                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  January 22, 2014 Session

             ALISSA OWEN (FORMERLY HAAS) v. DARIN HAAS

                Appeal from the Circuit Court for Montgomery County
                 No. MCCCCVDV11488          Michael R. Jones, Judge


                  No. M2013-00950-COA-R3-CV - Filed April 1, 2014


Wife appeals the trial court’s denial of her Tenn. R. Civ. P. 60 petition to set aside the marital
dissolution agreement and permanent parenting plan in their final decree of divorce; she
contends she entered into the agreements under duress due to coercion by her husband. The
trial court concluded the marital dissolution agreement and permanent parenting plan were
not entered into under duress; the court also found that the permanent parenting plan was in
the best interests of the children. Finding the trial court applied the correct legal standards
and the evidence does not preponderate against the trial court’s findings, we affirm.

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

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Mark. R. Olson, Clarksville, Tennessee, for the appellant, Alissa Owen.

Stacey Turner Olson, Clarksville, Tennessee, for the appellee, Darin Haas.

                                           OPINION

       Alissa Owen (“Wife”) and Darin Haas (“Husband”) were married in April 1996 and
have three minor children together. Husband is a Lieutenant Colonel in the United States
Army and Wife is a school teacher. While Husband was deployed to Afghanistan, Wife
engaged in an extramarital affair. Upon his early return, Wife informed him she wanted a
divorce. At that time, Husband was suspicious but had no confirmation of an affair.

       Wife hired an attorney and filed for divorce on March 11, 2011. In addition to hiring
an attorney and filing an Answer, Husband hired a private investigator who confirmed that
Wife was having an affair. Husband withheld the fact that he knew of the affair until the
parties’ mediation on November 9, 2011. Husband confronted Wife with evidence of her
affair at the mediation, immediately following which the parties had a private conversation.
Wife subsequently claimed that Husband intimidated her during the private conversation but
she did not inform the mediator or her attorney of such during the mediation or at anytime
prior to the entry of the final decree of divorce. No agreement was reached during mediation.

       Following the failed mediation, Wife had a discussion with her attorney that resulted
in her attorney filing a motion to withdraw. The Order Allowing Counsel to Withdraw,
entered on November 17, 2011, stated “[Wife] wants to accept a settlement offer from
[Husband] that Counsel does not believe is adequate, reasonable or in the best interest of
[Wife].”

        Wife did not obtain substitute counsel and represented herself thereafter. Husband and
Wife had numerous conversations after her counsel withdrew and, by November 18, 2011,
Husband began to believe the marriage could be saved. He even arranged a surprise
overnight getaway for Wife at Opryland Hotel on November 18; however, after Husband
checked in at the hotel Wife declined to go. This made Husband extremely upset and, while
at a bar in the hotel, he consumed an excessive amount of alcoholic drinks and proceeded to
send multiple text messages to Wife over the evening, all of which were crude.

       The parties signed a formalized Marital Dissolution Agreement (“MDA”) and
Permanent Parenting Plan on November 23, 2011, at Husband’s attorney’s office; Wife was
not represented by counsel. The trial court entered the Final Decree on December 15, 2011,
which incorporated the parties agreed MDA and Permanent Parenting Plan.

      Five months later, on May 23, 2012, Wife filed a Complaint to Set Aside the Final
Decree seeking relief from the final judgment pursuant to Tennessee Rule of Civil Procedure
60. An evidentiary hearing was held on February 15, 2013; the trial court heard testimony
from Wife, Husband, and Husband’s attorney.

       Wife testified that during her private conversation with Husband at the mediation, he
pointed his finger at her in an intimidating way, told her she was going to agree to his terms
and if she did not agree, he would have her arrested and taken from her classroom in
handcuffs.1 Wife also testified that Husband told her to fire her attorney. Wife testified that
she was intimidated and felt as if she was being coerced to reach a mediated settlement, but
she chose not to tell the mediator or her attorney. She also stated that Husband threatened




        1
        The alleged offense, which may or may not have any credence, is not germane to this appeal; thus,
we decline to discuss the allegations.
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to expose Wife’s extramarital affair to the children. Husband denied all allegations of threats
or intimidation although admitting he made statements and sending text messages that he
now regrets.

        In an opinion filed on March 20, 2013, the trial court denied Wife’s complaint to set
aside the final decree concluding that the MDA was a negotiated settlement that was fair and
reasonable on its face. Additionally, the court found that Wife knowingly entered into the
agreement against the advice of her attorney. The court also found that Husband did not
coerce her into firing her attorney. The trial court stated “there are competing issues in any
settlement of a case and in divorce cases one side or both may give in to avoid the
consequences of a trial.” Further, the trial court found the Permanent Parenting Plan was fair
and reasonable and in the best interests of the children.

        Wife appealed and presents this court with the issue of whether the trial court abused
its discretion in declining to set aside the final decree.

                                   S TANDARD OF R EVIEW

       A motion for extraordinary relief based on Tennessee Rule of Civil Procedure 60.02
addresses itself to the sound discretion of the trial court, and the scope of review of an
appellate court is to determine if that discretion was abused. Underwood v. Zurich Ins. Co.,
854 S.W.2d 94, 97 (Tenn.1993). Thus, we review the grant or denial of such motion by an
abuse of discretion standard and the court’s ruling on a Rule 60.02 motion may not be
reversed on appeal unless it is determined that the court abused its discretion. Id.; Day v.
Day, 931 S.W.2d 936, 939 (Tenn. Ct. App. 1996).

       Rule 60.02, “was designed to strike a proper balance between the competing
principles of finality and justice.” Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976).
It allows the court to relieve a party from a final judgment, order or proceeding for the
following:

       (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether
       heretofore denominated intrinsic or extrinsic), misrepresentation, or other
       misconduct of an adverse party; (3) the judgment is void; (4) the judgment has
       been satisfied, released or discharged, or a prior judgment upon which it is
       based has been reversed or otherwise vacated, or it is no longer equitable that
       a judgment should have prospective application; or (5) any other reason
       justifying relief from the operation of the judgment[.]

Tenn. R. Civ. P. 60.02. The burden is on the party seeking extraordinary relief pursuant to
Rule 60.02 to show why extraordinary relief is justified. Steioff v. Steioff, 833 S.W.2d 94, 97
                                              -3-
(Tenn. Ct. App. 1992) (citations omitted). Rule 60.02, is not intended to “relieve a party from
his or her free, calculated, and deliberate choices,” rather, relief should be afforded in “the
most extreme, unique, exceptional, or extraordinary cases[.]” Holiday v. Shoney’s S., Inc.,
42 S.W.3d 90, 94 (Tenn. Ct. App. 2000).

        Our review of the trial court’s determinations on questions of fact is de novo with a
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d). To the extent the trial court’s determinations rest upon an assessment of the credibility
of witnesses, the determinations will not be overturned absent clear and convincing evidence
to the contrary. Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). With
respect to legal issues, our review of the denial of Rule 60.02 relief is conducted “under a
pure de novo standard of review, according no deference to the conclusions of law made by
the lower courts.” See Southern Constructors, Inc. v. Loudon County Board of Education,
58 S.W.3d 706, 710 (Tenn. 2001).

                                                A NALYSIS

       Wife contends the trial court abused its discretion in declining to set aside the Final
Decree, based upon the assertion she was coerced and under duress due to Husband’s
misconduct at the time she entered into the Marital Dissolution Agreement and Permanent
Parenting Plan. We will begin our analysis with the construction of the agreements.

                     I. M ARITAL D ISSOLUTION A GREEMENT AS A C ONTRACT

       A marital dissolution agreement is a contract and thus is subject to the rules governing
the construction of contracts. Mabee v. Mabee, M2012-02430-COA-R3-CV, 2013 WL
3355236, at *3 (Tenn. Ct. App. June 27, 2013), appeal denied (Oct. 16, 2013) (citing Barnes
v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006)).2 The interpretation of a contract is a question
of law. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999). Therefore, the trial court’s
interpretation of a contract is not entitled to a presumption of correctness under Tennessee
Rule of Appellate Procedure 13(d) on appeal. Angus v. W. Heritage Ins. Co., 48 S.W.3d 728,
730 (Tenn. Ct. App. 2000). Accordingly, we will review contractual issues de novo and reach
our own independent conclusions regarding their meaning and legal import. Guiliano, 995
S.W.2d at 95; Hillsboro Plaza Enters. v. Moon, 860 S.W.2d 45, 47 (Tenn. Ct. App. 1993).


        2
         Although an MDA is bound by a contract analysis, “parents cannot bind the court with an agreement
affecting the best interest of their children.” Fletcher v. Fletcher, M2010-01777-COA-R3CV, 2011 WL
4447903 (Tenn. Ct. App. Sept. 26, 2011) (quoting Tuetken v. Tuetken, 320 S.W.3d 262, 272 (Tenn. 2010).
Therefore, we will later address whether the agreed arrangement is in the best interests of the children. Id.


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             II. T HE E FFECT OF D URESS IN THE E NFORCEMENT OF A C ONTRACT

       “Tennessee has long recognized that a contract, although valid on its face, may not
be enforceable if it can be proved that the contracting party acted under duress.” Cummings
Inc. v. Dorgan, 320 S.W.3d 316, 331 (Tenn. Ct. App. 2009) (citation admitted). This
principle is based on the premise that a contract is valid only if it is entered into freely, with
the voluntary assent of the parties making it. Id.

        Duress exists when one, by the unlawful act of another, is induced to make a contract
or perform some other act under circumstances which deprives him or her of the exercise of
free will. Johnson v. Ford, 63, 245 S.W. 531, 538 (Tenn. 1922) (citation omitted). To
constitute duress, the danger must not only exist, but must be shown to have actually operated
upon the mind, and to have constituted the controlling motive for the performance of the act
sought to be avoided. Russell v. Meharry Med. Coll., M2004-01049-COA-R3CV, 2005 WL
2230196, at *5 (Tenn. Ct. App. Sept. 13, 2005) (citing Wilkerson v. Bishop, 47 Tenn. 24,
(Tenn.1869)). The complainant carries the burden of proof to establish the fact of duress,
either by direct or circumstantial evidence. Wilkerson, 47 Tenn. at 30. Accordingly, whether
a party acted under duress is an issue of fact, which we review de novo with a presumption
of correctness to the trial court’s finding, unless the evidence preponderates otherwise. Tenn.
R. App. P. 13(d).

        In determining whether a party acted under duress, the court considers “the age, sex,
intelligence, experience and force of will of the party, the nature of the act, and all the
attendant facts and circumstances.” Rainey v. Rainey, 795 S.W.2d 139, 147 (Tenn. Ct. App.
1990) (quoting 10 Tenn. Jur. Duress and Undue Influence § 3 at 112 (1983)). We shall
discuss each in turn.

       The trial court found the ages, intelligence, and life experiences of Wife and Husband
to be comparable. Further, it found that based upon the force of Wife’s testimony, she is a
strong willed person. The evidence in the record does not preponderate against these
findings.

        As for the nature of the acts, along with the attendant facts and circumstances, the trial
court listened to two recorded telephone conversations between the parties submitted into
evidence by Husband. The court stated it normally did not put much weight on such recorded
calls, however, under the circumstances the court was able to hear the emotion of the parties,
particularly the emotions of Wife. The first recorded conversation took place the day after
mediation, November 10, 2011. The trial court listened to the conversation several times and
provided a partial transcript which it summarized in the March 20, 2013 Opinion.

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       Paraphrased, Exhibit 4 began with a conversation about the attorneys having
       talked. The husband stated that [Wife’s attorney] talked to [Husband’s
       attorney] and there is no agreement. The wife responded again paraphrased
       that that was not me (the wife talking) that was [Wife’s attorney]. “I promise
       you, if [my attorney] doesn’t do what I want.” “We will work it out. [My
       attorney] told me not to talk with you.” “I know I wrecked our lives.” “I will
       make this up to you for the rest of my wife [sic].” “I will take a second job.”
       The husband (again knowing that the conversation is recorded) stated “I still
       love you. We could stay married.” The wife responded “Do this now, No
       promises. Can we just do this now?” “I can’t forgive myself now.” “Keep it
       from the kids please.” “Need to work out weekends and Christmas. You have
       missed out.” “As many weekends you like.” “We will figure that out.” The
       husband stated words to the effect that we should go out to eat . . . and talk.
       The wife’s response was that she can’t eat and “don’t know if I will ever eat
       again.”

        This conversation portrayed Wife as very apologetic for her actions. It appeared she
wanted to come to an agreement even though her attorney had informed Husband’s attorney
that there was no agreement, evidenced by her statements “I promise you, if [my attorney]
doesn’t do what I want,” “We will work it out,” “[My attorney] told me not to talk with you.”

        The second recording is of the parties’ conversation that occurred the following night.
Wife’s tone was different from the first recording, she was still apologetic, and in response
to Husband’s question, Wife indicated the affair had ended. There was some discussion from
Wife regarding “not seeing anything about deployments” which appeared to be a reference
to an agreement the parties had made. Wife further stated, “I’m going to be completely
honest, I have not ruled out making this work.” Based on the slurring of Husband’s words,
the trial court believed he was under the influence during this conversation. The trial court
paraphrased Husband’s statements as he described himself as “still begging [Wife] to take
him back,” and “blaming himself.” Husband also made the statements, “you can have
whatever you want. $2,500 per month. All my retirement 80 days.” After a disconnection in
the phone call, Wife called Husband back and there was discussion about Husband going to
lunch with the children, Wife, and Wife’s mother. The trial court found that from the sounds
of the conversation, Husband must have regurgitated, as Wife’s response was “I threw up this
morning.” She then made the statements, “Can I come over?” “Want me to bring a diet coke
or do you still have one?” “I will be there.”

       The importance of these telephone calls, as the trial court noted, shows there were no
threats and, as the trial court found, there was an open discussion that made it appear an
agreement had been made or was in progress at that time, evidenced by the parties’
                                              -6-
conversation regarding scheduling and concerns for the family being together at certain
times. Moreover, based upon the phone conversations and the parties’ testimony, although
the trial court was unable to determine the exact date, the court found that the parties had met
at Husband’s home to draft the agreements either on November 10 or 11.

        Wife also presented numerous text messages sent by Husband from Opryland Hotel
on November 18, 2011, to evidence Husband’s misconduct. In response to Husband’s text
message tirade, the trial court stated that it appeared Husband apologized in a text message
the following day and:

        One must read this response to have some understanding of the husband’s
        tirade. The husband testified that he was sitting at a bar in Opryland Hotel and
        had 13 alcoholic drinks. It has [sic] been his plan to take the wife to the hotel
        for the night and the next day to treat her to the spa, etc. The wife had declined
        to go. There is some evidence in the telephone calls that would make the
        husband believe that he might have a chance to be together with his wife and
        children. Reading the remainder of the texts, it is clear that there are no other
        threats.

      Although the text messages are vulgar, as the trial court correctly noted, they the text
messages did not contain threats.3

        Having reviewed the phone conversations, the text messages and the testimony
presented at the hearing, and upon consideration of the attending facts and circumstances,
we find the evidence does not preponderate against the trial court’s findings that Husband
did not coerce Wife into firing her attorney, as her words in the phone conversations were
essentially, “my lawyer will do what I say,” and Wife was not deprived of the exercise of free
will. See Johnson, 245 S.W. at 538.

                                 III. P ERMANENT P ARENTING P LAN

       Wife also contended that the Permanent Parenting Plan must be set aside because it
is not in the children’s best interests, stating she entered into the ill-advised plan under
duress.

        The trial court is not bound by agreed upon Permanent Parenting Plans; instead, the
court is required to “evaluate whether the agreed arrangement is in the best interest of the
children.” Fletcher v. Fletcher, M2010-01777-COA-R3CV, 2011 WL 4447903 (Tenn. Ct.

        3
        Out of consideration for both parties, we feel it is not necessary to detail the language of the text
messages within this opinion.
                                                    -7-
App. Sept. 26, 2011) (citing Greer v. Greer, W2009-01587-COA-R3-CV, 2010 WL 3852321
(Tenn. Ct. App. Sept. 30, 2010)).

       While an agreement on parenting issues would ideally reflect the parties’
       considered judgment on the arrangement that would best fit the needs of their
       children, it is also recognized that other factors can come into play in such an
       agreement, such as the original dysfunction in the parties’ relationship,
       inequality of resources, reluctance to involve the children in the litigation, or
       even the parties’ desire to get the divorce “over with.” For that reason, the trial
       court has broad discretion to determine an appropriate parenting plan in light
       of the evidence adduced at a hearing and the best interest of the children, even
       where the parties have reached an agreement on such issues.

Greer, at *7.

       “Regardless of the parents’ interest in a custody arrangement, the overriding
responsibility of the court is to approve or order a parenting plan that promotes the best
interest and welfare of (the children).” Burden v. Burden, 250 S.W.3d 899, 909 (Tenn. Ct.
App. 2007) (quoting Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 WL
2346000, *5 (Tenn. Ct. App. Oct. 15, 2004)).

        Wife and Husband have three minor children, ages twelve, nine, and seven and the
parents essentially agreed to a week on and week off parenting time schedule. The parties
lived in the same community and agreed the children would not be moved from the area until
the youngest child turned 18 years of age. They also agreed that Husband would pay $941
a month in child support, that major decisions would be made jointly, and both parties would
maintain health insurance for the benefit of the children.

       The trial court found the Permanent Parenting Plan was in the best interests of the
children, that it was fair and reasonable on its face, and denied Wife’s petition to set it aside.

       Decisions regarding parenting schedules often hinge on subtle factors, such as the
parents’ demeanor and credibility during the proceedings. Adelsperger v. Adelsperger, 970
S.W.2d 482, 485 (Tenn. Ct. App. 1997). Thus, a trial court’s decision regarding a permanent
parenting plan will be set aside only when it “falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the evidence found in
the record.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).

        The evidence does not preponderate against the trial court’s finding that the
Permanent Parenting Plan was in the best interests of the children; accordingly, we affirm
the trial court concerning this decision as well as that on the Marital Dissolution Agreement.
                                               -8-
                                     I N C ONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against appellant, Alissa Owen.


                                                      ______________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




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