Shaw v. Shaw
| Docket Number: | 2006-CA-01360-COA Linked Case(s): 2006-CA-01360-COA ; 2006-CA-01360-SCT ; 2006-CT-01360-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-09-2007 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of property settlement agreement - Contempt - Fraud - Statute of limitations - Section 15-1-67 - M.R.C.P. 60(b)(1) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Ishee, Roberts and Carlton, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 07-26-2006 Appealed from: RANKIN COUNTY CHANCERY COURT Judge: Thomas L. Zebert Disposition: DISMISSED WITH PREJUDICE ON CHARGE OF FRAUD AGAINST DEFENDANT; REQUEST FOR MODIFICATION OF PROPERTY SETTLEMENT TIME-BARRED. Case Number: 40,570 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | SHEILA ANN PENINGER SHAW |
CHRISTOPHER A. TABB |
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| Appellee: | MICHAEL GEORGE SHAW | J. EDWARD RAINER LORA SUZANNE GIPSON | ||
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| Topic: | Modification of property settlement agreement - Contempt - Fraud - Statute of limitations - Section 15-1-67 - M.R.C.P. 60(b)(1) |
| Summary of the Facts: | Sheila Shaw filed a complaint for divorce and submitted a financial statement. Months after filing interrogatories and a request for production of documents to her husband, Michael Shaw, Sheila filed a motion to compel discovery. Michael filed his interrogatory responses to discovery and, approximately one month later, submitted an unsigned financial statement to Sheila. He did not list his 401K account in the interrogatories or under the “Pensions and Retirement” portion of his financial statement. The court granted the divorce in 1998. In 2005, Michael filed a petition for modification of former judgment of divorce and, as part of that litigation, filed a Rule 8.05 financial statement, along with copies of tax returns. Realizing that Michael had a 401K account at the time of the divorce, Sheila filed a motion for contempt and modification requesting that the property settlement agreement be set aside, Michael be required to file a complete and accurate financial statement, and Sheila be awarded an equitable division of the 401K account, together with interest from the date of the judgment of divorce. The chancellor found that Michael did not commit fraud against either the court or Sheila, the statute of limitations had expired with regards to Sheila’s claim for modification of the property settlement agreement, and Sheila’s request for modification of the agreed division of property and assets could not be granted as the agreement was not modifiable. Sheila appeals. |
| Summary of Opinion Analysis: | Issue 1: Fraud Sheila argues that Michael’s failure to submit a Rule 8.05 financial statement to the chancery court constituted fraud and was grounds for contempt and sanctions. The concept of an alleged fraud against an adverse party is not interchangeable with a fraud upon the court as the two are set out in M.R.C.P. 60. Allegations of non-disclosure in pretrial discovery will not support an action for fraud on the court. Allegations of perjury are in the nature of claims of fraud against a party to the proceeding rather than the kind of fundamental interference with the administration of the justice system that would amount to the more serious and more narrowly defined fraud upon the court. Michael submitted an unsigned financial statement to Sheila’s attorney, which showed a monthly deduction of $209.15 listed under the heading “Mandatory Insurance.” Beside this category was handwritten, “401 retirement (my option).” Nothing was entered under the heading “Pensions and Retirement.” It does not appear that Michael spoke falsely about his 401K or intentionally attempted to conceal the asset from Sheila. The existence of a 401K account was mentioned in the financial statement provided to Sheila, even though it was not in the manner preferred. In addition, the record contains a copy of the Shaws’ 1995 tax returns, signed by Sheila after filing her complaint for divorce, which had Michael’s W-2 attached. Yearly deductions for Michael’s 401K account were distinctly listed on his W-2 form. Therefore, the court was not manifestly wrong in finding that Michael was not guilty of fraud and that a contempt citation against Michael was not warranted. Issue 2: Statute of limitations Sheila argues that Michael concealed his 401K assets either intentionally, or at best, negligently, and this constituted fraud. Therefore, a statute of limitations would not apply until Sheila’s discovery of the non-disclosed facts under section 15-1-67, which was in March 2005. In order to establish fraudulent concealment, there must be shown some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of the claim. There is no evidence of fraudulent concealment on the part of Michael. There is, in fact, affirmative evidence to the contrary based on Michael’s entry of the monthly 401K deduction on the statement given to Sheila during the original divorce proceedings, and copies of his 1995 W-2 for her to take to the accountant after the complaint for divorce was filed. Therefore, any applicable statute of limitation would run from the entry of the judgment of divorce. M.R.C.P. 60(b)(1) provides a window of opportunity in the post-judgment period for a party to discover and act upon alleged improper conduct by a party or a witness in the course of the litigation, and bars any subsequent litigation attacking the validity of the judgment on that ground once that window of opportunity has closed. Under Rule 60(b), Sheila needed to file her motion for contempt and modification by August 5, 1998. She did not do so, and her claim is time-barred. In addition, based on the terms of the agreement, the marital property settlement terms were not modifiable. |
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