In Re Marriage of De St. Germain

977 So. 2d 412, 2008 WL 711652
CourtCourt of Appeals of Mississippi
DecidedMarch 18, 2008
Docket2006-CA-01480-COA
StatusPublished
Cited by18 cases

This text of 977 So. 2d 412 (In Re Marriage of De St. Germain) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of De St. Germain, 977 So. 2d 412, 2008 WL 711652 (Mich. Ct. App. 2008).

Opinion

977 So.2d 412 (2008)

In the Matter of the DISSOLUTION OF the MARRIAGE OF Robert D. DE ST. GERMAIN and Brenda L. De St. Germain.
Brenda L. De St. Germain, Appellant
v.
Robert D. De St. Germain, Appellee.

No. 2006-CA-01480-COA.

Court of Appeals of Mississippi.

March 18, 2008.

*414 Renee M. Porter, attorney for appellant.

Robert E. Evans, Monticello, attorney for appellee.

Before KING, C.J., ROBERTS and CARLTON, JJ.

ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. This is an appeal of an unsuccessful motion to set aside a divorce or, alternatively, for equitable distribution of marital property. Robert and Brenda de St. Germain filed a joint bill for divorce. Approximately three months later, they executed a property settlement agreement. According to that agreement, Robert was to receive all real property except for a convenience store. Additionally, Robert was to *415 receive custody of their son, while Brenda was to pay Robert child support.

¶ 2. The Lawrence County Chancery Court later entered a final decree of divorce. Simultaneously, Robert and Brenda executed an amended property settlement agreement. According to the amended agreement, Robert received the convenience store, as well as all the other real property. All other provisions of the original property settlement agreement remained the same.

¶ 3. Despite the divorce decree, Robert and Brenda continued to live together until September 2004. When they finally separated, Brenda filed a motion to set aside the divorce or, in the alternative, for equitable distribution of the marital property. The matter was set for hearing, but on the scheduled hearing date, the chancellor dismissed Brenda's motion without conducting a hearing. After an unsuccessful motion for reconsideration, Brenda appeals and claims the chancellor erred by: (1) failing to find the property settlement agreement adequate and sufficient, (2) failing to require Rule 8.05 declarations, (3) failing to find that Robert engaged in overreaching, and (4) failing to equitably distribute the marital property. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 4. Robert and Brenda were married on August 11, 1984. Approximately fifteen years later, they filed a "joint bill for divorce" in the Lawrence County Chancery Court. On September 8, 1999, they executed and filed a "property and separation agreement," which was prepared by Robert's attorney. Brenda was not represented by counsel. According to that agreement, Brenda received the convenience store, while Robert received all other real property. Robert also received custody of their son, and Brenda agreed to pay Robert child support.

¶ 5. On November 18, 1999, the chancellor entered a final decree of divorce. That same day, Robert and Brenda executed an "amended property and separation agreement." The only difference between the original agreement and the amended agreement was that Brenda no longer received the convenience store. Instead, Robert received it.

¶ 6. According to Brenda, she and Robert continued to live together after the chancellor entered the divorce decree. Robert disputes that. According to Robert, Brenda was merely a frequent visitor. Brenda submits that, when they finally separated, Robert sought to enforce the amended property settlement agreement. In any event, on September 17, 2004, Brenda filed a motion to set aside the divorce or, alternatively, for equitable distribution of the marital property.[1] Robert responded with a motion to dismiss. The chancellor granted Robert's motion to dismiss and found that Brenda's motion was untimely. After an unsuccessful motion for reconsideration, Brenda appeals.

STANDARD OF REVIEW

¶ 7. "This Court's scope of review in domestic relations matters is limited." Perkins v. Perkins, 787 So.2d 1256, 1260(¶ 9) (Miss.2001) (citations omitted). We will not disturb a chancellor's factual findings unless the chancellor was "manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id. at 1260-61(¶ 9). However, Brenda specifically appeals the chancellor's decision to overrule her motion to set aside the divorce. *416 By filing a motion to set aside the divorce, Brenda invoked Mississippi Rule of Civil Procedure 60(b). "Our standard of review when evaluating the denial of a Miss. R. Civ. P. 60 motion is abuse of discretion." Id. at 1261(¶ 9). "Review of a denial of a Rule 60(b) motion considers only whether a judge abused the broad discretion granted by that rule which provides for extraordinary relief granted only upon an adequate showing of exceptional circumstances, and neither ignorance nor carelessness on the part of an attorney will provide grounds for relief." Id. "A party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough." Id. Additionally, Brenda sought alternative relief through a motion for new trial pursuant to Mississippi Rule of Civil Procedure 59. "An appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge's denial of a Rule 59 motion is limited to abuse of discretion." Id.

ANALYSIS

I. WHETHER BRENDA'S MOTION TO SET ASIDE THE DIVORCE WAS TIMELY.

¶ 8. Brenda does not once address the chancellor's decision to grant Robert's motion to dismiss. Instead, she bases her argument on the premise that the chancellor erred when he declined to grant her motion to set aside the divorce. Be that as it may, Robert submits that the chancellor correctly dismissed Brenda's motion. We agree.

¶ 9. Within her motion to set aside the divorce, Brenda did not state the specific basis for her motion. Viewed in its context, Brenda's motion could have been based on Mississippi Rule of Civil Procedure 60(b)(1) — "fraud, misrepresentation, or other misconduct of an adverse party." To the extent that Brenda's motion was based on Rule 60(b)(1), it was clearly untimely. One who proceeds under Rule 60(b)(1) must file the motion within six months after the underlying judgment was entered. M.R.C.P. 60(b).

¶ 10. Additionally, Brenda's motion could have been based on Mississippi Rule of Civil Procedure 60(b)(5) ("it is no longer equitable that the judgment should have prospective application") or the catch-all provision under Mississippi Rule of Civil Procedure 60(b)(6) ("any other reason justifying relief from the judgment"). One who proceeds under either Rules 60(b)(5) or 60(b)(6) must do so "within a reasonable time." M.R.C.P. 60(b). The chancellor did not specifically state that Brenda failed to file her motion "within a reasonable time," but his ruling implies as much. We cannot find that the chancellor abused his discretion. Brenda filed her motion approximately five years after the chancellor entered the divorce judgment. The allegations raised within Brenda's motion could have been submitted much earlier than five years after the judgment of divorce. Accordingly, we affirm the chancellor's decision to grant Robert's motion to dismiss.

¶ 11. Though any remaining issues are rendered moot as a result, for the sake of discussion, we will consider Brenda's other issues raised on appeal.

II. WHETHER THE CHANCELLOR ERRED WHEN HE OVERRULED BRENDA'S MOTION TO SET ASIDE THE DIVORCE BECAUSE THE CHANCELLOR NEVER FOUND THE PROPERTY SETTLEMENT AGREEMENT "ADEQUATE AND SUFFICIENT."

¶ 12.

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Cite This Page — Counsel Stack

Bluebook (online)
977 So. 2d 412, 2008 WL 711652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-de-st-germain-missctapp-2008.