Lead Opinion
This appeal is sequel to Klein v. Klein,
Other basic facts are set forth in the prior decision. It is material here to recite only that these parties were married in 1953; that they became the parеnts of three children; that the plaintiff has a net income of about $24,000 per year; that the defendant has an earning capacity of about $3,600 per year, but is presently unemployed; and that the court awarded $300 per month alimony аnd $100 support money for each child.
None of the- foregoing facts is in controversy here. The dispute is over division of very substantial assets and property which had been built up during the marriage.
In the original divorce case the trial judge fоund their total net worth to be $225,000; and attempted to award defendant about one half by giving her the family home, valuing it at $103,000, plus a Chevrolet, and the proceeds from the sale of four lots, valued at about $6,000. But it is apparent from the findings and decree that the court was not entirely satisfied with the arrangement arrived at. So instead of making a definite and final disposition thereof he included this somewhat unusual provision as the final paragraph of the decree :
The court further retains limited jurisdiction if within one yeаr either party proves to be suffering serious financial distress because of this decree based on decisions and ensuing developments arising therefrom not capable of evaluation and effect at this time, the court will review its ruling and determine whether modification should be made.
On review of the case on appeal, this court also had apprehensions about the valuation of the property and the allocation thereof, but decided not to wrestle with that controversy because of thе reservation in the decree just recited, which would give the trial court a further opportunity to deal with that situation. This is shown by the following language from the decision :
The Judge who tried this case has retired and another Judge will hear any future matters.
If the Decree causes financial distress, the ruling made can be reviewed if within one year after final judgment either party requests it.
Another possible reason for having the matter looked at within a year is the distribution of the assets.
The decision of the Court was based upon an assumption that the net value of the assets of the plaintiff was $225,000.-00 . .
Having confidence in the integrity of our trial courts and the ability of the judge to review the matter if presented to them, we affirm the judgment rendered and leave it to the lower court to determine if а modification should be made.
After the remand, the defendant, on October 25, 1973, filed a “Petition for Review of Economic Matters and Modification of the Decree” supported by affidavits and proffer of proof. In connection with an order to show cause issued thereon, the trial court
If we look at the total situation, including the substantial property interests and the complex financial situation of these parties, together with thе facts that the original decree did not purport to make the usual final disposition thereof, but contained the reservation recited above, we see nothing unreasonable or improper in the just stated conclusion of the trial court. The circumstances here distinguish this case from those relied on by plaintiff which hold that a final decree cannot be modified except for a change of circumstances. Moreover, in this situation we see no reаson why the court in its effort to do equity between these parties could not make whatever corrections or adjustments in the decree it deemed necessary to carry out that purpose.
Consistent with that objective, there fоllowed extensive discovery procedures, and a hearing of several days’ duration, at which both parties presented extensive evidence and the testimony of experts on valuations ; and thereafter submitted their respeсtive memorandums and proposals as to the disposition to be made of their financial affairs. Consequent thereto, the trial court on November 11, 1974, made findings that the value of the assets was $2,037,535.63, less liabilities of $288,725.65, with a resulting net worth of $1,748,809.98. Of this it awardеd to the plaintiff properties valued at $1,121,471.63, required him to discharge obligations of $189,869, thus giving him properties of net value $931,602.63. To the defendant he awarded properties valued at $842,144, required her to discharge obligations of $98,856.65, a net award tо her of $743,387.35.
Four days after the November 11, 1974, supplemental decree, plaintiff filed his objections thereto and motions for other relief and/or a new trial. A hearing on these motions began on Friday, December 6, 1974, and continued on Mondаy, December 9. During the noon recess respective counsel engaged in discussions and apparently arrived at terms of settlement based on an offer of the defendant. When court convened at 2:00 p. m. defendant’s counsel orally stated into the record the terms thereof, which involved reference to certain paragraphs of the November 11, 1974, judgment.
Inasmuch as it is the position of the plaintiff that he repudiates the stipulation, the following is noteworthy. A part of the record, relied upon by him in support of his position, is:
THE COURT: All right. Mr. Klein, you have heard your counsel read into the record, part of it by reference to paragraphs. I don’t know whether you have been able to follow it or nоt.
MR. KLEIN: I haven’t followed it, Your Honor.
THE COURT: Do you understand it?
MR. KLEIN: I am relying on my counsel. At this point, I haven’t been able to read it.
As opposed to the foregoing, a part of the record upon which the defendant places reliance is the following response of the plaintiff which oсcurred later:
By way of the record, I accept the stipulation and I so understand. Spoken by Robert D. Klein.
Speaking in generality, the offer made on the defendant’s behalf which was then agreed to by the plaintiff and his counsel reducеd the properties being awarded to the defendant in the amount of about $200,000 and increased the value of properties being awarded to the plaintiff in that amount. Subsequent thereto, on December 18, 1974, the trial court made further findings and entered a decree in conformity with the stipulation, and from which this appeal is taken.
Plaintiff’s arguments that he should not be bound by the stipulation are: that he
Plaintiff advances the propоsition that it would be neither fair nor proper to enter a “consent decree” purporting to be based on the agreement of a party who does not agree thereto at the time of final submission to the court. This appears to be a sound proposition when applied to appropriate circumstances.
Proceeding beyond what has just been said, we make several observations about this stipulation: thе first is that the issue as to whether plaintiff agreed to and should be bound by the stipulation was one of fact for the trial court to determine; and it was not convinced that the plaintiff did not understand and voluntarily agree to the stipulation.
This would seеm to sufficiently settle the issue. But even if it be assumed, as the plaintiff contends, that he either did not understand and/or was subjected to duress in agreeing to the stipulation; or that his agreement was timely and properly withdrawn, these further observations arе applicable: It is the established rule that a stipulation pertaining to matters of divorce, custody and property rights therein, though advisory upon the court and would usually be followed unless the court thought it unfair or unreasonable, is not necessarily binding on the court anyway. It is only a recommendation to be adhered to if the court believes it to be fair and reasonable.
Under the circumstances shown, particularly the fact that upon his analysis of the total circumstances the court indicated in his judgment of November 11, 1974, that the defendant should have $200,000 more in assets than the present decree gives her, and the plaintiff $200,000 less, it is obvious that the trial court did not regard this latter allocation of assets as in any degree unjust or inequitable to the plaintiff. Consistent with the latitude of discretion necessarily allowed to the trial judges in dealing with problems of the character here involved, we are not persuaded that we should disturb the decree.
Affirmed. Costs to defendant (respondent).
Notes
. Osmus v. Osmus,
. This order was entered by Hon. James Sawaya; and the subsequent proceedings and the amended decree appealed from were handled by Hon. G. Hal Taylor.
. See Burnaman v. Heaton,
. Openshaw v. Openshaw,
. See Pinion v. Pinion,
Dissenting Opinion
(dissenting).
The power of the court to render a judgment by consent is dependent on the existence of the consent of the parties at the time the agreement receives the sanction of the court or is rendered and promulgated as a judgment.1
This general rule, in my view, is disposi-tive of the matter before us. There was no stipulation, because one of thе parties withdrew consent prior to judgment. The withdrawal was seasonable, and prior to any change of position by the parties, in reliance on the terms of the proposed agreement.
Two well-reasoned cases
A valid consent judgment cannot be rеndered by a court when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertаkes to make the agreement the judgment of the court.
In Van Donselaar, it was the court’s opinion that:
If no agreement was in fact made, or equally if one of the parties had refused to be bound by it, to the knowledge of the court, then the court had no right to enter a consent judgment.
For the same reason, I think the court had no right to refuse to allow plaintiff’s trial counsel to withdraw, until after the judgment had been rendered.
. 49 C.J.S. Judgments § 174b, page 311.
. Burnaman v. Heaton,