OF JUDGMENT: 11/13/2017
COVINGTON COUNTY CHANCERY COURT, HON. GERALD MARION MARTIN
ATTORNEY FOR APPELLANT: W. TERRELL STUBBS.
ATTORNEY FOR APPELLEE: DEWITT LANGSTON FORTENBERRY III.
GRIFFIS, C.J., WILSON AND WESTBROOKS, JJ.
Mary and James Stubbs were married on December 2, 1978. In
January 1996, Mary was granted a divorce on the ground of
desertion. The judgment of divorce awarded Mary custody of
their four children and ordered James to pay $400 in monthly
child support, provide health insurance for the minor
children, and pay attorney's fees. Mary did not assert a
claim for any of James's property, retirement benefits,
or financial accounts, and the order provided for no division
of such property.
In May 2017, twenty-one years after the divorce, Mary filed a
"petition to allocate and disburse retirement
funds." In the petition, Mary sought fifty percent of
the funds in James's employer's retirement account.
James filed a motion to dismiss the petition with prejudice,
which the chancellor granted. Mary's subsequent motion to
alter, amend, or reconsider was denied. Mary now appeals and
argues that the chancellor erred in dismissing her petition
and denying her motion to alter, amend, or reconsider.
This Court is limited in its review of domestic relations
matters. Carrow v. Carrow, 741 So.2d 200, 202
(¶9) (Miss. 1999). We will not disturb the findings of a
chancellor unless the chancellor was manifestly wrong,
clearly erroneous, or an erroneous legal standard was
applied. Owen v. Owen, 798 So.2d 394, 398 (¶10)
(Miss. 2001). When reviewing a chancellor's denial of a
motion to dismiss, our standard of review is de novo.
Benson v. Neshoba Cty. Sch. Dist., 102 So.3d 1190,
1192 (¶8) (Miss. Ct. App. 2012).
Whether the chancellor erred in dismissing Mary's
Mary first argues the chancellor erred in dismissing her
petition to allocate and disburse retirement funds. Pursuant
to Mississippi Code Annotated section 15-1-43 (Rev. 2012),
"all actions founded on any judgment or decree rendered
by any court of record in this state shall be brought within
seven (7) years next after the rendition of such judgment or
decree, or last renewal of judgment or decree, whichever is
later." Also, under Mississippi Rule of Civil Procedure
60(b), "[o]n motion and upon such terms as are just, the
court may relieve a party . . . from a final judgment . .
.," provided the motion for relief is filed within a
reasonable time and not more than six months after the
judgment was entered for cases of "fraud,
misrepresentation, or other misconduct of an adverse
party," "accident or mistake," or "newly
discovered evidence which by due diligence could not have
been discovered in time to move for a new trial . . . ."
Under Mississippi law, retirement income that is obtained
during the marriage is considered marital property.
Parrish v. Parrish, 245 So.3d 519, 524 (¶12)
(Miss. Ct. App. 2017) (citing Gregg v. Gregg, 31
So.3d 1277, 1281 (¶16) (Miss. Ct. App. 2010)). However,
if a party does not assert the right to the marital property,
the party may be estopped from asserting a later claim to the
property. Allen v. Smith, 158 So.2d 750, 751 (Miss.
1963) (noting that had the parties not both had an