Collins v. Collins

         DATE OF JUDGMENT: 08/26/2013.

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         COURT 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.

         FOR APPELLANT: DAVID NEIL MCCARTY, OLIVER E. DIAZ JR.

         FOR APPELLEE: WILLIAM R. WRIGHT, AMANDA JANE PROCTOR, SARAH ANN ELLIS.

         BEFORE 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.

          OPINION

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          NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

         FAIR, J.:

         [¶1] 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. We affirm.

         FACTS

         [¶2] 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.

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          A similar provision stated that Kenneth " likewise" relinquished his rights to Leta's assets.

         [¶3] 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 of divorce.

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.

         [¶4] 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 record.

         [¶5] 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 ...