Peterson v. Peterson, 1998-CA-01581-SCT.

• Decision Date: 08 February 2001
• Docket Number: No. 1998-CA-01581-SCT.,1998-CA-01581-SCT.
• Citation: 797 So.2d 876
• Parties: Rebecca E. PETERSON v. John H. PETERSON.
• Court: Mississippi Supreme Court

797 So.2d 876

Rebecca E. PETERSON v. John H. PETERSON.

No. 1998-CA-01581-SCT.

Supreme Court of Mississippi.

February 8, 2001.

Alfred L. Feider, McComb, for Appellant.

T. Jackson Lyons, Jackson, for Appellee.

Before BANKS, P.J., SMITH and COBB, JJ.

SMITH, Justice, for the Court:

¶ 1. This case is again on appeal to this Court from a prior remand of the Court. See Peterson v. Peterson, 648 So.2d 54 (Miss.1994)

. The issue then before this Court involved whether a waiver of process and entry of appearance form signed on the same day the divorce was filed, but dated the following day, is simply an irregularity or whether it fails to meet the requirements of M.R.C.P. 4(e). This Court held that the failure to comply was sufficient to warrant a reversal and the divorce was therefore void.

¶ 2. During the remand period however, the Petersons secured a divorce in Louisiana. The parties agreed that the only issue left for the trial court was whether the property settlement agreement should have been set aside after Rebecca E. Peterson (hereinafter "Mrs. Peterson") attempted to withdraw from it. The chancellor upheld the validity of the property settlement. Mrs. Peterson then filed posttrial motions for judgment as a matter of law and for a new trial. These post-trial motions were denied, and Mrs. Peterson appeals to this Court for the second time.

FACTS

¶ 3. Rebecca E. and John H. Peterson were married on November 20, 1967 in Las Vegas, Nevada. There were four children born to their marriage, Cheryl, John, Sharon, and Benajah.

¶ 4. On May 27, 1988, John H. Peterson (hereinafter "Mr. Peterson") filed a complaint for divorce before the Chancery Court of Jefferson County, Mississippi. The alleged ground for divorce was cruel and inhuman treatment. Unusual to this type of divorce complaint, the complaint included a recitation that the parties were submitting an agreement as to child support, child custody, alimony, and property division. This language made the complaint appear to be for irreconcilable differences. For this reason, Mrs. Peterson alleges that she believed she was entering into a no-fault divorce. The same day, May 27, 1988, a property settlement and child custody agreement was filed with the chancery court. The following day, May 28, 1988, a waiver of process and entry of appearance was filed with the court. The final decree of divorce was entered into on May 31, 1988, on the grounds of cruel and inhuman treatment. Three days after the divorce was final, Mrs. Peterson and Mr. Peterson signed and filed an amended property settlement agreement. Approximately seven months later, Mrs. Peterson petitioned the court to set aside that property settlement agreement. Mrs. Peterson claimed that she signed both the property settlement and the child custody agreement under duress, coercion, intimidation, and as a result of certain threats made against her. She also claimed that the property settlement agreement was void due to lack of consideration.

¶ 5. The chancellor, who was originally assigned to this case, recused himself on July 1, 1991, and a special chancellor was appointed. Mr. Peterson moved for summary judgment on September 14, 1992 and the motion was denied. A hearing was held on January 25, 1993. Then, the court signed the judgment on February 4, 1993 which dismissed Mrs. Peterson's motion to set aside a property settlement agreement and other relief sought pursuant to M.R.C.P. 60(b)(6) and 60(b)(4).

¶ 6. Accordingly, Mrs. Peterson filed her notice of appeal on March 11, 1993, in the Chancery Court of Jefferson County, Mississippi. The issue presented to this Court on her first appeal was whether a waiver of process and entry of appearance form signed on the same day the divorce was filed, but dated the following day, was simply an irregularity or whether it failed to meet the requirements of M.R.C.P. 4(e) and serves to void the divorce and property settlement. On November 17, 1994, this Court reversed and remanded the case holding that this failure, along with other irregularities, did warrant a reversal and the divorce was void. A petition for rehearing was then filed on November 30, 1994. This Court modified its original opinion on January 19, 1995 and added that "a party may go beyond the record when attacking a waiver of process and entry of appearance."

¶ 7. During the pendency of the remand, on November 18, 1996, the parties secured a divorce in Louisiana. On May 14, 1997, Mrs. Peterson filed her "Notice by Defendant Rebecca E. Peterson that She Withdraws Her Agreement to Any Property Settlement and/or Child Custody Agreement." Prior to the hearing following remand, the parties agreed that the only issue to be heard was whether the property division agreement should be set aside. The chancellor held that Mrs. Peterson failed to carry the burden of persuasion establishing duress, coercion, and intimidation and upheld the property settlement and child custody agreement.

¶ 8. The chancellor denied Mrs. Peterson's M.R.C.P. Rule 59 Motion for a New Trial, Motion to Alter or Amend Judgment, and Motion for Judgment Notwithstanding the Verdict under M.R.C.P. Rule 50. Aggrieved by the judgment of the Chancery Court of Jefferson County, Mississippi, Mrs. Peterson raises the following issues in her appeal:

I. THE TRIAL COURT ERRED IN NOT SETTING ASIDE THE PROPERTY SETTLEMENT AGREEMENT AFTER THE WIFE ATTEMPTED TO WITHDRAW FROM IT.

II. THE PROPERTY SETTLEMENT AGREEMENT WAS GROSSLY INADEQUATE AND UNCONSCIONABLE.

III. THE PROPERTY SETTLEMENT AGREEMENT IN UNENFORCEABLE BECAUSE IT WAS PROCURED BY DURESS.

IV. THE PROPERTY SETTLEMENT AGREEMENT WAS AN UNCONSCIONABLE CONTRACT AND SHOULD NOT BE ENFORCED IN EQUITY.

STANDARD OF REVIEW

¶ 9. When this Court reviews a chancellor's decision, we will accept the chancellor's findings of fact as long as the evidence in the record reasonably supports those findings. In re Estate of Taylor v. Thompson, 609 So.2d 390, 393 (Miss.1992)

. The findings of a chancellor are upheld unless those findings are clearly erroneous or an erroneous legal standard was applied. Hill v. Southeastern Floor Covering Co., 596 So.2d 874, 877 (Miss.1992). However, where the factual findings of the chancellor are supported by substantial credible evidence, they are insulated from disturbance on appellate review. Jones v. Jones, 532 So.2d 574, 581 (Miss.1988) (citing Norris v. Norris, 498 So.2d 809, 814 (Miss.1986); Carr v. Carr, 480 So.2d 1120, 1122 (Miss.1985)).

I.

¶ 10. When this case first came before this Court, the main issue was whether a waiver and entry of appearance form signed on the same day as the divorce was filed but dated the following day, is simply an irregularity or whether it fails to meet the requirements of M.R.C.P. 4(e). We held that, in accordance with M.R.C.P. 4(e), written waiver of service or entry of appearance must be executed after the day on which the action was commenced and be filed among the papers in the cause and noted on the general docket. Peterson v. Peterson, 648 So.2d 54, 57 (Miss.1994). This Court noted that the one day waiting period was designed to prevent collusion in suit or fraud upon the courts. Id. (citing Cullens v. Cullens, 187 Miss. 731, 193 So. 805, 807 (1940)).

¶ 11. Besides this irregularity, we also noted that the chancellor did not follow the procedural guidelines of Miss.Code Ann. § 93-5-2(4) which requires that a complaint for divorce be on file for sixty days before it can be heard. The chancellor had granted a divorce only four days after the complaint was filed. This was, in effect, a default judgment. This Court previously noted that for all practical purposes the parties appeared to treat the matter as an irreconcilable differences divorce even though nominally it was on based upon fault. In divorces based upon irreconcilable differences, the property settlement must be reviewed by the court to determine whether the agreement is equitable. Miss.Code Ann. § 93-5-2(2). It is noteworthy that the divorce agreement here specifically states that it is effective only upon approval of the court.

¶ 12. More importantly, previously we specifically held that "all matters decided as a result of the divorce decree are null and void and should be brought in another hearing." Peterson, 648 So.2d at 57. This included the property settlement agreement which is the basis for this...