Marriage of Ferree, In re

• Court: Washington Court of Appeals
• Writing for the Court: MORGAN; SEINFELD, Acting C.J., and PETRICH
• Citation: Marriage of Ferree, In re, 856 P.2d 706, 71 Wn.App. 35 (Wash. App. 1993)
• Decision Date: 19 August 1993
• Docket Number: No. 14323-2-II
• Parties: In re the MARRIAGE OF Ralph H. FERREE, Jr., Appellant, and Barbara Bethune Ferree, Respondent. Division 2

Page 35

71 Wn.App. 35

856 P.2d 706

In re the MARRIAGE OF Ralph H. FERREE, Jr., Appellant and Barbara Bethune Ferree, Respondent.

No. 14323-2-II.

Court of Appeals of Washington,

Division 2.

Aug. 19, 1993.

Richard Dale Shepard, Tacoma, for respondent.

Herbert Gelman, Gelman & Associates, Tacoma, for appellant.

MORGAN, Judge.

Ralph Ferree appeals a decree of legal separation. We affirm.

On November 10, 1988, Mr. Ferree petitioned for dissolution of his 8-year marriage to Ms. Ferree. He was represented by attorney John Miller. Ms. Ferree was represented by attorney Lois Spiegel. There were no children and no real property, so the only issues were personal property, maintenance, debts, and attorney fees. Trial was set for March 7, 1990.

On February 28, 1990, a settlement conference was held before a court commissioner. Both parties and both attorneys were present. The court commissioner recommended a 5-year structured settlement.

"After the conference with the Commissioner and after intense negotiations, an agreement was finally achieved by the parties." ¹ Among other things, the agreement was for "initial maintenance payments of $900.00 per month, beginning in the month of March, 1990." ² The agreement was not reduced to writing or put on the record of the court. Within a short time, the trial date was stricken, and Miller drafted proposed findings and a proposed decree of legal separation on his office stationery.

On July 20, 1990, the attorney-client relationship between Miller and Mr. Ferree was severed. Miller's proposed findings and decree had not yet been presented to the court. During the next 2 or 3 weeks, Mr. Ferree obtained new counsel.

Ms. Ferree then made a motion "for an order adopting the settlement provisions agreed [upon] by the parties on February 28, 1990, and entering the Findings, Conclusions and Decree which memorialized that settlement." ³ She supported the motion with sworn declarations from herself, Spiegel, and Miller. ⁴ The declarations stated that the parties had reached agreement after the settlement conference on February 28, and that the agreement was memorialized in Miller's proposed findings and decree.

Although the record is not entirely clear, it appears that Ms. Ferree's motion first came before the court on the motion docket of August 10, 1990. ⁵ A superior court judge granted a 2-week continuance and indicated Mr. Ferree "would have leave to file pleadings."

During the next 2 weeks, Mr. Ferree's only submission was a seven page memorandum of authorities signed by his new counsel. He did not file an affidavit or declaration contravening those of Ms. Ferree, Spiegel, or Miller.

The motion again came before the court on August 24, 1990. Mr. Ferree's new counsel vigorously argued that no agreement had been formed on February 28. The trial judge granted the motion and entered the findings and decree drafted by Miller. The findings and decree were signed by Ms. Ferree and her counsel, but not by Miller, Mr. Ferree, or Mr. Ferree's new counsel.

The major issue on appeal is whether Ms. Ferree was entitled to enforce the settlement agreement of February 28. Another issue is whether the record is sufficient to support a decree of legal separation.

I.

Mr. Ferree argues that CR 2A, RCW 2.44.010(1), and Pierce County Local Rule 94.04(e)(5), all bar enforcement of any agreement that might have been made on February 28. We begin with CR 2A.

A.

CR 2A provides:

No agreement or consent between parties or attorneys in respect to the proceedings in a cause, the purport of which is disputed, will be regarded by the court unless the same shall have been made and assented to in open court on the record, or entered in the minutes, or unless the evidence thereof shall be in writing and subscribed by the attorneys denying the same.

By its terms, CR 2A applies only to agreements that satisfy two elements. First, the agreement, hereafter called a settlement agreement, ⁶ must be made by parties or attorneys "in respect to the proceedings in a cause". Second, "the purport" of the agreement must be disputed. Graves v. P.J. Taggares Co., 25 Wash.App. 118, 122, 605 P.2d 348, affirmed, 94 Wash.2d 298, 616 P.2d 1223 (1980); see Eddleman v. McGhan, 45 Wash.2d 430, 432, 275 P.2d 729 (1954); Bryant v. Palmer Coking Coal Co., 67 Wash.App. 176, 179, 834 P.2d 662 (1992), review denied, 120 Wash.2d 1027, 847 P.2d 480 (1993).

When these elements are met, CR 2A supplements but does not supplant the common law of contracts. Morris v. Maks, 69 Wash.App. 865, 868, 850 P.2d 1357 (1993); Stottlemyre v. Reed, 35 Wash.App. 169, 171, 665 P.2d 1383, review denied, 100 Wash.2d 1015 (1983); see Gaskill v. Mercer Island, 19 Wash.App. 307, 316, 576 P.2d 1318, review denied, 90 Wash.2d 1015 (1978). It precludes enforcement of a disputed settlement agreement not made in writing or put on the record, whether or not common law requirements are met. Eddleman v. McGhan, 45 Wash.2d at 432, 275 P.2d 729 (predecessor rule); Bryant v. Palmer Coking Coal Co., 67 Wash.App. at 176, 834 P.2d 662; Gaskill v. Mercer Island, 19 Wash.App. at 316, 576 P.2d 1318. However, it does not affect an agreement made in writing, Morris v. Maks, supra, or put on the record. Snyder v. Tompkins, 20 Wash.App. 167, 579 P.2d 994, review denied, 91 Wash.2d 1001 (1978); Baird v. Barid, 6 Wash.App. 587, 494 P.2d 1387 (1972).

The issue in this case is whether the alleged agreement of February 28 is disputed within the meaning of the rule. Mr. Ferree does not argue that it did not meet the common law rules for contracts, or that it was not made by parties acting "in respect to the proceedings in a cause." Ms. Ferree does not argue that it was reduced to writing or put on the record of the court.

At least two criteria govern whether an agreement is disputed within the meaning of CR 2A. First, there must be a dispute over the existence or material terms of the agreement, as opposed to a dispute over its immaterial terms. On its face, CR 2A says that the "purport" of the agreement must be disputed. According to Black's Law Dictionary, the "purport" of something is its meaning, import, substantial meaning, substance, legal effect. Black's at 1236 (6th ed. 1990). According to Webster's Third New International Dictionary, the "purport" of something is the meaning it conveys, professes or implies, or its substance or gist. Webster's at 1847 (1969). The substance, gist, or legal effect of an agreement is found in its existence and material terms, and it follows that the "purport" of an agreement is disputed only when its existence or material terms are disputed.

Second, the dispute must be a genuine one. The purpose of CR 2A is not to impede without reason the enforcement of agreements intended to settle or narrow a cause of action; indeed, the compromise of litigation is to be encouraged. Eddleman v. McGhan, 45 Wash.2d at 432, 275 P.2d 729; Bryant v. Palmer Coking Coal Co., 67 Wash.App. at 179, 834 P.2d 662; Snyder v. Tompkins, 20 Wash.App. at 173, 579 P.2d 994. Rather, the purpose of CR 2A is to insure that negotiations undertaken to avert or simplify trial do not propagate additional disputes that then must be tried along with the original one. This purpose is served by barring enforcement of an alleged settlement agreement that is genuinely disputed, for such a dispute adds to the issues that must be tried. It is not served by barring enforcement of an alleged settlement agreement that is not genuinely disputed, for a nongenuine dispute can be, and should be, summarily resolved without trial.

The burden is on the moving party to prove there is no genuine dispute regarding the existence and material terms of a settlement agreement. See Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985) (in summary judgment proceedings, burden is on moving party to show no genuine dispute). This is but a specific application of the general rule that one who would recover on a contract must prove its existence and terms. Retail Clerks Health & Welfare Trust Funds v. Shopland Supermarket, Inc., 96 Wash.2d 939, 944, 640 P.2d 1051 (1982) (proponent of contract must prove its existence); Western Washington Laborers-Employers Health & Security Trust Fund v. Merlino, 29 Wash.App. 251, 255, 627 P.2d 1346 (1981) (proponent of contract must prove its terms); Peoples Mortgage Co. v. Vista View Builders, Wash.App. 744, 747, 496 P.2d 354 (1972) (proponent of contract has burden of proving promise, consideration, breach and damages).

Occasionally, the moving party may be relieved of his or her burden by discussions that occur in open court. An example is provided by the facts in Stottlemyre, supra. ⁷ There, the trial court convened a hearing on the defendant's motion to enforce a settlement agreement. At the hearing, the trial court questioned plaintiff's counsel, who squarely acknowledged that the existence and terms of the settlement agreement were not genuinely disputed. ⁸ Not surprisingly, the trial court held that enforcement of the agreement was not barred, and the appellate court held likewise.

Often, however, the moving party will not be relieved of his or her burden by discussions in open court. An example is provided by the facts in this case. Mr. Ferree changed counsel after the events of February 28. When Ms. Ferree moved to enforce what she claimed was a settlement agreement, Mr. Ferree's new counsel, as advocate, orally asserted in open court that no agreement had been formed. These assertions were without any apparent basis, for new counsel had no personal knowledge regarding the events of February 28 and the record contained no affidavit or other testimony from Mr. Ferree. Thus, with counsel's assertions but no more, there was no way to divine whether the existence and material terms of the alleged settlement agreement were genuinely disputed.

When the moving party must meet his or her burden, the preferred way of doing so is by affidavit or...