Mark Travis O'Steen v. Esther Eileen O'Steen

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-00676-COA

MARK TRAVIS O’STEEN APPELLANT

v.

ESTHER EILEEN O’STEEN APPELLEE

DATE OF JUDGMENT: 06/13/2017
TRIAL JUDGE: HON. MICHAEL CHADWICK SMITH
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: RENEE M. PORTER
ATTORNEY FOR APPELLEE: CAROL ANN ESTES BUSTIN
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 10/06/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE WILSON, P.J., LAWRENCE AND McCARTY, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. On June 13, 2017, the Lamar County Chancery Court granted Mark O’Steen and

Esther O’Steen a divorce on the ground of irreconcilable differences and pursuant to the

parties’ mutually executed property settlement agreement (PSA). Thereafter, Mark filed a

motion to set aside the judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(6).

Specifically, he argued that the PSA should be set aside because neither party submitted a

Rule 8.05 financial statement,1 and he had no knowledge of Esther’s retirement assets. The

chancery court denied Mark’s motion.

¶2. On appeal, Mark contends that the chancery court (1) erred in denying his Rule

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UCCR 8.05.
60(b)(6) motion and (2) erred by failing to perform a Hemsley2 analysis or consider the

Ferguson3 factors as part of its equitable distribution when it approved the PSA the parties

had agreed to and signed. Finding no error, we affirm the chancery court’s judgment.

FACTS

¶3. On November 16, 2016, Esther filed her complaint for divorce and temporary relief

on the grounds of habitual cruel and inhuman treatment, habitual use of drugs, and

constructive desertion. Mark was served the complaint on December 28, 2016, but failed to

make an appearance before the court or file an answer. The court set the trial for February

6, 2017.

¶4. On the date of trial, Mark requested a continuance so he could obtain counsel. The

chancery court granted the continuance and scheduled a hearing on the temporary relief

matters for February 9, 2017. At that hearing, Mark appeared pro se. Following the

temporary relief hearing, the court issued a temporary order awarding Mark temporary

possession of the marital residence and temporary use of all rental income that was to be

applied toward the outstanding mortgage of the marital residence. The court then scheduled

the trial for March 21, 2017.

¶5. Mark was still a pro se litigant on the day of trial and consented to the entry of divorce

on the grounds of irreconcilable differences. Both parties subsequently filed a joint consent

to divorce, and Esther filed a “Motion to Dismiss Fault Grounds and Withdrawing

2
Hemsley v. Hemsley, 639 So. 2d 909, 913 (Miss. 1994).
3
Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).

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Pleadings.” The chancery court granted Esther’s motion and reserved the following issues

for trial at a later date: property settlement, alimony, and equitable distribution. After a series

of continuances, the court finally set the final trial for June 12, 2017.

¶6. On June 12, 2017, Mark had an attorney. On that date, the parties entered into a PSA.

The agreement between Mark and Esther covered property (both real and personal), marital

debts, separate domiciles, alimony, and retirement. Notably, Mark and Esther agreed that

each was entitled to their own retirement accounts and waived any and all claims to the

other’s retirement accounts. They both signed the agreement along with their respective

attorneys. Neither party submitted a Rule 8.05 financial statement at any point during the

proceedings.

¶7. On June 13, 2017, the chancery court entered a final judgment of divorce, which

incorporated the PSA. Almost six months later, Mark hired a new attorney. On December

12, 2017, the new attorney filed a motion to set aside the final judgment of divorce and the

PSA pursuant to Rule 60(b)(6), stating that Rule 8.05 financial statements were neither filed

by either party nor considered when creating the PSA or when the final judgment was issued.

Specifically, he alleged that “the judgment of divorce and the [PSA] therein incorporated are

erroneous insofar as to certain retirement benefits of the parties were not considered in the

[PSA], thus rendering the said Judgment and Agreement inequitable.” On March 27, 2019,

the chancery court denied Mark’s motion, finding that Esther’s failure to file a Rule 8.05

financial statement did not constitute fraud on the court and that the PSA clearly addressed

their retirement accounts.

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¶8. Mark appealed.

ANALYSIS

1. Rule 60(b)(6) Motion

¶9. Mark argues that the chancery court erred in denying his Rule 60(b)(6) motion. He

reasons that Esther’s failure to file a Rule 8.05 financial statement “demonstrates a fraudulent

effort on behalf of [Esther]” because she was able to conceal her Public Employees’

Retirement System (PERS) account during the course of the proceedings.4 Mark further

argues that Esther’s conduct resulted in fraud on the court.

¶10. We review a trial judge’s decision to grant or deny relief under Rule 60(b) using an

abuse of discretion standard. M.A.S. v. Miss. Dept. of Human Servs., 842 So. 2d 527, 530

(¶12) (Miss. 2003) (citing Tel. Man Inc. v. Hinds County, 791 So. 2d 208, 210 (¶9) (Miss.

2001)). “Rule 60(b)(6) provides a ‘catch-all’ provision under which relief may be granted

in exceptional and compelling circumstances, such as for fraud upon the court.” Trim v.

Trim, 33 So. 3d 471, 475 (¶7) (Miss. 2010) (citing M.R.C.P. 60(b); Tirouda v. State, 919 So.

2d 211, 214 (¶8) (Miss. Ct. App. 2005)). In order to obtain relief based on fraud upon the

court under Rule 60(b)(6), it must be shown that some sort of egregious misconduct was

present, and a showing must be made as to the existence of “an unconscionable plan or

scheme which is designed to improperly influence the court in its decision.” Id. at 477 (¶15)

(quoting Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989)). “Fraud,

misrepresentation or other misconduct must be proved by clear and convincing evidence.”

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We glean from the briefs that Esther’s PERS account is from her long career as a
public school teacher. However, that fact is not contained in the record.

4
Moore v. Jacobs, 752 So. 2d 1013, 1017 (¶18) (Miss. 1999) (citing Stringfellow v.

Stringfellow, 451 So. 2d 219, 221 (Miss. 1984)).

¶11. Mark claims that Esther’s failure to file a Rule 8.05 financial statement is analogous

to the husband’s conduct in Trim v. Trim. In Trim, both parties filed their own respective

Rule 8.05 financial statements and entered into a PSA; however, it was later discovered that

the husband had fraudulently misrepresented the value of his corporate stock on his Rule 8.05

financial statement. Trim, 33 So. 3d at 472 (¶1). The Mississippi Supreme Court ultimately

held that “[the husband’s] intentional filing of a substantially false Rule 8.05 financial

statement constitute[d] a fraud on the court.” Id. at 478 (¶17).

¶12. Mark’s reliance on the Trim holding is misplaced. Mark does not argue that Esther

committed fraud on the court by falsifying or intentionally misrepresenting assets on her Rule

8.05 financial statement. Mark instead argues that Esther’s failure to file a Rule 8.05

financial statement (which allegedly allowed her to conceal her PERS retirement account)

constitutes fraud. We disagree. The record is devoid of any proof that Esther intentionally

misrepresented facts to the chancery court. As the supreme court stated in Trim, “the mere

nondisclosure to an adverse party and to the court of facts pertinent to a controversy before

the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under

Rule 60(b).” Trim, 33 So. 3d at 477-78 (¶16) (Miss. 2010) (quoting Kerwit Med. Prods. Inc.

v. N & H Instruments Inc., 616 F.2d 833, 837 (5th Cir. 1980)). Accordingly, Esther’s alleged

nondisclosure of her PERS retirement by not filing a Rule 8.05 financial statement would not

warrant relief under Rule 60(b)(6).

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¶13. We find this case more akin to Collins v. Collins, 188 So. 3d 581 (Miss. Ct. App.

2015). There, the parties filed a joint complaint for divorce based on irreconcilable

differences and subsequently created a PSA. Id. at 583 (¶2). Nearly sixteen months after the

final judgment of divorce was entered, the wife filed a motion to modify the judgment under

Rule 60(b)(6). Id. at 584 (¶5). In part, she argued that the PSA was void because no Rule

8.05 financial statements or a waiver of the requirement to file those statements was entered

as part of the record. Id. at (¶6). This Court ultimately found that the wife’s claim was not

an exceptional circumstance warranting relief pursuant to Rule 60(b)(6). Id. at 588 (¶23).

Additionally, this Court addressed her argument in the context of Rule 60(b)(6) and the Trim

holding:

Unlike the wife in Trim, Leta does not argue that Kenneth committed fraud on
the court by falsifying his 8.05 statement . . . Leta also does not argue
Kenneth’s failure to file his Rule 8.05 statement constituted fraud on the court.
This assertion would lead to a finding that Leta also committed fraud, as her
disclosure went unfiled as well[.]

Id. at 587 (¶22) (emphasis added).

¶14. As previously stated, Mark is not arguing that Esther committed fraud on the court by

falsifying or intentionally misrepresenting assets on her Rule 8.05 financial statement. He

merely argues that Esther’s failure to file her Rule 8.05 financial statement is fraud in and

of itself, which, as this Court stated in Collins, would mean that Mark committed fraud as

well because Mark also failed to file a Rule 8.05 financial statement. Collins, 186 So. 3d at

587 (¶22). In other words, Mark cannot obtain relief under Rule 60(b)(6) for Esther’s failure

to file a Rule 8.05 financial statement when he, too, committed the same error.

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¶15. Both parties were represented by attorneys. The parties agreed to the PSA and signed

it, as did their attorneys. In regard to any retirement accounts, the PSA contained the

following language: “The Wife shall be and is entitled to her retirement accounts. The

Husband shall be and is entitled to his retirement accounts. Husband and Wife hereby

waive any and all claims to the other’s retirement accounts.” (Emphasis added). Mark

cannot now claim surprise about Esther’s retirement account when he specifically agreed that

both parties were entitled to their respective retirement accounts and waived “all claims to

the other’s retirement accounts.” Accordingly, we find the chancery court did not abuse its

discretion in denying Mark’s Rule 60(b)(6) motion.

2. Property Division

¶16. Mark also argues that the chancery court erred in failing to perform a Hemsley or

Ferguson analysis before dividing the marital property. However, the chancery court did not

divide the marital property because the parties had entered into a PSA. This Court has stated

that if the parties in a divorce proceeding agree to the division of their marital property by

executing a PSA, then the chancellor is not required to undergo a Ferguson analysis. See

Bougard v. Bougard, 991 So. 2d 646, 649-50 (¶19) (Miss. Ct. App. 2008). In Bougard, this

Court reasoned “the division of the assets and the amount of alimony were set by an

agreement of the parties. The agreement was made between the parties on the day of the

divorce hearing.” Id. at 649 (¶19). Further, “[t]he agreement was read into the record, and

both parties agreed to be bound by the terms as read into the record.” Id. at 649-650 (¶19).

¶17. Likewise here, Mark and Esther executed a PSA the day that their trial was supposed

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to take place. Further, the agreement between Mark and Esther contained two important

provisions. First, section X of the PSA (titled “VOLUNTARY EXECUTION”) stated that

the “provisions of this agreement and their legal effects have been fully explained to the

parties, and each party acknowledges that this agreement is fair and equitable, and that it is

being entered into voluntarily[.]” Second, section XI (titled “CONSTRUCTION OF

AGREEMENT”) stated that the agreement contains the “full, final, and complete division

of all property between the parties and contains all provisions with respect to property

settlement . . . . Accordingly, each accepts the same in full and final settlement and

satisfaction of any and all claims and rights that each may now or hereafter have

against the other.” (Emphasis added).

¶18. Because the PSA between Mark and Esther was entered into voluntarily on the date

of their divorce hearing, the agreement was signed by both parties, and the agreement

contained the full and complete division of property between Mark and Esther, there

remained no other issue for the chancellor to consider. Mark and Esther’s PSA was a

contract between them. Mark has not alleged coercion, overreach, or that he did not

voluntarily enter into the agreement. He was represented by an attorney the entire time

the agreement was negotiated, reduced to writing, and signed. Accordingly, there was no

need for the chancellor to perform a Hemsley analysis or a Ferguson analysis.

CONCLUSION

¶19. We find the chancery court did not err in denying Mark’s Rule 60(b)(6) motion. We

further find that the chancery court was not required to undergo a Hemsley analysis or a

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Ferguson analysis. Accordingly, we affirm the chancery court’s judgment.

¶20. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD AND McCARTY, JJ., CONCUR.

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