211 S.W.2d 403 | Ky. Ct. App. | 1948
Affirming.
In a suit for divorce brought by Sylvia Friedman against Charles Friedman, the parties agreed upon a *440 settlement of property rights and allowances to the wife for herself and $150 a month for the maintenance of their children. The agreement was incorporated in the judgment awarding her a divorce. Within the term, the plaintiff, through another attorney, moved the court to set aside so much of the judgment as related to the property settlement on the grounds that her execution of the agreement had been procured through fraud, misrepresentation and undue influence on the part of the defendant. After hearing considerable evidence on the motion, the chancellor overruled it and the plaintiff prosecutes this appeal from that order.
The question is raised as to the order being appealable. The appellee relies especially on Safety Motor Coach Company v. Madden's Adm'x,
The judgment in this case was not appealable, for a judgment entered by agreement or consent of the parties leaves nothing in controversy. Bosworth v. Kentucky Highlands Railroad Company,
The extensive evidence relates primarily to estimates of values of the husband's property and estate rather than to any concealment of ownership. The same is true as to his income. His income tax reports for several years were introduced and they do not sustain the appellant's contentions that there was any material concealment in respect thereto.
It is shown that the appellee's father, Joe Friedman, is a wealthy man and had been much concerned over the marital troubles in his family. He earnestly desired that the court action should be kept at a minimum and without embarrassment to any of the parties. He was sympathetic with Mrs. Friedman and devoted to his grandchildren, twin girls, now seven years of age. Mrs. Friedman had complete confidence in him and his advice. A large part of her present complaint is that in the effort to procure a settlement of the property rights and allowances, she submitted to her father-in-law, at his request, a detailed memorandum of her necessary living expenses. They aggregated $241.00 a month. Mr. Friedman stated that he wanted her and the children taken care of, and that he would see to it that she received that sum each month; that he would make up the difference between what she might receive from her husband and that amount. He also promised to furnish her a home or apartment. He urged her to go ahead and agree and to sign whatever proposition might be offered her because of his assurances. This is the gist of the conversations and commitments. Mrs. Friedman has some corroboration other than as to the amount guaranteed by her father-in-law. She had such confidence in him that she declined her attorney's suggestion *442 that the promise should be reduced to writing. She executed the agreement in reliance upon those promises.
Joe Friedman admitted the conversations and his concern over the situation and for his daughter-in-law and grandchildren. He agreed that Mrs. Friedman had submitted a list to him of her necessary expenses, but denied having made any definite representation or promise. Mrs. Friedman admits that she had never asked her father-in-law to pay her the sum stipulated or any part of it. The important point is that there is nothing in the record to show that Charles Friedman was a party to this outside agreement or knew anything about it. There is no showing of any agency of the father or connection of the appellee with this commitment. That was and is a matter and controversy separate and distinct from that involved in this case.
In the negotiations for the agreement, Mrs. Friedman was represented by a competent and astute lawyer, and also had the benefit of counsel and advice of another attorney of like character. It was not reached suddenly or under impulse, for the negotiations covered several weeks. It appears that all the various factors were considered, including the possibility of inheritance. This is not a case where a helpless woman was alone dealing for herself, or one in which snap action was taken. It is a case in which the party was represented by counsel and the contract was executed after full negotiation and opportunity for investigation of the valuation of the husband's property, and all other elements entering into the transaction. The amount allowed to the wife does not appear to be disproportionate to the value of the husband's estate at the time.
The case is distinguishable from Clark v. Clark,
We think the chancellor's ruling was correct.
The judgment is affirmed. *443