In a reported three judge panel decision issued on June 12, 2020, the Superior Court appears to have made it easier for parties to avoid a contractual agreement on the basis of duress. The case, Lewis v. Lewis is reported as 2020 Pa. Super. 140.
The Pennsylvania standard for duress as a basis for voiding a contract has long been that set forth in Carrier v. William Penn Broadcasting, a 1967 decision by the Supreme Court. 233 A.2d 519. To set aside an agreement a party needed to show restraint or threatened danger sufficient to overcome the mind of a person of “ordinary firmness.” The seminal phrase in that decision was, “There can be no duress where the contracting party is free to consult with counsel.”
The decision in Lewis v. Lewis notes that no spouse has ever achieved that high bar. William Penn was cited in upholding the prenuptials in Simeone v. Simeone, 581 A.2d 167 and in Hamilton v. Hamilton 591 A.2d 720,722 (Pa.S. 1991). In Lugg v. Lugg, another panel held that daily badgering and pressure was insufficient. 64 A.3d 1109, 1113 (Pa.S. 2013). Adams v. Adams, refused to employ a subjective standard that would consider a party’s low self-esteem, alcoholism and attention deficit disorder to set aside an agreement. 848 A.2d 991 (Pa. S. 2004).
Thus, the wall of duress stood fairly high. However, in the Lewis case, here are some of the phrases employed to set aside a property settlement agreement:
- “Wife believed she had to sign the agreement, that she was afraid of husband and the punishments he doled out when she disobeyed him.” (Slip at 15). A common punishment was to force wife to sleep on the porch. This occurred ten times that wife could recall.
- Husband had begun physically abusing [wife] prior to execution of the settlement agreement.
- Husband told Wife that if the agreement was not signed, he would “ensure that she never saw their daughter (roughly age 4) again.” He also threatened to call the police if Wife took their child to a park.
- Husband “exploited” the judicial system by securing a Protection from Abuse Order against her, only to invite her to return and then threaten her with contempt of the PFA Order because she continued to reside with him.
- Husband drained the bank account so Wife had no access to money. While acknowledging that this is not a “danger,” the Court suggests that this financial duress prevented her from escaping to secure legal counsel.
The opinion refers to husband’s “intense and sustained domestic abuse,” although the record indicates that husband had secured an abuse order against wife in 2016. Unfortunately we do not know whether this came through agreement or hearing.
The case indicates that in the weeks preceding the agreement wife was taking medication, which made her nauseous and apathetic. She was under the care of a psychiatrist, but curiously, husband insisted that he attend each appointment. The opinion says wife was “prescribed unnecessary medications,” although there is no reference to what those medications were or how they impacted her aside from nausea and apathy.
Wife claimed she did not know what the medications were because husband kept them under lock and key. At one point, husband suggested wife commit suicide and it appears she made an attempt that resulted in her involuntary commitment. Upon her release, husband presented an agreement and badgered her to sign it. At approximately the same time, wife went back to her psychiatrist, who changed her medications, although wife does not know how because husband dispensed the pills. Following the appointment on January 13, 2017, they drove to a notary where the agreement husband had drafted was acknowledged. They resumed living together until July 2018, a period of 18 months. In July 2018, Wife filed her own abuse case and secured an Order. Then she found an attorney who moved to set the agreement aside.
On the day she signed the agreement husband is quoted as having said, “ If you dare get a lawyer, I’m divorcing you and you will never see your daughter again.” Wife testified that she believed this threat.
The appellate decision opines that wife signed the agreement while facing “impending physical danger” and an explicit threat that she would never see her child again. The Court notes that duress will not lie if one has the opportunity to confer with counsel. It also finds that the impending threat of bodily harm prevented wife from seeking counsel, while acknowledging that the threat “was not explicitly verbalized.”
This is a troubling case in many, many aspects. As you wade through the litany of threats and intimidation, every practitioner can click off cases we have had where these kinds of threats have been employed. This writer can probably recount hundreds of cases where a spouse threatens that the child will never be seen again. But, if those kinds of threats are to become a basis to void agreements, we are going to have an explosion of cases to set aside all kinds of agreements.
At the time this agreement was signed wife was 24. The opinion tells us that the medications her psychiatrist prescribed and her husband administered to her were unnecessary. Wife professes that she never read the agreement and that she was told it was a document related to husband’s employment. Meanwhile, when she expressed reluctance to sign this “employment” document, husband purportedly threatened to divorce her and take their child. Really? The record indicates that the threat of divorce had been in the air for at least five months before the agreement was presented for her signature.
It is also troubling that we have claims that husband did not give her a copy of the agreement until the divorce was filed later in 2017. This writer is troubled by wife’s claim that, despite a relationship, which was abusive from the beginning, she had no “ability” to seek a lawyer’s advice either before or up to eighteen (18) months after signing the agreement.
The delay may be explained by the assertion that the contract wife signed was hidden from her. . But in Sixsmith v. Martsolf, the Supreme Court held that a claim for rescission based on fraud was lost when the victim of fraud did not act to set aside the agreement promptly. 196 A.2d 662 (Pa. 1964). A contract secured by fraud is voidable only at the option of the injured party who must act promptly on the discovery of the fraud, or the right to rescind is waived: Hilliard v. Wood Carving Co., 34 A. 231 (Pa. 1896); Kinter v. Commonwealth Tr. Co., 118 A. 392 (Pa. 1922); McEvoy v. M. Samuels and Sons, Inc., 121 A. 189 ( Pa.1923); and, Peoples Pittsburgh Tr. Co. v. Com., 60 A.2d 53 (Pa. 1948).
Again, hard facts can make for bad law, but a decision that wife was not competent to form a contract immediately after her involuntary commitment would have been a more narrow holding. Here we have a sweeping attack on the psychiatric community for drugging wife at husband’s request, and a declaration, without supporting facts, that husband had “exploited” the judicial system. Pray, what is a common pleas judge to say in response to a litigant who attacks prior judicial orders on the basis that what they represent is not res judicata, but “judicial exploitation?” The judicial dockets are crammed with thousands of cases each year where a party “loses” a child based on abuse or neglect. Does the common but empty threat that a person won’t see their child again vitiate the consent necessary to form an agreement? In this case, the author found no direct threat of immediate bodily harm proximate to the execution of the agreement. That’s been the standard. Unfortunately, the Lewis case opens the door to a dark basement of empty and idle threats and suggests that judges go down there and evaluate all of the events that culminated in the challenged agreement. A lot of agreements are going to be challenged based on this case, and trial courts are going to be looking back to the days when there were firm standards of duress to grab hold of when deciding them.