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 ...