Brown v. Brown

863 S.W.2d 432, 1993 Tenn. App. LEXIS 469
CourtCourt of Appeals of Tennessee
DecidedJuly 2, 1993
StatusPublished
Cited by14 cases

This text of 863 S.W.2d 432 (Brown v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Brown, 863 S.W.2d 432, 1993 Tenn. App. LEXIS 469 (Tenn. Ct. App. 1993).

Opinion

OPINION

TODD, Presiding Judge.

The defendant, Betty P. Brown, has appealed from the judgment of the Trial Court overruling her motion for relief from a judgment granting the parties a divorce and approving their marital dissolution agreements.

On January 29, 1991, the Trial Court entered a final judgment which approved and incorporated a marital dissolution agreement executed by the parties on November 15, 1990, and a “Modification and Clarification of Marital Dissolution Agreement” executed by the parties on November 20, 1990. The provisions of said agreements will be detailed as necessary for the consideration of this appeal.

On January 13, 1992, defendant filed her motion pursuant to T.R.C.P. Rule 60.02 seeking relief from the January 29, 1991 judgment. The motion states no grounds for said relief, but refers to a “Memorandum of Law and Fact” filed with the motion which states that defendant was not represented by counsel in the divorce proceeding; that she received no disclosure of the worth of plaintiff but a statement that his financial status was not good and that she was receiving “all he could afford;” and that she signed the agreements because of threatened abuse; and that defendant received a total of $150,000.00 and plaintiff received a total of $3,000,000 as a result of the agreements and judgment.

Plaintiff responded, denying misrepresentation or duress, and asserting that a portion of the property claimed by defendant to be marital was, in fact, his separate property.

Defendant caused to be issued a subpoena duces tecum upon plaintiff and Peoples Bank and served notice of taking the deposition of Peoples Bank and plaintiff.

Plaintiffs motion to quash and for a protective order was sustained.

On October 7, 1992, the Trial Court entered judgment overruling defendant’s motion for relief.

On appeal, the defendant presents three issues, the third of which complains of the action of the Trial Court in quashing the subpoenas and granting the protective order.

On March 9, 1992, plaintiff served notices of taking depositions of the Peoples Bank and plaintiff.

On March 10, 1992, the Trial Clerk issued a summons duces tecum to the Peoples Bank requiring production of all financial statements filed with the bank from 1980 “through the present.”

On the same date, a subpoena duces tecum was served upon plaintiff to produce corporate income tax statements of Brown’s Concrete and Block Company, Inc., for the years 1972-1985, inclusive.

On March 12, 1992, plaintiff moved the Trial Court for a protective order pursuant to Rule 26.03, T.R.C.P.

[434]*434On April 24, 1992, the Trial Judge entered the following order:

This cause came on to be heard on the 27th day of March, 1992, before the Honorable Allen W. Wallace, upon motion to quash and for protective order of plaintiff Jimmy S. Brown, response of defendant Betty P. Brown, briefs and affidavits by the representative parties, and argument of counsel in open court, from all of which the Court is of the opinion that defendant Betty Brown’s attempts to discover and depose Jimmy Brown and certain financial institutions are premature.
Further, the Court is of the opinion that, at this time, the depositions sought by defendant would be oppressive and would constitute an undue burden and expenses in the absence of sufficient evidence to set aside the decree for divorce entered by this Court.
It is, therefore, ORDERED, ADJUDGED and DECREED that plaintiff Jimmy Brown’s motion to quash and for protective order is hereby granted pending further orders of this Court.

The issuance of a protective order limiting discovery lies within the sound discretion of the Trial Judge. Loveall v. American Honda Motor Co., Tenn.1985, 694 S.W.2d 937.

In Duncan v. Duncan, Tenn.App.1990, 789 S.W.2d 557, a divorced wife sought relief from the division of marital estate under circumstances and on grounds similar to those in the present case. This Court held that the Trial Court unduly limited discovery by excluding discovery of post judgment sale of part of the estate, but further held that the error was harmless and affirmed the judgment denying relief.

In the present case, all information sought by discovery was information which was available prior to the divorce hearing and judgment. It was not material to the issue of relief under Rule 60.02 unless and until the defendant produced evidence that a fraudulent misrepresentation was made by the plaintiff to the defendant prior to the judgment with respect to the information sought. The Trial Judge referred to a “threshold” which was this requirement that, before discovery of detailed financial information, the defendant produce evidence of fraudulent misrepresentation of such information.

The only “threshold” (evidence of fraudulent misrepresentation) cited or found in the evidentiary record is testimony that:

1. Plaintiff told defendant that his financial condition was bad.

2. Plaintiff told defendant that she would receive all that he could afford.

This is simply not sufficient to justify a searching investigation of the business affairs of plaintiff which could have been made as a matter of right during the divorce proceedings. The expression, “all I can afford” is not sufficiently specific to form the basis of an accusation of fraud. Mere expressions of opinion do not give rise to an action of fraud. McElroy v. Boise Cascade Corp., Tenn.App. 1982, 632 S.W.2d 127 and authorities cited therein.

If this record contained evidence that, pri- or to the divorce, plaintiff made to defendant any unequivocal statement of a specific material fact such as ownership or value of specific property, then defendant would be entitled to discovery evidence of the falsity of such statement. Absent such evidence, there is nothing for defendant to contradict in an effort to prove fraud, which, except for duress, is the only viable ground of relief asserted in the motion. The evidence sought was not shown to be material to the charge of duress.

No error is found in the action of the Trial Judge in quashing the subpoenas and granting a protective order.

Defendant’s second issue is as follows:

Whether the trial court erred by overruling Wife’s Motion for Relief from Decree under Rule 60, Tennessee Rules of Civil Procedure, when, but for, Husband’s failure to disclose assets to the Wife; misrepresentation of the value of assets; failure to provide independent legal advice to Wife; and physical and mental abuse of Wife which caused duress; Wife would not [435]*435have executed the marital dissolution agreement.

Defendant cites an unreported decision in which the wife who was trusted by the husband to handle all finances failed to disclose a $13,000 out of town bank account. The evidence does not show a corresponding situation in the present case.

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Bluebook (online)
863 S.W.2d 432, 1993 Tenn. App. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-tennctapp-1993.