Linehan v. Linehan

Tom Glaze, Judge,

dissenting. The majority has mixed its metaphors in this divorce decision, thereby further befuddling an important but already confusing area of our law. Simply stated, the court erroneously labeled the parties’ “stipulated agreement” an “independent property settlement contract. ’’ A stipulation has been distinguished from a contract as follows:

[I]t is generally held that stipulations are obligations unlike ordinary contracts between the parties not in court, and are not governed by the rules of law ordinarily applicable to contracts. They are not only obligtions between the parties, but between the parties and the court, and will be enforced both for the benefit of the interested party and for the protection of the honor and dignity of the court.

17 C.J.S. Contracts § 10 (1963) (emphasis supplied).

I agree with the majority’s conclusion that oral stipulations in open court are both valid and binding — but that is not the issue to be decided. The issue posed is whether the chancery court based its decree on an independent contract between the parties. If so, the court correctly held that it was unable to modify the alimony award to the appellee. Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953). If, on the other hand, the parties agreed to settle without intending to confer on the appellee an independent cause of action, the parties’ agreement merged in the decree subject to the court’s modification. Holmes v. Holmes, 186 Ark. 251, 53 S.W.2d 226 (1932). Here, the parties’ agreement was stipulated — not contracted — and the court’s decree was based solely on those stipulations announced in and approved by the chancery court. The parties made no effort by word or deed to make their settlement agreement one which might be independently enforceable in any other court, e.g., circuit. Instead, only the chancery court rendering the parties’ decree is in a position to enforce (alter or modify) the terms to which the parties stipulated when settling their differences.

Assuming arguendo that oral stipulations could be construed to confer on the parties an independent, contractual cause of action, I am unable to find any evidence that was done here. Nowhere did the parties state that their stipulations were intended to be contractual. Nor were their stipulations written even though the Supreme Court stated in Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953), that an unmodifiable, independent contract is usually in writing. In fact, my research reveals no Arkansas divorce cases in which it has been contended that an oral property settlement agreement could confer on the parties an independent cause of action. In my opinion, Arkansas statutory law is to the contrary and requires that such a contractual agreement be in writing to be enforceable. See Ark. Stat. Ann. § 34-1212 (Supp. 1981).

I believe this case is merely another garden variety divorce action in which the parties appeared in court and settled their differences (with the court’s assistance) at the last hour. As parties are oft to do, they even “stipulated” that the appellee was entitled to and had grounds for a divorce — obviously a matter to which neither they nor the court could stipulate. No doubt, the parties intended to resolve all of their differences existing at the time the divorce was granted. Even given those intentions, the parties’ stipulations by no stretch of the imagination conferred on either of them an independent contractual right or one cognizable at law.

If the majority’s decision stands, I believe it is evident that new legal disputes will surely result, not the least of which will involve the Statute of Frauds. However, I will not unnecessarily lengthen this opinion in an effort to portend those questions which will undoubtedly arise. Nonetheless, the prospect of such future disputes also figures into my dissent.