In re Haggerty

• Decision Date: 08 September 2016
• Docket Number: A157822
• Citation: 380 P.3d 1176,280 Or.App. 733
• Parties: In the Matter of the Marriage of Julie A. Haggerty, nka Julie Ann Blair, Petitioner–Respondent, and Ancer L. Haggerty, Respondent–Appellant.
• Court: Oregon Court of Appeals

280 Or.App. 733

380 P.3d 1176

In the Matter of the Marriage of Julie A. Haggerty, nka Julie Ann Blair, Petitioner–Respondent, and Ancer L. Haggerty, Respondent–Appellant.

A157822

Court of Appeals of Oregon.

Argued and submitted March 30, 2016.

September 8, 2016

W. Michael Gillette, Portland, argued the cause for appellant. With him on the briefs were Leora Coleman–Fire and Schwabe, Williamson & Wyatt, P.C.

Philip F. Schuster, II, Portland, argued the cause and filed the brief for respondent.

Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge.

DEVORE, J.

This is husband's second appeal challenging spousal support in this dissolution case. Previously, we remanded the case to the trial court for the court to decide whether the parties had entered into a settlement agreement and, if there was an agreement, whether the terms of that agreement were within the range of what would be just and equitable under the circumstances. Haggerty and Haggerty , 261 Or.App. 159, 322 P.3d 1101 (2014) (Haggerty I ). After a rehearing, the trial court decided that the parties had not entered into a settlement agreement and that, even if they had, the settlement agreement would not be within the range of that which is just and equitable. Husband assigns error to both rulings and to the award to wife of attorney fees. In response, wife denies that she agreed to a settlement; she asserts that, even if she did agree, her agreement was due to duress or to unilateral mistake; and she argues that the agreement would be outside the permissible range of agreements.

We conclude that the standard by which the trial court determined that wife had not agreed was erroneous. We reverse and remand for the trial court to make a decision on the facts in the record but with the standard we describe here. Because the remaining issues may arise on remand, we conclude that, on these facts, duress and unilateral mistake do not afford a basis to disregard an agreement. We conclude that the putative agreement, if made, was within the range of that which is just and equitable. Finally, we vacate the judgment on attorney fees in light of our remand.

I. BACKGROUND

We begin by recalling the facts from Haggerty I , and then summarize the evidence about the settlement from the rehearing.

“The parties in this case were married for 27 years and, at the time of trial, wife was 61 and husband was 66. Wife was a retired school principal, part-time substitute teacher, and an author of children's books. Husband was a senior judge with the United States District Court. At the time of the dissolution, husband's monthly gross income was $17,734, consisting of Social Security of $1,435, a veteran's association pension of $875, PERS benefits of $924, and $14,500 for his work as a senior federal judge. Wife's monthly gross income from PERS was $2,965. Both parties had had health issues in the past but were medically stable at the time of trial.

“On April 12, 2011, the day before the dissolution trial began, husband filed a motion asserting that, on October 7 and 29, 2010, the parties and their attorneys had met with a mediator and ‘reached an oral agreement which [the mediator] confirmed by reporting the case as settled to Husband's counsel.’ However, wife did not sign a settlement agreement or a stipulated judgment. According to husband, the terms of the oral agreement were, in relevant part, that (1) wife would receive indefinite spousal support of $4,000 per month, (2) wife would receive $50,000 in life insurance, and (3) the parties would file a joint tax return for 2010. * * * [Husband] asserted that the agreement was ‘final and enforceable’ and that wife ‘had breached her contractual obligation’ and, therefore, husband asked the court to ‘enforce the Mediated Settlement Agreement by signing a general judgment to be tendered by Husband's counsel.’ ”

Id . at 161–62, 322 P.3d 1101 (brackets in original).¹

At the time of two mediation sessions in October 2010, wife was represented by attorney Yates. Shortly after the second session, wife terminated her engagement of Yates and filed a bar complaint against him. She retained attorney Villa–Smith. Before trial, however, Villa–Smith became a judge and discontinued her representation of wife. Wife went to trial in April 2011 with a third attorney, Pekelder.

At trial, the court denied husband's motion to enforce a settlement agreement. The court did not, however, make a determination whether a valid agreement between the parties existed. The court divided the parties' property and concluded that there would be no equalizing judgment. Id . at 163–64, 322 P.3d 1101. The court awarded wife $7,000 per month in maintenance spousal support. Husband appealed the judgment.

In Haggerty I , we observed that, “even when they are not incorporated into a judgment, marital settlement agreements ‘enjoy presumptive enforceability.’ ” Id . at 166, 322 P.3d 1101 (quoting Brown and Brown , 259 Or.App. 618, 627, 315 P.3d 422 (2013), rev. den. , 355 Or. 142, 326 P.3d 1207 (2014) ). We explained that, “where there is a validly executed settlement agreement between the parties, the court must evaluate the terms of that agreement and should enforce them if they are within the range of what is just and equitable under the circumstances.” Id . at 167, 322 P.3d 1101 (citing Grossman and Grossman , 338 Or. 99, 106 P.3d 618 (2005) ). We remanded the case for the trial court to determine whether the parties had entered into a valid settlement agreement and, if so, whether the terms of that settlement were within a range of what is just and equitable.

On remand, the parties appeared for a three-day rehearing in June 2014. The trial court properly understood that it should make those two determinations, explaining,

“I believe my instructions from the Court of Appeals are to make a determination whether there was a settlement; and if I find the answer to that question is yes, then I have—still have my authority as a judge to approve it or not approve it, and to decide whether the 4,000—whether the $4,000—there's no dispute about what the settlement—I put that in quotes. Whether $4,000 a month and $50,0000 in life insurance is fair and equitable and within the bounds of what's allowed , I'll put it that way. And that's the issue * * *.”

(Emphasis added.) Wife declared her monthly financial need to be $6,140. On appeal here, she restates that figure as $5,821.²

The parties did not memorialize a settlement agreement in writing. Given the absence of a written agreement, husband offered testimony and exhibits at the rehearing to show that the parties had reached an oral agreement to settle the case on October 29, 2010.

Wife's first attorney, Yates, testified that, after the first mediation session on October 7, 2010, the parties had reached a “tentative agreement” on “a number of issues” in the dissolution. He mailed wife a “fairly detailed letter outlining what had happened at the mediation, what issues [he] thought [the parties] had tentatively resolved, [and] what issues remained to be resolved.” An email to Yates from wife after that first mediation session stated that she was willing to accept a spousal support award of $4,000 per month “when she started receiving some other source of income that she wasn't receiving at [the] time [of the first mediation].”³

Yates testified that he believed the remaining issues were resolved at the second session on October 29, 2010. At that time, he believed that the parties had reached a settlement “on all the terms.” Yates wrote a letter to wife on November 1, 2010, enclosing a notice of a scheduled court proceeding. Yates told wife that the scheduled proceeding would be necessary in the absence of a settlement, but added, “[W]e are settled, and I will begin drafting the paperwork.”

A few days later, wife discharged Yates, and he did not file any settlement documents. Yates testified that, after the second mediation session, the parties began dividing their personal property, and a dispute developed over ownership of some of the items in their home. Although Yates was confident that a settlement had been reached between the parties, he could not independently recall some details of the agreement.

The mediator, Schulte, provided consistent testimony. He explained that he had believed the case settled at the October 29 mediation. Schulte recalled that the primary issue being mediated at that session was spousal support and that, by the end of the session, he was certain the parties had reached an agreement on that issue. Schulte had not believed that there were any unresolved or remaining issues. He recalled that Yates had told him “that they were satisfied and the case was settled.” Although it was Schulte's ordinary practice to “write up something for everybody to sign,” he testified that practice was not possible on this occasion because husband and his attorney had left Schulte's office shortly before Schulte finished speaking with Yates and wife. Schulte recalled that, as to division of property, the settlement agreement provided wife with “the long half.”

Husband's trial attorney, McCaslin, provided testimony consistent with Yates and Schulte. He testified that Schulte had called his office shortly after McCaslin and husband had left the mediation and that Schulte had told him “that the case was settled.” McCaslin also testified that he had communicated the terms of the settlement agreement, as he understood them, to wife's second attorney, Villa–Smith. In a letter of December 20, 2010, he reported to wife's new attorney:

“The settlement we reached * * * was that [husband] would pay $4,000 in spousal and the JSAS payment in the amount of $320, for a total spousal support monthly of $4,320.

“In reference to life insurance, [wife] wanted $50,000 partitioned off and the remaining beneficiaries to be the parties' children. This was acceptable to [husband].”⁴

At the rehearing, McCaslin reiterated the terms of what he understood...