Another Announced Settlement Bites the Dust
August 20, 2013 § 6 Comments
It’s a familiar occurrence: the parties arrive all lawyered-up for trial; judge grants some time to “talk”; the talking leads to a concensus of sorts, or even to a comprehensive settlement; the lawyers meet with the judge and fill the judge in with an outline of the terms. Let’s stop there.
To that point, the situation can still reach a happy conclusion. The lawyers can retire to a computer and hammer out the necessary agreed judgment, or property settlement agreement, or consent to divorce, or other documents, have them signed by the parties, and present them to the court and be done with it.
Or, as frequently happens, they can make an announcement on the record, confirm their agreement before the judge, who incorporates into a judgment, and go their merry ways.
Merry, that is, until one of the parties changes his or her mind and hires another lawyer to torpedo the erstwhile agreement.
The latter (beginning above with the word”Until”) is what happened in the COA case of Reno v. Reno, decided August 13, 2013.
Randy and Casey Reno appeared for a divorce trial, and settlement talks broke out. The parties announced that they had agreed to consent to divorce on irreconcilable differences. The chancellor heard the parties confirm their agreement that they consented to an irreconcilable differences divorce, and she was pretty clear about the import of what the Renos were doing:
In order for the Court to proceed on the ground of irreconcilable differences, I have to have both of your consent[s] . . . . Normally, the consent is reduced to writing[,] . . . but there’s . . . case law that allows us to take testimony from y’all about your consent[;] then it will be reduce[d] to writing in the form of the divorce decree.
. . . .
If [it is your agreement], and you agree that you are entering into this consent and that you will sign the consent agreement, the divorce decree, once it is presented, then – and you understand that once you enter into this consent, you can’t change your mind. You can’t back out. I’m going to proceed on irreconcilable differences . . . .
With the verbal consent in place, the court heard the parties agree that each would keep his or her own personal property, and the judge proceeded to a hearing on the contested issues, which were custody and visitation.
Casey was unhappy with the outcome, which gave Randy custody, and she appealed, raising the sole issue that the consent was invalid because it was not in writing, as required by the statute. The COA reversed, relying on Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss. 1992), which held that a consent, in order to be valid, must meet the three criteria set out in MCA 93-5-2(3):
- It must be in writing, signed personally by both parties; and
- It must state that “the parties voluntarily consent to permit the court to decide” the specific issues on which they cannot agree; and
- It must state “that the parties understand that the decision of the court shall be a binding and lawful judgment.”
Since the consent in this case was not in writing, the COA had no choice but to reverse.
- The chancellor undoubtedly had in mind the COA case of Bougard v. Bougard, 991 So.2d 646 (Miss.App. 2008), when she stated that there is case law that allows the judge to take oral testimony about the consent. Bougard was not a consent case. In Bougard, the parties dictated their property settlement agreement into the record, which was approved by the trial court. The COA affirmed, despite the statutory requirement that there be a written propertys settlement agreement in an irreconcilable differences divorce. Bougard, however, is the only case of which I am aware in which our appellate courts have upheld a settlement announcement not reduced to writing. As far as the consent cases are concerned, they are uniformly consistent with Massingill, as far as I can tell.
- This case hammers home a point I made in a previous post that ” … there has been a trend over the past few years where people agree to one thing in court and then, either on their own or with the aid of new counsel, attack their very agreement through a barrage of post-trial motions and on appeal, picking at every conceivable legal nit in an effort to have the agreement declared invalid.” The concept of a person’s word being his or her bond is as outmoded in the 21st century as buggy whips (that is, buggy whips used as buggy whips, if you get my drift). I think that outmoded concept of honor is why chancellors are so ready to accept on-the-record settlement announcements, and why they are so loathe to let the parties back out of them. Alas, though, neither the statutes nor the mores of this era are consistent with that approach.
- Lawyers in these parts will tell you how much I dislike settlement announcements. I don’t like them for all the reasons set out above. But I also dislike them because quite often they wound up back in court because something was left out, or there is a disagreement over whet was meant, or somebody misunderstood somebody else. To me, it’s better just to take the time to put it in writing where everyone can see it, and go from there.