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Yarbrough v. Yarbrough

Court of Appeals of Tennessee, Jackson

May 11, 2018

JAMES EDGAR YARBROUGH
v.
CHERYL ANN PINEGAR YARBROUGH

          Session January 31, 2018

          Appeal from the Circuit Court for Shelby County No. 107677-RD Jerry Stokes, Judge No. W2017-00152-COA-R3-CV

         A wife 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Cheryl Ann Pinegar Yarbrough, Memphis, Tennessee, Pro Se.

          Jean Ellen Markowitz, Memphis, Tennessee, for the appellee, James Edgar Yarbrough.

          Andy D. Bennett, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         I. Factual and Procedural Background

         Thirty-one 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.

         Husband 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.[1] The court dismissed the action in July 2016, holding that the cause of action was not timely filed.

         On July 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.

         Husband 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.[2] 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.

         On 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.

         The 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.

         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.

         Sharon 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.

         Mr. 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.

         Mr. Blanton stated that he had never taken a client into court for an irreconcilable differences divorce if the PSA had not been signed.

         On 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.

         Both 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[3] 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.

         During 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.

         Ms. 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 have.

         After 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."

         In 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 commission.

         During 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.

         Grant 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.

         Mr. 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[.]

         Mr. 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.

         Mr. 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.

         Mr. 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.

         After 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 ...


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