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1997 National Legal Research Group, Inc.

VIRGINIA: Pelfrey v. Pelfrey, 25 Va. App. 239, 487 S.E.2d 281 (1997).

The parties' property settlement agreement was not the product of duress, where the agreement was executed nine months after the wife's suicide threats and at a time when the husband was living with another woman and was not under a doctor's care.

SOUTH CAROLINA: Blejski v. Blejski, ___ S.C. ___, 480 S.E.2d 462 (Ct. App. 1997).

Neither the trial court's remarks from the bench nor alleged pressure by the wife's attorney amounted to duress so as to vitiate the parties' settlement agreement.

VERMONT: Putnam v. Putnam, ___ Vt. ___, 689 A.2d 446 (1996).

The parties' stipulation was properly set aside as the product of duress, where the record showed that the wife feared the husband, that he had abused and threatened her, and that she was mentally exhausted and felt hopeless.

During the emotional roller coaster ride of a divorce proceeding, many spouses feel pressured and panicky during settlement negotiations. But just when does this sense of pressure rise to the level of duress so as to undermine the validity of a settlement agreement? These three cases shed some light on that question.

In Pelfrey v. Pelfrey, the husband claimed in his divorce suit that the parties' property settlement was unenforceable due to duress. He testified that the wife had threatened to kill herself on more than one occasion if he did not sign, and she admitted that she threatened twice to kill herself when the husband told her that he did not love her.

The trial court incorporated the agreement into the parties' divorce decree, and the husband appealed. The Virginia Court of Appeals held that the agreement was not the product of duress so as to render it invalid and unenforceable.

Explaining the governing principles, the appeals court said that duress occurs when one party to a transaction is prevented from exercising free will by reason of threats made by the other. The threatened act must be wrongful to constitute duress, but duress may exist whether or not the threat is sufficient to overcome the mind of a man of ordinary courage. On the other hand, duress is not readily accepted as an excuse, and it must be proven by clear and convincing evidence. A wide range of emotions is an expected and not uncommon byproduct of the dissolution of a marriage. However, when spouses commence divorce proceedings and undertake to divide their property, they have assumed adversarial roles and no longer occupy a position of trust.

Applying these principles, the court held that the agreement was enforceable and not the result of duress. The agreement was executed nine months after the wife's suicide threats, at a time when the husband was living with another woman and was not under a doctor's care. The evidence supported the conclusion that the wife had not engaged in overreaching or oppressive conduct and that the husband simply wanted his freedom, the court decided.

In Blejski v. Blejski, the wife disputed the validity of a settlement agreement which the parties negotiated just before the final hearing in a separate maintenance action. When they informed the trial court that they had agreed to a settlement, the trial judge commented that the wife had no interest in the husband's unvested military retirement benefits, and she then agreed to waive her interest in those benefits. Shortly after the judge approved the agreement and signed an order adopting its terms, the wife sought reconsideration or a new trial, claiming that the agreement was not valid in view of the comments of the judge and her own lawyer's statements during the negotiation process warning her that she might make the judge mad and lose custody of her children if she did not waive her interest in the husband's military retirement pay.

The trial judge granted a new trial, and the husband appealed. The South Carolina Court of Appeals held that as a matter of law neither the family court's comments nor the actions of the wife's attorney constituted duress so as to justify granting a new trial. Regarding the trial judge's comments, the appeals court acknowledged that inappropriate comments from the bench which induce a party to enter into a settlement under duress would warrant the granting of a new trial. A party is under duress if improper external pressure or influence practically destroys his or her free agency and causes him or her to form a contract not of his or her own volition, the court said. Moreover, duress is viewed with a subjective test which looks at the individual characteristics of the person allegedly influenced. On the other hand, duress does not occur if the victim has a reasonable alternative to succumbing and fails to take advantage of it. Extrajudicial settlement of marital litigation is encouraged, and a trial judge's comments merely to encourage settlement are not improper, the court noted.

Even if the trial judge's comments here somehow influenced the wife's decision, that fact alone did not constitute anything close to duress, the court decided. The wife was described by her mental health expert as assertive and independent, and she was represented by counsel and surrounded by family and friends both during the negotiations and when she told the judge she voluntarily assented to the agreement. The trial court did not tell the parties how he would rule on matters involving factual questions and the exercise of discretion; instead, he merely encouraged settlement by stating a dispositive rule of law in effect at the time of the hearing.

The court also rejected the wife's claim that she was subject to duress from her attorney. Even if the lawyer told her that the judge was mad at her and that she should accept the settlement to avoid a chance of losing custody of her children, these statements would not amount to duress so as to make her assent involuntary and require a new trial. The wife had the reasonable alternative of taking her chances with a trial, the court explained. It commented that the attorney had reason to believe that the husband was going to be discharged and lose his retirement benefits before they vested, and he could not be faulted for failing to predict a subsequent change in the law which permitted equitable distribution of unvested retirement benefits.

In Putnam v. Putnam, a wife succeeded in attacking a settlement agreement on the ground of duress. Just two weeks after signing an agreement, the wife hired a new attorney and moved to strike it, arguing that she had entered into the agreement under duress. After a hearing, the trial court found that the wife had signed it under duress, and it set aside the stipulation.

The Vermont Supreme Court held that the evidence was sufficient to support the finding of duress. At the hearing on the motion to set aside the stipulation, the wife testified that she agreed to the stipulation, in which she consented to shared custody of the parties' child, because she feared from past experience that her husband would cause her bodily harm or use the child to punish her if she fought for sole custody. The wife's former attorney testified that the wife feared her husband and that the extent and the degree of the wife's emotional exhaustion were more severe than in most cases.

The court agreed with the husband that parties are often under pressure in contested divorces and that, normally, pressure alone is not sufficient to overturn a court-approved agreement of the parties. But where the normal boundaries of negotiation and compromise are exceeded, a court is justified in refusing to honor the agreement, the court said. The testimony here indicated that the wife feared that the husband would harm her if she took a different position. Prior to the stipulation, he physically abused her on two occasions, emotionally abused her regularly, and threatened her. In addition, the record showed that the wife had become mentally exhausted and hopeless from repeatedly attempting to cooperate with the husband, to no avail. Hence, the totality of the circumstances showed that the wife entered into the final stipulation under duress, and the entire stipulation, including the property division, was properly vacated.

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