Documenting the Agreement
December 12, 2017 § 2 Comments
Lawyers bicker with each other for a living. Sometimes that bickering spills over into my office. When it does I customarily say, “Bring me an agreed judgment or set the case for trial; don’t argue your case in here.”
There actually is another alternative: you can announce a settlement on the record. Sometimes that works handsomely, but many times not.
As I posted here before, the MSSC ruled in Sanford v. Sanford that you can not dictate a property settlement agreement or consent to divorce into the record and leave it at that. There must be a separate, written agreement.
In Samples v. Davis, 904 So.2d 1061, 1065 (Miss. 2004), the attempted announcement failed because:
There is no transcript in this matter memorializing the alleged agreement; given the fact that there is no transcript, there is no record of the terms to which Samples allegedly agreed, i.e., in the absence of a record, we are without proof of substantial credible evidence to support the chancellor’s order. According to Mississippi Uniform Chancery Court Rules 3.09 and 5.03, if there was an oral agreement, it should have been recorded by the Court reporter or reduced to writing and approved by Samples’ counsel. Neither of these methods were employed. Therefore, we will in effect “wipe the slate clean and put the parties back where they were prior to trial.” Massingill v. Massingill, 594 So.2d 1173, 1177 (Miss.1992).
The latest iteration of issues arising from a settlement announcement is in the case of Black v. Black, decided by the COA on November 7, 2017. Following a contentious divorce in which every major issue was hotly contested, Arthur and Alicia Black appeared before the court for R59 motions and verbally agreed to certain changes in the visitation regimen ordered by the court in its divorce judgment. But when the judge entered his judgment on the R59 motions, he failed to include the parties’ agreement on visitation. On appeal, Arthur argued that it was error for the trial court not to include the parties agreement in its final ruling. The COA agreed, with Judge Barnes writing for a divided court:
¶37. Lastly, Arthur asserts that the chancellor erred in failing to include visitation changes specifically agreed upon during the Rule 59 motions hearing in its posttrial order. Because of these omissions, he seeks to have these revised provisions memorialized. Reviewing the original visitation provisions in conjunction with the subsequent on-the-record agreement between Arthur and Alicia, we find this is proper.
¶38. In the original final order, the chancellor set forth specific visitation privileges with which the parties were to comply. For summer each year, the parties agreed that Arthur would receive the children on June 1 until June 21, and on July 10 until July 24. For Thanksgiving holidays each year, Arthur was to receive the children in odd-numbered years on the day following the last day of school until the day before school was to reconvene. As to Christmas holidays each year, Arthur was to receive the children in the second part of the holiday during odd-numbered years, and the first part of the holiday during even-numbered years.
¶39. However, at the hearing on the Rule 59 motions, Arthur and Alicia verbally revised the provisions of Arthur’s visitation privileges with the children. The parties agreed that for summer visitation, Arthur would receive the children the first Sunday of June, and the Sunday following July 9 each year. They further agreed that Alicia would have the children during Thanksgiving in odd-numbered years, and Arthur would have the children in even numbered years. For Christmas, they agreed that Arthur would have the children the first part of the Christmas holiday in odd-numbered years, and the second part of the holiday in even-numbered years. The parties also agreed that all times relevant to the visitation
provisions should be according to Eastern Standard Time, and that Arthur would maintain a $1,000 credit balance with Alicia for the children’s noncovered medical expenses. Finally, the parties agreed that any remaining balance in a child’s college fund at the conclusion of his or her college schooling would be transferred to the next child for his or her college education.
¶40. Yet none of these revisions were documented in the chancery court’s posttrial order except to note that the visitation-exchange times would be on Eastern Standard Time. To avoid future visitation conflicts, Arthur seeks to have the chancery court incorporate these revised provisions in an order. Due to the material changes to dates, as well as which party shall receive the children during odd- or even-numbered years, we find such memorialization necessary. “If parties reach an agreement, the agreement containing the terms should be signed by the parties’ attorney(s) or in appropriate cases, the parties, or recorded by the court reporter.” Samples v. Davis, 904 So. 2d 1061, 1066 (¶15) (Miss. 2004) (discussing
agreement of parties in open court). Though Arthur and Alicia’s agreement was of record, this is not sufficient to ensure the absence of future conflict regarding these altered provisions. Therefore, we remand on this issue for the chancery court to memorialize the terms of the parties’ final agreement regarding Arthur’s visitation privileges.
I have said here before that orally announcing terms of settlement on the record is an unsatisfactory and inadequate way to represent your client. People do not listen or pay as much attention to what they are saying as they do when they are writing or reading. Settlement announcements often include imprecise terms, incomplete provisions, and lack of attention to detail. We take more time and care with written agreements, and there are two or more sets of eyes scrutinizing their terms.
Of course, in Black the problem was not indefiniteness, but rather lack of a definitive record at all of that to which they agreed. It was compounded by the court’s entry of an order that omitted their agreement, which left open the question whether the court was refusing to approve it, or what exactly the court intended.
Another problem in Black is that, once the chancellor ruled on the R59 motions, that was that. No more proceedings. As I said here before, “In the case of Edwards v. Roberts, 771 So.2d 378 (Miss.App. 2000), the COA held that there is one round of R59 motions, and only one round. You do not get to file for rehearing after the judge has ruled on the motion for rehearing. If that were not so, one could almost permanently toll the time for appeal by filing serial R59 motions after every ruling on previously-filed R59 motions, ad infinitum. There has to be finality of judgments.” Thus, the only avenue for relief following ruling on the R59 motions was appeal.