                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   July 8, 2014 Session

          BONNIE ELLEN PIERRE v. EDWARD JOSEPH PIERRE

                   Appeal from the Circuit Court for Sevier County
                    No. 2010-0769-II    Richard R. Vance, Judge


             No. E2013-01864-COA-R3-CV-FILED-OCTOBER 30, 2014


In this post-divorce case, Edward Joseph Pierre (“Husband”) appeals the trial court’s
decision refusing to grant him relief under Tenn. R. Civ. P. 60.02. Husband argues that the
trial court’s divorce judgment based upon irreconcilable differences should be set aside and
the case reopened because the parties’ marital dissolution agreement (“MDA”), which was
duly approved by the trial court and incorporated into the judgment, allegedly fails to
equitably divide the marital estate. Husband voluntarily signed the MDA before a notary
public but declined to read it before he signed it. Finding no grounds for Rule 60.02 relief,
we affirm the judgment of the trial court.

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

C HARLES D. S USANO, JR., C.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and T HOMAS R. F RIERSON, II, JJ., joined.


David M. Boyd, Knoxville, Tennessee, for the appellant, Edward Joseph Pierre.

Peter D. Van de Vate, Knoxville, Tennessee, for the appellee, Bonnie Ellen Pierre.


                                        OPINION
                                               I.

        In late October 2010, Husband told his spouse, Bonnie Ellen Pierre (“Wife”), that he
wanted a divorce. Wife downloaded forms from an internet website for a complaint for
divorce, an MDA, and a final judgment for divorce. After discussing how they would divide
their property, the parties executed the MDA, which Wife had filled out by checking the
appropriate boxes and filling in the blanks with handwritten information. Neither party
consulted an attorney at any point before the divorce judgment became final. The MDA
provides that “[t]he parties have divided the personal property they own individually or
jointly. The [parties are] satisfied that a fair division has been made of it.” The MDA
describes the marital residence – the parties’ only real estate – and provides that it “shall be
vested solely in the wife, and the other spouse will thereby be divested of all right, title, and
interest in it.” Husband testified that he signed the MDA in the presence of a notary on
November 4, 2010, but that he did not read it before he signed it, because he trusted that the
marital property would “split everything down the middle.” He said that this was the
understanding of the parties leading to the execution of the MDA.

        Wife filed her complaint for divorce on November 5, 2010. The trial court entered
judgment declaring the marriage dissolved on the ground of irreconcilable differences on
January 13, 2011. The judgment, signed by Circuit Court Judge Rex Henry Ogle, provided
as follows:

              The Court finds that the parties have made adequate and
              sufficient provision in a Marital Dissolution Agreement for the
              equitable division of all property and debts between them. It is
              attached and incorporated as part of this Decree.

Apparently, Husband did not appear before the trial court when the divorce judgment was
signed by the court and entered by the clerk. The judgment does bear his signature as
approving the judgment for entry.

        On June 7, 2011, Husband, then and for the first time represented by counsel in this
matter, filed a motion to set aside the divorce judgment pursuant to Rule 60.02. Husband
alleged that the MDA “is a product of fraud, duress, and misrepresentation and other
misconduct on behalf of [Wife],” and that it “do[es] not provide for a fair and equitable
division of the parties’ assets and debts as is required by Tennessee law.” Wife, also
represented by counsel, opposed the motion. A hearing was held before Circuit Court Judge
Richard R. Vance on November 4, 2011. After hearing the testimony of Husband and Wife,
the trial court entered an order denying Husband’s motion and stating in pertinent part as
follows:

                                               -2-
              The [Husband] failed to carry the burden of proof as it relates to
              claims of fraud, duress, or misrepresentation pursuant to
              [Husband’s] Motion to Set Aside the Final Decree of Divorce
              pursuant to Rule 60.02 of the Tennessee Rules of Civil
              Procedure.

              The Court finds that the parties[’] Marital Dissolution
              Agreement, previously adopted by this Honorable Court on or
              about January 13, 2011, complies with [the] requirements [of]
              T.C.A. 36-4-103(b).

              The Court finds that it does not have an affirmative duty to
              ensure an equitable division of the property and debts
              enumerated in the parties[’] Marital Dissolution Agreement,
              insomuch as the parties are free to contract with one another
              relating to their distribution and division of their assets, debts,
              and financial resources.

(Paragraph numbering in original omitted.) Husband timely filed a notice of appeal.

                                              II.

       The issue on appeal is whether the trial court erred in refusing to set aside the divorce
judgment under Tenn. R. Civ. P. 60.02. In his brief, Husband has phrased his issues
presented as follows:

              1. Whether [an MDA] is a valid and enforceable contract when
              it fails to both disclose, or to equitably divide, all of the
              parties[’] property, thus omitting essential elements of a Marital
              Dissolution Agreement contract.

              2. Whether . . . a Trial Court has an affirmative duty to ensure
              the equitable division [of] all of the parties[’] property as
              mandated by Tenn. Code Ann. § 36-4-103(b), prior to granting
              the parties a divorce based upon the ground of Irreconcilable
              Differences[.]




                                              -3-
                                             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.

Husband’s motion asserts that,

              the Final Decree of Divorce and the Marital Dissolution
              Agreement entered into by the parties, is a product of fraud,
              duress, and misrepresentation, and other misconduct on behalf
              of [Wife]. In addition, they do not provide for a fair and
              equitable division of the parties’ assets and debts as required by
              Tennessee law, and severely prejudice the Petitioner with the
              contents therein.

In his brief, Husband states that “the Trial Court opined that the Husband failed to carry his
burden of proof as it related to his claims of fraud, duress, and undue influence. The
Husband does not seek appellate review of this finding.” Because Husband has not appealed
the trial court’s ruling on the grounds of “fraud, . . . misrepresentation, or other misconduct
of an adverse party,” as those bases are set forth in Rule 60.02(2), the question is whether
Husband demonstrated “any other reason justifying relief from the operation of the
judgment” under subsection (5) of Rule 60.02.

        In two recent opinions, 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), the Supreme
Court discussed the standards applicable to a Rule 60.02 motion challenging a trial court’s
final judgment. In Henderson, the Court reiterated the appropriate standard of review,
stating as follows:

                                              -4-
             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).

318 S.W.3d at 335.

      In Furlough, the High Court provided the following additional 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

                                            -5-
             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).

397 S.W.3d at 127-28 (brackets in original).

        Moreover, both Furlough and Henderson suggest that the bar is higher still for a
litigant relying on the “catch-all” provision of subsection (5):

             Although motions based on Rule 60.02(5) are subject only to the
             “reasonable time” limitation, . . . Rule 60.02(5) has been
             construed narrowly by Tennessee’s courts. See Holiday v.
             Shoney’s South, Inc., 42 S.W.3d 90, 94 (Tenn. Ct. App. 2000)
             (citing Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97
             (Tenn. 1993)). Rule 60.02(5) does not “relieve a party from his
             or her free, calculated, and deliberate choices.” Id. Instead, the
             rule “affords relief in the most extreme, unique, exceptional, or
             extraordinary cases and generally applies only to circumstances



                                             -6-
              other than those contemplated in sections (1) through (4) of Rule
              60.02.” Holiday, 42 S.W.3d at 94.

Furlough, 397 S.W.3d at 128; see also Henderson, 318 S.W.3d at 338, 339 (“Relief under
Rule 60.02(5) is appropriate in cases involving extraordinary circumstances or extreme
hardship. . . . [A] party attempting to have an order set aside under Rule 60.02(5) faces a
difficult task.”).

                                                IV.

        We examine the evidence in the record on appeal, consisting of the testimony of
Husband and Wife at the motion hearing, to determine if Husband has established grounds
for Rule 60.02(5) relief by clear and convincing evidence under the above standards. The
MDA describes the marital residence and provides that “[u]pon entry of the Final Decree,
the real estate shall be vested solely in the wife, and the other spouse will thereby be divested
of all right, title, and interest in it.” Regarding personal property, the MDA states, “the
parties have divided the personal property they own individually or jointly. The husband is
satisfied that a fair division has been made of it.” The MDA contains an identical provision
reciting Wife’s satisfaction of the division of personal property.

        Husband moved to Minnesota shortly after the entry of the final judgment. At that
time, the parties divided their personal property. Husband testified that each party kept
his/her retirement account, and that they evenly split the value of the one account they held
jointly. There was no marital debt at the time of the divorce. Husband’s only complaint
about the division of property is what was done with the marital residence, which was
unencumbered and which he valued at approximately $225,000. He testified that the parties
agreed that they “were going to split everything down the middle” and argues that he should
be entitled to half the equity in the house. Wife testified that Husband told her before they
signed the MDA that “he didn’t need the money” from the house “because he was moving
in with his daughter and he had a decent retirement.” Husband admits to voluntarily signing
the MDA in front of a notary. He further testified as follows:

              Q: Well, you looked at the document before you signed it, didn’t
              you, sir?

              A: No, I did not. I was under the assumption that we had an
              uncontested divorce and we had already discussed settlement of
              the properties, et cetera, so I trusted her.

                                     *      *         *

                                                -7-
                 Q: I’m curious as to why you didn’t follow up and look at your
                 MDA or final decree of divorce?

                 A: Because I believed that the agreement we had made verbally
                 was going to be followed.

                                         *       *         *

                 Q: So you don’t deny that you were on your own in your own
                 vehicle, on your own volition, went to the bank and signed the
                 marital dissolution decree and final decree? You don’t deny
                 that, do you?

                 A: I do not.

                 Q: And you have stated and testified here under oath that you do
                 not recall reading the document and in fact you affirmatively
                 testified that you only looked at the back page and didn’t look
                 at the rest of it; correct?

                 A: Correct.

       Wife testified that, in Husband’s presence, she filled out the forms she had
downloaded from the internet, including the MDA, and that she read all of the information
out loud to Husband:

                 A: I filled them out because of the tremor in his hand [and]
                 because you can’t read his handwriting very well. He asked for
                 a divorce, I filled the paperwork out with him standing behind
                 me at my desk and I read them off to him line by line and asking
                 if that was okay before I marked them. I read every single
                 option.1

                                         *       *         *

                 Q: And you read all three documents to him line by line?



      1
          The pre-printed forms gave the reader a number of options to choose.

                                                     -8-
              A: Line by line. Everything before it was checked I read it to
              him. I read him all the options and this is what’s being marked
              and he agreed to every single one of those.

       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). The dispositive rule of law in this appeal is
one that is fundamental, well-known, and recently described by this Court as follows:

              One who signs a contract cannot later plead ignorance of its
              contents if there was an opportunity to read it before signing.
              See Solomon v. First American Nat’l Bank, 774 S.W.2d 935,
              943 (Tenn. Ct. App. 1989). The law will not allow a party to
              enter a contract and then seek to avoid performance because he
              did not read the agreement or know its contents. Giles v.
              Allstate Ins. Co., 871 S.W.2d 154, 157 (Tenn. Ct. App. 1993)
              (citing Beasley v. Metro. Life Ins. Co., 190 Tenn. 227, 229
              S.W.2d 146 (Tenn. 1950)). Otherwise, written contracts would
              be worthless. Id. In general, the law holds parties responsible
              for what they sign. See id. But see Teague Bros. v. Martin &
              Bayley, Inc., 750 S.W.2d 152, 158 (Tenn. Ct. App. 1987)
              (excluding from this general rule situations in which the neglect
              to read was induced through artifice or trick by the party seeking
              to enforce the contract).

Advantage Windows, Inc. v. Zacarias, No. E2014-00122-COA-R3-CV, 2014 WL 4403106
at *3 (Tenn. Ct. App. E.S., filed Sept 8, 2014) (quoting Moody Realty Co. v. Huestis, 237
S.W.3d 666, 674 (Tenn. Ct. App. 2007)).

       Husband argues that the trial court failed to equitably divide a significant marital asset
– the equity in the marital residence. The trial court, however, awarded the equity in the
marital residence precisely as the parties agreed to in the MDA, namely, to vest title solely
in the wife, and divest Husband “of all right, title, and interest in it.” Any mistake or
misunderstanding regarding what would be done with the marital residence was a unilateral
error on Husband’s part. See Worgan v. Worgan, No. E2013-01756-COA-R3-CV, 2014 WL

                                               -9-
1715067 at *4 (Tenn. Ct. App. E.S., filed Apr. 30, 2014) (holding “Wife has not established
any ground for reopening the final divorce judgment under Rule 60.02” where judgment
allegedly failed to include division of husband’s pension and wife mistakenly thought it
would be divided later).

      Husband takes issue with the following statement contained in the trial court’s final
judgment order denying him Rule 60.02 relief:

              The Court finds that it does not have an affirmative duty to
              ensure an equitable division of the property and debts
              enumerated in the parties[’] Marital Dissolution Agreement,
              insomuch as the parties are free to contract with one another
              relating to their distribution and division of their assets, debts,
              and financial resources.

To the extent that this statement is made in the context of a divorce on the ground of
irreconcilable differences (“an ID divorce”), it conflicts with Tenn. Code Ann. § 36-4-
103(b), which provides:

              No divorce shall be granted on the ground of irreconcilable
              differences unless the court affirmatively finds in its decree that
              the parties have made adequate and sufficient provision by
              written agreement for the custody and maintenance of any
              children of that marriage and for the equitable settlement of any
              property rights between the parties. If the court does not
              affirmatively find that the agreement is sufficient or equitable,
              the cause shall be continued by the court to allow further
              disposition by the petitioner.

In the present case, Judge Ogle’s order granting the parties an ID divorce fully complied with
this provision, reciting that “the parties have made adequate and sufficient provision in a
Marital Dissolution Agreement for the equitable division of all property and debts between
them.”

       When Husband filed his Rule 60.02 motion, Judge Vance was not entertaining a
request for an ID divorce. Rather, it was his task to review the record and the evidence at the
motion hearing to determine if there were any grounds alleged in the motion that were proven
and sufficient to void a judgment that had become final some three and a half months earlier.
In other words, the trial court’s statement that “it does not have an affirmative duty to ensure
an equitable division of the property and debts enumerated in the [MDA],” while clearly

                                              -10-
erroneous in the context of entering judgment granting an ID divorce, is not erroneous in the
context of a ruling on a Rule 60.02 motion to set aside an ID divorce judgment. In any event,
the record demonstrates that the trial court fulfilled its duty in ruling on Husband’s Rule
60.02 motion and that the court committed no reversible error. There is no abuse of
discretion on the part of the trial court in its holding that Husband failed to demonstrate
grounds for Rule 60.02 relief by clear and convincing evidence.

                                             V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Edward Joseph Pierre. The case is remanded to the trial court, pursuant to
applicable law, for collection of costs assessed below.




                                           _____________________________________
                                           CHARLES D. SUSANO, JR., CHIEF JUDGE




                                            -11-
