Metropolitan News-Enterprise


Wednesday, August 16, 2006


Page 1


Court Allows Battered Husband to Void Property Agreement


By a MetNews Staff Writer


A wife’s abuse of her husband—including screaming, hitting and threatening—supports a finding that his written transmutation of his separate property to her was the result of duress and undue influence, the Fourth District Court of Appeal ruled yesterday.

The court affirmed retired Orange Superior Court Judge Gary P. Ryan’s ruling that a written transmutation of Ralph Balcof’s separate property interests to those of his then-wife Kathleen Balcof was unenforceable.

Ryan heard the case on assignment.

Justice Eileen C. Moore, writing for Div. Three, concluded:

“‘Free’ and ‘voluntary’ are not words that appropriately describe [Ralph Balcof’s] actions on the date in question.”

The Balcofs were married in 1988. A prenuptial agreement showed that Ralph Balcof owned property worth several million dollars, including $2 million worth of stock in Bolcof Plastic Materials, Inc., while Kathleen Balcof ‘s assets were minimal.

They had a child in 1990 and another in 1992.

Community Property

In October 1999, the Balcofs signed a writing in which Ralph Balcof stated he was transferring his community property interest in their Laguna Beach residence and 20 percent of his stock in his separate property corporation to Kathleen Balcof as her separate property.

They separated a few months later and Ralph Balcof filed for divorce in January 2000. The court dissolved the marriage as to status only in December 2000 and bifurcated the proceedings concerning the effect of the October 1999 writing.

In a previous appeal, the Fourth District held that the writing was a transmutation of Ralph Balcof’s interests to Kathleen Balcof, but, noting that Ralph Balcof had no opportunity to present his claims that he signed the writing under duress and undue influence, the court remanded the case back to Ryan to determine whether the transmutation was enforceable.

Ralph Balcof testified that from time to time Kathleen Balcof physically struck him, screamed at him, and threatened to divorce him and to disrupt his relationship with their children unless he modified their prenuptial agreement to give her more security.

He testified that on the night he signed the transmutation, she yelled and screamed such threats at him for 45 minutes until he complied with her demand to write what she told him right then and there. He said that he broke down and wrote word-for-word what she dictated to him, that he did not know the legal effect of the words he was writing and did not have an opportunity to discuss their legal effect with counsel.

Physical Abuse

The haranguing and berating continued the entire time he was writing, and continued afterward until he wrote “P.S. I will pay $1000 a day Penlty [sic] iF [sic] this is not done by Dec 1” after their signatures, he said.

Kathleen Balcof contradicted his testimony, but Ryan found his testimony credible and hers not.

On appeal Kathleen Balcof argued that her husband admitted he was not actually afraid for his physical safety on account of her physical abuse of him.

But Moore said:

“The fact that he did not expect to wind up in the hospital the next time she struck him does not, however, mean that her abuse did not have a cumulative and real effect on his mental state.”

Kathleen Balcof argued that any threat to deny Ralph Balcof access to the children could hardly constitute duress since child custody and visitation matters are resolved by the courts. She emphasized that Ralph Balcof, as a successful businessman, had access to lawyers, and should have known better than to be frightened at the suggestion that she somehow could have thwarted his rights to see his children.

Moore disagreed:

“[I]t is not unheard of for one parent to fail to comply with court custody or visitation orders or to engage in efforts to scuttle the relationship between the children and the other parent. As a practical matter, the courts are ill-equipped to undo the damage done by infighting parents.”

Kathleen Balcof’s losing effort to gain part of her husband’s separate property business and his share of their residence came after she was awarded $8,000 per month in spousal support while she lived in the residence, and $12,000 per month after she moved out $6,660 in child support health insurance for her and the children $123,026 in a joint Wells Fargo account $154,745 in a Paine Webber account $141,000 in pre-distributions of community funds a 1996 GMC Suburban half of the miscellaneous personal property, furniture and furnishings acquired during marriage half of the couple’s three Wells Fargo checking accounts half of the $403,177.56 community interest in the Bolcof Plastic Materials, Inc. Profit-Sharing Plan and Trust a Mammoth condominium valued at $403,000 and an equalization payment of $589,114.50.

The case is In re Marriage of Balcof, 06 S.O.S. 4248.


Copyright 2006, Metropolitan News Company