Sturgeon v. Sturgeon

325 S.W.2d 336, 1959 Ky. LEXIS 57

• Court: Court of Appeals of Kentucky
• Decided: June 19, 1959
• Status: Published

Opinion

BIRD, Judge.

The original judgment in this case granted an absolute divorce to appellee. Questions of custody and property were resolved by written agreement which was incorporated in the judgment. No appeal was taken.

In this action appellant demands that the custody and property provisions of the judgment be vacated because of appellee’s alleged fraud and duress in procuring the agreement.

The case was referred to a commissioner who heard the proof and made his report to the chancellor. He found that the agreement was procured by fraud and duress and so reported his findings.

Exceptions were filed to the report of the commissioner. Hearing was had on the exceptions by the chancellor who reviewed all of the testimony upon which the commissioner made his findings. In addition thereto he recalled the parties and witnesses for further testimony. The chancellor sustained the exceptions, reversed the commissioner and denied the motion to vacate the judgment. From that decision comes this appeal.

The chancellor found as a matter of fact that there was no fraud or duress as claimed by appellant. Upon this finding he made his decision.

The record discloses sufficient evidence to sustain the chancellor’s findings of fact. We will not disturb the chancellor’s findings of fact unless such findings are clearly erroneous. Murphy v. Torstrick, Ky., 309 S.W.2d 767; Taylor v. Newman, Ky., 318 S.W.2d 407. Such is not the case here and the judgment is therefore affirmed.