warner's testimony, the family law master made various findings of fact and recommendations. The law master determined that Mr. Warner was the primary caretaker of the parties' minor children and that he was a fit and proper person to have custody of the children. The law master further found the parties had entered into a property settlement and child custody agreement and that each party was represented by counsel at the time the agreement was entered into. The family law master recommended that a divorce be granted on grounds of irreconcilable differences, that Mr. Warner should have the care, custody, and control of the children with reasonable visitation granted to the appellant, and that the property settlement and child custody agreement be ratified, approved, and confirmed with regard to division of property as agreed upon between Mr. and Mrs. Warner.

On August 8, 1988, appellant filed a petition for review with the circuit court which alleged undue influence and duress. The Circuit Court of Pendleton County held a hearing on December 5, 1989, in connection with the petition for review. Both parties appeared in person and by counsel. After hearing the testimony of both Mr. and Mrs. Warner, the court ruled as follows:

The motion to refer the matter back to the Law Master to re-open and review would be denied. The Court is satisfied that at the time that Mrs. Warner made her decision to enter into the agreement, it was an agreement entered into by her with full knowledge of the terms of that agreement, with full acquiescence to those terms. As a matter of fact, it's more than acquiescence. It was her wish and desire; that she was capable, fully capable mentally of understanding the terms of the agreement and the consequences thereof, and before it was signed, she had the advice of counsel not to enter into it, because it was what counsel believed to be an unfair or questionable or lop-sided agreement. Yet she chose against the advice of counsel, which she had a right to do, to enter into the agreement, and did enter into it. She chose not to appear at the Family Law Master hearing; had notice of that hearing, opportunity to be present, to be represented by counsel, and again chose not to do so. Her reasons are speculative, but at that time she was in a new relationship with the man with whom she had committed adultery and with whom she went to live and with whom she continues to live, and it is understandable why she would have felt and told her husband, as has been testified and as the Court believes is true, that she simply wanted out of her present marriage at any cost. All she wanted was freedom, freedom from the marriage; freedom from the children; freedom from all the marriage vows ... and she obtained that freedom, and now with the knowledge that the property was worth more money than perhaps she realized at the time, she would like to retract, and it's the impression of the Court that her primary objective is that of seeking monetary reward and not so much that of the children. She has access to the children any time she wants to visit with them; therefore, the Court believes that the agreement that was entered into at arm's length, is in all respect valid, binding on the parties....

Appellant's contention that she was subject to duress and undue influence when she executed the property settlement agreement must be analyzed in conjunction with Rule 52(a) of the West Virginia Rules of Civil Procedure. That rule provides in part that: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."...