January 19, 2017 Session
from the Chancery Court for Tipton County No. 28658 Martha
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.
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.
Barney Witherington, IV, Covington, Tennessee, for the
appellee, Linda Jane Parimore.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Brandon O. Gibson, and Kenny Armstrong, JJ.,
STEVEN STAFFORD, JUDGE
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.
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.
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. 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."
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.
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.
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 contemptand 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."
May 5, 2016 hearing on the outstanding motions, the trial
court entered ...