Calloway v. Calloway, 85-CA-2914-S

Decision Date11 April 1986
Docket NumberNo. 85-CA-2914-S,85-CA-2914-S
PartiesRuby Ann CALLOWAY, Appellant, v. Gerry Dennis CALLOWAY, Appellee.
CourtKentucky Court of Appeals

Kent Overton Sublett, Bardstown, for appellant.

Stuart McCloy, Elizabethtown, for appellee.


GUDGEL, Judge:

This is an appeal from a decree of dissolution entered by the Hardin Circuit Court. Appellant contends that the court erred (1) by enforcing an oral settlement agreement as to several contested issues in the proceeding, (2) by denying her claim for maintenance, and (3) by abusing its discretion in fixing appellee's visitation rights. We disagree with all of appellant's contentions. Hence, we affirm.

Appellant filed a petition for dissolution against appellee in 1981. She asserted claims for custody, reasonable child support and maintenance, a just division of marital property, and attorneys' fees and costs. Appellee filed a response to the petition. He admitted that appellant should be awarded permanent custody of their child but contested all of her other claims for relief. Further, he asked the court to award him reasonable visitation rights. On August 16, 1983, following the taking of proof by deposition, the court entered a decree of divorce but reserved all remaining issues for future adjudication.

Proof by depositions as to the contested issues was scheduled to be taken January 11, 1985. After the parties appeared and were sworn to testify by the court reporter, appellee's counsel made the following statement on the record:

MR. McCLOY: Let the record reflect that we're here pursuant to a scheduled deposition and parties have now reached an agreement and parties and their attorneys are present. And, we are going to dictate this agreement into the record and we'll consider it to be in force and effect as of today and we intend to reduce it to writing, but this will be the agreement of the parties.

Counsel then proceeded to dictate to the court reporter an eleven paragraph settlement agreement which effectively resolved all of the contested issues between the parties except appellant's claim for maintenance. After counsel finished dictating the agreement, the following colloquy occurred:

Okay. Both of you have heard the agreement as dictated, Mr. Calloway do you agree that those are the terms of the contract of settlement:


MR. McCLOY: And do you agree to them?


MR. McCLOY: Mrs. Calloway?


MR. McCLOY: That's all.

The court reporter filed a transcript of the January 11 deposition proceeding with the clerk on January 25, 1985. Thereafter, a written agreement conforming to the oral agreement was drafted, but appellant refused to sign it. In a well-written opinion, the trial court found (1) that the oral settlement agreement was enforceable, (2) that it was not unconscionable, and (3) that the parties were bound by it. Thereafter, the court denied appellant's claim for maintenance and entered a final decree. This appeal followed.

First, appellant makes a two-pronged argument that the trial court erred by enforcing the oral settlement agreement dictated to the court reporter. She contends that the agreement violates the requirement of KRS 403.180 that property settlement agreements be "written." Alternatively, she argues that, even if the agreement does not violate KRS 403.180, it is unenforceable under the statute of frauds (KRS 371.010) since it affects title to real estate but is not in writing and signed by the parties to be charged. We disagree with both of appellant's arguments.

The trial court relied on Peirick v. Peirick, 641 S.W.2d 195 (Mo.App.1982) and In Re Marriage of Chambers, Colo.App., 657 P.2d 458 (1982), which both involve statutes identical to KRS 403.180, in finding that an oral agreement which is dictated to a court reporter at a scheduled deposition, subsequently transcribed, and then in its transcribed form made a part of the clerk's record, satisfies the requirement of KRS 403.180 that property settlement agreements be "written." We fully agree with this proposition and with the rationale of the courts which have adopted it.

KRS 403.180 merely states that parties "may enter into a written" agreement. The language of the statute does not, however, undertake to describe a permissible or acceptable form for such agreements. That being so, we fail to perceive that an oral agreement dictated to a court reporter, which is then subsequently transcribed and made a part of the clerk's record, does not satisfy the requirement of KRS 403.180 that the agreement be "written." As noted by the Missouri court in Peirick, supra at 196, quoting Hansen v. Ryan, 186 S.W.2d 595, 600 (Mo.1945):

In the administration of justice and the prompt dispatch of business, courts must and do act upon the statements of counsel and upon the stipulations of parties to pending causes. Where the parties have voluntarily entered into a stipulation, which appears fair and reasonable for the compromise and settlement of the issues of a pending cause, and where the stipulation is spread upon the record with the consent and approval of the court, as here, the parties are bound thereby and the court may, thereafter, properly proceed to dispose of the case upon the basis of the pleadings, the stipulation and admitted facts.

Further, contrary to appellant's suggestion, we find no basis for making a distinction in this case merely because the agreement happened to be dictated to a court reporter rather than stated in the presence of the judge, especially since there is no allegation of fraud or mistake in connection with the court reporter's transcription of the agreement.

Likewise, we are unimpressed by appellant's argument that enforcement of the agreement is barred by the statute of frauds. True enough, an agreement to exchange title to real estate, such as the parties entered in the instant action, must ordinarily be in writing and be signed by both parties in order to be enforceable. Sampson v. Cottongim, 249 Ky. 670, 61 S.W.2d 309 (1933). It does not necessarily follow, however, that the agreement in this case is unenforceable.

The statute of frauds does not invalidate oral contracts per se, but merely renders certain specified types of oral contracts unenforceable. See Bennett v. Horton, Ky., 592 S.W.2d 460 (1980). However, the authorities recognize that there may be a valid estoppel basis, in some cases, for excepting a questioned transaction from the statute's application. See 37 C.J.S. Frauds, Statute Of Sec. 246 (1943). We agree with the trial court that this is such a case.

The general rule is set forth in 31 C.J.S. Estoppel Sec. 120 (1964) as follows:

In the absence of fraud or mistake, parties to...

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