Bornaschella v. Orcutt, 53303
| Decision Date | 04 August 1982 |
| Docket Number | No. 53303,53303 |
| Citation | 418 So.2d 768 |
| Parties | Minnie Lee Thedford Orcutt BORNASCHELLA v. Eddie James ORCUTT. |
| Court | Mississippi Supreme Court |
James W. Nobles, Jr., Jackson, for appellant.
Riley, Pintard & Hall, P. A., Natchez, for appellee.
Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
Minnie Lee Thedford Orcutt Bornaschella appeals from a decree of the Chancery Court of Claiborne County adjudicating former decrees of that court, as well as a property settlement and agreement between Mrs. Bornaschella and her former husband precedent to one of the decrees, invalid.
This is the only issue we address on this appeal, and finding the chancellor to have erred in this adjudication, we reverse.
Minnie Lee Thedford Orcutt filed suit for divorce, alimony, child support and property division against her husband Eddie James Orcutt in the Chancery Court of Claiborne County on May 18, 1978. Four children had been born of their marriage, but their eldest child, a daughter, had married. Mr. Orcutt did not contest the action, nor employ counsel, and upon personal service of process she obtained a final decree of divorce at a regular term of court on July 19, 1978.
The late Fred C. Berger was chancellor. The decree granted her a divorce from her husband on the grounds of habitual cruel and inhuman treatment, awarded her custody of their three youngest children (with right of reasonable visitation in Mr. Orcutt), temporary support and maintenance, and other relief.
The final paragraph of the decree stated:
That the matters of permanent alimony, permanent child support and all questions concerning permanent rights and division of properties, etc. between the parties raised in the Bill of Complaint are set to be heard by this Court at 9:30 A.M. on the 23rd day of August, 1978, at the Court House in Port Gibson, Mississippi.
Shortly thereafter, Judge Berger died, and a property settlement and support agreement was presented in chambers to Chancellor Ben Chase Callon. This decree, dated August 14, 1978, recites the rendition of the divorce decree, and the fact that such decree reserved the matters of permanent alimony, permanent child support and all questions concerning permanent rights and division of properties for a later hearing on a day in August. This decree then states:
In all matters through this August 14, 1978, decree, Mrs. Orcutt was represented by Jake L. Abraham, an attorney in Port Gibson. According to Mr. Abraham, it was the desire of the parties that the actual agreement between the parties not be attached to the decree or incorporated therein. Mr. Abraham also informed Mr. Orcutt during this period that he should obtain his own counsel, but he declined to do so. The agreement between the parties was negotiated between the parties themselves, with Mrs. Orcutt telling Mr. Abraham what her husband would agree to. A final agreement between them was signed and dated August 10, 1978. It was this agreement which Mr. Abraham presented to the chancellor.
The parties' agreement of August 10, 1978, headed "PROPERTY SETTLEMENT AND SUPPORT AGREEMENT, ETC." set out the division and respective rights of the two of them in their considerable real and personal properties. The agreement further provided that as support for Mrs. Orcutt and the minor children, she would receive the interest on certain investments and as additional support he would pay her one-third of his salary, or if self-employed, one-third of his net income.
Mrs. Orcutt filed a petition in the same cause June 1, 1979, setting out the property settlement and support agreement, the decree of July 19, 1978, granting her a divorce, and the decree of August 14, 1978, approving the agreement, and attached copies of all documents, including the agreement, as exhibits to the petition. Her petition then recited the failure of Mr. Orcutt to abide by the August 14, 1978, decree and their agreement, and that he should be held in contempt of court. She also prayed for a partition of realty and other relief.
Mrs. Orcutt in this petition was then represented by V. Douglas Gunter of Jackson. Mr. Orcutt employed Mark W. Prewitt of Vicksburg as his counsel, and filed an answer to the petition on July 12, 1979. His answer admitted the agreement reached between the parties and the two court decrees. He denied some of the other allegations of the petition, and claimed homestead exemption on certain property she sought to partite.
Prior to any hearing on this petition and answer, the parties again effected a compromise settlement of their affairs. On July 31, 1979, they executed a supplemental agreement entitled "PROPERTY SETTLEMENT AND SUPPORT AGREEMENT," which was presented to Chancery Judge Frank Walden, who rendered a decree on July 31, 1979. This decree recited that the court had jurisdiction of the parties and the subject matter. The court approved the property settlement and agreement "and modification of former decree of this Court," finding that the agreement was satisfactory. The final paragraph recited the adoption and acceptance by the court of this settlement as a "full, final and complete settlement of all property rights of the parties hereto."
Judge Walden was also the presiding chancellor at all subsequent proceedings.
On May 21, 1980, Mr. Orcutt in the same cause filed a sworn petition to modify the July 31, 1979, decree and for other relief. Mr. Prewitt was his solicitor. This petition alleged the remarriage of Mrs. Orcutt, who will be referred to hereafter as Mrs. Bornaschella, and that he was entitled to a refund on alimony payments. The petition was also filed to obtain additional relief in reference to some of their personal property.
Mrs. Bornaschella filed an answer to the petition and a cross-bill on July 5, 1980. Mr. Orcutt filed an answer to the cross-bill.
On August 5, 1980, Mr. Prewitt filed a motion to withdraw as Mr. Orcutt's counsel, following which Orcutt was represented by legal counsel from Natchez.
On October 21, 1980, counsel for Mr. Orcutt filed a motion to amend his petition. On December 12, 1980, Mr. Orcutt filed a "Petition for Leave of Court to File a Bill of Review and/or a Bill in the Nature of a Bill of Review and/or a Petition Requesting other Relief." This petition charged that the divorce decree and other decrees were entered through mistake and fraud on the part of his former wife. The thrust of this petition was that his former wife had been guilty of adulterous relations while they were married, and that he should be relieved from the decrees and all agreements he had entered into.
This petition alleged that he had no knowledge of her adulterous activities, that "he diligently attempted to obtain information regarding her activities but, however, he could not."
Mrs. Bornaschella answered this petition, and also filed general and special demurrers. The special demurrer set out the statute of limitations. These demurrers were overruled and, on January 6, 1981, the chancellor entered a decree authorizing Mr. Orcutt to file his bill.
On January 22, 1981, Mr. Orcutt filed a "Bill of Review or a Bill in the Nature of a Bill of Review and/or a Bill of Review Requesting other Relief." This bill set forth the same allegations in support of relief as the petition for authority to file it, namely: he should be relieved of the former decrees of divorce and other relief and the agreements because of her fraud. Her fraud allegedly consisted of having been an adulterous wife, which he did not know about, and which he could not by due diligence discover prior to all these decrees and agreements having been entered into.
Mrs. Bornaschella answered the bill, pleaded the statute of limitations, estoppel, and raised other defenses. Other motions and orders were filed, but we find them unnecessary to detail for purposes of this opinion.
The bill came on for hearing before the chancellor on February 10, 1981, and at this hearing for the first time, counsel for Mr. Orcutt made a motion ore tenus to amend the bill to conform to the proof to show the decree of August 14, 1978 was void because the matter was heard in vacation on a date different from the time set by decree rendered July 19, 1978, in term time of the Chancery Court of Claiborne County.
The chancellor sustained this motion. Following this he ruled that the divorce decree was valid, but that the chancellor had no jurisdiction to enter the decree of August 14, 1978, because it was not the time specified in the divorce decree rendered at the regular term of court.
Following the hearing, the chancellor rendered an opinion that the bill of review was not sustained by sufficient proof. He further was of the opinion that the August 14, 1978, decree was void because the chancellor lacked jurisdiction to render it on that date. Finally, he found that the subsequent agreement between the parties of July 31, 1979, and his decree rendered on July 31, 1979, were likewise subject to being vitiated and set aside because of the "mistake" on the part of Mr. Orcutt in not knowing the August 14, 1978 decree was "void" when he executed the agreement of July 31, 1979, and the approval of which his attorney and Mrs. Bornaschella's attorney secured by decree of the court on the same...
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Merchants Nat. Bank, Vicksburg v. Stewart, 57392
...here concerned may be altered by agreement of the parties. See Norris v. Norris, 498 So.2d 809, 811 (Miss.1986); cf. Bornaschella v. Orcutt, 418 So.2d 768, 774 (Miss.1982). Beyond that, there is no denying that there are circumstances where one party to a consent decree may be estopped from......