Gangopadhyay v. Gangopadhyay

Citation403 S.E.2d 712,184 W.Va. 695
Decision Date13 February 1991
Docket NumberNo. 19608,19608
CourtSupreme Court of West Virginia

Syllabus by the Court

1. Even though there is an express legislative preference in divorce cases for a separation agreement to be in writing and signed by the parties, we do not prohibit per se the practice of orally placing on the record the terms of a separation agreement if certain conditions are met.

2. Where an oral separation agreement is dictated on the record, additional inquiries must be made by the court or the family law master to ascertain that the parties understand its terms and have voluntarily agreed to them without any coercion. Furthermore, the court or the family law master must find that the terms of the agreement are fair and equitable. This latter inquiry requires a disclosure of the financial background of the parties sufficient to justify the conclusion of the court or the family law master.

H.L. Kirkpatrick, III, Ashworth & Kirkpatrick, Beckley, for Ira Gangopadhyay.

James B. McIntyre, McIntyre, Haviland & Jordan, Charleston, for Nirmal K. Gangopadhyay. MILLER, Chief Justice:


This appeal presents the principal question of whether the parties to a divorce can be bound by an oral property settlement if such an agreement is spread upon the record in open court and the parties testify under oath they agree to its terms.

The plaintiff wife in the divorce action below argues that such a procedure violates W.Va.Code, 48-2-16(a) (1984), which concerns the effect of a separation agreement on temporary and permanent division of property and awards of alimony and child support, 1 and W.Va.Code, 48-2-32(b), which involves the effect of a separation agreement on the equitable distribution of property. 2 Both sections apply "where the parties ... have executed a separation agreement." In addition, the plaintiff points out that the term "separation agreement" has been legislatively defined in W.Va.Code, 48-2-1(h) (1990), as "a written agreement entered into by a husband and wife[.]" 3 From this language, the plaintiff maintains that in order to be valid, a separation agreement must be in writing and signed by both parties. 4

As a subsidiary position, the plaintiff argues that the trial court is also required to find "that the agreement is fair and reasonable, and not obtained by fraud, duress or other unconscionable conduct by one of the parties[.]" W.Va.Code, 48-2-16(a). See W.Va.Code, 48-2-32(b). 5 In this case, the plaintiff asserts that no such finding was made by either the family law master or by the circuit court.


Having framed the legal issues, we turn to the facts, which are not substantially disputed. The parties were born and reared in India. They were married in Covington, Virginia, in December of 1971. Two children were born of the marriage. The parties last cohabited on September 30, 1986, in Raleigh County. The plaintiff is employed as a social worker by the West Virginia Department of Health, and the defendant is employed as an engineer by a coal company.

On July 28, 1987, the plaintiff instituted proceedings for divorce in the Circuit Court of Raleigh County on grounds of irreconcilable differences and cruel and inhuman treatment. The defendant filed an answer and counterclaim seeking a divorce on the same grounds. Both parties sought equitable distribution of the marital estate and custody of the children. The case was referred by the circuit court to a family law master (master).

A final hearing was conducted before the master on July 12, 1988. The record reflects that the parties had met immediately prior to the hearing and had advised the master that a settlement had been reached. Shortly thereafter, counsel recited on the record the parties' oral agreement as to the distribution of the marital assets, custody of the minor children, child support, and waiver of alimony. Pursuant to questioning by both her own attorney and by the defendant's counsel, the plaintiff indicated that she fully understood both the terms of the agreement and the fact that she would be bound by it from the time it was entered upon the record. The plaintiff further stated that she had entered into the agreement, and thereby waived her right to alimony, voluntarily, freely, and willingly. The defendant offered similar testimony. Counsel for both parties represented their understanding that the agreement would be reduced to writing and signed by the parties shortly after the hearing.

At the conclusion of the hearing the master indicated that he would accept the agreement and that the parties would thereafter be bound by it. By letter dated July 22, 1988, however, plaintiff's counsel advised the master that the plaintiff had withdrawn his authority to execute an order incorporating the settlement agreement.

In September of 1988, the plaintiff tendered to the master a motion for a final hearing, seeking to have the property settlement set aside on several grounds. The plaintiff claimed that the agreement was not enforceable because it was not in writing and signed by the parties. She also asserted that her consent was not knowingly and intelligently given, that she had been pressured into making the settlement agreement, and that the defendant had misled her as to the value of the marital residence. 6

A hearing was conducted before the master on November 28, 1988. The master concluded that because the parties spread their agreement on the record at the July 12, 1988 hearing and approved it under oath, the oral agreement was the equivalent of a writing. The master also found that the parties' bargain was struck at arms' length. The master's recommended decision, issued in December, 1988, advised the circuit court to grant the divorce in accordance with the terms of such agreement.

The plaintiff excepted to the master's findings and recommendations. After a final hearing on September 15, 1989, the circuit court granted the parties a divorce on grounds of irreconcilable differences. In its final order, the circuit court concluded that the parties' property settlement agreement was fair and equitable and a proper distribution of the marital property. The court further found that both parties had understood that the agreement was binding on them at the time of the July 12, 1988 hearing and that it would later be reduced to writing. The circuit court incorporated a written version of the agreement into its final decree and ordered distribution of the marital estate in accordance therewith. The plaintiff's motion for a new trial was denied by order of the circuit court dated November 14, 1989. This appeal ensued.


We have not had occasion to decide whether an oral separation agreement which is dictated into the record in open court with the parties present and acknowledging the correctness and accuracy of the agreement on the record is valid and enforceable. A literal reading of W.Va.Code, 48-2-1(h) shows that a "written agreement" is called for. 7 It may be argued that once it is transcribed on the record, an oral settlement is the equivalent of a written agreement. However, both W.Va.Code, 48-2-16(a) and 48-2-32(b) give effect to property settlements "where the parties ... have executed a separation agreement," 8 indicating that the agreement must be signed by both parties.

Clearly, a prudent attorney would make certain that a separation agreement was in writing and signed by the parties to indicate their approval of its terms. Such a precaution would avoid any claim that the agreement was not valid from a technical standpoint. A written agreement would also substantially diminish any claim that the agreement was unenforcably vague or could not be understood. 9 Finally, requiring the parties to sign a written agreement would militate against a later claim that the agreement was coerced or inequitable.

Thus, there are cogent policy reasons which cause us to encourage the use of written separation agreements, signed by the parties, as an expeditious means of disposing of marital property, alimony, and support issues. We do not believe, however, that the legislative preference for written separation agreements necessarily precludes enforcement of an oral agreement in every case. Other jurisdictions with statutes similar to ours have allowed the parties to place on the court record the substance of their oral agreement, concluding that this procedure satisfies the statutory requirement of a written separation agreement where the parties are represented by able counsel and acknowledge their consent to the agreement on the record. Perras v. Perras, 151 Ariz. 201, 726 P.2d 617 (App.1986); In re Marriage of Chambers, 657 P.2d 458 (Colo.App.1982); In re Marriage of Johnson, 350 N.W.2d 199 (Iowa 1984); Waitt v. Waitt, 172 Ind.App. 357, 360 N.E.2d 268 (1977); Calloway v. Calloway, 707 S.W.2d 789 (Ky.App.1986); Peirick v. Peirick, 641 S.W.2d 195 (Mo.App.1982); McIntosh v. McIntosh, 74 N.C.App. 554, 328 S.E.2d 600 (1985).

Obviously, such a procedure is fraught with the potential for misunderstanding and abuse. If the agreement is the product of eleventh hour negotiations or is agreed to on the eve of hearing, it may not bear the deliberateness and informed consent of a prior written agreement. The first time the court will hear the agreement is when it is dictated into the record. If the agreement is of any length, both the court and the parties may have difficulty remembering and understanding its terms. 10 Finally, the potential for fraud duress, or coercion is much greater where the agreement is not reduced to writing before being presented to the court.

For these reasons, we believe certain safeguards should attend the acceptance of an oral separation agreement. As the North Carolina Court of Appeals stated in McIntosh v. McIntosh, 74 N.C.App. at 556, 328 S.E.2d at 602:

"[I]t must affirmatively...

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