[Cite as Betts v. Betts, 2013-Ohio-1938.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STEPHEN C. BETTS,

        PLAINTIFF-APPELLANT,                              CASE NO. 5-12-33

        v.

JULIE A. BETTS,                                           OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Hancock County Common Pleas Court
                                Domestic Relations
                           Trial Court No. 2009 DR 285

                        Judgment Reversed and Cause Remanded

                               Date of Decision: May 13, 2013




APPEARANCES:

        William E. Clark for Appellant

        Craig M. Witherell for Appellee
Case No. 5-12-33


ROGERS, J.

       {¶1} Plaintiff-Appellant, Stephen Betts (“Stephen”), appeals the judgment

of the Hancock County Court of Common Pleas, Domestic Relations Division,

setting aside an amendment (the “Amendment”) to his Separation and Property

Settlement Agreement (the “Agreement”) with Defendant-Appellee, Julie Betts

(“Julie”). On appeal, Stephen argues that the trial court erred by: (1) not finding

that Julie ratified the terms of the Amendment through her conduct; (2) failing to

restore the parties to their pre-Amendment positions; and (3) finding that the

Amendment was unenforceable since Julie agreed to it while under duress. For

the reasons that follow, we reverse the trial court’s judgment.

       {¶2} This matter stems from the parties’ divorce in December 2009. As

part of the divorce, the parties entered into the Agreement, which was incorporated

into their divorce decree. The Agreement allocated the ownership of five life

insurance policies in which Stephen was the insured life.         Pursuant to the

Agreement, Stephen was required to transfer the ownership of three of the life

insurance policies to Julie, including a Prudential Policy with a death benefit of

$250,000.00 (the “Prudential Policy”). Meanwhile, Stephen was allowed to retain

ownership of the other two policies, including a John Hancock Policy with a death

benefit of $50,000.00 (the “John Hancock Policy”). The policies that remained in

Stephen’s possession listed the couple’s children as the primary beneficiaries

while the policies in Julie’s possession named her as the primary beneficiary. The

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Agreement also included a provision allowing the parties to amend it as long as

any amendment was in writing and signed by both parties.

       {¶3} In December 2011, Julie began to face significant financial

difficulties.   Shortly after the onset of these difficulties, Julie and Stephen

executed the Amendment on February 3, 2012, which amends the Agreement’s

provisions regarding the ownership of the life insurance policies. The Amendment

includes the following relevant sections:

       A. [Julie] shall transfer the ownership of the Prudential [Policy]
       [b]ack to [Stephen].

       B. [Stephen] shall name [his children] as the irrevocable primary
       beneficiary of the first $60,000 of the death benefit of said policy.
       [Julie] shall be named as the irrevocable primary beneficiary of the
       balance of the death benefit of said policy.

       ***

       D. [Stephen] shall pay off the current loans on the [policies]
       wherein [Julie] is named beneficiary within 3 years of this
       Amendment and agrees not to borrow additional funds from any life
       insurance policy which names [Julie] as a beneficiary.

       E. [Stephen] shall immediately transfer the ownership of the John
       Hancock [Policy] to [Julie]. [Stephen] shall pay premiums on said
       policy at the current premium level. [Julie] shall be responsible to
       pay immediately when due all loan repayments and interest
       payments.

       F. [Julie] shall irrevocably name herself as the primary beneficiary
       on said policy * * *. (Plaintiff’s Exhibit “A,” p. 2).

       {¶4} On May 31, 2012, Stephen filed a motion to enforce the Agreement

since Julie failed to comply with her responsibilities under the Amendment. Julie

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responded by filing a motion to set aside the Amendment on the basis that she was

under duress at the time of its execution. On September 7, 2012, the trial court

conducted a hearing regarding the competing motions.

        {¶5} On November 15, 2012, the trial court granted Julie’s motion and set

aside the Amendment on the basis of its finding that Julie was under duress at the

time of the Amendment’s execution. In finding duress, the trial court applied the

following burden of proof:

        To obtain relief from the agreement by way of a duress defense
        [Julie] must prove by the greater weight of the evidence that
        [Stephen’s] conduct wrongfully caused her to do an act she was not
        bound to do and would not otherwise have done. Duress takes into
        consideration the state of health, mental and physical capacity * * *,
        and the [parties’] relationship * * *, and all the facts and
        circumstances in evidence. To find duress the Court must conclude
        [Julie] was wrongfully deprived of her freedom of choice and was
        compelled against her will to sign the agreement. (Internal citations
        omitted.) (Docket No. 72, p. 5).1

        {¶6} Stephen timely appealed from this judgment, presenting the following

assignments of error for our review.

                                 Assignment of Error No. I

        THE TRIAL COURT ERRED BY NOT FINDING THE
        DEFENDANT/APPELLEE, BY HER ACTIONS, RATIFIED
        THE TERMS AND CONDITIONS OF THE FEBRUARY 3,
        2012 AMENDMENT TO THE ORIGINAL SEPARATION
        AND PROPERTY SETTLEMENT AGREEMENT AND IS
        THEREFORE BOUND TO THE TERMS AND CONDITIONS
        OF THE FEBRUARY 3, 2012 AMENDMENT.

1
  The trial court cited the Ohio Jury Instructions (“OJI”) regarding the burden of proof for duress.
However, we note that the sections cited in the trial court’s judgment entry have been amended and
renumbered.

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                            Assignment of Error No. II

       THE TRIAL COURT FAILED TO RESTORE THE PARTIES
       TO THE POSITIONS THEY WERE IN PRIOR TO THE
       EXECUTION OF THE FEBRUARY 3, 2012 AMENDMENT
       TO THE ORIGINAL SEPARATION AND PROPERTY
       SETTLEMENT AGREEMENT DATED DECEMBER 9, 2009.

                           Assignment of Error No. III

       THE TRIAL COURT ERRED IN FINDING THAT THE
       FEBRUARY 3, 2012 AMENDMENT TO THE ORIGINAL
       SEPARATION    AND    PROPERTY    SETTLEMENT
       AGREEMENT WAS UNENFORCEABLE DUE TO IT BEING
       EXECUTED BY DEFENDANT/APPELLEE WHILE UNDER
       DURESS CAUSED BY PLAINTIFF/APPELLANT, WHICH
       WAS SUFFICIENT TO MEET THE GREATER WEIGHT OF
       EVIDENCE BURDEN.

       {¶7} Since we find that the third assignment of error is dispositive to this

appeal, we elect to address the assignments of error out of order.

                            Assignment of Error No. III

       {¶8} In his third assignment of error, Stephen argues that the trial court

erred in setting aside the Amendment on the grounds that Julie was under duress at

the time of its execution. Because the trial court applied an improper burden of

proof, we agree with Stephen.

                                Standard of Review

       {¶9} A trial court’s decision regarding the enforcement of a settlement

agreement is reviewed for an abuse of discretion. Schneider v. Schneider, 110


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Ohio App.3d 487, 491 (11th Dist. 1996). A trial court will be found to have

abused its discretion when its decision is contrary to law, unreasonable, not

supported by the evidence, or grossly unsound. See State v. Boles, 2d Dist. No.

23037, 2010-Ohio-278, ¶ 17-18. When applying the abuse of discretion standard,

a reviewing court may not simply substitute its judgment for that of the trial court.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

                                       Duress

       {¶10} Under Ohio law, a property settlement agreement incorporated into a

divorce decree is subject to the precepts of contract law. Troha v. Troha, 105

Ohio App.3d 327, 333 (2d Dist. 1995). To establish that a contract is void as the

product of duress, a party must show “(1) that one side involuntarily accepted the

terms of another; (2) that circumstances permitted no other alternative; and (3) that

said circumstances were the result of coercive acts of the opposite party.” Gabel

v. Gabel, 3d Dist. No. 9-04-13, 2004-Ohio-4292, ¶ 19, quoting Blodgett v.

Blodgett, 49 Ohio St.3d 243, 246 (1990). The Supreme Court of Ohio further

outlined the scope of duress in Tallmadge v. Robinson, 158 Ohio St. 333 (1952),

as follows:

       The courts * * * seek to determine whether the threats were such as
       to have overcome the will of the person threatened and to have
       created a state of mind such that he was induced to do an act which
       he would not otherwise have done and which he was not bound to
       do. The real and ultimate fact to be determined in every case is
       whether the party affected really had a choice; whether he had his
       freedom of exercising his will. Id. at 340.

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       {¶11} In performing this analysis, courts are instructed to consider “the age,

* * * health, and mental condition of the person affected, the relationship of the

parties and all the surrounding circumstances * * *.” Id. at paragraph two of the

syllabus. While the above circumstances are relevant, “mere regret at an unwise

decision does not establish duress, coercion, fraud or overreaching.” Fletcher v.

Fletcher, 68 Ohio St.3d 464, 470 (1994); see also Murray v. Murray, 6th Dist. No.

L-09-1305, 2011-Ohio-1546, ¶ 26 (stating that “[d]issatisfaction with or general

remorse about signing a[n agreement] do[es] not * * * constitute ‘duress’”).

Additionally, “[i]t is not enough to show that one assented merely because of

difficult circumstances that are not the fault of the other party.”        (Emphasis

added.) Blodgett at syllabus; see also Gallaher Drug Co. v. Robinson, 13 Ohio

Misc. 216, 218 (M.C. 1965) (“The fear of some impending peril or financial

injury, or the mere fact that one acts with reluctance or that a person is in a mental

state of perturbation at the time of any act is not sufficient ground for holding that

the act was done under duress.”).

                             Burden of Proof for Duress

       {¶12} Under Ohio law, written instruments generally receive special,

favored status. See Galmish v. Cicchini, 90 Ohio St.3d 22, 27 (2000) (stating that

the purpose of the parol evidence rule is to “ensure the stability, predictability, and

enforceability of finalized written instruments”); 11 Williston on Contracts,


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Section 33:4, at 541-48 (4th Ed.1999) (stating that written instruments have

historically received “legal preference, if not the talismanic legal primacy”). In

light of this favored status, Ohio courts have typically required clear and

convincing evidence to set aside a written instrument. E.g., Sloan v. Standard Oil

Co., 177 Ohio St. 149 (1964), paragraph one of the syllabus (requiring that party

seeking rescission of a release prove mutual mistake by clear and convincing

evidence); Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph two of the

syllabus (requiring that party seeking to rescind contract on the basis of fraudulent

misrepresentation must carry burden by clear and convincing evidence); Gartell v.

Gartell, 181 Ohio App.3d 311, 2009-Ohio-1042, ¶ 30 (5th Dist.) (“The burden of

proving unilateral mistake is on the party seeking rescission and must be met by

clear and convincing evidence.”); Takis, L.L.C. v. C.D. Morelock Properties, Inc.,

180 Ohio App.3d 243, 2008-Ohio-6676, ¶ 29 (10th Dist.) (stating that “the party

must prove the fraud by clear and convincing evidence”); Escott v. Timken Co.,

153 Ohio App.3d 529, 2003-Ohio-3370, ¶ 11 (5th Dist.) (“It is well established

that a party seeking to void a contract on grounds of incapacity has the burden of

proof by clear and convincing evidence.”). This common trend has been similarly

observed in actions involving the enforceability of separation agreements. E.g., In

re Sertz v. Sertz, 11th Dist. No. 2011-L-063, 2012-Ohio-2120, ¶ 39 (reviewing

whether party seeking to set aside separation agreement on the basis of fraud



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carried her burden by clear and convincing evidence). We have previously

summarized this common trend as follows:

      Ohio courts have not undertaken to lay down any general rule for the
      determination of the issues or matters that must be proved by “clear
      and convincing” evidence. This requirement seems for the most part
      to be confined to cases wherein the claim made, or the defense
      asserted, is contrary to the natural and reasonable inference,
      especially where a claim is made to defeat or modify the plain
      provisions of a written instrument. (Internal quotation omitted.)
      Appeal of Single County Ditch No. 1537, 46 Ohio App.3d 4, 5 (3d
      Dist. 1988).

      {¶13} When considering matters in which a party seeks to set aside an

agreement on the basis of duress, Ohio courts have adopted divergent views

regarding the appropriate burden of proof. For instance, in ComDoc v. Advance

Print Copy Ship Ctr., 9th Dist. No. 24212, 2009-Ohio-2998, the Ninth District

merely required that a party claiming duress prove its existence by a

preponderance of the evidence. Id. at ¶ 23. The court’s reasoning stemmed from

its recognition that duress is listed as an affirmative defense in Civ.R. 8(C), and

that the general burden of proof for affirmative defenses is preponderance of the

evidence. Id. Other courts have followed the common trend discussed above and

required proof by clear and convincing evidence. E.g., DiPietro v. DiPietro, 10

Ohio App.3d 44 (10th Dist. 1983), paragraph one of the syllabus (“In order for a

party to show that he was incompetent at the time he entered into a separation

agreement, he must prove, by clear and convincing evidence, that the separation

agreement was executed while he was * * * under * * * duress.”); see also

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Dubinsky v. Dubinsky, 8th Dist. Nos. 66439, 66440 (Mar. 9, 1995) (same). We

agree with those courts that follow the common trend.

       {¶14} The Ohio Supreme Court has not clearly weighed in on the

appropriate burden of proof for a showing of duress. However, it did hint in

Standard Sanitary Mfg. Co. v. George, 118 Ohio St. 564 (1928), that it requires a

party to prove duress by clear and convincing evidence. There, the court reversed

the appellate court’s finding that the defendant was under duress at the time of the

contract’s execution because she “failed to sustain any degree of burden of proof *

* *.” Id. at 573. In its original opinion, the court stated the duress could not “have

been established by even a preponderance of the evidence, much less by clear and

convincing evidence * * *.”       Id. at 569. On rehearing, the court considered

additional facts placed into the record and reached the same result, noting that the

new evidence, combined with the original record, did not “amount to clear and

convincing proof” that duress existed. Id. at 575. Based on the court’s amended

opinion after rehearing, it manifestly signaled that clear and convincing evidence

is required to sustain a finding of duress. See also Estate of Cowling v. Estate of

Cowling, 109 Ohio St.3d 276, 2006-Ohio-2418, ¶ 23 (requiring clear and

convincing evidence to justify imposition of constructive trust, which can only be

granted where there is a showing of fraud, duress, other unconscionable conduct).




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Absent any contrary indication by the court, we are compelled to follow its

guidance in Standard Sanitary and not the Ninth District’s view in ComDoc.2

         {¶15} Our precedent bolsters our conclusion here that clear and convincing

evidence is required to set aside a contract on the basis of duress. In Matter of

Adoption of Fleming, 3d Dist. No. 6-94-11 (Jan. 5, 1995), we addressed a situation

in which a parent alleged that she signed a written consent to adoption under

duress.     There, we found that the parent “was required to offer ‘clear and

convincing’ evidence” of her alleged duress. Id. Due to the similarities between a

written consent to adoption and a contract, we believe that our precedent requires

the same finding here.

         {¶16} Based on the Supreme Court’s guidance, the courts’ typical treatment

of defenses seeking to entirely avoid contractual obligations, and our own

precedent, we find that a party seeking to set aside a contract must show duress by

clear and convincing evidence. Here, the trial court merely required that Julie

show the existence of duress by a preponderance of the evidence. The application

of such a burden of proof was contrary to law and amounted to an abuse of

discretion. As such, we reverse the trial court’s judgment and remand this matter

2
  The Ninth District’s opinion in ComDoc relied on the Ohio Supreme Court’s decision in Ohio Loan &
Disc. Co. v. Tyarks, 173 Ohio St. 564 (1962). However, a review of Ohio Loan reveals that the Court
merely placed the burden of proving an affirmative defense on the party that asserts it. Id. at 568. There is
no indication that the Court sought to require proof of all affirmative defenses merely by a preponderance.
Further, we note that the Ninth District has also required clear and convincing evidence for a finding of
duress in at least one pre-ComDoc case. E.g., Pakeeree v. Pakeeree, 9th Dist. No. 15186 (Mar. 11, 1992)
(“In order to prove that she was incompetent to contract at the time she entered into the Separation
Agreement, Wife was required to prove, by clear and convincing evidence, that she was mentally
incompetent or under the influence of fraud, undue influence, or duress.”).

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for the trial court to properly apply the clear and convincing evidence standard to

the evidence adduced in this matter.

       {¶17} Accordingly, we sustain Stephen’s third assignment of error.

                         Assignments of Error Nos. I & II

       {¶18} Our resolution of the third assignment renders the first and second

assignments of error moot and we decline to address them.              See App.R.

12(A)(1)(c).

       {¶19} Having found error prejudicial to Stephen, in the particulars assigned

and argued in the third assignment of error, we reverse the trial court’s judgment

and remand this matter for further proceedings consistent with this opinion.

                                                            Judgment Reversed and
                                                                 Cause Remanded
WILLAMOWSKI and **YARBROUGH, J.J., concur.

/jlr

** JUDGE STEPHEN YARBROUGH sitting by assignment from the Sixth
District Court of Appeals




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