Grisham v. Grisham

• Decision Date: 06 December 2012
• Docket Number: Nos. 55394, 57433.,s. 55394, 57433.
• Citation: 128 Nev. Adv. Op. 60,289 P.3d 230
• Parties: Michael H. GRISHAM, Appellant, v. Susie L. GRISHAM; and Anita Webster, Respondents. Michael H. Grisham, Appellant, v. Susie L. Grisham, Respondent.
• Court: Nevada Supreme Court

289 P.3d 230

128 Nev. Adv. Op. 60

Michael H. GRISHAM, Appellant,

v.Susie L. GRISHAM; and Anita Webster, Respondents.

Michael H. Grisham, Appellant,

v.Susie L. Grisham, Respondent.

Nos. 55394, 57433.

Supreme Court of Nevada.

Dec. 6, 2012.

Robert W. Lueck, Esq., Las Vegas, for Appellant.

Smith & Taylor and Radford J. Smith, Henderson, for RespondentSusie L. Grisham.

Webster & Associates, Las Vegas, for RespondentAnita A. Webster.

OPINION

By the Court, PICKERING, J.:

This appeal challenges a final divorce decree based on a written but unsigned property settlement agreement.The district court incorporated the agreement into its decree based on the parties' testimony, in open court, that they stipulated to its terms.The district court admitted the draft as a hearing exhibit and approved the oral stipulation by minute order.This procedure complied with applicable district court rules, which obviates any issue as to the statute of frauds, and the draft otherwise met the requirements for an enforceable contract.We affirm.

I.

The morning of the first day of trial, the parties appeared with their lawyers to advise that they had settled.They had negotiated based on a draft property settlement agreement (PSA).The final draft contained some last-minute handwritten changes, and the lawyers had not had time to prepare a clean execution copy.They asked to put the settlement on the record and to proceed with an uncontested divorce prove-up hearing.This would leave undone only the ministerial tasks of preparing and signing a clean copy of the PSA and entering the final decree.

Both appellantMichael Grisham and respondentSusie Grisham testified at the hearing, as did a third-party witness to Susie's Nevada residency.Most of the discussion and testimony focused on the PSA, which was admitted as Exhibit A.The lawyers read into the record the few handwritten notations on the draft and stipulated that the PSA, with its handwritten changes, would “be binding on the parties today”:

Your Honor, what our intention is with regard to Exhibit A is, like I say, there's some interlineations.What we'd like to do is have the terms entered as an exhibit and be binding on the parties today.Then what we'd like to do is to provide a clean copy, which will be fully executed by the parties again today, and then submit all of that by way of a decree of divorce.

Under questioning, first by his lawyer then by Susie's, Michael testified that he had reviewed, understood, and agreed to the PSA.He acknowledged its principal terms.He also confirmed that he recognized he would be bound by the PSA.Susie testified to similar effect as Michael.

At the end of the hearing, the court orally accepted the settlement.The hearing minutes give the following recap:

Plaintiff, Defendant and [the] resident witness, sworn and testified.COURT ORDERED, absolute DECREE OF DIVORCE is GRANTED pursuant to the terms and conditions as outlined in the proposed Property Settlement Agreement, marked and admitted as Exhibit A, and lodged in the left hand side of the file.

Michael's lawyer generated a clean copy of the PSA, which Susie and her lawyer signed and returned.Michael did not sign, first asking for minor revisions, then not answering his lawyer's letters and calls.Eventually, Michael's lawyer, his fourth, withdrew, asserting an attorney's lien, which the district court reduced to judgment.

After several months with no case progress, Susie moved for entry of a divorce decree based on the PSA.Representing himself, Michael did not file a written opposition to Susie's motion but moved for a mistrial.Although Michael refused to sign the PSA, Susie argued that the district court could enforce the PSA based on the prove-up hearing transcript and minute order.After further proceedings, including a hearing at which Michael appeared and orally opposed Susie's motion, the district court entered a final written decree incorporating the PSA.It also denied Michael's motion for mistrial.

Michael appeals both the decree incorporating the PSA and the judgment adjudicating the attorney's lien.^FN1

II.

A.

[1]District Court Rule 16 defines the conditions under which a court may, on motion, enforce an agreement to settle pending litigation.Its language is somewhat oblique:

No agreement or stipulation between the parties in a cause or their attorneys, in respect to proceedings therein, will be regarded unless the same shall, by consent, be entered in the minutes in the form of an order, or unless the same shall be in writing subscribed by the party against whom the same shall be alleged, or by his attorney.

See alsoEDCR 7.50(replicating DCR 16 with minor revisions).Despite its awkward wording, DCR 16's application is straightforward: An agreement to settle pending litigation can be enforced by motion in the case being settled if the agreement is “either ... reduced to a signed writing or ... entered in the court minutes following a stipulation.”Resnick v. Valente,97 Nev. 615, 616, 637 P.2d 1205, 1206(1981)(applyingDCR 24, later renumbered DCR 16).

[2][3][4]DCR 16 applies to divorce and dissolution disputes equally with any other kind of civil litigation.SeeGrenz v. Grenz,78 Nev. 394, 399, 374 P.2d 891, 894(1962)(interpretingDCR 16's predecessor).The rule gives “the court ... an efficient method for determining genuine settlements and enforcing them.”Resnick,97 Nev. at 616, 637 P.2d at 1206.It “does not thwart the policy in favor of settling disputes; instead, it enhances the reliability of actual settlements.”Id. at 616–17, 637 P.2d at 1206.

[5][6]Courts elsewhere, by statute, court rule, or common law, similarly enforce oral settlement agreements—even agreements otherwise subject to the writing requirement of a statute of frauds—if put on the record and approved in open court.SeeIn re Marriage of Assemi,7 Cal.4th 896, 30 Cal.Rptr.2d 265, 872 P.2d 1190, 1195(1994)(applyingCal.Civ.Proc.Code § 664.6);In re Dolgin Eldert Corporation,31 N.Y.2d 1, 334 N.Y.S.2d 833, 286 N.E.2d 228, 232(1972)(applyingN.Y. C.P.L.R. 2104);Matter of Estate of Eberle,505 N.W.2d 767, 770(S.D.1993)(“Oral stipulations of the parties in the presence of the court are generally held to be binding, especially when acted upon or entered on the court record....”).A “traditionally favored device” for fostering authentic and reliably recorded settlements, Rubenfeld v. Rubenfeld,279 A.D.2d 153, 720 N.Y.S.2d 29, 32(2001), the procedure dates back at least to the nineteenth century.Thus, writing in 1889, Justice Oliver Wendell Holmes repelled a statute of frauds challenge to a stipulated oral agreement, stating simply: “It is a sufficient answer to this proposition that the statute[requiring a signed writing] plainly is not intended to apply to an agreement like the present, made in open court, and acted on by the court.”Savage v. Blanchard,148 Mass. 348, 19 N.E. 396, 396(1889).“[T]he formality, publicity, and solemnity of an open court proceeding,”Dolgin Eldert Corporation,334 N.Y.S.2d 833, 286 N.E.2d at 233, protects “parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle.”Assemi,30 Cal.Rptr.2d 265, 872 P.2d at 1208(Kennard, J., dissenting).In addition, placing the agreement on the record in open court ensures that there is a formal record “to memorialize the critical litigation events [and, modernly,] a transcript beyond dispute and the fallibility of memory.”Dolgin Eldert Corporation,334 N.Y.S.2d 833, 286 N.E.2d at 233;seeHaley v. Eureka Co. Bank,20 Nev. 410, 421–22, 22 P. 1098, 1101(1889).

[7] The PSA included promises affecting interests in land, making it arguably subject to one or more Nevada statutes of frauds.^FN2Michael's refusal to sign the PSA does not trigger the statute of frauds, though, so long as the in-court proceedings respecting the PSA satisfy DCR 16.“A stipulated judgment made in open court is not within the statute of frauds even though its subject matter [is] real property.”Eberle,505 N.W.2d at 771.AccordPowell v. Omnicom,497 F.3d 124, 129 n. 2(2d Cir.2007)(“[T]he requirement that the settlement be on the record and in open court serves as a limited exception to the Statute of Frauds.”);Sparaco v. Tenney,175 Conn. 436, 399 A.2d 1261, 1262(1978)(“A stipulated judgment made in open court is not within the Statute of Frauds, ... even though its subject matter was real property.”);Kalman v. Bertacchi,57 Ill.App.3d 542, 15 Ill.Dec. 204, 373 N.E.2d 550, 556(1978)(“It is not the intention of the Statute of Frauds to affect stipulations made in a court and subject to the court's supervision and control[; t]he purpose of the Statute is not forsaken in view of the fact that proof of the existence of an agreement is a matter of court record and cannot be disputed.”);Dolgin Eldert Corporation,334 N.Y.S.2d 833, 286 N.E.2d at 232(historically, “[t]he rule had always been that oral stipulations or concessions made in open court, despite statutory or rule requirements for writings, would be enforced over the objection of lack of a subscribed writing”);Thomas v. Thomas,5 Ohio App.3d 94, 449 N.E.2d 478, 484(1982)(“[T]he Statute of Frauds has no application to an ‘in-court’ settlement stipulation....”).

B.

[8][9][10] The question then is: Did the in-court proceedings establish the PSA as an enforceable settlement agreement under DCR 16?When parties to pending litigation enter into a settlement, they enter into a contract.Mack v. Estate of Mack,125 Nev. 80, 95, 206 P.3d 98, 108(2009).Such a contract is subject to general principles of contract law.Id.^FN3In addition to complying with DCR 16's procedural requirements, a stipulated settlement agreement requires mutual assent, seeLehrer McGovern Bovis v. Bullock Insulation,124 Nev. 1102, 1118, 197 P.3d 1032, 1042(2008), or a “meeting of the minds,”May v. Anderson,121 Nev. 668, 672, 119 P.3d 1254, 1257(20...