Facts: Husband, an Army officer, and Wife, a schoolteacher, were divorced after Husband learned of Wife’s extramarital affair. Husband withheld the fact that he knew about the affair until the parties’ mediation. When Wife was confronted with evidence of her affair at the mediation, the parties had a private conversation. No agreement was reached during mediation.

Following the mediation, Wife’s attorney filed a motion to withdraw. Wife did not obtain substitute counsel and represented herself thereafter. The parties eventually signed a marital dissolution agreement, which was subsequently incorporated into the Final Decree entered by the trial court.

Five months later, wife sought to set aside the Final Decree pursuant to Tennessee Rule of Civil Procedure 60.

At the hearing on Wife’s motion, Wife testified that during her private conversation with Husband at the mediation, he pointed his finger at her in an intimidating way, told her she was going to agree to his terms and if she did not agree, he would have her arrested and taken from her classroom in handcuffs. Wife also testified Husband told her to fire her attorney. Wife testified she was intimidated and felt as if she was being coerced to reach a mediated settlement, but she chose not to tell the mediator or her attorney. She also stated that Husband threatened to expose Wife’s extramarital affair to the children. Husband denied all allegations of threats or intimidation.

The trial court denied Wife’s motion to set aside the Final Decree, concluding the marital dissolution agreement was a negotiated settlement that was fair and reasonable on its face. Additionally, the trial court found Wife knowingly and voluntarily entered into the marital dissolution agreement.

Wife appeals.

On Appeal: The Court of Appeals affirmed the trial court.

Rule 60.02 of the Tennessee Rules of Civil Procedure allows the court to relieve a party from a final judgment on the following grounds:

(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.

The burden is on the party seeking extraordinary relief pursuant to Rule 60.02 to show why extraordinary relief is justified. Rule 60.02 is not intended to relieve a party from his or her free, calculated, and deliberate choices; rather, relief should be afforded in the most extreme, unique, exceptional, or extraordinary cases.

A marital dissolution agreement is a contract and thus is subject to the rules governing the construction of contracts. Tennessee has long recognized that a contract, although valid on its face, may not be enforceable if it can be proved that the contracting party acted under duress. This principle is based on the premise that a contract is valid only if it is entered into freely, with the voluntary assent of the parties making it.

Duress exists when one, by the unlawful act of another, is induced to make a contract or perform some other act under circumstances which deprives him or her of the exercise of free will. To constitute duress, the danger must not only exist, but must be shown to have actually operated upon the mind, and to have constituted the controlling motive for the performance of the act sought to be avoided.

In determining whether a party acted under duress, the court considers the age, sex, intelligence, experience and force of will of the party, the nature of the act, and all the attendant facts and circumstances.

After reviewing the evidentiary record, the Court concluded:

[T]he trial court listened to two recorded telephone conversations between the parties submitted into evidence by Husband…. The first recorded conversation took place the day after mediation….

The second recording is of the parties’ conversation that occurred the following night….

The importance of these telephone calls, as the trial court noted, shows there were no threats and, as the trial court found, there was an open discussion that made it appear an agreement had been made or was in progress at that time, evidenced by the parties’ conversation regarding scheduling and concerns for the family being together at certain times….

Having reviewed the phone conversations [] and the testimony presented at the hearing, and upon consideration of the attending facts and circumstances, we find the evidence does not preponderate against the trial court’s findings that Husband did not coerce Wife into firing her attorney, as her words in the phone conversations were essentially, “my lawyer will do what I say,” and Wife was not deprived of the exercise of free will.

Accordingly, the trial court’s judgment was affirmed.

Owen v. Haas (Tennessee Court of Appeals, Middle Section, April 1, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.