                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   October 15, 2003 Session

                 PATRICIA A. LYMAN v. LAWRENCE A. JAMES

                     Appeal from the Circuit Court for Hamilton County
                        No. 01 C 918    W. Neil Thomas, III, Judge

                                     Filed December 30, 2003

                                 No. E2002-02859-COA-R3-CV



After over thirty years of marriage, Patricia A. Lyman (“Wife”) left Lawrence A. James (“Husband”)
and moved to the state of Washington and began living with her new boyfriend. After Husband
learned of Wife’s affair, the parties agreed to a divorce based on irreconcilable differences and
entered into a marital dissolution agreement (“MDA”). Both parties signed the MDA before a
Notary Public, but neither party was administered an oath prior to his or her signing. The MDA
provided that Husband would receive the entire amount of his pension. Over six months after the
parties were granted a divorce, Wife filed a new lawsuit claiming she gave up any claim to
Husband’s pension because of Husband’s fraud and/or misrepresentations. Wife also claimed the
court which granted the divorce lacked personal jurisdiction to enter the final divorce decree because
neither Husband nor Wife were administered oaths prior to signing the MDA, which Wife claimed
resulted in the MDA not being properly notarized. The Trial Court concluded the failure of the
Notary Publics to administer oaths did not render the MDA invalid. The Trial Court also concluded
Wife failed to meet her burden of proving fraud and/or misrepresentations on the part of Husband.
Wife appeals, and we affirm.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
WILLIAM H. INMAN , SR. J., joined.


Phillip C. Lawrence, Chattanooga, Tennessee, for the Appellant Patricia A. Lyman.


Richard A. Schulman and R. Jonathan Guthrie, Chattanooga, Tennessee, for the Appellee Lawrence
A. James.
                                             OPINION

                                            Background

               Wife and Husband were married in March of 1970. Husband filed a complaint in
August of 2000 seeking a divorce from Wife on the basis of irreconcilable differences.
Approximately two months later, the Trial Court entered a Final Decree granting the parties a
divorce on the basis of irreconcilable differences. Along with the Final Decree, the Trial Court
approved and adopted the MDA submitted and signed by the parties. Husband and Wife had two
children who were no longer minors at the time of the divorce. The primary purpose of the MDA
was to divide the marital property and the marital debt. According to the terms of the MDA,
Husband retained all of his retirement benefits from his employer, Olin Corporation, as well as any
IRAs held solely in his name. Wife retained any IRAs held solely in her name. When the MDA was
approved, Wife was living in the state of Washington. Paragraph fourteen of the MDA provided
that:

                       The Wife, Patricia A. James, has executed this Marital
               Dissolution Agreement in lieu of service of process, being fully aware
               that a Complaint for Divorce will be filed in the State of Tennessee,
               and defendant states that she waives further service in this proceeding
               and waives the filing of an Answer to the Complaint, said waiver of
               service being valid for a period of one hundred twenty days from the
               date the last party signs this agreement. Defendant further
               acknowledges that her execution of this Marital Dissolution
               Agreement constitutes a general appearance and Answer before this
               Court giving said Court personal jurisdiction over the defendant, and
               further constitutes a default judgment for the purpose of the granting
               of a divorce on the grounds of irreconcilable differences in this case,
               pursuant to Tennessee Code Annotated, § 36-4-103(a)(2).

The MDA was signed and the signatures of both parties seemingly were notarized.

                 Over six months after the Final Decree was entered, Wife, who had since remarried,
had second thoughts about not obtaining any of Husband’s retirement benefits. Wife then filed a
new lawsuit seeking to have the Final Decree vacated or set aside for lack of jurisdiction arising from
“the failure of the parties to have their signatures to the [MDA] properly acknowledged as required
by Tennessee Code Annotated § 36-4-103.” Wife also claimed the MDA should be set aside because
of mistake, inadvertence, surprise or excusable neglect on her part, and/or because of fraud and
misrepresentation by Husband. Finally, Wife claimed the MDA should be set aside because of the
“unconscionable inequity” in the division of the marital property.

             In his answer, Husband denied the pertinent allegations set forth in the complaint.
Husband claimed Wife failed to state a claim upon which relief could be granted and asserted,


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among other things, that the filing of a new complaint was not the proper method in which to attempt
to set aside the Final Decree, an argument which Husband does not pursue on appeal.

                 A two day trial took place in September of 2002. The first witness was Clarence
Patton Hilliard (“Hilliard”), the owner and actuary of CPH Pension Administrators.1 According to
Hilliard, the estimated present value of Husband’s retirement benefits totaled $679,817, assuming
Husband retired at age 55 with monthly benefits of $4,648.82. Hilliard also testified that if Husband
were to retire at age 65 with monthly benefits of $5,988.27, the present value of those benefits would
be $375,185.

                At trial, Wife testified to the various jobs she has had and the different places she and
Husband lived over the years. According to Wife, they always deferred to Husband’s career needs
when deciding to move. Wife stated Husband handled all of the major financial matters and all
major decisions within the family. In 1997, Husband’s job with Olin Corporation was restructured
and he moved his office into the marital home. At that time, Wife was working in the real estate
business. In 1999, Husband and Wife formed a real estate partnership “for the sole purpose of
selling real estate and mitigating taxes.” Wife claimed she did not want to go into business with
Husband and resisted the idea, but Husband prevailed. According to Wife, the only area where she
was considered to have authority was in the real estate business. Wife testified when Husband
moved his office into the home, he had more free time and began to focus on telling Wife how to
run her real estate business and what she should and should not do.

               In March of 2000, Husband and Wife celebrated their 30th wedding anniversary.
Around the same time, Wife attended a real estate convention in San Francisco. Wife “met” a man
at the convention and began a relationship with him. This is the person to whom Wife is now
married. Wife visited her new paramour in various places while still married to Husband. Although
Wife did not tell Husband about her affair, she did express concerns to Husband about their
marriage. In particular, Wife told Husband she did not like or love him anymore and she “did not
feel whole. There was a big, huge piece of me missing.” Wife ultimately left Husband in July of
2000. Wife moved from Tennessee to the state of Washington after securing a real estate position
in the town of Colville.

               Wife testified that she and Husband had several conversations after they separated
about dividing up the marital property. At trial Wife was shown a list of the marital assets and
acknowledged she was aware of the existence of all these assets, including Husband’s pension.
However, Wife stated she was not aware of the monetary value of that pension. Wife testified that
prior to her moving to Washington, she and Husband verbally agreed to split the assets on a 50/50
basis. Notwithstanding the foregoing, Wife acknowledged agreeing to forego any claim to
Husband’s pension in exchange for Husband’s paying her health insurance premiums for the rest of
her life. Wife had purchased a 1998 Ford Explorer and Husband also agreed to make all of the


         1
         Since Hilliard ’s qualifications were not challenged at trial, we will not discuss his educational or professional
background.

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payments on this vehicle, which he did. The parties eventually agreed the value of the household
furnishings was $30,000. Husband offered Wife $12,500 in cash for her share of the household
furnishings, and Wife accepted this offer.

                Wife moved to Washington where she began living with her new boyfriend. Soon
thereafter, Wife received a telephone call from Husband at which time Husband informed Wife that
he had hired a private investigator and he knew about her affair. Wife claims that Husband told her
during this conversation that he had divorce papers drawn up and not to fight what she would be
receiving because she was not entitled to half of the assets since she left Husband and was having
an affair. According to Wife, Husband stated he was told by his lawyer that the assets Wife would
be receiving in the proposed settlement were more than she would receive if the case actually went
to court. Wife testified she believed Husband was telling her the truth. Wife also claimed Husband
told her it would be a waste of time and money for her to retain a lawyer. Wife never did contact an
attorney. Soon after this alleged conversation, Wife received the divorce papers from Husband,
signed the MDA before a Notary Public, and returned the documents to Husband via overnight
delivery. Wife eventually questioned the wisdom of signing the MDA and foregoing any rights to
Husband’s pension, resulting in the present lawsuit.

                On cross-examination, Wife admitted it was her signature on the MDA. Wife’s
signature on the MDA was notarized by Joanne Olson (“Olson”), an employee at a local bank in
Washington whom Wife knew. Wife testified no oath was administered when her signature on the
MDA was notarized. Wife does not deny, however, that she signed the MDA before a notary public.
Wife acknowledged leaving Husband for a man she had “only known for a few days.” Wife
discussed her various jobs with law firms as a secretary and/or paralegal. Wife filed a lawsuit for
assault and battery against a coworker several years ago which she settled for $60,000. According
to Wife, the conversation where Husband told her she would not do any better if the divorce went
to court occurred on only one occasion. Wife admitted it was her decision to sign the MDA and no
one “forced” her to sign that document. Wife’s boyfriend even suggested she contact an attorney.
Wife acknowledged having no physical or mental impairment at the time she signed the MDA. Wife
does not claim Husband hid any assets from her. Since moving to Washington, Wife’s financial
condition has “diminished” and her real estate business with her current husband is not doing very
well. The year before leaving Tennessee, Wife’s gross income from selling real estate was $127,000.

               The deposition of Darlene Brown (“Brown”) was admitted into evidence. Brown is
the general manager of Realty Center, GMAC’s East Brainerd office in Chattanooga. Both Husband
and Wife worked with Brown, although at different times. Brown occasionally socialized with
Husband and Wife. Brown testified Wife told her that she had met someone and was going to go
to Washington for an indefinite period of time to “see if that was something she wanted to pursue.”
Brown communicated with Wife via email after Wife moved to Washington. In an email dated July
28, 2000, Wife wrote to Brown:

               Hi. Larry knows, he hired a PI. Papers being filed as we speak. I am
               still very happy with my decision. It has cost me though. The laws


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               evidently hurt me since I have been a cheating wife. It is not 50/50,
               at least that is what he is threatening me with so I get nothing of his
               pension nor his 401. I hope Mike loves me poor.…

In another email to Brown, Wife stated that it “will all be over in 60 days from my signing the papers
which I am told are on their way. Based on what I could glean, if I had been up front I would have
gotten screwed too. Oh well, nothing like motivation to make a girl work.…” Brown testified she
told Wife if she was concerned about the property settlement, she should meet with an attorney.
Brown suggested on several occasions that Wife meet with an attorney and even gave Wife the
names of several divorce lawyers she could contact.

               At trial, Husband testified he was employed by Olin Corporation for thirty-three years
and was the director of corporate accounts when he retired on December 31, 2001. Husband’s
annual base salary when he retired, excluding bonuses and the like, was approximately $190,000.
Although retired, Husband does engage in some consulting and real estate work from time to time.

                Husband testified he suspected Wife was having an affair and hired a private
investigator. When his suspicions were confirmed, he confronted Wife and she admitted to the
affair. Thereafter, Husband and Wife discussed dividing the marital assets in the manner as set forth
in the MDA. Wife did not ask for any of Husband’s retirement benefits. Husband claims Wife
stated she did not want “any part of it.” Husband stated he did not know what would have happened
if the divorce case had been tried in court. Husband denied telling Wife that his lawyer said anything
about what would happen. According to Husband, he told Wife there were two types of divorces
in Tennessee, contested and uncontested. Husband claims Wife said she would prefer an
uncontested divorce because she wanted to get on with her life.

               Husband testified to how he and Wife divided their assets. The parties valued their
household items at $30,000 and Husband offered Wife $12,500 in cash for her share of the
household items, a sum which she agreed to accept. The parties equally divided a joint stock account
and each of them received $66,276. Wife received the funds contained in her SEP and IRA accounts
which totaled $96,200. Husband assumed the liability for the remaining mortgage payment on the
marital home as well as the payments for Wife’s car. According to Husband, the parties agreed on
the amount of equity in the marital residence and Husband paid Wife her share, totaling $52,500.
Husband testified he has complied with all of his obligations under the MDA. Husband is still
paying for Wife’s health insurance at the rate of $486 per month. Husband denied ever defrauding
Wife into signing the MDA or concerning its terms.

               Husband testified the net value of his 401(k) plan is $750,040. Husband currently
receives $4,648.82 per month in retirement benefits. Husband also has another account which
contains funds which were withdrawn from his primary pension account. The balance of this
account is approximately $116,476. Husband stated that during the marriage, he and Wife went to
financial planners to discuss their assets and they both received documentation each year setting forth



                                                 -5-
the balance in the various accounts. Husband signed the MDA before a Notary Public, although the
Notary did not administer an oath.

                Husband testified to an email he received from Wife dated August 7, 2000. This
email states, inter alia:

                       You need to know that my questions come because I did not
               consult an attorney. I never felt the need to do so because I wasn’t
               going to go after anything that wasn’t mine or that I wasn’t entitled
               to. I agreed not to go after your pension and I meant it. … I’ll be
               signing the papers today and FedEx them back.

Wife signed the MDA the same day the foregoing email was sent to Husband.

               The parties’ son also was called as a witness. According to the son, when his mother
told him that she was moving to Washington:

                       She said that she didn’t want to live a material life, that she
               didn’t want her jewelry, she didn’t want the cars … she wanted to go
               and live in nature. She said that she wanted a change, that she was
               tired of being caught up in a material life ….

                After the proof was completed, the Trial Court took the case under advisement and
issued a Memorandum Opinion (“Opinion”) several weeks later. In the Opinion, the Trial Court
noted that for both Husband and Wife’s signatures on the MDA, the signature and seal of the Notary
Publics were affixed under the following statement: “Sworn to and subscribed to before me this 1st
(7th) day of August, 2000." According to the Trial Court, Tenn. Code Ann. § 36-4-103(a)(2) requires
an MDA to be “notarized,” but that term is ambiguous. The Trial Court then concluded that the
failure of the Notary Publics to administer an oath or swear the witnesses was not fatal to the validity
of the MDA. As to Wife’s allegations of fraud and the like, the Trial Court concluded the parties
were in divorce proceedings, which it characterized as an “environment of distrust and anger.”
Because of this, there was no fiduciary relationship between Husband and Wife. The Trial Court
went on to note that Wife stated she did not want any share of Husband’s retirement. “Subtracting
that amount results in assets allocated to [Husband] … of $197,296, compared with $253,776 to …
[Wife].” The Trial Court then held that Wife failed to meet her burden of proof as to whether
Husband acted fraudulently or misrepresented to her that she would not receive any of Husband’s
pension if the case went to court. The Trial Court also made specific note of the fact that Wife was
told by several people on numerous occasions to seek legal advice, “and she chose not to.” Based
on the foregoing conclusions, the Trial Court entered judgment for Husband.

                Wife appeals raising two issues, which we quote:




                                                  -6-
               I.      Whether the procedure for obtaining a waiver of service of
                       process pursuant to Tenn. Code Ann. § 36-4-103 was
                       followed giving the Trial Court jurisdiction to enter a final
                       judgment when a notary has administered no oath to either
                       party upon the execution of the MDA.

               II.     Whether the misrepresentations of … [Husband] which
                       resulted in the gross inequity of the division of the marital
                       estate constitute grounds for relief from the judgment.

                                            Discussion

                The factual findings of a trial court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

             The statute upon which Wife relies to challenge the validity of the MDA is Tenn.
Code Ann. § 36-4-103, which provides, in relevant part, as follows:

               36-4-103. Irreconcilable differences -- Procedure. – (a)(1) In all
               divorces sought because of irreconcilable differences between the
               parties, if the defendant is a nonresident, personal service may be
               effectuated by service upon the secretary of state pursuant to the
               provisions of § 20-2-215.

                       (2) In lieu of service of process, the defendant may enter into
               a written notarized marital dissolution agreement with plaintiff that
               makes specific reference to a pending divorce by a court and docket
               number, or states that the defendant is aware that one will be filed in
               this state and that the defendant waives further service and waives
               filing an answer to the complaint. Such waiver of service shall be
               valid for a period of one hundred eighty (180) days from the date the
               last party signs the agreement.… The signing of such an agreement
               shall be in lieu of service of process for the period such waiver is
               valid and shall constitute a general appearance before the court and
               answer which shall give the court personal jurisdiction over the
               defendant, and constitute a default judgment for the purpose of
               granting a divorce on the grounds of irreconcilable differences.…




                                                -7-
                Initially, we will discuss Wife’s argument that the failure of the Notary Public to
administer an oath to her when she signed the MDA resulted in ineffective service of process,
thereby rendering the Trial Court without personal jurisdiction over her to enter a final judgment
against her. We reject this argument, concluding that Wife is equitably estopped from challenging
the validity of her signature. In Werne v. Sanderson, 954 S.W.2d 742 (Tenn. Ct. App. 1997), this
Court discussed the elements of equitable estoppel as follows:

                  The essential elements of an equitable estoppel as related to the party
                  estopped are said to be (1) Conduct which amounts to a false
                  representation or concealment of material facts, or, at least, which is
                  calculated to convey the impression that the facts are otherwise than,
                  and inconsistent with, those which the party subsequently attempts to
                  assert; (2) Intention, or at least expectation that such conduct shall be
                  acted upon by the other party; (3) Knowledge, actual or constructive
                  of the real facts. As related to the party claiming the estoppel they are
                  (1) Lack of knowledge and of the means of knowledge of the truth as
                  to the facts in question; (2) Reliance upon the conduct of the party
                  estopped; and (3) Action based thereon of such a character as to
                  change his position prejudicially, 19 Am. Jur. Estoppel § . 42, pp.
                  642-643.

Werne, 954 S.W.2d at 745-46 (quoting Consumer Credit Union v. Hite, 801 S.W.2d 822, 825 (Tenn.
Ct. App. 1990)).

                In the present case, it is undisputed that Wife signed the MDA before a Notary Public
and the Notary Public affixed a seal to the MDA. There is nothing on the face of the MDA itself
which even remotely indicates that it may not have been properly notarized.2 At a very minimum
the signature and notary seal gave the distinct impression that the MDA was properly signed and
notarized. It goes without saying that Wife expected Husband to act upon a belief that the MDA had
been properly executed by Wife. Both Husband and Wife certainly thought the MDA was effective
as demonstrated by the fact that they both since have remarried.3 Wife certainly was aware of the
fact that no oath was administered prior to her signing the MDA. In short, we believe all of the
elements of equitable estoppel are met in this case and Wife is estopped to challenge the validity of
the MDA simply because no oath was administered to her when she admittedly signed the document
in the presence of the Notary Public.


         2
            W e need not and do not exp ress any opinion on whether the failure of a No tary Public to administer an oath,
in and of itself, results in the MDA not be ing “notarized ” as req uired by T enn. C ode Ann. § 36-4 -103 .

         3
             This lawsuit involves Wife’s attempt to obtain a portion of Husband’s pension benefits. In ord er to obtain
additional money, W ife expressly argues that the T rial Co urt altogether lacked perso nal jurisd iction over her. This
argument attacks the validity of the entire divorce, not just one aspect of the marital property division. Given the fact
that both parties are remarried, we are quite reluctant to conclude that the parties never were divorced and must assume
that W ife simply fails to realize the potential ramifications of her argument.

                                                           -8-
                Next, we will discuss Wife’s argument that the failure of the Notary Public to
administer an oath to Husband when he signed the MDA resulted in the Trial Court having no
personal jurisdiction over Husband. Tenn. Code Ann. § 36-4-103 provides the procedural
mechanism for service of process on a nonresident defendant when a divorce is sought based on
irreconcilable differences. The statute provides that a written notarized MDA may be entered into
between the parties and the MDA must contain certain specific references. This procedure is “[i]n
lieu of service of process” on the nonresident defendant and constitutes a general appearance and
answer, thereby giving a trial court personal jurisdiction over that defendant. The statute does not
provide that the signed and notarized signature of a plaintiff is necessary to give the court personal
jurisdiction over that plaintiff. Such a requirement is unnecessary in the present case because the
Trial Court had personal jurisdiction over Husband once he filed the lawsuit. Even assuming Wife
has standing to challenge whether the Trial Court had personal jurisdiction over Husband, it is clear
that it did the moment Husband filed the lawsuit since all other necessary requirements such as
residency were met. Wife’s argument that the Trial Court lacked personal jurisdiction over Husband
is without merit.

                Finally, we address the Trial Court’s conclusion that Wife failed to meet her burden
of proof on her claim of fraud and/or misrepresentation. Wife’s claim in this regard is based solely
on one conversation wherein she claims Husband told her that, according to Husband’s lawyer, the
property division in the proposed MDA was as good if not better than what she would receive if the
case went to trial. Husband denied making these statements. We agree with the Trial Court that
there was no fiduciary relationship between Husband and Wife at that point in time. After thirty
years of marriage, Wife had left Husband, moved to Washington, and began living with her new
boyfriend. Husband learned of the affair after hiring a private investigator. Clearly, at that time the
parties were in the heat of battle and no fiduciary relationship fairly could be claimed to exist. The
Trial Court obviously credited the testimony of Husband when making its ultimate conclusion, which
involved purely a credibility determination. In making this determination, the Trial Court heard the
testimony of the various witnesses, including Husband and Wife. “Unlike this Court, the trial court
observed the manner and demeanor of the witnesses and was in the best position to evaluate their
credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct.
App. 2000). The trial court’s determinations regarding credibility are accorded considerable
deference by this Court. Id.; Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 560, 563 (Tenn. 2001).
“‘[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear
and convincing evidence to the contrary.’” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783
(Tenn. 1999). There is no such clear and convincing evidence to the contrary in this record. The
preponderance of the evidence does not weight against the Trial Court’s findings and resulting
conclusion that Wife failed to meet her burden of proving fraud and/or misrepresentations by
Husband. The Trial Court’s conclusion in this regard is, therefore, affirmed.




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                                           Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion, and for
collection of the costs below. The costs on appeal are assessed against the Appellant, Patricia A.
Lyman, and her surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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