May 5, 2015
LETA D. COLLINS, APPELLANT
KENNETH J. COLLINS, APPELLEE
FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT. TRIAL
JUDGE: HON. CYNTHIA L. BREWER. TRIAL COURT DISPOSITION: RULE
60(B) MOTION TO MODIFY FINAL JUDGMENT OF DIVORCE DISMISSED.
APPELLANT: DAVID NEIL MCCARTY, OLIVER E. DIAZ JR.
APPELLEE: WILLIAM R. WRIGHT, AMANDA JANE PROCTOR, SARAH ANN
LEE, C.J., ISHEE AND FAIR, JJ. LEE, C.J., GRIFFIS, P.J.,
BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - DOMESTIC
A year and four months after Leta and Kenneth Collins were
divorced, Leta moved to modify the final judgment of divorce
based on Kenneth's alleged failure to disclose over
$500,000 in assets. She also sought a modification based on
the lack of Uniform Chancery Court Rule 8.05 financial
disclosures and their divorce attorney's dual
representation during the divorce proceedings. The chancellor
found Leta's claims unfounded and dismissed the motion.
Leta and Kenneth were married in 1998. In January 2011, they
filed a joint complaint for divorce based on irreconcilable
differences. During the divorce proceedings, Kenneth and Leta
were represented by attorney M. Chadwick Smith. The joint
complaint states " [t]he parties together have been
represented by M. Chadwick Smith," and the complaint was
signed by Smith as " Attorney for Leta D. Collins and
Kenneth J. Collins." An agreed " Child Custody and
Property Settlement Agreement" (PSA) was prepared by
Leta and initialed by both parties on each page. The PSA set
out the division of marital property and provisions for child
custody. Relevant to this appeal, it stated that Leta
waives, relinquishes, gives up and transfers to [Kenneth] any
and all interests she might have in and to any assets held by
[Kenneth] in his name and/or for his exclusive benefit, and
to any and all investments or accounts of any kind existing
in their names jointly, including, but not necessarily
limited to, business interests, inheritance or real property,
savings accounts, checking accounts, certificates of
deposits, pension/profit sharing accounts, investment
accounts and any other retirement related or investment
related accounts, as well as all spousal benefit and/or
survivorship rights in and to said assets and accounts.
similar provision stated that Kenneth " likewise"
relinquished his rights to Leta's assets.
The PSA went on to state that the parties had disclosed all
material information to each other, and, if they had not,
this would be a basis for modification of the final judgment
The [parties] represent that they have disclosed to each
other all information regarding assets and liabilities owned
by either party or jointly by the parties prior to the
execution of this Agreement to the best of their knowledge
and belief. Neither party has withheld any information
whatsoever regarding the assets or liabilities of the
parties. The parties agree that, should either party withhold
material information regarding the existence of assets,
liabilities or other matters relating to the financial
condition of the parties, such failure to disclose shall
constitute a material change in circumstances regarding the
assets and liabilities of the parties, and that information
withheld shall be the subject of re-negotiation of this
Agreement and/or the basis for a modification of final
judgment of divorce.
The PSA was incorporated into the final judgment of divorce,
which was granted on June 10, 2011. The chancellor found the
PSA " contain[ed] adequate and sufficient provisions for
the settlement of all property rights existing between the
parties[.]" Although the parties initially waived the
Rule 8.05 disclosures, these were later completed and
reviewed by the chancellor, but were not made part of the
On November 1, 2012, a year and four months after the divorce
was final, Leta filed a motion to modify the final judgment
of divorce. Leta later filed an amended petition, which added
motions for temporary relief and a temporary restraining
order, asking for attorney's fees and seeking to enjoin
Kenneth from dissipating assets.
Leta argued that after the divorce, " it became readily
apparent that there was a gross discrepancy in the
[parties'] lifestyles," with Leta having to rely on
food stamps and incur debt to pay expenses, while Kenneth
maintained a comfortable lifestyle. Leta hired an attorney to
investigate the discrepancy. She found that Kenneth had a
total of $536,526 between an investment fund and a retirement
fund. Leta argued she was unaware of these assets because the
couple's attorney, Smith, failed to disclose them to her.
Leta also asserted that Kenneth had prevented access to the
couple's financial information during the marriage,
leaving her with no idea how much money Kenneth had or what
was subject to equitable distribution in the divorce. Kenneth
admitted that he had controlled the finances during the
marriage and that a friend of his handled the family's
investments. Leta had a credit card, which Kenneth had paid
off each month. Because of this, Leta argued the PSA should
be modified as a matter of equity. Alternatively, she argued
that the PSA was void because there was no evidence that the
parties had completed the required Rule 8.05 disclosures or
that Leta had waived her right to receive the disclosure.
The chancery court held a hearing on Leta's motion. After
she put on her case-in-chief, Kenneth moved to dismiss
Leta's claims under Mississippi Rule of Civil Procedure
41(b). The chancellor granted the motion, finding Leta had
failed to prove her case. We conclude that, given the high
burden on Leta and the deference owed to the chancellor's
factual findings, this judgment cannot be disturbed on
Leta's motion to modify the divorce decree falls under
Mississippi Rule of Civil Procedure 60(b). Rule 60(b) allows
for the modification of a final judgment if the relief sought
is based on one of six enumerated reasons:
(1) fraud, misrepresentation, or other misconduct of an
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
A six-month time-bar applies to reasons (1)-(3), while
motions brought under (4)-6) must be filed within "
within a reasonable time." Id. Rule 60(b)(6)
" is a catch all provision to allow relief when equity
demands." Townsend v. Townsend, 859 So.2d 370,
375 (¶ 16) (Miss. 2003) (citation omitted). Motions
brought under Rule 60(b)(6) cannot be based on one of the
first five enumerated reasons. Trim v. Trim, 33
So.3d 471, 475 (¶ 7) (Miss. 2010). Rather, Rule 60(b)(6)
motions are meant for " exceptional and compelling
circumstances, such as for fraud upon the court."
Id. " Relief based on 'fraud on the
court' is reserved for only the most egregious
misconduct, and requires a showing of 'an unconscionable
plan or scheme which is designed to improperly influence the
court in its decision.'" Id. at 477 (¶
15) (quoting Wilson v. Johns-Manville Sales Corp.,
873 F.2d 869, 872 (5th Cir. 1989)). Fraud on the court
carries " no limitation of time restricting the court
from affording a remedy." Id. at 473 (¶
" The decision to modify a prior order under Rule 60(b)
is a matter within the trial court's sound
discretion." Id. at 475 (¶ 7).
The chancellor dismissed the case after finding that Leta
" failed to put on her case in chief" as to the
allegations in her amended complaint. An involuntary
dismissal under Mississippi Rule of Civil Procedure 41(b) is
proper, in a bench trial, when " the plaintiff has shown
no right to relief." " In considering a motion to
dismiss, the judge should consider the evidence fairly, as
distinguished from in the light most favorable to the
plaintiff, and the judge should dismiss the case if it would
find for the defendant." Stewart v. Merchs.
Nat'l Bank, 700 So.2d 255, 259 (Miss. 1997)
(citation and internal quotation marks omitted). A trial
court's grant or denial of a Rule 41(b) motion for
involuntary dismissal is reviewed for substantial
evidence/manifest error. Crowell v. Butts, 153 So.3d
684, 687 (¶ 6) (Miss. 2014).
Leta asserts that the following issues warrant reversal of
the chancellor's decision: (1) the terms of the PSA
provided for modification if inequity resulted from either
party's failure to disclose relevant information; (2) the
PSA is void due to the absence of Rule 8.05 financial
statements or a waiver; and (3) the couple's attorney
engaged in prohibited dual representation.
Terms of the PSA
Leta contends that the PSA was a valid, enforceable contract
that expressly allows modification of the divorce decree if
either party failed to disclose " material information
regarding the existence of assets." Leta alleges that
failed to disclose over $500,000 in assets and thus that she
is entitled to relief under this provision of the PSA.
Leta is correct that the PSA is a valid contract and should
generally be enforced as such. Trim, 33 So.3d at 478
(¶ 18). But while Leta cites to the PSA provision
prohibiting the " withhold[ing of] material
information," she does not really allege that Kenneth
withheld information. The closest she comes is her claim that
she was not " allowed" access to financial
documents during the marriage. Leta's real argument is
that she just did not know about Kenneth's investments.
She testified that she had no knowledge of the couple's
finances or what was subject to equitable distribution in the
divorce because Kenneth handled all the finances during the
marriage, and she was not provided with a Rule 8.05
statement. She also argues her lack of knowledge was
compounded by the fact that she and Kenneth were represented
by the same divorce attorney, and the attorney failed to
inform her of the additional assets.
Leta's lack of knowledge does not equate to a finding
that information was withheld from her or that fraud was
committed on the court. Leta admitted that prior to the
divorce, the couple " filled [a financial statement] out
together." Kenneth's Rule 8.05 statement clearly
lists a 401(k) valued at $420,000 and investments valued at
$116,526 (of which approximately $64,000 comprised college
savings accounts for the couple's children). Leta
admitted she did not look at Kenneth's Rule 8.05
statement, despite knowing that he had completed one. And
while she testified she " wasn't allowed"
access to the couple's financial documents, there seems
to be no question that the information was available to her.
Leta went on to testify that the documents were in binders in
the couple's shared closet in their home. She admitted
she could have looked at the binders at any time -- but never
did. Leta and Kenneth also filed a joint tax return each year
during the marriage. On occasion, their tax return was
prepared by Leta's sister. Leta admitted she signed, but
never read, the returns.
As to Leta's claim under Rule 60(b)(6), relief under that
rule is reserved for " exceptional and compelling
circumstances, such as fraud upon the court."
Trim, 33 So.3d at 475 (¶ 7). Thus, we must
examine whether Leta has raised any exceptional circumstances
In Craft v. Craft, 478 So.2d 258, 262 (Miss. 1985),
the wife moved to modify the couple's divorce decree over
three years after the divorce, arguing her husband had "
withheld from her information about his financial condition,
deprived her of independent advice, and perpetrated a fraud
upon her so as to invalidate the original agreement."
The Mississippi Supreme Court found that the wife's lack
of knowledge of her husband's financial situation did not
render the PSA void, when the information was available to
her, but she chose not to review it. Id. at 263.
Like in Craft, no evidence was presented that
Kenneth withheld information regarding his assets. Rather,
Leta failed to review the information that was available to
her. We cannot find the chancellor erred in finding Leta
showed no exceptional circumstance warranting relief under
Rule 60(b)(6). Instead, we find that Leta's allegations
fall squarely under Rule 60(b)(1) and (3) -- " fraud,
misrepresentation, or other misconduct" and " newly
discovered evidence." These claims carry a six-month
time limitation. Leta's motion for modification was filed
a year and four months after the final judgment of divorce.
Her claims are time-barred, as well as without merit.
Rule 8.05 Financial Disclosures
Leta alternatively argues that the PSA is void because no
Rule 8.05 statements, or waiver thereof, were made part of
the record. She argues this Court should remand the case for
equitable distribution of the property for this reason.
Uniform Chancery Court Rule 8.05 states:
Unless excused by Order of the Court for good cause shown,
each party in every domestic case involving economic issues
and/or property division shall provide the opposite party or
counsel, if known, the following disclosures:
(a) A detailed written statement of actual income and
expenses and assets and liabilities, such statement to be
on the forms attached hereto as Exhibit " A,"
copies of the preceding year's Federal and State Income
Tax returns, in full form as filed, or copies of W-2s if
the return has not yet been filed; and, a general statement
of the providing party describing employment history and
earnings from the inception of the marriage or from the
date of divorce, whichever is applicable . . . .
. . . .
When offered in a trial or a conference, the party offering
the disclosure statement shall provide a copy of the
disclosure statement to the Court, the witness[,] and
. . . .
The failure to observe this rule, without just cause, shall
constitute contempt of Court for which the Court shall impose
appropriate sanctions and penalties.
Again, to prevail on her Rule 60(b)(6) motion, Leta must show
exceptional circumstances warranting relief. An exceptional
circumstance was found in Trim for the husband's
violation of Rule 8.05. Trim, 33 So.3d at 478
(¶ 17). In Trim, like here, the wife moved to
modify the divorce decree under Rule 60(b)(6) based on her
husband's misrepresentation of assets. Id. at
472 (¶ 1). The wife and husband had filed Rule 8.05
statements, but the husband " drastically undervalued a
major marital asset." Id. at 478 (¶ 17).
The sole issue on appeal was " whether the chancellor
had authority to modify a final judgment of divorce upon a
finding that one party fraudulently had misrepresented the
value of an asset in the party's . . . Rule 8.05
financial disclosure statement." Id. at 474
(¶ 6). The supreme court found that the husband's
" intentional filing of a substantially false Rule 8.05
financial disclosure statement" was fraud on the court.
Id. at 473 (¶ 3). Because fraud on the court is
an exceptional circumstance warranting relief under Rule
60(b), it was within the chancellor's authority to modify
the final judgment of divorce. Id. at 478 (¶
Unlike the wife in Trim, Leta does not argue that
Kenneth committed fraud on the court by falsifying his 8.05
statement. Kenneth's statement clearly lists the $536,526
in assets Leta says she was unaware of. Leta also does not
argue Kenneth's failure to file his Rule 8.05 statement
constituted fraud on the court. This assertion would lead to
a finding that Leta also committed fraud, as her disclosure
went unfiled as well. It is undisputed that although neither
party filed a Rule 8.05 disclosure with the chancery court,
both parties completed the required disclosures and submitted
them to their attorney, which is what Rule 8.05 requires.
Further, at the modification hearing, the chancellor recalled
the following regarding the couple's disclosure
statements: " [T]he [c]ourt required the parties to come
back and give 8.05's because I would not waive 8.05's
when I had a baby involved between
these parties. The [c]ourt required Mr. Chad Smith to seek
the 8.05's from the parties. I recall it very
Leta has not alleged fraud on the court; rather she argues
that the failure to file Rule 8.05 statements alone is
sufficient cause for remand. There is no basis in law for her
claim. The parties drafted and entered into a PSA, which was
incorporated as part of the final judgment of divorce, and
the statements were completed. " An agreement made
between the parties should ordinarily be enforced, and the
court should take a dim view of efforts to modify or reform
the parties' settlement agreement." McFarland v.
McFarland, 105 So.3d 1111, 1119 (¶ 23) (Miss.
2013). This issue is without merit.
Leta argues that the marital property was not equitably
distributed because she and Kenneth were represented by the
same attorney during the divorce. She alleges that her lack
of independent advice and counsel led her to sign the unfair
The joint complaint for divorce states " [t]he parties
together have been represented by M. Chadwick Smith,"
and it was signed by Smith as " attorney for" both
parties. Leta testified she and Kenneth believed they were
represented by the same attorney. Leta argues this was a
direct violation of Mississippi Rule of Professional Conduct
1.7(a), which prohibits representation of " a client if
the representation of that client will be directly adverse to
another client," unless certain conditions are met.
The chancellor addressed this issue in her findings from the
bench, stating that
when Mr. Chadwick Smith came in with his document, the final
decree, I inquired of him who he represented because the
divorce had the words that Ms. Collins'[s] counsel very
ably draws to attention, that he represented both. And he
stated, " I only prepared the paperwork, Judge.
That's what it says on there, 'Prepared
by.'" Only after the assurances of Mr. Chad Smith
did I accept the parties' divorce, and I signed the same
on the 8th day of June 2011. Thus the allegations that Ms.
Collins seeks to present that Mr. Collins committed a fraud
on this court are fundamentally vested against Mr. Chad
Leta testified that she was the one who had actually prepared
the PSA, based on her prior divorce papers, with some
contributions from Kenneth. Kenneth likewise testified that
Smith did not make any decisions for them. As the chancellor
found, if Smith violated the Rules of Professional Conduct by
engaging in dual representation, it was not a sufficient
basis to modify the divorce decree. This issue is without
THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND
MAXWELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J.,
CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.