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Parimore v. Parimore

Court of Appeals of Tennessee, Jackson

February 17, 2017

LINDA JANE PARIMORE
v.
GERALD DAVID PARIMORE

          January 19, 2017 Session

         Appeal from the Chancery Court for Tipton County No. 28658 Martha Brasfield, Chancellor

         Husband appeals: (1) the denial of his Rule 60.02 motion on the basis of fraud; and (2) the grant of attorney's fees to Wife. We affirm the trial court's denial of Husband's Rule 60.02 motion but reverse the grant of attorney's fees to Wife. We also decline the award of damages to Wife on appeal. Affirmed in part, reversed in part, and remanded.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; Reversed in Part; and Remanded.

          William G. Hardwick, II and Kelly Pearson, Memphis, Tennessee, for the appellant, Gerald David Parimore.

          J. Barney Witherington, IV, Covington, Tennessee, for the appellee, Linda Jane Parimore.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Brandon O. Gibson, and Kenny Armstrong, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         Because of the limited evidence included in the record on appeal in this case, the facts are taken largely from the pleadings and the parties' briefs. The parties, Plaintiff/Wife Linda Parimore ("Wife") and Defendant/Husband Gerald Parimore ("Husband"), were divorced by final decree on June 30, 2011, which incorporated by reference a Marital Dissolution Agreement ("MDA") disposing of certain marital property. The parties subsequently filed several contentious motions regarding the proper interpretation of the language under the MDA. Because of various disputes over the terms of the MDA, on November 23, 2015, the parties attended mediation regarding the division of marital property and entered into a handwritten settlement agreement. Therein, Husband agreed to pay Wife a "lump sum payment of $80, 000[.00] within [fourteen] days from the effective date of th[e settlement agreement]." In addition, Wife agreed to "transfer, deed[, ] and/or relinquish all rights in the joint timeshare in favor of [Husband]." The settlement agreement also provided that an order would be entered effectuating its terms within seven days from the date of execution. Husband decided shortly after the mediation to revoke his consent to the signed agreement. As a result, Husband's then-attorney refused to sign the consent order effecting the terms of the mediated agreement.

         On December 3, 2015, Wife filed a motion to enforce the mediated agreement, alleging that Husband "terminated his attorney and informed [the attorney] that [Husband] would not honor the mediation agreement." On January 6, 2016, Husband, through new counsel, filed a response, asserting, inter alia, that Wife may not enforce a consensual agreement by court order where the other party no longer agrees to the settlement.

         At the January 7, 2016 hearing on Wife's motion to enforce the mediation agreement, Husband testified that he was coerced into signing the mediation agreement by his then-attorney and the mediator based on their statements that Husband would incur additional expenses, potentially expose himself to a contempt judgment, or potentially suffer a worse money judgment if he did not agree to settle.[1] Husband further testified that his "retirement accounts were no one's business but his own" and acknowledged that "he did not disclose the details of those accounts until shortly before mediation, and only did so because his [then-]attorney advised him that he could be held in contempt if he did not."

         After the hearing, the trial court entered an order on January 11, 2016, finding that Husband was not "easily subject to coercion and would have no problem saying 'no' if confronted with an unsatisfactory proposal at mediation." The trial court further found that the settlement agreement entered into by the parties constituted a "valid contract" and ordered Husband to pay the $80, 000.00 lump sum pursuant to the agreement.

         On February 22, 2016, Husband filed a sworn motion for relief from judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure based on fraud and misrepresentation. Therein, Husband alleged that he agreed to pay Wife $80, 000.00 in the settlement agreement "[b]ecause of the difference in the amount of the assets of [Wife] and [Husband], particularly in retirement assets." The motion further alleged that after January 11, 2016, he retained an investigator and discovered that Wife did not disclose all assets prior to the mediation, particularly her military pension. Husband alleged that Wife only applied for this pension after the divorce, and this amount was not included in the settlement. As a result, Husband alleged that "the parties did not reach a fair and equitable division of the marital property" and sought to set aside the $80, 000.00 judgment against him. Attached to Husband's sworn motion are two letters, dated July 29, 2015, and September 29, 2015, from Wife's counsel to Husband's counsel disclosing her assets. Neither letter mentions Wife's military pension.

         On April 22, 2016, Wife filed an answer essentially denying all material allegations relating to fraud. On the same day, Wife also filed a motion for contempt[2]and other relief, asserting, inter alia, Husband "continues to pay exorbitant sums to attorneys and investigators in a frivolous effort to delay payment to [Wife]" in violation of a court order. Wife also asserted that it was "impossible that [Husband] was unaware that [Wife] would receive a military pension because the parties met in the military reserves and did not retire until they reached their [twenty] year pension entitlements." As a result, Wife asked that Husband be found in contempt and ordered to pay her attorney's fees. Attached to Wife's motion is her counsel's affidavit, asserting that he and Husband's then-attorney "discussed the parties' military pensions" and "agreed that the pensions would roughly offset one another." As a result, counsel contended that the pensions were not used in calculating the division of marital assets. On May 4, 2016, Husband filed a response to Wife's motion for contempt and other relief. Therein, Husband "admit[ted] that the attorneys might have discussed the matter of the military pensions" but that "the matter was never discussed with him."

         After a May 5, 2016 hearing on the outstanding motions, the trial court entered ...


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