Grier v. Grier, 90-CA-1039
| Decision Date | 01 April 1993 |
| Docket Number | No. 90-CA-1039,90-CA-1039 |
| Citation | 616 So.2d 337 |
| Parties | Sharon P. GRIER v. Michael H. GRIER. |
| Court | Mississippi Supreme Court |
The decision of the Chancellor in this case was originally affirmed per curiam, on August 26, 1992. However, on petition for rehearing, this Court was made aware that there exists among members of the bar practicing in this area, a perception of uncertainty in the law regarding the issue discussed below. Accordingly, the per curiam affirmance of August 26, 1992 is withdrawn and the following opinion issues in its stead.
This case presents the important question of whether a property settlement agreement which was entered into by both parties in contemplation of severing their marriage by filing a joint complaint for divorce on the grounds of irreconcilable differences ("no-fault") under Miss.Code Ann. Sec. 93-5-2 (Supp.1992) can be attached and enforced in an action other than irreconcilable differences.
As we interpret this section, in the absence of an effective contractual provision to the contrary, all agreements in contemplation of no-fault divorce are voided when, for some reason, the irreconcilable differences proceeding fails and a party seeks a divorce on other grounds. In this case, the Chancellor declined to incorporate a prior property settlement, negotiated in anticipation of a no-fault divorce, into his decree granting a divorce for adultery. We affirm.
On May 7, 1990, Sharon and Michael Grier filed a joint complaint, No. 26,680, for divorce based upon irreconcilable differences. In connection with this complaint, they also executed and filed an Agreement Concerning Child Custody, Child Support and Property Rights. Thereafter, before any action was taken by the lower court, Sharon filed a separate and distinct complaint, No. 26,809, on July 19, 1990, seeking divorce on the grounds of adultery. At the hearing on the second complaint, Sharon sought to have the property settlement agreement which was attached to the joint complaint for divorce based on irreconcilable differences enforced under the second complaint for divorce based on adultery. The divorce was granted but the Chancellor declined to enforce the property settlement agreement that was signed and negotiated in contemplation of the joint complaint for divorce based upon irreconcilable differences, stating:
The issue this Court faces is whether or not that contract is valid and should be enforced in these proceedings.... The Court is not going to enforce the contract. The Court finds that the contract was entered into in obvious contemplation of a no-fault divorce proceeding. The statute is clear that either party, while such an action is pending, may withdraw his or her consent to that proceeding. Technically, ... neither party withdrew consent. It is obvious to the Court by the filing of [the adultery complaint] by Mrs. Grier, that the joint action had broken down and was not to be pursued. The Statute on No-fault Divorce 93-5-2 reads in part: No divorce shall be granted on the ground of irreconcilable differences unless the Court shall find the parties provided by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties, and the Court finds that such provisions are adequate and sufficient. The Court notes that such an agreement to be enforceable must be approved by the Court. That agreement had not yet been approved by the Court, and even though Mrs. Grier sought it's [sic] approval and enforcement in this proceeding the Court believes the provisions meriting no-fault divorce must control in this situation. If that were not the case then an agreement when entered would be enforceable regardless.
(emphasis added).
Sharon Grier appealed the judgment below and this Court affirmed per curiam. Now, on petition for rehearing, this opinion issues to clarify the rule of law applicable to facts such as these.
The only issue presented is the effect of the property settlement agreement entered into in connection with the irreconcilable differences complaint in the later, and separate, action for divorce on the grounds of adultery. The answer can be found in our statute on irreconcilable differences divorce and the cases applying it.
The statute governing no-fault divorce provides, in pertinent part:
(2) If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.
* * * * * *
... The failure or refusal of either party to agree as to adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between the parties, or any portion of such issues, or the failure or refusal of any party to consent to permit the court to decide such issues shall not be used as evidence, or in any manner, against such party.
* * * * * *
Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; ...
Miss.Code Ann. Sec. 93-5-2 (Supp.1992).
The statute's intent is to provide a less painful alternative to the traditional grounds for divorce which required the parties to publicly put on proof of sensitive private matters. Instead, under Sec. 93-5-2, where the parties are agreeable, they may forego the aforementioned discomfort. The statute contemplates the simple filing of a complaint and various agreements as a "package deal." The cornerstone of the process is mutual consent. The parties bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial. It would be fundamentally unfair to hold either of the parties to portions of the package after the foundation of the bargain is removed.
For the foregoing reason, our prior cases have held that such agreements do not have force of law unless and until they are approved by the chancellor. For instance, in McCleave v. McCleave, 491 So.2d 522 (Miss.1986), this Court upheld a chancellor's refusal to incorporate a prior custody agreement into a subsequent divorce decree. In McCleave, the parties entered into a child custody agreement in connection with their pending action for divorce on the grounds of irreconcilable differences. A few days later, Mr. McCleave learned that he had cause to pursue a divorce on other grounds. After a hearing, the chancellor granted the divorce on other grounds and awarded custody of the child to Mr. McCleave, notwithstanding the previous agreement between the parties to the contrary.
It would have been better procedure if the appellee had objected specifically to and withdrawn the prior suit. However, the filing of the second complaint, inconsistent with the first complaint grounded on irreconcilable differences, was an effective withdrawal from and objection to the first complaint.
McCleave, at 523 (emphasis added).
The filing of the second complaint terminated not only the no-fault proceeding, but also any obligations under the agreement negotiated in anticipation of the no-fault divorce.
Although a properly drafted agreement may be binding vis-a-vis the parties, the chancellor may elect, in his discretion, to modify its terms in a divorce decree. Miss. Const. art. IV, Sec. 94. This is sometimes necessary to protect the parties individually and to ensure that the court is not used as a tool for implementing unconscionable contracts which are not fair to either party. Furthermore, all such agreements are subject to the court's approval. As the Chancellor held in the case sub judice:
The Court notes that such an agreement to be enforceable must be approved by the Court. That agreement had not yet been approved by the Court, and even though Mrs. Grier sought it's approval and enforcement in this proceeding the Court believes the provisions meriting no-fault divorce must control in this situation. If that were not the case then an agreement when entered would be enforceable regardless. The Court in this case is distinguishing this agreement on that basis. The no-fault divorce proceeding was not pursued by at least one side or one side wished to withdraw.
Additional support for our decision may be found in Traub v. Johnson, 536 So.2d 25 (Miss.1988). In Traub, the parties signed a property settlement agreement in November in contemplation of an irreconcilable differences divorce. Then, in December, one party presented the other with documents conveying additional property, which were duly executed. The chancellor never saw or approved the December agreements. In a later declaratory action, the chancellor ruled that the additional assignments and conveyances executed in December were not a part of the written agreement submitted to the chancery court and that, therefore, the December agreement was not enforceable. We affirmed, stating that:
The Sullivan opinion clearly states that a prior agreement entered into by the parties is not enforceable if it is not approved by the Court.
Traub, 536 So.2d 25, 26 (citing Sullivan v. Pouncey, 469 So.2d 1233 (Miss.1985)).
The Sullivan case cited in Traub also supports the principle that settlement agreements are not final unless approved by the court. The facts in Sullivan were slightly different in that the parties submitted one contract to the court while privately intending to be bound by another. In a later action to enforce the private agreement, the chancellor determined, based on general contract...
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