Lowrey v. Lowrey, No. 2004-CA-00532-COA.
| Decision Date | 02 August 2005 |
| Docket Number | No. 2004-CA-00532-COA. |
| Citation | 919 So.2d 1112 |
| Parties | Cynthia Nelson LOWREY, Appellant v. Perrin H. LOWREY, Appellee. |
| Court | Mississippi Court of Appeals |
Mark A. Chinn, Jackson, attorney for appellant.
Erik M. Lowrey, Robert R. Marshall, David Alan Pumford, Hattiesburg, attorneys for appellee.
Before BRIDGES, P.J., CHANDLER and ISHEE, JJ.
BRIDGES, P.J., for the Court.
¶ 1. Citing irreconcilable differences, Cynthia and Perrin Lowery severed their marriage pursuant to a final judgment of divorce entered by the Lamar County Chancery Court. Since Cynthia and Perrin submitted a settlement agreement that the chancellor found "adequate and sufficient," the final judgment did not address property division, child custody, child support, or alimony. That is, the final judgment of divorce did not address those issues other than by reference to the settlement agreement. However, Cynthia eventually filed a motion for relief from the chancery court's final judgment of divorce. Following a volley of response motions, the chancellor overruled Cynthia's motion for relief. Aggrieved, Cynthia appeals. Finding error, we reverse the chancellor's decision.
FACTS AND PROCEDURAL HISTORY
¶ 2. Cynthia and Perrin maintained their marriage for nineteen years. During that time, they had three daughters. Cynthia worked as a "stay at home mom" until the girls were old enough to go to school.1 At that point, Cynthia began putting in part-time hours in a flower shop. Beginning innocently enough, Cynthia developed a gambling hobby that evolved into a gambling addiction. Eventually, Cynthia lost her job at the flower shop.
¶ 3. When Cynthia confessed her gambling addiction, the couple experienced difficulty that led them to family counseling, conducted by their church. Although the couple made efforts to reconcile, Perrin gave Cynthia divorce papers while their counselor was out of town. Perrin and Cynthia each signed a joint complaint for divorce, drafted by Perrin's brother, Erik Lowrey. They filed the petition on July 1, 2002.
¶ 4. According to the couple's joint complaint for divorce, Perrin was a fit and proper person to retain custody of the couple's three daughters. The joint complaint also stated that Cynthia understood that Erik Lowrey acted solely as Perrin's attorney. Additionally, by signing the joint complaint, Cynthia acknowledged that Erik had not represented her in any manner and that Erik did not render her any legal assistance.
¶ 5. Erik, on Perrin's behalf, drafted a settlement agreement. On July 3, 2002, Cynthia went to Erik's law office. Since Erik was not in the office, one of Erik's staff informed Cynthia where she was to sign the settlement agreement. According to Cynthia, she signed the settlement agreement without reading it. Perrin signed the agreement on July 10, 2002. The settlement agreement covered child custody, child support, property division, and alimony.
¶ 6. Regarding child custody, the settlement agreement set forth that Perrin received permanent legal and physical custody of the girls. Cynthia received "reasonable visitation rights with the minor children" conditioned on "reasonable time line notice of 48 hours" to Perrin. In addition to the unstated "reasonable visitation rights," Cynthia received "such other and further visitation rights with the minor children as may be reasonable under all relevant circumstances, and which may be agreed upon" by Cynthia and Perrin.
¶ 7. As for child support, the agreement set forth that Cynthia was to pay Perrin child support "by purchasing clothing for the minor children, in the amount to which she can afford." Also, when Cynthia "obtained full time employment, she would put 10% of her gross salary in a college fund in the name of [Perrin], Erin, and Emilie." Perrin agreed to provide insurance on the children, but Cynthia was required to pay one-half of medical expenses not covered by insurance.
¶ 8. Regarding division of property, the agreement stated that Perrin would get the marital home, while assuming all debts regarding the marital home. Perrin kept his 1997 Ford Windstar and Cynthia kept her 1991 Nissan Altima. Perrin retained possession of all "items of household furniture and appliances" located in the marital home. Each party got to keep "their respective personal effects such as jewelry, clothing, sports equipment and other items of a personal nature." As for debts, the parties became jointly responsible for the AT & T debt, otherwise Cynthia became "solely responsible for the payment of all credit card payments from the marriage including but not limited to Capital One, Universal City Bank, National City Bank, McRaes, Sears, and Venture." As mentioned, Perrin became solely responsible for the mortgage debt on the marital home he retained.
¶ 9. As for retirement accounts, the agreement set forth that Perrin and Cynthia "hereby agree and acknowledge that they waive any and all rights that they may have to any and all retirement accounts of the other, including, but not limited to, 401(k) plans, IRA accounts, state retirement accounts and deferred compensation." An additional provision, the agreement stated that Perrin and Cynthia "release and relinquish any and all claims, demands and rights of action of every kind and nature other than those created by this agreement and by said contemplated decree which each might have or hereafter acquire against the other's assets which grow out of or in any way arise from the marital relationship."
¶ 10. On the subject of alimony, the agreement dictated that "[t]he parties hereby both agree and acknowledge that any and all claims which either of them might have to alimony, permanent or temporary, past, present, or future, against the other party are hereby satisfied and extinguished; and they both agree and covenant that they will not sue for any alimony, temporary or permanent, or make any claim of any kind or character upon the other party for alimony or make any claim against any of this property."
¶ 11. On September 3, 2002, the chancellor entered his final judgment of divorce. While there is no indication in the record that Cynthia attended the hearing, or even had notice of the hearing, there is no doubt that neither Cynthia nor her attorney reviewed or signed the final judgment of divorce. The final judgment, drafted by Erik, set forth that the children would remain with Perrin, a "fit and proper person to retain legal custody of said children." Additionally, the final judgment stated that Cynthia and Perrin were entitled to a divorce on the grounds of irreconcilable differences. A further provision in the final judgment stated, "[t]he parties have made adequate and sufficient provisions by written agreement of the settlement of any and all property rights between the parties as well as adequate and sufficient provisions by written agreement for the custody and maintenance of the minor children of the marriage." The chancery court offered no further elaboration on the adequacy or sufficiency of the terms of the settlement agreement.
¶ 12. On March 3, 2003, Cynthia filed a motion for relief from the final judgment of divorce. Cynthia sought relief based on the inequity in the settlement agreement and her claim that she was overreached. On February 27, 2004, the chancellor entered an order and overruled Cynthia's motion for relief from the final judgment of divorce. The chancellor determined that Cynthia was not entitled to relief under Rule 60(b). The chancellor based his decision on his conclusion that overreaching, unlike fraud or misconduct is not mentioned in Rule 60(b). The chancellor could not find a case that defined overreaching or set forth the necessary elements or the burden of proof under the circumstances. The chancellor determined that overreaching is almost always plead alongside an allegation of fraud.
¶ 13. The chancellor set forth the requirements of a demonstration of fraud and found that Cynthia did not argue any of the elements of fraud. The chancellor then concluded that overreaching is somewhat synonymous with fraud and that to succeed on an allegation of overreaching a movant must be prepared to show elements of fraud. Finding that Cynthia did not allege any type of fraud, the chancellor overruled Cynthia's motion for relief. Simultaneously, the chancellor overruled all other requests for relief.
ANALYSIS
I. Did the chancellor err when he denied Cynthia's motion for relief from the final judgment pursuant to Mississippi Rules of Civil Procedure 60(b), which allows relief from a judgment upon a demonstration of misconduct in the form of overreaching by the adverse party?
¶ 14. As mentioned above, the chancellor overruled Cynthia's motion for relief from the judgment of divorce. Cynthia claims that the chancellor's decision amounts to reversible error. According to Cynthia, the chancellor should have granted relief from the final judgment of divorce because M.R.C.P. 60(b) grants relief from a final judgment of divorce when the adverse party engages in misconduct in the form of overreaching.
¶ 15. The chancellor determined that Cynthia was not entitled to relief under M.R.C.P. 60(b) in the form of overreaching. In his order denying Cynthia's motion for relief, the chancellor noted that no Mississippi authority defines "overreaching" within the current context. The chancellor relied on Black's Law Dictionary for his definition of overreaching. The order on Cynthia's motion for relief states that "overreaching is defined as [t]he act or an instance of taking unfair advantage of another, especially by fraudulent means." The chancellor also cited a definition from Barron's Law Dictionary, which defined overreaching as the act of "taking unfair advantage of...
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