Buckner v. Buckner , 294 Ga. 705 ( 2014 )


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    294 Ga. 705
    S13F1561. BUCKNER v. BUCKNER.
    BENHAM, Justice.
    Acting pursuant to Rule 34 (4) of the Rules of the Supreme Court of
    Georgia, we granted the application of appellant Angela Buckner (Wife) for
    discretionary review of the trial court’s order denying her motion to set aside the
    consent final judgment of divorce entered in the action filed by appellee Mark
    Buckner (Husband) and denying her motion to rescind or reform the settlement
    agreement the parties signed. The record reflects that on December 20, 2012,
    the parties appeared for a final hearing on their divorce proceeding but
    continued to negotiate in an attempt to reach a settlement. On that day, the
    parties memorialized an agreement by using a letter that had been prepared by
    Husband’s counsel as a prior settlement offer and modifying it with handwritten
    notations in the margins and handwritten terms on additional pages. The
    document was then signed by both parties and their counsel, and counsel
    announced to the court that the parties had reached an agreement and executed
    a settlement memorandum. The settlement document was filed with the clerk
    but not read into the record.
    The original settlement offer letter contained language granting Husband
    the “marital abode” and that language was not marked out or modified.
    Nevertheless, Wife claims that throughout the two-and-a-half year period in
    which this action was pending, she unequivocally demanded to keep the marital
    home, which she had acquired prior to the marriage, and she claims she never
    consented to grant Husband the home at any time during the final settlement
    negotiations. In fact, she claims the agreement reached was for Wife to keep the
    home and that it was a mutual mistake that this term was not correctly reflected
    on the settlement memorandum.        Later in the day on which the parties
    announced they had reached a settlement agreement, Husband’s counsel sent to
    Wife’s counsel a draft of a proposed consent final judgment and decree of
    divorce that contained not only the terms set out in the settlement memorandum,
    including the award of the marital home to Husband, but also contained what
    Wife asserts were additional substantive terms not addressed in the settlement
    memorandum. Counsel for both parties continued to exchange proposed drafts
    of the final order.
    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
    2
    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 erroneously 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 proposed 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 her to forfeit valuable assets,
    including the couple’s business and her premarital home, leaving her with a
    large income tax liability and without an equitable award of marital assets.
    3
    After conducting an evidentiary hearing, the court denied the motion.
    In the order granting Wife’s application for discretionary review, this
    Court indicated it was particularly concerned with the following issues:
    1.    Did the parties enter into a settlement agreement? If so, what
    were the terms of the agreement?
    2.    Did the trial court err in entering the decree of divorce based
    on the purported settlement agreement?
    3.    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
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    set forth a schedule of cash payments to be made by Husband to Wife and 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 agreement 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 the
    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
    1
    The cash payments to Wife were increased in handwritten revisions by a total of
    $22,000, which was approximately half the equity value of the marital abode.
    5
    draft proposed by Husband, the marital home was to 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 to it).
    Settlement agreements in divorce cases are construed in the same manner
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    as all other contractual agreements. Jones v. Jones, 
    280 Ga. 712
    , 714 (1) (632
    SE2d 121) (2006). Even a pro se litigant has the duty to read a contract before
    signing it and by signing, the party is bound by its terms
    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 document 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
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    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 error 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 that 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
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    several days prior to the date the order was entered that 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 Uniform Superior Court Rule 6.
    2
    Husband’s appellate counsel is not the attorney who executed the Consent Order.
    9
    In ruling on a motion to enforce, the trial court would have then been
    required 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 enforceable. 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 had not consented to the
    proposed order, it should not have entered the order without further inquiry into
    the equitable issues raised by Wife’s motion to set aside the final decree. At the
    hearing on Wife’s motion to set aside the final judgment, the trial court
    announced that the only issue it was hearing was whether there was a mutual
    mistake that would permit the court to set aside the settlement agreement filed
    in the case. Based upon its finding that there was no mutual mistake as to the
    terms of the settlement memorandum executed by the parties, the trial court
    concluded that no grounds exist upon which it may grant rescission of the
    settlement agreement or grant the motion to set aside the final judgment. Wife’s
    motion sought relief pursuant to the court’s inherent power, pursuant to OCGA
    10
    § 15-1-3 (6), to exercise discretion to amend or set aside a judgment, which may
    be done for any meritorious reason, provided the motion to set aside is filed
    during the term in which the judgment was rendered.3 See Pope v. Pope, 
    277 Ga. 333
    , 334 (588 SE2d 736) (2003). In fact, the trial court should have
    exercised its discretion to set aside the judgment because it should not have been
    entered in the first place, at least not in the form of a consent order. Even in a
    case in which the parties to a divorce action have reached a settlement
    agreement, the trial court has a duty to make an independent determination of
    “whether its contents are within the bounds of the law prior to its incorporation
    into the final decree of divorce.” Page v. Page, 
    281 Ga. 155
    , 156 (635 SE2d
    762) (2006). The trial court has the discretion to approve or reject a divorce
    settlement agreement in whole or in part. See Arnold v. Arnold, 
    282 Ga. 246
    (647 SE2d 68) (2007).
    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
    3
    It is undisputed that Wife’s motion was filed in the same term of court in which the final
    judgment was entered.
    11
    hearing was to determine whether mutual mistake provided a ground for
    rescinding the settlement agreement, it appears Wife was not afforded the
    opportunity to 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, reversed in part, and vacated in part. All the
    Justices concur.
    Decided March 3, 2014.
    Domestic relations. Paulding Superior Court. Before Judge Osborne.
    Candace E. Rader, Daniel B. Greenfield, for appellant.
    Bryan R. Howard, Edward T. Murray, for appellee.
    12
    

Document Info

Docket Number: S13F1561

Citation Numbers: 294 Ga. 705, 755 S.E.2d 722, 2014 Fulton County D. Rep. 348, 2014 WL 819477, 2014 Ga. LEXIS 176

Judges: Benham

Filed Date: 3/3/2014

Precedential Status: Precedential

Modified Date: 11/7/2024