OF JUDGMENT: 06/10/2016
COUNTY CHANCERY COURT, HON. J. DEWAYNE THOMAS, TRIAL JUDGE:
ATTORNEYS FOR APPELLANT: WILLIAM ABRAM ORLANSKY, SUSAN LATHAM
ATTORNEYS FOR APPELLEE: LINDSEY C. MEADOR DANNA ALBERT
The husband in this case divorced his wife and entered into a
property-settlement agreement that strongly favored his wife
and child. The chancellor approved and adopted the agreement
and incorporated it as part of the final divorce judgment.
After abiding by the judgment's terms for two years, the
husband asked the court to set it aside or modify it. As
grounds, he alleged duress and his wife's supposed
coercive misconduct in their negotiating of what he now deems
an unconscionable settlement. The chancellor denied the
husband's request, finding he simply had waited too long
to challenge the judgment. We agree.
¶2. When a party to a previously entered settlement
agreement incorporated into a divorce judgment seeks to set
it aside based on an adverse party's alleged misconduct,
Mississippi Rule of Civil Procedure 60(b)(1) mandates he or
she do so within six months. And the husband's attempt to
escape the agreement was filed more than two years too late.
To the extent he sought relief from the already-entered
judgment for some reason other than his wife's supposed
misconduct, the chancellor found his request was not filed
within a "reasonable time" under Rule 60(b)(6).
We find the chancellor properly applied the law. And his
decisions about the tardiness of Carl Smith's motion and
his alternative finding that the agreement was not
unconscionable are substantially supported. Because the
chancellor did not abuse his discretion, we
Facts and Procedural History
Carl Smith and Lisa Doe divorced in February
2010. The divorce decree incorporated a
property-settlement agreement that was very favorable to
Lisa. Carl acknowledged the lopsided nature of the settlement
agreement. He understood he was assuming more debt and higher
alimony and child-support payments than ordinarily required.
signed agreement memorializes this understanding and why Carl
was amenable to it. One of the very first provisions in the
settlement agreement says:
WHEREAS, Husband recognizes and acknowledges
that the provisions . . . and obligations undertaken by him
regarding [child support], as well as the division of marital
property and debt and the obligation undertaken by him to pay
alimony, are . . . more burdensome upon him for alimony and
child support and division of marital property and debt than
a court would ordinarily impose. Nevertheless, Husband is
both willing to limit and restrict his rights . . . and
expand his obligations regarding child support, alimony, and
division of marital property and debt as contained in this
agreement . . . These limitations and restrictions of rights
and expansion of obligations are based, in part, by both
Husband and Wife's mutual understanding of the unique
difficulties in which Husband's behavior has placed the
family unit . . . .
"unique difficulties" on the family stemmed from
Carl's salacious interactions and extramarital affairs
with known and anonymous same-sex partners, lying about how
he had contracted HIV, and allegations of his pedophilic
activities. Because of his tremendous guilt and shame
for the devastation he caused his family, Carl was amenable
to the heightened obligations. He abided by the February 17,
2010 judgment, making all payments for more than two and a
half years. But in October 2012, he tried to back out of it.
Carl filed a complaint to set aside, or alternatively modify,
the settlement agreement. He did not claim a material change
in circumstances or lack of financial ability to abide by the
agreement. Rather, for the first time, he urged the agreement
was the product of coercion and duress and was procedurally
and substantively unconscionable. He suggested his wife had
strongarmed him, threatening to disclose his affairs,
disease, and alleged malfeasance if he did not sign the
agreement. And he signed the agreement under duress, facing
"financial ruin, humiliation, loss of his medical
license, criminal prosecution, and loss of contact" with
his daughter. Carl also claims Lisa would not permit him to
have an attorney review the agreement's terms.
Lisa disagreed with much of Carl's version. She admits
she was angry and behaved harshly toward Carl after she had
unearthed much of his hidden second life and illicit
activities. But she maintained his coercion and duress
allegations are not only false but are undermined by his
express acknowledgments in the property-settlement agreement.
The chancellor granted Carl a hearing on his motion. And
after five days of testimony and argument, he held Carl's
attempt to set aside the settlement agreement was untimely
under both Rule 60(b)(1) and 60(b)(6). He also found that,
even if Carl's request had been prompt, the agreement was
not unconscionable. Carl has now appealed to this
Court. On appeal, he argues the chancellor erred
by (1) not finding his complaint timely and (2) not finding
the settlement agreement substantively and procedurally
¶8. We review the grant or denial of a Rule 60(b) motion
for abuse of discretion. Finch v. Finch,
137 So.3d 227, 232 (Miss. 2014) (citing Stringfellow v.
Stringfellow, 451 So.2d 219, 221 (Miss. 1984)). When
reviewing a decision for abuse of discretion, "we ask
first if the court below applied the correct legal
standard." Burkett v. Burkett, 537 So.2d 443,
446 (Miss. 1989) (citing Detroit Marine Eng'g v.
McRee, 510 So.2d 462, 467 (Miss.1987); Croenne v.
Irby, 492 So.2d 1291, 1293 (Miss.1986)). "If so, we
then consider whether the decision was one of those several
reasonable ones which could have been made."
Carl argues he signed the settlement agreement only because
Lisa threatened to reveal his affairs and inappropriate
behavior and activities. He insists Lisa's coercive
misconduct and the agreement's favoring of Lisa warrant
setting it aside.
"Rule 60(b)(1) deals with relief from judgment obtained
by fraud, misrepresentation, or other misconduct of the
adverse party." Stringfellow, 451 So.2d at
221 (emphasis added). To obtain Rule 60(b)(1) relief from a
final judgment, motion "shall be made . . . not more
than six months after the judgment, order, or proceeding
was entered or taken." M.R.C.P. 60(b)(1) (emphasis
The chancellor recognized the obvious roadblock Carl faced.
Rule 60(b)(1) affords relief from a judgment based on an
adverse party's misconduct-such as overreaching, threats,
and coercion-only if the complaining party seeks relief
within six months from the judgment's entry. And here,
Carl was well aware of Lisa's supposed misconduct when he
entered the settlement agreement. Yet he waited more than
two-and-a-half years after the divorce decree and
property-settlement agreement were final to try to back out.
Because Rule 60(b)(1) requires misconduct-based challenges be
filed within six months, the chancellor correctly refused to
set aside the property-settlement-agreement portion of the
Carl next argues that, in addition to Rule 60(b)(1)'s
"misconduct" route, Rule 60(b)(6) gave the
chancellor another avenue to set aside the settlement
Carl is correct that Rule 60(b)(6) empowers chancellors to
set aside judgments based on "any other reason
justifying relief from the judgment." M.R.C.P.
60(b)(6). And unlike Rule 60(b)(1), this particular provision
contains no specified time period within which a party must
file a motion for relief from judgment. Id. Rather,
Rule 60(b)(6) says that such motions "shall be made
within a reasonable time." Id. What qualifies
as "[a] reasonable time is determined on a case-by-case
basis, turning on the facts in each individual case."
Cucos, Inc. v. McDaniel, 938 So.2d 238, 245 (Miss.
2006) (citing M.A.S. v. Miss. Dep't of Human
Servs., 842 So.2d 527, 530 (Miss. 2003)). The two
factors within the chancellor's discretionary call are
"whether the party opposing the motion has suffered
prejudice from the delay and whether the movant can show
cause for failure to act sooner." Id. at 246
(citing M.A.S., 842 So.2d at 530); see also
Briney v. U.S. Fid. & Guar. Co., 714 So.2d 962, 967
The chancellor carefully considered both factors when
assessing the evidence from the five-day hearing. As the
chancellor saw it, there was "no evidence of good cause
in [Carl's] delay to challenge the Agreement." And
to grant relief from the previously entered judgment "at
this late date would cause actual prejudice to [Lisa]."
The chancellor pointed out that Carl "made no assertion
that he was unaware of the alleged misconduct." And he
"admit[ted] that he was fully aware of the entirety of
the circumstances on the date that he signed the
Agreement." From these facts, the chancellor found Carl
had not "acted within a reasonable time to file his
motion under Rule 60(b)."
Whether Carl's Rule 60(b)(6) motion was filed within a
reasonable time was a discretionary call for the chancellor
to make-not this Court. And Carl's failure to show cause
for not challenging the judgment sooner is itself enough for
the chancellor to deny the Rule 60(b)(6) request. This is
particularly true where Carl certainly knew of the
complained-of circumstances when he signed the agreement.
Considering the lack of cause, coupled with the
chancellor's finding there would be actual prejudice to
Lisa, we cannot say the chancellor wrongly dismissed
Carl's motion. To overrule these findings would require
we impermissibly place ourselves in the chancellor's
shoes and reweigh the evidence. We refuse to do so.
The chancellor alternatively found that, even if Carl's
filing was deemed timely under Rule 60, it still lacked
merit. After review, we agree. While we find no abuse in the
chancellor refusing to set aside the agreement under Rule
60(b), we also see no error in the chancellor's finding
Carl was not overly browbeaten or otherwise coerced into
signing a procedurally or substantively unconscionable
"Procedural unconscionability may be proved by showing
'a lack of knowledge, lack of voluntariness,
inconspicuous print, the use of complex legalistic language,
disparity in sophistication or bargaining power of the
parties and/or an opportunity to study the contract and
inquire about the contract terms.'" East Ford,
Inc. v. Taylor, 826 So.2d 709, 714 (Miss. 2002) (quoting
Pridgen v. Green Tree Fin. Servicing Corp., 88
F.Supp.2d 655, 657 (S.D.Miss. 2000)). But here, the
chancellor found none of these problems.
To the contrary, after sifting the testimony and evidence,
the chancellor found Carl "was able to make the
payments, he understood the terms of the contract[, ] and he
voluntarily entered into the Agreement." Our review of
the record shows strong support for these discretionary
The agreement was incredibly clear. It emphasized that its
terms strongly favored Lisa, and it mentioned why. The
written explanation of Carl's enhanced obligations was
not inconspicuous or hidden in fine print or a footnote-it
was front and center in the agreement.
Furthermore, Carl's new procedure-based challenge is also
completely at odds with his prior written acknowledgment that
his and Lisa's negotiations were even-handed and not the
product of duress, coercion, or overreaching. The agreement
ACKNOWLEDGMENT OF FAIRNESS IN EXECUTION OF DOCUMENT:
Husband and Wife agree that this Settlement Agreement is not
entered into as a result of any fraud, duress,
misrepresentation, overreaching, coercion, or undue
influence. In executing this document, both Husband and Wife
acknowledge and agree that they are free from any of these
matters, and are executing this agreement as their own
voluntary and free act, and that they do so knowingly and
willingly . . . .
claim that Lisa kept him from obtaining counsel not only
conflicts with her testimony but is ...