Coble v. Coble

Gardner, Judge: Virginia E. Coble (the wife) on March 15,1985, commenced this action against Robert F. Coble, Jr., (the husband) to enforce a separation contract which was neither merged nor incorporated in the divorce decree of June 29, 1980, and to increase the $300 per month alimony provided by the agreement. By this answer and counter-claim, the husband sought to repudiate the separation contract by asking the court to examine the fairness of the agreement in the light of circumstances existing in 1985. The appealed order refused to increase alimony but enforced the contract with reference to the alimony provided and to an agreement by the husband to maintain a life insurance policy with the wife as beneficiary in the amount of $25,000. The husband appeals. We affirm. The only issue of merit is whether the trial judge erred by determining the fairness of the agreement in light of circumstances existing, in 1985 rather than in 1980. • At the hearing of this cause the husband offered no evidence that there was any facet of the agreement signed in 1980 which was unfair or inequitable to him and he did not testify. A party challenging a separation agreement as unconscionable or unfair has the burden of proof. 24 Am. Jur. (2d) Divorce and Separation Section 836 (1983). Since the husband proffered to no proof in this case, he forfeits his right to contest at this stage the findings of the trial judge and we so hold. Moreover, we have examined the record and find sufficient evidence of the fairness of the agreement in both 1980 and 1985 and affirm the appealed order for this additional reason. For the reasons stated, the appealed order is affirmed. Affirmed. Shaw and Bell, JJ., concur.