SHORTCUT TO FAILURE

May 16, 2012 § 6 Comments

Sanford v. Sanford, decided May 8, 2012, by the COA is the latest in a line of cases that mandate a written agreement settling all issues between the parties before the trial court may grant an irreconcilable differences divorce.

I will spare you a recitation of the convoluted procedural history that led to the appeal. You can read it for yourself. In essence, what happened is a fairly familiar script:

  • Parties and attorneys assemble for some proceeding, perhaps a temporary hearing;
  • In the course of negotiations, the attorneys sense that the whole case can be settled. It may be that one or both parties have been intransigent up to this point and the lawyers sense that if they push ahead, maybe they can get the case resolved;
  • The lawyers shuttle back and forth cajoling and wheedling, cobbling together a rough product, doing their best to smooth the edges, with uneven success;
  • Finally, in hopes that the “settlement” can be held together against the stresses, they recite it into the record, get the parties to mumble their assent numbly, have the court approve it, and get the court reporter to transcribe it as the “written agreement.”

In Sanford, however, Samantha reconsidered and filed a withdrawal of her “consent.” The chancellor denied it, she appealed, and the COA reversed, reiterating its rule that the consent must be in writing, and that it is not sufficient to have the court reporter take the dictated agreement and treat it as an enforceable consent to divorce and/or PSA. In making its decision, the court distinguished a couple of cases that have upheld announced agreements.

Judge Fair dissented, joined by Judges Carlton and Barnes. They would have held that the procedure satisfied the written agreement requirement of the statute. I think most practitioners who have been in that hot-box situation would join in the dissent. But the majority of the court is more comfortable with the formality of a separate, written, signed agreement.

Many lawyers come to court toting along a laptop or at least a zip-drive (i.e., thumb-drive, or USB-drive) or other storage device with form files so that they can hammer out a PSA or agreed judgment or consent while the judge waits. Those of you who are handicapped by being chained to 19th-century technology (pen and paper or quill and parchment) will either have to drag along a secretary with the necessary skills, or upgrade your skills into the 21st century, or tell your client a settlement will just have to wait until some less opportune time.

In any event, the message Sanford sends is pretty clear: get a written agreement signed by the parties if you expect it to pass appellate muster. Shortcuts will not be tolerated.

I used to tell my clients,” We can do it quick or we can do it right.” Translation: “We can cut corners, or we can take a tad longer and make sure we do it in such a way that it can’t be undone.”

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§ 6 Responses to SHORTCUT TO FAILURE

  • […] visited the COA case of Sanford v. Sanford here, back in May of 2012. Sanford is a case where the chancellor allowed the parties to dictate a […]

  • JeffSmith says:

    Interesting opinion on what constitutes a “written agreement”. However, it states that it must be signed. In my opinion, it must be signed, not only by the parties, but also “shall” be signed by both counsel prior to being submitted to the Chancellor for his approval and signature. No Statutory requirement may usurp the M.R.C.P or Uniform Chancery Court Rule per Wimely v. Reid (20089) At that point, Rule 5.03 of Uniform Chancery Court Rule is satisfied pertaining to agreed judgments. M.R.C.P. clearly states that “every paper” shall be signed by at least one attorney of record. I concur with the Ruling of the Majority, and the responsibility of the Chancellor to ensure that all papers are signed by parties as well as attorney’s representing those parties to fulfill the strict requirements of Rule. If there is no signature by counsel, then it constitutes that it has not been thoroughly reviewed by counsel prior to its presentation to the Chancellor for consideration (M.R.C.P. 11(a)) My opinion is that it is only executable prior to signatures of all parties, counsel, and the chancellor, followed by its filing and recording into the record. Strict compliance is required and the application of Rule is strict in this regard.

    Chancellor, your point very well taken and I agree with your statement in regards to the technology we each have at our fingertips to fully comply with written and signed pleadings, motions, and all papers submitted for consideration. Every officer of the court should respectfully see that these procedures are fully complied with and we will never see a COA or Supreme Court decision on this matter again. A chancellor should simply recess and request that all documents be signed by all, to ensure proper execution prior to reconvening the hearing.

    Thanks for sharing your opinion on this simple yet controversial topic.

    • Larry says:

      Thanks for your comment. I appreciate thoughtful input. In my court, I discourage settlement announcements on the record because they so often wind up in controversy as to what was said or meant. People just do better when they can read, scratch through what they disagree with, and make changes until everyone agrees it’s right.

  • randywallace says:

    Hard for me to disagree with Judge Fair’s dissent.
    ___

    The Sanfords reached an agreement. It was announced in open court, and the chancellor found it adequate and sufficient. The announced agreement was transcribed, satisfying the “written agreement” requirement. A year and five days after the settlement was transcribed, when the sole remaining issue was also announced and approved, the court entered an ID divorce judgment incorporating and attaching the transcript. I believe this represents a statutorily acceptable procedure. As the only substantive issue raised by Samantha on appeal is whether signatures are required on the written property settlement agreement, I would affirm the chancellor’s judgment.

    ___

    Yet another reason not to settle cases on the courthouse steps.

    • Larry says:

      The majority insists on that written agreement with signatures, and that has been their position for a while.

      I agree with your final statemeent, but many attorneys now bring their technology to the courthouse with them, so there is no reason why they can not avoid the announcement route and produce that required, signed agreement.

      All of that being said, I have wondered why the parties’ acknowledgement on the record of what they are waiving by agreeing in this fashion is not enough. When we have announcements of temporary settlements, I go through a painstaking ritual to get the parties’ assents on the records, and each attorney’s agreement that the announcement is complete so that there will be no do-over in the future. That should be enough, but until the majority relents, it will not be.

      • thusbloggedanderson says:

        Sounds like a good candidate for a cert petition, if it’s worth the parties’ trouble to file one.

        I wish the MSSC had the power to sua sponte issue a cert writ, and assigned someone in Central Legal to review each week’s handdowns for any glaring WTF ops from the COA.

        (“Why, That’s Frustrating.” You recognize the expression, I’m sure.)

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