Session January 31, 2018
from the Circuit Court for Shelby County No. 107677-RD Jerry
Stokes, Judge No. W2017-00152-COA-R3-CV
filed a motion pursuant to Tennessee Rule of Civil Procedure
60.02(3) to set aside a final decree of divorce granted on
the ground of irreconcilable differences. The trial court
denied the motion, finding that she failed to prove by clear
and convincing evidence that the judgment was void. We affirm
the trial court's decision.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Ann Pinegar Yarbrough, Memphis, Tennessee, Pro Se.
Ellen Markowitz, Memphis, Tennessee, for the appellee, James
D. Bennett, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J.,
D. BENNETT, JUDGE
Factual and Procedural Background
years ago, on March 25, 1987, Cheryl Ann Pinegar Yarbrough
("Wife") was granted a divorce from James Edgar
Yarbrough ("Husband") on the ground of
irreconcilable differences. In the final decree of divorce,
the trial court incorporated a Property Settlement Agreement
("PSA") that provided Wife with custody of the
parties' son, required Husband to pay $300 per month in
child support, and divided the parties' debts and real
and personal property. The parties lived in accordance with
the terms of the PSA following the divorce.
began working at FedEx during the marriage and continued
working there until he retired in November 2005. Wife learned
of his retirement sometime in 2006 and, believing she was
entitled to receive a portion of his retirement funds
pursuant to the PSA, she began investigating why she had not
received any such funds. She contacted FedEx and was informed
that they could not speak with her about Husband's
retirement funds. According to Wife, this conversation made
her believe there was a problem with the PSA and she
"needed to do something to protect [her] rights."
She then filed a malpractice lawsuit against the attorneys
who represented her in the divorce, David E. Caywood and
Darrell D. Blanton, because she believed that to be her
remedy. Wife took a voluntary non-suit in the case but, in
April 2013, she refiled her complaint against both of her
former attorneys. The court dismissed the action in July
2016, holding that the cause of action was not timely filed.
6, 2016, Wife filed a motion to set aside the final decree of
divorce pursuant to Tennessee Rule of Civil Procedure 60.02,
alleging that the final decree was void because the PSA
"was filed absent her signature." In support of her
motion, Wife attached a copy of a certified copy of the PSA
that was certified on August 5, 2008. The copy relied on by
Wife consists of six pages, with page six containing the
conclusion of the parties' agreement immediately followed
by two signature lines, one for each party. A notary block
with a line for Husband's signature is located at the
bottom of the page. Husband's signature appears on the
line provided for him immediately following the conclusion of
the agreement and on the line provided for him in the notary
block. Wife's signature, however, does not appear on page
six or on any of the preceding pages. In her motion, Wife
sought alternate relief, namely that the trial court enter a
qualified domestic relations order awarding her an equitable
share of Husband's retirement account because no
provision was made for it in the PSA or elsewhere in the
final divorce decree.
filed a motion to dismiss, or in the alternative, for summary
judgment as well as a statement of undisputed facts on July
27, 2016, arguing that Wife did, in fact, sign the PSA. In
support of his motion, he relied on a certified copy of the
divorce file that was certified on December 14,
1987. The PSA included in this certified copy
consists of seven pages. The first six pages are identical to
the copy relied on by Wife in her motion. Located at the top
of page seven is the conclusion of the notary block for
Husband's signature that began on page six. It states
that he signed the document on March 24, 1987, with the
signature of the notary public who witnessed his signature
following immediately thereafter. In the middle of page
seven, a second notary block appears-one for Wife's
signature. This notary block contains what appears to be the
signature of Wife and the date March 25, 1987. The line
provided for the notary public also has a signature; however,
below the signature line, the words "NOTARY PUBLIC"
have been crossed out and the letters "D.C."
written to the side.
September 14, 2016, Wife filed a response to Husband's
motion and statement of undisputed facts, arguing that she
did not author the signature above her typed name on page
seven. She attached a report written by her retained forensic
document expert, Dianne Peterson, which stated that it was
"highly probable" that Wife did not author the
questioned signature on page seven. The trial court heard
Husband's motion on September 16, 2016, and entered an
order on September 28, 2016, denying the motion because a
material question of fact existed regarding whether Wife
authored the signature on page seven.
trial court held a hearing on Wife's Rule 60.02 motion on
December 2, 2016, during which Wife, Husband, and several
other witnesses testified. Wife testified that, on March 25,
1987, she met her attorney, Mr. Blanton, at the courthouse
approximately five minutes before the divorce proceeding
began. At that time, Mr. Blanton presented the PSA to her for
her signature. According to Wife, this was the first time she
had seen the PSA, and she refused to sign the document
because "there were many, many mistakes in it." She
stated that she did not sign the PSA at any time thereafter.
When she was shown a copy of page seven at the hearing, Wife
testified that the signature was not hers. She remembered
going down to the clerk's office with Mr. Blanton before
entering the court room for the divorce proceeding and, while
in the clerk's office, she saw Husband sign the PSA. Wife
stated that she testified at the divorce proceeding but the
totality of her testimony was "yes, I do want a
divorce." Finally, she testified that the following
occurred as required by the terms of the PSA: (1) she
obtained a divorce on the ground of irreconcilable
differences, (2) she gained custody of the parties' child
and received child support, (3) she received the real
property and notes allocated to her, and (4) she relinquished
the property allocated to Husband.
testified about the circumstances surrounding the signing of
the PSA and the divorce proceeding. When he met his attorney,
Jerry Martin, at the courthouse on March 25, 1987, they were
the first to arrive. Contrary to Wife's testimony,
Husband stated that the PSA already bore his signature
because he had signed it the previous day at Mr. Martin's
office where a notary public witnessed and notarized his
signature. Wife and Mr. Blanton met Husband and Mr. Martin in
a hallway outside the courtroom prior to the hearing. Mr.
Martin handed the PSA to Mr. Blanton who then handed it to
Wife to sign. Husband testified that, after Wife refused to
sign the PSA, Mr. Blanton spoke with her, and the two of them
then walked down the hallway out of Husband's sight.
Shortly thereafter, Wife and Mr. Blanton returned and Mr.
Blanton handed the PSA to Mr. Martin stating that
"it's signed . . . it's taken care of." Mr.
Martin scanned through the document and nodded his head in
agreement. Mr. Martin, Mr. Blanton, and Wife then went into
the courtroom while Husband waited in the hallway. According
to Husband, they exited the courtroom between fifteen and
twenty minutes later. Mr. Martin shook Husband's hand and
informed him that he would be in contact with him. Several
months after the hearing, Husband received a certified copy
of the divorce file that was certified on December 14, 1987.
When asked who sent him the certified copy of the file, he
responded that he believed it came from Mr. Martin. Finally,
Husband testified that he, at no time, forged the signature
of any person on any document in the divorce.
Carter testified as a witness for Husband. Ms. Carter had
worked in the clerk's office for approximately
twenty-five years and, at the time of trial, was the manager
of the filing counter at the circuit court for Shelby County.
She testified about the procedures followed when a person
wants a document attested to or sworn to before the clerk. If
a person wants a document notarized, he or she must show
identification. If a person wants a document sworn to, the
clerk's office typically does not require identification
because most people come with an attorney who tells the clerk
"this is my client." However, when a person wants a
document sworn to but does not come with an attorney, he or
she is required to show identification. Ms. Carter was shown
a copy of page seven of the PSA and asked if she recognized
the signature above the handwritten "D.C." She
responded that she recognized the signature as that of Robert
Matthews, who worked as a manager and later as an
administrator in her office. At the time of the parties'
divorce, Mr. Matthews served as the deputy clerk. Ms. Carter
admitted on cross-examination that the parties' divorce
file was missing from the clerk's office.
Blanton also testified on behalf of Husband. He remembered
representing Wife in the divorce but had no specific memory
of what occurred on March 25, 1987. Although Mr. Blanton
could not remember how events transpired, he testified that
his practice in 1987 was that, if his client had not signed
the PSA on the day of the hearing, he would take his client
to the clerk's office and have the clerk witness his
client's signature. He would then take his client into
the courtroom and ask the following series of questions:
Can you give me your name, please; at the time you filed the
complaint for divorce have you been a resident of Shelby
County for at least six months; at the time you filed the
complaint did irreconcilable differences exist between you
and your husband; is the statistical data contained in the
original complaint for divorce true and correct; at the time
you and your husband - - if it's a wife - - entered into
a marital dissolution agreement do you believe the agreement
makes a fair and equitable division of your marital property
rights and are you asking the court to approve it.
Blanton stated that he had never taken a client into court
for an irreconcilable differences divorce if the PSA had not
cross-examination, Mr. Blanton acknowledged that Wife did not
sign page six of the PSA but explained that her notarized
signature on page seven made the agreement valid. He stated
that, despite having no memory of her signing the PSA, he
knows she signed it because "Robert Matthews said she
signed it; we have the document that showed she signed it;
[the judge] approved it; she sat on the witness stand and
asked [the judge] to approve it." He further stated that
he knows he saw her sign it because he would not have taken
her into court if she had not done so.
parties presented expert testimony from a forensic document
examiner. Dianne Peterson testified on behalf of Wife. Ms.
Peterson explained that the responsibilities of a forensic
document examiner include determining whether documents are
genuine, identifying handwriting and the source of a
document, and preserving or restoring legibility. She began
working as a forensic document examiner in 2009. When asked
why she became a forensic document examiner, she responded
that she loved "dealing with details and identity and
stuff and just all the finer details in handwriting."
Ms. Peterson received her training from the International
School of Forensic Document Examination ("ISFDE").
This training consisted of a two-year curriculum that was
solely online with no personal, hands-on supervision. As a
result, she did not work with any original documents.
Instead, her training consisted of analyzing electronic and
copied documents. Even her peer review was conducted online.
After completing the program at ISFDE, Ms. Peterson continued
her training by completing a two-year course with Kathy
Koppenhaver that focused on examining questioned
signatures. She also completed this training online. Ms.
Peterson is affiliated with the Scientific Association of
Forensic Examiners ("SAFE") and is the treasurer of
that organization. She had testified as an expert forensic
document examiner eleven times prior to testifying in this
case and has been admitted as an expert witness in Tennessee,
Alabama, and Georgia.
voir dire, Ms. Peterson admitted that she worked only
part-time as a forensic document examiner because she worked
full-time as a dental hygienist. She further admitted that
the only certification she held was the certificate of
completion she received from ISFDE.
Peterson examined the questioned signature on page seven of
the PSA and compared it to copies of twelve signatures known
to have been authored by Wife. Based on the twelve known
signatures, she opined that it "was highly
probable" Wife did not author the questioned signature.
Ms. Peterson explained that she could not conclude with one
hundred percent certainty that Wife did not author the
questioned signature because, to make such a conclusion, she
needed an original document to examine, which she did not
comparing the questioned signature to the known signatures,
Ms. Peterson identified several differences that she
considered significant. First, she testified,
"Pinegar" is misspelled in the questioned signature
because the "I" is missing. Second, she stated, in
the known signatures, the final stroke connecting the
"G" and "H" in "Yarbrough"
resembled a capital "R" that tilts to the left. In
the questioned signature, however, the final connecting
stroke "looks like a circular pattern." Third, Ms.
Peterson testified, the questioned and known signatures
utilized space differently. Specifically, there is little to
no spacing between the letters in the questioned signature,
whereas the letters are more spaced out in the known
signatures. Ms. Peterson then testified that "Ann"
is different in the questioned signature than in the known
signatures. In the questioned signature, the "A" is
"a printed style fashion" but, in the known
signatures, it "had a rounded formation."
Furthermore, the "N's" are rounded in the
questioned signature but look like "needlepoint[s]"
in the known signatures. According to Ms. Peterson, two of
the letters in the questioned signature indicate that it was
not authored by Wife: the "N" in
"Pinegar" in the questioned signature has a pen
stroke that is "a lot darker, " which was
"almost indicative of a possible drawing of a pen
lift" rather than a fluid stroke typical of a natural
signature, and the "R" in "Cheryl" had
"an extra pen stroke where it lifts or comes off the
page and then goes back down for the drawing effect."
addition to the identified signature differences, Ms.
Peterson based her opinion on an examination of the entire
PSA. She stated that page seven was not aligned either
vertically or horizontally with the preceding pages. For
instance, the paragraph indentations "are not lined
up" with those on page six, and the page number at the
bottom of the page is off-center, unlike on the preceding
pages. Ms. Peterson opined that this misalignment meant that
it was "highly probable" that page seven had been
altered. She testified that it concerned her that page seven
had two different dates on it (March 24 and 25, 1987) and
that the second notary block did not have a notary
cross-examination, Ms. Peterson acknowledged that she did not
know how many times the document she examined had been copied
or what generation copy it was. She identified a report
prepared by Husband's expert forensic document examiner,
Grant Sperry, and stated that she reviewed it to prepare her
rebuttal report. She admitted that the "Ann" in two
of the known signatures in Mr. Sperry's report "were
very similar to the questioned signature." Finally, when
asked if the original document was created by a word
processor or typewriter, she responded that she had no idea
how it was created.
Sperry testified as an expert forensic document examiner on
behalf of Husband. Mr. Sperry had worked as a full-time
forensic document examiner for thirty-seven years. His
primary responsibilities consist of examining and comparing
questioned and known documents for the purpose of identifying
a particular person, machine, or item as the source of the
questioned document. Seventy-five percent of his work
involves examining handwriting to determine whether a
particular person authored a questioned document.
Additionally, his evaluations of questioned documents include
determining what type of machine (typewriter, copier, etc.)
produced the document.
Sperry began training as a forensic document examiner in
1979. He completed a two-year in-residence course offered by
the United States Department of the Army, which is "the
executive agency for forensics within the department of
defense." During this two-year course, he dealt strictly
with forensic document examination and examiners "with
many years of experience" supervised and trained him.
After Mr. Sperry completed this training, the Department of
the Army certified him in the criminal investigation division
as a questioned document examiner-now known as a forensic
document examiner. He testified that he then received
additional training through:
[T]he Georgia Bureau of Investigation Laboratory in
Atlanta[;] U.S. Secret Service Laboratory in Washington,
D.C.; the Federal Bureau of Investigation Laboratory in
Quantico, Virginia; Royal Canadian Mounted Police Laboratory
in Montreal; . . . International Symposium of Questioned
Document Examiners; Immigration Naturalization Service
Laboratory in Washington, D.C.; Central Intelligence Agency
in Washington, D.C.; Bureau of Printing and Engraving in
Washington, D.C.; . . . First European Conference of
Handwriting Experts in Wiesbaden, Germany; . . . [and]
Rochester Institute of Technology[.]
Sperry is affiliated with several professional forensics
organizations, including the American Society of Questioned
Document Examiners, of which he once served as president. He
has testified as an expert forensic document examiner
approximately 345 times and has been admitted as an expert
witness in all courts of the military, various federal and
state courts, and international courts in Europe and Asia.
Sperry testified that he conducted a thorough investigation
of the questioned document in this case, which involved a
three-step process. First, he examined the questioned
signature to determine whether it was a naturally executed
signature or the product of "a simulation copying
process or tracing." He explained that, if a signature
is the product of a tracing, that fact is discernable because
tracing an outline results in stops and starts that affect
the smoothness and rhythm of the writing. He further
explained that, when a person attempts to simulate a
signature, he or she draws the signature from memory, trying
to "capture the pictorial representation of the
signature" and "the enumerable writing habits that
that person [the one whose signature is being simulated] has
taken years and years and years to develop, " which is
"an improbable proposition" with a signature as
long as the questioned signature in this case. After
examining the questioned signature, Mr. Sperry found that
"the smoothness of the lines, upstrokes, downstrokes,
pen pressure variation, [and] tapering of strokes" were
the opposite of what would be expected in a simulation or
tracing. He opined that the signature was a naturally
executed writing from start to finish.
Sperry then moved on to the second step in his
examination-cross comparing the various known writings of
Wife to determine her writing habits over a period of time.
In performing this cross-comparison, Mr. Sperry reviewed
thirty-four original and previously-copied documents bearing
Wife's known signature, including the twelve reviewed by
Ms. Peterson. He testified that the purpose of this step is
to determine whether the known writings are all writings of
the same person and to determine the range of variation. He
explained that the phrase "range of variation"
refers to variation that occurs naturally in writing. Because
people are not machines, they are incapable of precisely
replicating their signatures; however, they do have habits
such as letter formation, spacing, line quality, relative
spacing, pressure, and inclination of relative slant. Within
each of these areas, there is a range of variation.
establishing Wife's range of variation, Mr. Sperry moved
on to the final step in his examination: comparing the
questioned signature to the known signatures. During this
comparison, he found several "features and
characteristics to be well replicated." For instance, in
the questioned signature, the baseline placement, relative
slants, and height relationship of the "C" and
"H" in "Cheryl" replicate three of the
known signatures. He testified that the lack of space between
letters in the questioned signature is a well-represented
habit of hers, especially between the "Y" and
"L" of "Cheryl"; he pointed to four of
the known signatures demonstrating that habit. Additionally,
he stated that the printed-style "A" and rounded
"N's" in "Ann" are in agreement
between the questioned signature and two of the known
signatures. In Mr. Sperry's opinion, no fundamental
differences exist between the questioned and known
signatures, and every variation present in the questioned
signature was reflected ...