No. 2023-CA-1189-ME
Bourbon Circuit Court
Opinion by Judge Cetrulo
Date Rendered: August 30, 2024
Prior to the divorce, Husband entered a guilty plea on numerous fraud and money laundering offenses, and the government seized all real and personal property in Husband and Wife’s joint names. Husband and Wife entered into a settlement agreement with the government awarding Wife the marital residence.
Husband signed a separation agreement while incarcerated, which was filed and incorporated into a decree of dissolution. One year following entry of the decree, Husband filed a motion to set aside the decree of dissolution of marriage and the incorporated separation agreement pursuant to 60.02 and CR 17.04. The Family Court, after a hearing, overruled Husband’s motion.
Husband first argued that he mistakenly or inadvertently signed the separation agreement pursuant to CR 60.02(a), and that the verbiage allocating the property, “each party shall receive all property now in his or her own name or possession,” was meaningless because he was incarcerated at the time. The Court of Appeals affirmed the Family Court’s finding that Husband failed to meet his burden by not asserting or submitting any proof that the separation agreement was a result of mistake or inadvertence.
Husband next argued that extraordinary relief was warranted pursuant to CR 60.02(f) because the Family Court failed to appoint a GAL to protect his interests while incarcerated as required by CR 17.04.
The Court of Appeals found that Husband expressly waived his right to legal representation in the separation agreement, which stated “that [he] had been given the opportunity to speak with legal counsel about this matter.” The Court of Appeals further reasoned that, CR 17.04 requires appointment of a GAL if/when a prisoner “fails or is unable to defend an action,” and Husband did not fail to defend as no judgments were entered against him to which he did not contractually agree.
Digested by Emily T. Cecconi