S13F1561. BUCKNER v. BUCKNER.
S13F1561
Supreme Court of Georgia
DECIDED MARCH 3, 2014.
755 SE2d 722
BENHAM, Justice.
Michael V. Stephens II, Michael P. Ludwiczak, for appellant. Anderson, Tate & Carr, Robert M. Reeves, Marian C. Adeimy, for appellees.
increased runoff from the County property repeatedly exceeded the scope of the easement. “[I]t was within the discretion of the trial court to determine whether and how to require” the County to keep the runoff within the bounds of the easement pending further proceedings, and “the trial court did not clearly err when it determined that an adequate cure for the run-off problem required... implementation of [the interim remedial measures contained in the order].” Menzies, 281 Ga. at 225-226 (1)-(2).
Having reviewed the record and the arguments of the parties, we see no abuse of the substantial discretion of the trial court to award interlocutory injunctive relief to keep the McManuses from further harm pending the resolution of this lawsuit. Accordingly, we affirm the judgment below.
Judgment affirmed. All the Justices concur.
DECIDED MARCH 3, 2014.
Michael V. Stephens II, Michael P. Ludwiczak, for appellant.
Anderson, Tate & Carr, Robert M. Reeves, Marian C. Adeimy, for appellees.
Acting pursuant to
After Husband claimed the house was his own and attempted to gain possession of the house, Wife‘s counsel notified the trial court by letter on January 17, 2013, that she intended to file a motion to set aside the settlement because there were errors in the settlement document, namely, that the agreement erroneоusly awarded the marital home to Husband. On January 22, 2013, Wife filed the motion titled “Motion to Set Aside Memorandum of Settlement Not Representative of the Understanding of the Parties or in the Alternative Motion to Withdraw from and Set Aside Agreement” along with supporting affidavits. Minutes after Wife filed her motion, however, the trial court entered an order titled “Consent Final Judgment and Decree,” to which the disputed settlement memorandum was attached. The order reflects it was prepared by Husband‘s counsel and the space provided for Wife‘s counsel to indicate her consent to the order is not signed. It is apparently undisputed that the prоposed order was submitted ex parte. Wife then filed a motion to set aside the judgment on the ground the settlement memorandum attached to the order was signed by mutual mistake and did not represent a meeting of the minds. In the brief supporting the motion, Wife also asserted the terms of the final decree were neither fair nor equitable since it required
- Did the parties enter into a settlement agreement? If so, what were the terms of the agreement?
- Did the trial court err in entering the decree of divorce based on the purported settlement agreement?
- Did the trial court err in refusing to set aside the decree of divorce?
For the following reasons, we affirm that part of the order denying Wife‘s motion to rescind or set aside the settlement agreement, but we reverse that part of the order denying Wife‘s motion to set aside the “Consent Final Judgment and Decree,” and we vacate the final judgment.
1. With respect to whether the parties reached an enforceable settlement agreement, both Wife and her counsel admitted they executed the document the parties referred to as the memorandum of settlement. The settlement memorandum contained various terms, including the term “[Husband] will get the former marital abode and the shop,” and the term “[Husband] gets the business.” It also stipulated which of the two parties would be awarded various other personal and real property, including another house awarded to Wife. It set forth a schedule of cash payments to be made by Husband to Wife аnd to her counsel,1 pledged the cooperation of the parties in filing amended business tax returns for the purpose of reducing Wife‘s tax liability, and contained other miscellaneous provisions.
The fact that the parties continued to negotiate various additional details to the settlement agreеment after they announced a settlement had been reached by exchanging versions of a proposed consent order is not evidence, in this case, that the parties had not reached an enforceable agreement regarding settlement of the marital estate. The various drafts refined the details of the settlement, such as the time and method for exchanging the awarded property and assigning responsibility for the parties’ individual and business debts to the party who was awarded the asset on which the debt was incurred. We do not construe this assignment of debt to be a material term that alters the substance of thе agreement, particularly since the parties appeared to have agreed to this assignment of debt in their exchange of various drafts of the proposed consent order. The only significant difference between these drafts was that in each draft proposed by Husband, the marital home was tо be awarded to him, as reflected in the settlement memorandum, and in each draft proposed by Wife, the marital home was to be awarded to her. In this case, the original settlement memorandum was not inadequate or unenforceable as a result of leaving substantive matters for later resolution. Compare Moss v. Moss, 265 Ga. 802 (463 SE2d 9) (1995) (concluding a written settlement agreement was incomplete and unenforceable because it left for future agreement the method for appraising the property to be transferred from the Husband to the Wife, which was a material term). Likewise, except for the continued dispute over the award of the marital home, the details supplied in the proposed consent orders the parties exchanged after executing the settlement memorandum did not relate to material matters that revised the agreement‘s substantive terms. Consequently, we reject the assertion that this exchange of documents supports the conclusion that the parties had not reached an enforceable agreement. Compare DeGarmo v. DeGarmo, 269 Ga. 480, 481 (1) (499 SE2d 317) (1998) (concluding a written settlement agreement was incomplete and unenforceable as evidenced by the fact that the parties continued to make multiple substantive revisions tо it).
Settlement agreements in divorce cases are construed in the same manner as
unless [she] can show that an emergency existed at the time of signing that would excuse [her] failure to read it, or that the opposite party misled [her] by an artifice or device which prevented [her] from reading it, or that a fiduciary or confidential relationship existed between the parties upon which [she] relied in not reading the contract.
Cochran v. Murrah, 235 Ga. 304, 305 (219 SE2d 421) (1975). No evidence was presented in this case that would relieve Wife from being bound by the terms of the dоcument she and her counsel signed. Both Wife and her trial attorney testified they were mistaken about the fact that the document they signed stated the home would go to Husband and not to Wife, and they also testified the parties did not agree to award the home to Husband but actually agreed the Wife would get the home. Consequently, she argues mutual mistake. The credibility of witnesses, however, is for the trial court sitting as the trier of fact, and we find no error in the court‘s conclusion that the evidence failed to show mutual mistake. See Kennedy v. Kennedy, 243 Ga. 275 (253 SE2d 761) (1979). Further, the mistake could have been discovered by exercising reasonable diligence. See Primary Investments, LLC v. Wee Tender Care III, Inc., 323 Ga. App. 196, 201 (2) (746 SE2d 823) (2013) (finding no errоr in the grant of summary judgment against the party seeking to rescind and reform a contract where that party had ample opportunity to read the draft of the agreement it signed and to discover a change in one of the terms from a previous draft but did not); Decision One Mortgage Co., LLC v. Victor Warren Properties, Inc., 304 Ga. App. 423, 425 (696 SE2d 145) (2010). We conclude the parties reached an enforceable settlement agreement and that the trial court did not err in denying Wife‘s request to rescind or reform it.
2. The trial court erred, however, when it entered an order titled “Consent Final Judgment and Decree” even though no record evidence exists thаt Wife consented to its entry. The proposed order, presented ex parte to the trial court, reflects that Wife‘s counsel‘s signature is missing from the space indicating her consent. More importantly, Wife‘s counsel notified the trial court by letter several days prior to the date the order was entered thаt Wife believed there was a “glaring error” in the settlement memorandum and asked the trial court not to enter a final order in the case until she could be heard on a soon-to-be-filed motion to set aside.
Here, Husband‘s counsel knew Wife refused to abide by the terms of the settlement memorandum. He knew Wife‘s counsel had not consented to the proposed order he drafted. Nevertheless, he submitted the proposed order to the trial court ex parte, without notifying Wife‘s counsel. “A lawyer who obtains a judge‘s signature on a decree in the absence of the opposing lawyer where certain aspects of the decree are still in dispute, may have violated Rule 3.5: Impartiality and Decorum of the Tribunal regardless of the lawyer‘s good intentions or good faith.” Comment 3B to Rule 3.5 of the Georgia Rules of Professional Conduct. At the least, this conduct demonstrates a disappointing lack of professionalism of Husband‘s trial counsel.2 The better practice would have been for Husband‘s counsel to file a motion to enforce the settlement agreement, to which Wife would have been afforded the opportunity to file a response within 30 days, pursuant to
In ruling on a motion to enforce, the trial court would have then been rеquired to determine whether the parties had reached an enforceable agreement that was within the bounds of the law before entering a final judgment in the matter. We recognize the trial court conducted an evidentiary hearing in this case and correctly ruled that the settlement memorandum was enforсeable. But we do not find the erroneous denial of Wife‘s motion to set aside the “Consent Final Judgment” to be harmless error. In this case, since the trial court apparently knew or should have known that the parties
The record reflects the trial court failed to exercise its discretion in this case and shows, instead, that the court entered a proposed “consent” order to which the Wife did not consent. Further, by announcing the only purpose of the hearing was to determine whether mutual mistake provided a ground for rescinding the settlement agreement, it appears Wife was not afforded the opportunity tо present evidence in support of her assertion that the proposed order, even though based upon the settlement agreement, would result in an inequitable division of marital assets. Accordingly, the order denying Wife‘s motion to set aside the final judgment is reversed, and the final judgment is vacated.
Judgment affirmed in part, rеversed in part, and vacated in part. All the Justices concur.