Terwilliger v. Terwilliger

64 S.W.3d 816, 2002 WL 63572

• Court: Kentucky Supreme Court
• Decided: February 11, 2002
• Docket: 1999-SC-1064-DG
• Status: Published

Opinions

STUMBO, Justice.

In October 1993, Thomas Terwilliger, filed a Petition for Dissolution of Marriage, seeking to end his seventeen-year marriage to Judith Terwilliger, the Appellant herein. Mr. Terwilliger drafted a marital settlement agreement providing for custody, visitation, and support of the couple’s two minor children, as well as division of the couple’s marital property and debts. The parties then signed this agreement, both acting pro se, at Mr. Terwilliger’s urging.

The Terwilligers owned several closely-held corporations which were subject to division as marital property. Mr. Terwilli-ger represented to Mrs. Terwilliger that those corporations were experiencing financial difficulties, and particularly that TransAmeriea Cable d/b/a Mid-America Cable (“MAC”) was nearly bankrupt, overdrawing at the rate of $100,000.00 per day. Based upon Appellee’s representations, and his assertion that she needed to act quickly or risk losing her home to creditors, Mrs. Terwilliger agreed to accept the following as her portion of the marital property settlement: the marital home, valued at $67,000.00 and subject to a $51,000.00 mortgage; a Hyundai automobile valued at $1,800.00; some $2,550.00 in other cash and/or assets; unencumbered stock equaling 10% of the companies owned by the couple, which Mr. Terwilli-ger valued at $11,000.00; and some $6,000.00 in credit card debt. Mr. Terwil-liger was to receive 90% of the stock of the corporations, which he valued at $100,000.00, as well as the corporate debt; a houseboat on which he was residing; a 1989 Hyundai automobile valued at $3,000.00; and a computer. Within two weeks of the signing of the settlement agreement and before the divorce decree was entered, Mr. Terwilliger was representing to a potential buyer that MAC was worth 1.7 million dollars.

The final decree of dissolution was entered on January 6, 1994, incorporating by reference the marital settlement agreement signed by Mr. and Mrs. Terwilliger. Less than one month after the divorce decree was entered, Mr. Terwilliger entered an agreement to sell MAC, for approximately 1.6 million dollars, to be paid in stock and cash. On December 8, 1994, Mrs. Terwilliger moved to reopen the decree of dissolution and modify the settlement agreement pursuant to CR 60.02 and KRS 403.250. Specifically, she argued that the property division that she had agreed to in the settlement was procured through fraud, misrepresentation, lack of full disclosure, and overreaching on the part of Mr. Terwilliger.

Appellant’s motion to reopen the decree was granted. On December 8, 1997, after holding a hearing, the family court modified the property division, awarding Mrs. Terwilliger $384,166.50 (equaling one-half of the profits realized from the sale of MAC, less monies that she had previously received from the sale, and setting aside $200,000.00 to Mr. Terwilliger as separate, non-marital property, invested by him in the business).

Mr. Terwilliger appealed the modification to the Court of Appeals, arguing, among other things, that his actions did not constitute a “fraud affecting the proceedings” as contemplated by CR 60.02(d) and thus that the reopening was improper. The Court of Appeals noted the family court’s finding that Appellee had (1) convinced his wife to proceed without counsel, (2) that he had prepared the settlement agreement, and (3) that he had convinced his wife that the corporations were near bankruptcy and that she needed to sign the settlement agreement in order to prevent the possibility of losing her home to creditors. However, citing Rasnick v. Rasnick, Ky.App., 982 S.W.2d 218 (1998), the court held that, while disturbing, Ap-pellee’s conduct did not constitute “fraud affecting the proceeding” within the meaning of CR 60.02(d), and, therefore, the reopening was improper. On this basis, the Court of Appeals reversed the family court’s order modifying the property settlement. Mrs. Terwilliger now appeals to this Court.

In Rasnick v. Rasnick, Ky.App., 982 S.W.2d 218 (1998), Mr. and Mrs. Rasnick, in contemplation of divorce, met with both an attorney and an accountant to discuss the consequences to their prior financial planning of their impending divorce. The accountant informed the court that he had reviewed with the couple, in detail, their financial interests, holdings, partnerships and approximate net worth. During the meeting with legal counsel, Mr. Rasnick left the room specifically to allow Mrs. Rasnick to consult freely with the attorney. Additionally, the Rasnick’s had filed joint tax returns, fully disclosing their annual income over the three years preceding them divorce, and Mrs. Rasnick admitted that she had seen and signed those forms. Subsequent to the divorce, Mrs. Rasnick moved to reopen the property settlement and child support provisions of the agreement on the basis of, among other things, CR 60.02(d), “fraud affecting the proceedings.” Her contention was that she had been led to believe that the parties’ net worth was far less than it really was and that she was fraudulently induced into giving up a disproportionate share of the parties’ accumulated property.

The Court in Rasnick held that nondisclosure of assets in a divorce proceeding does not constitute “fraud affecting the proceedings” within the meaning of CR 60.02(d). The Rasnick decision draws a distinction between fraud intrinsic to the proceedings, such as perjury or nondisclosure during pretrial discovery which causes injury to a single litigant, and “extrinsic” fraud, which, the Court held, constitutes “fraud affecting the proceedings.” In reexamining the Rasnick decision, which relies primarily upon decisions from other jurisdictions, this Court finds that the definition of “fraud affecting the proceeding” utilized by the Court in Rasnick is an overly restrictive conception of CR 60.02(d). It is the finding of this Court that fraud on a party is, in fact, “fraud affecting the proceedings.” As Appellant notes, by filing a settlement agreement with knowingly undervalued marital assets, Mr. Terwilliger used the proceedings as a tool to defraud his wife.

Whatever popularity the distinction between intrinsic and extrinsic fraud may have enjoyed in the past, the judicial tide is turning against the distinction in favor of equity. According to the leading authority on the Kentucky Rules of Civil Procedure,

As a general proposition [fraud affecting the proceedings] relates to what is denominated ‘extrinsic’ fraud. This covers fraudulent conduct outside of the trial which is practiced upon the court, or upon the defeated party, in such a manner that he is prevented from appearing or presenting fully and fairly his side of the case.

The distinction between extrinsic and intrinsic fraud has been widely criticized and has been rejected by more recent [federal] decisions.

7 Kurt A. Philipps, Jr., Kentucky Practice, CR 60.02, emt. 6 (5th Ed.1995). Our rule, however, does distinguish between fraud affecting the proceedings as discussed herein, and the presentation of perjury or falsified evidence, which is clearly a fraud upon the court. This distinction is important because the latter can be raised only “not more than one year after the judgement,” CR 60.02, while the former must be “made within a reasonable time.” Thus, it appears that fraud perpetrated in the courtroom or through testimony under oath is subject to a one-year limitation while fraud occurring outside the courtroom that interferes with presentation of the losing party’s evidence to the extent that he or she is “prevented from appearing or presenting fully and fairly his side of the case” is not subject to that limitation. 7 Kurt A. Philipps, Jr., Kentucky Practice, CR 60.02, cmt. 6 (5th Ed.1995). Philipps goes on to say: “It may be said the language specifying [fraud upon the proceeding] is quite broad and allows for flexibility in the determination of what constitutes ‘fraud affecting the proceedings’ where the net effect would cause an unjust judgment to stand.” Id. While finality of judgment is a laudable goal, it cannot take precedence over the fair and equitable resolution of disputes.

In Burke v. Sexton, Ky.App., 814 S.W.2d 290 (1991), Mr. Burke’s attorney drafted a marital settlement agreement, which Mrs. Burke signed without benefit of counsel. The agreement gave Mr. Burke essentially all of the couple’s assets, and relieved him of any child support or maintenance obligations. Mrs. Burke received a vehicle, custody of the couple’s minor child, and waived notice of further proceedings. After signing the agreement, Mr. Burke led his wife to believe that he was no longer pursuing a divorce, thus the divorce and property settlement became final without Mrs. Burke’s knowledge. Mrs. Burke subsequently brought suit to reopen the settlement, which motion was granted and the settlement was found to be unconscionable. On appeal by Mr. Burke, the Court of Appeals found this sort of situation to fall under CR 60.02(d) as a “fraud affecting the proceedings.” Burke does not differ significantly from the case at bar. While in both cases a fraud was perpetrated against a party to the dispute, the ultimate result was a fraud against the court. Both in the case at bar, and as noted by the court in Burke, allowing the original decree to stand would be a miscarriage of justice. Id. at 292.

In McMurry v. McMurry, Ky.App., 957 S.W.2d 731 (1997), Mrs. McMurry’s CR 60.02(d) motion to reopen was found to have been properly denied by the trial court. Mrs. McMurry alleged that she had relied to her detriment upon her husband’s misrepresentations concerning the true value of the couple’s marital assets. The court, however, denied the motion to reopen because Mrs. McMurry failed to show that her husband had attempted to or had concealed or misrepresented any information concerning the couple’s finances. Implicitly, had such evidence been produced, Mrs. McMurry would have been entitled to a reopening of the settlement agreement pursuant to CR 60.02(d). Mrs. Terwilliger has produced evidence of fraud by her husband, and the trial court found that evidence persuasive.

Mrs. Terwilliger also appeals the decision by the trial court to set aside $200,000.00 of the proceeds from the sale of MAC as the separate property of Mr. Terwilliger. Mr. Terwilliger asserted that he had invested his own separate funds, originating from the settlement of a lawsuit in Michigan, which arose prior to the marriage. In support of this contention, Mr. Terwilliger submitted a note issued by MAC to himself for $200,000.00. However, the note was created in March or April of 1994, and backdated to September 1988, which was prior to the settlement from which he claims the $200,000.00 arose. He also submitted a copy of the release of the Michigan claim, which indicates that the claim was settled for $275,000.00, payable to Mr. Terwilhger and a Mr. Tera, but does not specify the amount of money going to each payee. Finally, Mr. Terwilli-ger admitted that he had failed to produce a canceled check or deposit slip for $200,000.00, but submitted a canceled check payable to MAC in the amount of $75,000.00, and another document evidencing a $75,000.00 payment to MAC, which he claims to have been part of the $200,000.00 investment of his separate funds into the corporation. Mrs. Terwilli-ger stated that she had not been aware of a $200,000.00 settlement and testified that Mr. Terwilliger had specifically told her that his part of the settlement of the Michigan claim was $30,000.00, and that Mr. Tera was getting the bulk of the settlement proceeds. In response, Mr. Terwilli-ger testified that in 1988, as part of the Michigan settlement, he had received checks for $35,000.00 and $200,000.00. He did not recall if he had told Judith about the $200,000.00, in part because he was precluded from disclosing the terms of the settlement, but he assumed that they had discussed it in private.

The presumption in Kentucky is that all property acquired during the course of the marriage is marital property, unless the property can be shown to have originated in one of the excepted ways outlined in KRS 403.190(2). A party claiming that property acquired during the marriage is other than marital property, bears the burden of proof. KRS 403.190(3), Brosick v. Brosick, Ky.App., 974 S.W.2d 498 (1998). While the word does not appear in the statute, judicial construction of KRS 403.190 has given rise to the concept of “tracing.” Chenault v. Chenault, Ky., 799 S.W.2d 575 (1990). In Chenault, this Court recognized that tracing to a mathematical certainty is not always possible, noting that: “While such precise requirements for nonmarital asset-tracing may be appropriate for skilled business persons who maintain comprehensive records of their financial affairs, such may not be appropriate for persons of lesser business skill or persons who are imprecise in their record-keeping abilities.” Id. at 578.

In Chenault, this Court rejected the trial court’s finding that Ruby Chenault had failed to adequately trace her non-marital assets into assets held at the time of divorce. The facts in Chenault, however, differ dramatically from the facts in this case. Ruby Chenault came to her marriage with a home worth $14,000.00, cash and securities worth $21,000.00, and some additional inherited stock. Over the course of the Chenault’s fifteen (15) year marriage, both parties worked at low paying jobs. It was Ruby’s testimony that she had purchased CDs and otherwise reinvested her separate property, though she was unable to provide documentary evidence. In holding that Ruby had sufficiently traced her separate property into assets held at the time of divorce, this Court noted Ruby’s own testimony, as well as the fact that there was no other possible source of the funds at issue, since both spouses had held low paying jobs throughout the marriage. In the case of the Terwilligers, Tom was an experienced business person, juggling the assets and liabilities of a number of corporations and orchestrating complex business deals. As such, he would be expected and/or required to keep detailed and accurate records, and it is certainly reasonable to require him to maintain and to produce records to establish his claims of nonmarital property being injected into the business, beyond backdated notes and unexplained deposit slips for varying amounts. Mr. Terwilliger is clearly a skilled business person with extensive record keeping experience. As such, it does not appear that he is the sort of person that the Court sought to protect in Chenault from excessively stringent tracing requirements. Additionally, while the Chenaults had no other likely source for the funds claimed by Ruby Chenault as nonmarital, Tom Terwilliger had money flowing in and out of his various corporations from any number of sources. Based upon the trial court’s finding of fraud by Mr. Terwilliger, it appears that Mr. Ter-williger was not found to be a credible witness. Thus, the setting aside of the $200,000.00 to Mr. Terwilliger appears to be the result of a misconception by the trial court of the tracing requirements, rather than a finding that Tom Terwilli-ger was more credible than Judith Ter-williger in their conflicting testimony over the origin of the $200,000.00. Thus, the trial court erred in setting aside the $200,000.00 as Mr. Terwilliger’s separate property based upon the evidence presented. While Chenault recognized the potential difficulties of tracing and sought to relax the draconian requirements laid down in prior ease law, it did not do away with the tracing requirements altogether.

In sum, the trial court’s reopening of the settlement agreement herein was proper under CR 60.092(d). We affirm as to the division of the profits from the sale of MAC. However, we remand to the trial court to reconsider the issue of whether the claimed nonmarital share is sufficiently established.

This case is reversed and remanded to the trial court for action consistent with this opinion.

COOPER, GRAVES, JOHNSTONE, and WINTERSHEIMER, JJ., concur. KELLER, J., concurs in part and dissents in part, by separate opinion, with LAMBERT, C.J., joining that opinion.