                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                      February 4, 2014 Session

   KENNETH JAMES WORGAN v. JEANNIE ANTOINETTE WORGAN

                   Appeal from the Chancery Court for Jefferson County
                    No. 11-3-053    Telford E. Forgety, Jr., Chancellor


                   No. E2013-01756-COA-R3-CV-FILED-APRIL 30, 2014




In this post-divorce case, Jeannie Antoinette1 Worgan (“wife”) filed a Tenn. R. Civ. P. 60.02
motion to alter or amend the final judgment, which had been entered over eleven months
earlier. The final judgment had incorporated the parties’ marital dissolution agreement
(“MDA”). Wife’s Rule 60.02 motion alleges that the MDA “failed to mention the division
of the former husband’s pension” and that “[t]his oversight certainly must have resulted from
a mistake, inadvertence, or excusable neglect.” The trial court denied the motion, finding
that wife was aware of the pension of Kenneth James Worgan (“husband”) when she signed
the MDA and that she had ample time and opportunity to review the MDA before signing
it. We agree with the trial court’s ruling that wife has presented no ground for Rule 60.02
relief. Accordingly, we affirm.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Affirmed; Case Remanded

C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which J OHN W.
M CC LARTY and T HOMAS R. F RIERSON, II, JJ., joined.

P. Richard Talley, Dandridge, Tennessee, for the appellant, Jeannie Antoinette Worgan.

G. Kenneth Gilleland, Seymour, Tennessee, for the appellee, Kenneth James Worgan.




        1
         In the complaint and husband’s other filings, wife’s middle name is spelled “Antionette.” In most
of wife’s filings and the trial court’s final judgment, it is spelled “Antoinette.” In this opinion we will use
the common spelling “Antoinette.”
                                       OPINION

                                             I.

      The parties were divorced by judgment entered June 29, 2011. The parties’ MDA
provides, in pertinent part, as follows:

            [T]he parties intend by their approval hereof to resolve all
            issues relating to the division of marital property, marital
            liabilities as well as determine all claims either party may have
            for alimony, support or maintenance.

                                  *      *         *

            Full and Final Settlement: Both parties hereto, exclusive of
            the terms and provisions of this agreement, each waive all right,
            title, and interest in and to the property and estate of the other
            by way of expectancy or reversion or otherwise, except as to
            obligations imposed by this instrument or by the Court’s decree,
            this agreement being intended as full, final, and complete
            settlement of the parties’ marital and all other rights.

                                  *      *         *

            Husband and Wife expressly certify and acknowledge they have
            entered this Agreement upon mature consideration, that they
            have each fully disclosed all of their assets, and that all of said
            assets have been distributed herein. Consent to the execution of
            this Agreement has not been obtained by duress, fraud, and/or
            undue influence by any person, but the parties acknowledge and
            represent that they have voluntarily, knowingly and willingly
            entered into this Agreement.

                                  *      *         *

            [The] Parties expressly acknowledge that the distribution of
            assets and debts set out hereinabove is equitably distributed by
            the terms of this Agreement.

                                  *      *         *

                                             -2-
              The Wife also states under oath that she has not been advised in
              any way of her rights herein and knows she has an absolute right
              to have an attorney represent her in regards to the parties[’]
              divorce and says by signing this Agreement that she has either
              obtained independent legal advice or is knowingly waiving her
              right to such advice.

(Emphasis added; bold print in original.) The trial court’s final judgment states that “the
Marital Dissolution Agreement entered into by and between the parties hereto is fair and
equitable in all its terms and, accordingly, the same is adopted by reference and incorporated
herein.”

       On June 12, 2012, wife filed her Rule 60.02 motion to alter or amend, alleging that

              [t]he Mar[ital] Dissolution Agreement failed to mention the
              division of the former husband’s pension of approximately
              eighteen (18) years at Brunswick. Pursuant to T.C.A. § 36-4-
              121(b)(1)(B), those pension benefits are marital property. This
              oversight certainly must have resulted from a mistake,
              inadvertence, or excusable neglect.

After a hearing, the trial court denied wife’s motion. The court’s order states that “the parties
. . . stipulate that this Order constitutes the record in this cause for purposes of appeal.”
There is no transcript of the hearing. Neither party filed a statement of the evidence pursuant




                                               -3-
to Tenn. R. App. P. 24.2 Because the order contains all the facts before us on this appeal, we
hereby quote it in its entirety:

                 The Wife testified that she was aware of the Brunswick pension
                 but believed it would be divided later. The Wife was not
                 employed. Wife did pick up a copy of the [MDA] and reviewed
                 it and told the record attorney that she was taking it to her
                 attorney. The Husband testified that the pension wasn’t
                 mentioned in the [MDA] because there would not have been an
                 agreement if the wife sought to divide his pension. The
                 Husband received the marital home and is paying for it which
                 was 15 months behind ($17,000.00), plus paid off wife’s car
                 ($2,500.00) and other debts ($3,500.00). The pension was
                 worth One Hundred Fifty Five Thousand Dollars ($155,000.00).

                 The Court announced its findings of fact and conclusion of law
                 and said:

                 There was no mutual mistake, only a unilateral mistake on the
                 part of the Wife. The Court further held paragraph eight of the


        2
          After the trial court’s order presently before us was entered, wife filed a document captioned
“Statement of Issues . . . pursuant to Rule 24, Tenn. R. App. P.” Rule 24(c) at that time provided, in pertinent
part, as follows:

                 If no stenographic report, substantially verbatim recital or transcript of the
                 evidence or proceedings is available, the appellant shall prepare a statement
                 of the evidence or proceedings from the best available means, including the
                 appellant’s recollection. The statement should convey a fair, accurate and
                 complete account of what transpired with respect to those issues that are the
                 bases of appeal. The statement, certified by the appellant or the appellant’s
                 counsel as an accurate account of the proceedings, shall be filed with the
                 clerk of the trial court within 60 days after filing the notice of appeal.
                 Upon filing the statement, the appellant shall simultaneously serve notice
                 of the filing on the appellee, accompanied by a short and plain declaration
                 of the issues the appellant intends to present on appeal.

Wife’s “statement of issues” contains several assertions of fact regarding the parties’ testimony at the
hearing. It is not clear whether wife intended her “statement of issues” to be a statement of the evidence
under Rule 24. In any event, the content of the “statement of issues” is duplicative of the trial court’s order
and contains no additional facts beyond those found in that order. It is therefore clear that every “fact”
regarding the evidence presented at the hearing that wife wants to present on appeal is before us by way of
the court’s order.

                                                      -4-
              [MDA] constituted a final settlement of all assets barring the
              Wife from seeking a portion of the Brunswick pension. The
              Court ruled paragraph thirteen further limited the wife’s claim
              to the Brunswick pension in that both parties voluntarily entered
              into the agreement after due consideration.

Wife timely filed a notice of appeal.

                                             II.

       The issue presented, as stated by wife in her brief, is as follows:

              Whether the trial court abused its discretion when it denied
              [wife’s] motion to alter or amend the judgment pursuant to Rule
              60.02 of the Tennessee Rules of Civil Procedure.

                                             III.

      The governing rule in this case, Tenn. R. Civ. P. 60.02, provides, in pertinent part, as
follows:

              On motion and upon such terms as are just, the court may relieve
              a party . . . from a final judgment, order or proceeding for the
              following reasons: (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. The motion shall be made within a
              reasonable time, and for reasons (1) and (2) not more than one
              year after the judgment, order or proceeding was entered or
              taken. . . . This rule does not limit the power of a court to
              entertain an independent action to relieve a party from a
              judgment, order or proceeding, or to set aside a judgment for
              fraud upon the court.




                                             -5-
Wife’s motion asserts that the failure of the MDA to mention husband’s pension “resulted
from a mistake, inadvertence, or excusable neglect.” Wife has presented no allegation or fact
that would support an argument for the application of subsections (2) through (5) of Rule
60.02. The question, therefore, is whether wife demonstrated “mistake, inadvertence,
surprise, or excusable neglect” under Tenn. R. Civ. P. 60.02(1).

        In two recent opinions, the Supreme Court discussed the standards applicable to a
Rule 60.02 motion challenging a trial court’s final judgment. Henderson v. SAIA, Inc., 318
S.W.3d 328 (Tenn. 2010) and Furlough v. Spherion Atlantic Workforce, LLC, 397 S.W.3d
114 (Tenn. 2013). In Henderson, the Court reiterated the appropriate standard of review,
stating as follows:

              Tennessee law is clear that the disposition of motions under
              Rule 60.02 is best left to the discretion of the trial judge.
              Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn.
              1993); Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn.
              1991); McCracken v. Brentwood United Methodist Church,
              958 S.W.2d 792, 795 (Tenn. Ct. App.1997). The standard of
              review on appeal is whether the trial court abused its discretion
              in granting or denying relief. This deferential standard “reflects
              an awareness that the decision being reviewed involved a choice
              among several acceptable alternatives,” and thus “envisions a
              less rigorous review of the lower court’s decision and a
              decreased likelihood that the decision will be reversed on
              appeal.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524
              (Tenn.2010).

              A trial court abuses its discretion when it causes an injustice by
              applying an incorrect legal standard, reaching an illogical
              decision, or by resolving the case “on a clearly erroneous
              assessment of the evidence.” Id. The abuse of discretion
              standard does not permit the appellate court to substitute its
              judgment for that of the trial court. Eldridge v. Eldridge, 42
              S.W.3d 82, 85 (Tenn. 2001). Indeed, when reviewing a
              discretionary decision by the trial court, the “appellate courts
              should begin with the presumption that the decision is correct
              and should review the evidence in the light most favorable to the
              decision.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709
              (Tenn. Ct. App. 1999); see also Keisling v. Keisling, 196
              S.W.3d 703, 726 (Tenn. Ct. App. 2005).

                                             -6-
318 S.W.3d at 335. In Furlough, the High Court provided the following further guidance:

             [W]e have characterized relief under Rule 60.02 as an
             “exceptional remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289,
             294 (Tenn. 1992), “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). Rule 60.02
             provides an “escape valve,” Thompson v. Firemen’s Fund Ins.
             Co., 798 S.W.2d 235, 238 (Tenn. 1990), that “should not be
             easily opened.” Toney v. Mueller Co., 810 S.W.2d 145, 146
             (Tenn. 1991). We have reversed relief granted under Rule 60.02
             where the judgment was “not oppressive or onerous.” Killion
             v. Tenn. Dep’t of Human Servs., 845 S.W.2d 212, 214 (Tenn.
             1992). “[R]elief under Rule 60.02 is not meant to be used in
             every case in which the circumstances of a party change after
             the entry of a judgment or order, nor by a party who is merely
             dissatisfied with a particular outcome.” Henderson, 318
             S.W.3d at 336.

             A party seeking relief under Rule 60.02 must substantiate the
             request with clear and convincing evidence. McCracken v.
             Brentwood United Methodist Church, 958 S.W.2d 792, 795
             (Tenn. Ct. App. 1997). “Clear and convincing evidence means
             evidence in which there is no serious or substantial doubt about
             the correctness of the conclusions drawn from the evidence.”
             Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn.
             1992). “In other words, the evidence must be such that the truth
             of the facts asserted [is] ‘highly probable.’ ” Goff v. Elmo
             Greer & Sons Constr. Co., 297 S.W.3d 175, 187 (Tenn. 2009)
             (quoting Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330,
             341 (Tenn. 2005)). In general, “the bar for attaining relief is set
             very high and the burden borne by the movant is heavy.”
             Johnson v. Johnson, 37 S.W.3d 892, 895 n. 2 (Tenn. 2001).

             All motions for relief based on Rule 60.02 “shall be made within
             a reasonable time.” Tenn. R. Civ. P. 60.02. Motions based on
             Rule 60.02(1) or (2) shall be made “not more than one year after
             the judgment, order or proceeding was entered or taken.” Tenn.
             R. Civ. P. 60.02. In other words, “[o]ne year is the ‘outer limit

                                             -7-
              on the time allowed for filing the motion’ under 60.02(1) or
              60.02(2).” Rogers v. Estate of Russell, 50 S.W.3d 441, 445
              (Tenn. Ct. App. 2001) (quoting Ellison v. Alley, 902 S.W.2d
              415, 417 (Tenn. Ct. App. 1995)). Rule 60.02 does not “permit
              a litigant to slumber on her claims and then belatedly attempt to
              relitigate issues long since laid to rest.” Thompson, 798 S.W.2d
              at 238.

397 S.W.3d at 127-28 (brackets in original). We examine the evidence in the record on
appeal, being the few findings of fact contained in the trial court’s order, in order to
determine if wife has established grounds for Rule 60.02 relief by clear and convincing
evidence under the above standards. We hold that the trial court did not abuse its discretion
in denying wife’s request for Rule 60.02 relief from the final judgment.

         The trial court found that wife had ample time to review the MDA before she signed
it; that she did in fact review it; and that she told husband’s attorney that she was going to
take it to her attorney to review. Wife does not dispute these findings. It is obvious that
husband did not hide the existence of his pension, because wife testified that she was aware
of it but mistakenly thought it would be divided later. A cursory reading of the MDA,
however, should have put wife on notice that this document is designed to finally and forever
conclude the parties’ rights growing out of their marriage. We have observed that “[a]
property settlement or marital dissolution agreement is essentially a contract between a
husband and wife in contemplation of divorce proceedings.” Pylant v. Spivey, 174 S.W.3d
143, 151 (Tenn. Ct. App. 2003). An MDA “is to be looked upon and enforced as an
agreement, and is to be construed as other contracts as respects its interpretation, its meaning
and effect.” Gray v. Estate of Gray, 993 S.W.2d 59, 63 (Tenn. Ct. App. 1998). Moreover,
generally speaking, “the parties are not entitled to a marital dissolution agreement that is
different from the one they negotiated.” Long v. McAllister-Long, 221 S.W.3d 1, 9 (Tenn.
Ct. App. 2004). There is no indication in the record that wife was deceived or misled in any
way before she signed the MDA. Wife has not established any ground for reopening the final
divorce judgment under Rule 60.02.

                                             IV.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Jeannie Antoinette Worgan. This case is remanded to the trial court, pursuant to
applicable law, for enforcement of the trial court’s judgment and for collection of costs
assessed below.




                                              -8-
_____________________________________
CHARLES D. SUSANO, JR., CHIEF JUDGE




 -9-
