Bornaschella v. Orcutt

Citations: 418 So. 2d 768; 1982 Miss. LEXIS 2099Docket: No. 53303

Court: Mississippi Supreme Court; August 4, 1982; Mississippi; State Supreme Court

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Minnie Lee Thedford Orcutt Bornaschella appeals a ruling from the Chancery Court of Claiborne County that declared previous court decrees and a property settlement with her ex-husband, Eddie James Orcutt, invalid. This is the sole issue on appeal, and the court finds that the chancellor erred in this determination, leading to a reversal of the decision. The appeal stems from a divorce suit filed by Mrs. Bornaschella on May 18, 1978, which included claims for alimony, child support, and property division. The couple had four children, with one daughter married. Mr. Orcutt did not contest the divorce and, after being served, a final divorce decree was granted on July 19, 1978, by Chancellor Fred C. Berger, citing habitual cruel and inhuman treatment as the grounds for divorce. The decree awarded custody of the three youngest children to Mrs. Orcutt, allowed Mr. Orcutt reasonable visitation rights, and provided for temporary support.

The decree specified that matters regarding permanent alimony, child support, and property division would be addressed at a subsequent hearing on August 23, 1978. Following Chancellor Berger's death, Chancellor Ben Chase Callon reviewed a property settlement and support agreement dated August 10, 1978. This agreement, negotiated privately between the parties, was approved by the court in a decree dated August 14, 1978. The court incorporated the agreement into the decree without attaching the actual document at the request of Mrs. Orcutt’s attorney, Jake L. Abraham, who advised Mr. Orcutt to seek his own legal counsel, which he declined. The agreement detailed the division of their properties and stipulated that Mrs. Orcutt would receive the interest from certain investments and one-third of Mr. Orcutt's salary or net income as support.

Mrs. Orcutt filed a petition on June 1, 1979, detailing the property settlement and support agreement, the divorce decree from July 19, 1978, and the approval decree from August 14, 1978. She claimed Mr. Orcutt failed to comply with the August decree and the agreement, seeking a contempt ruling, partition of real estate, and additional relief. Represented by attorney V. Douglas Gunter, Mrs. Orcutt included copies of relevant documents as exhibits. Mr. Orcutt, with counsel Mark W. Prewitt, responded on July 12, 1979, admitting the agreement and decrees but denying other allegations and asserting a homestead exemption on property in question. Before a hearing occurred, the parties settled again, executing a new property settlement agreement on July 31, 1979, which the court approved, establishing it as a complete settlement of their property rights.

On May 21, 1980, Mr. Orcutt filed a petition to modify the July 31 decree, citing Mrs. Orcutt's remarriage (now Mrs. Bornaschella) and seeking a refund of alimony. He also sought relief related to personal property. Mrs. Bornaschella answered and filed a cross-bill, to which Mr. Orcutt responded. Mr. Prewitt later withdrew from representing Mr. Orcutt, who then retained counsel from Natchez. On October 21, 1980, Mr. Orcutt moved to amend his petition, and on December 12, 1980, he filed a petition alleging the divorce and related decrees were entered due to his former wife’s fraud and adultery, of which he was unaware. He claimed he could not discover this information despite diligent efforts. Mrs. Bornaschella answered and raised a statute of limitations defense, which was ultimately overruled. On January 6, 1981, the chancellor allowed Mr. Orcutt to file a bill of review, which he submitted on January 22, 1981, reiterating his claims of fraud and seeking relief from the previous decrees and agreements due to his former wife's alleged misconduct.

Mrs. Bornaschella responded to the bill by invoking defenses including the statute of limitations and estoppel. At a hearing on February 10, 1981, Mr. Orcutt's counsel moved to amend the bill, arguing the August 14, 1978 decree was void due to jurisdiction issues. The chancellor granted this motion, ruling the divorce decree valid but stating that the August 14 decree was void because it was issued outside the specified timeframe of the earlier decree. The chancellor found insufficient proof to support the bill of review and deemed the August 14 decree void, also invalidating the subsequent July 31, 1979 agreement due to Mr. Orcutt's mistake regarding the first decree's validity.

The chancellor then re-evaluated alimony and property rights as if the previous court actions had not occurred. The final decree on March 12, 1981, confirmed the invalidity of the August 14 and 1979 decrees, detailing the parties' rights concerning custody, child support, and property. Mrs. Bornaschella appealed, securing a supersedeas bond, while Mr. Orcutt cross-appealed regarding property designated as community property from their time in Louisiana. After the appeal was filed, Mr. Orcutt submitted a new petition to challenge the supersedeas bond's validity and other property claims. The chancellor, despite noting a lack of jurisdiction over the bond, adjudicated rights and placed a lien on Mrs. Bornaschella's property. She also appealed this September 15, 1981 decree. The chancellor had initially erred by not sustaining demurrers to the bill of review petition, which was filed over two years post-divorce, violating the two-year limitation set by Miss.Code Ann. 11-5-121 for such filings.

Bills of review are generally disfavored, as established in Fondren v. Bank of Franklin. Mr. Orcutt, who had financial means, chose not to retain legal counsel during his divorce proceedings in 1978 or at the time of the property settlement agreement the same year. When faced with contempt proceedings initiated by his ex-wife, he acknowledged the agreement, this time represented by a competent attorney. His petition for a bill of review was based solely on allegations of his wife's adultery, which he claimed he had tried to uncover but failed to do so during the divorce process. The court found it unreasonable for him to expect a review of events occurring over two years after the divorce, particularly after his ex-wife had remarried. The petition lacked a factual basis, and the chancellor concluded that the August 14 decree was not void, contrary to Mr. Orcutt’s claims. The chancellor misinterpreted Mississippi law, specifically Miss.Code Ann. 93-5-17, assuming that subsequent proceedings to finalize alimony and property rights were invalid. However, the proceedings post-divorce did not relate to obtaining a divorce, and the chancellor had the authority to ratify agreements even outside of a formal hearing, provided there was no fraud or mistake. The agreement approved by the chancellor settled all issues, making a hearing unnecessary. Additionally, the decree in question had been issued over two and a half years prior, and both the judge and attorney involved were no longer associated with the case.

The decree in question was declared valid despite discrepancies in its date, which did not align with a previous term time decree. Courts should not invalidate long-established decrees based solely on date errors, as these judgments are critical to settled issues between parties. The August 14, 1978 decree is affirmed as valid, rendering any contrary rulings by the chancery court null. The chancellor's conclusion that Mr. Orcutt was misled into a modification agreement due to believing the August decree was void is critiqued. Several points undermine this rationale: the court file, a public record, clearly displayed the date discrepancy; attorneys representing both parties failed to address this issue; and the chancellor overlooked the discrepancy before signing the July 31, 1979 decree. The oversight of Mr. Orcutt and his counsel, rather than any concealment by Mrs. Bornaschella or her counsel, led to the alleged mistake. The cited case, McGee v. Clark, does not support the chancellor's reasoning, as it lacks similar circumstances.

The August 14, 1978 decree is deemed valid, along with the July 31, 1979 agreement and its accompanying consent decree, which are all legally binding. The March 12, 1981 decree incorrectly adjudicated issues related to a May 21, 1980 petition for modifying child custody from the July 19, 1978 divorce decree, specifically enlarging Mr. Orcutt’s visitation rights. This modification is undisputed and will remain unaffected by the current decision. The chancellor lacked authority to invalidate the aforementioned decrees and agreements. The September 15, 1981 decree correctly identified the chancery court's lack of jurisdiction over the supersedeas bond and property rights related to transactions prior to the February 1981 hearing. The court affirms Mr. Orcutt's right to seek legal remedies for asset conversion without prejudice. The ruling is partially reversed and rendered in favor of the appellant concerning the validity of the earlier decrees and agreements, while affirming the visitation modification. The September 14, 1981 decree is reversed without prejudice to Mr. Orcutt's claims against his wife for asset conversion, and the cross-appeal is dismissed as moot.