McClure v. McClure
| Decision Date | 02 February 1984 |
| Docket Number | No. 2-683A211,2-683A211 |
| Citation | 459 N.E.2d 398 |
| Parties | Mildred Frances McCLURE, Appellant (Petitioner), v. Emory Franklin McCLURE, Appellee (Respondent). |
| Court | Indiana Appellate Court |
Tommy L. Strunk, Indianapolis, for appellant.
Maureen E. Gaddy, Indianapolis, James C. Clark, Clark, Clark, Pappas & Quinn, Indianapolis, for appellee.
Petitioner-appellant Mildred Frances McClure (Mildred) appeals from a dissolution proceeding judgment, claiming the trial court erred in denying her petition to set aside an oral property settlement agreement which the trial court approved and incorporated into its decree, despite her repudiation of the agreement.
We reverse.
The facts and evidence most favorable to the judgment are as follows: On July 8, 1980, Mildred filed a petition for dissolution of marriage against Emory Franklin McClure (Emory). The case lay fallow for some time; however, on November 22, 1982, Emory answered Mildred's interrogatories detailing his financial dealings. The cause was set for a contested hearing on November 24, 1982, and after several hours of negotiation, the parties appeared in court and announced that they had reached a settlement. Mildred took the stand and testified as to her marital status, emancipated children, and other matters necessary for the court to determine if an irretrievable breakdown of the marriage had occurred.
Counsel for both parties then stipulated the terms of the agreement into the record. Mildred raised one question about the agreement, and after an apparently satisfactory answer from her attorney, she expressed her assent to the entire oral agreement. Under questioning by the court, Emory also indicated his satisfaction with the agreement.
During the hearing the court remarked to counsel, "probably you're going to reduce this Property Settlement here into writing." Counsel responded:
Record at 115. At the conclusion of the hearing, counsel indicated that they would immediately prepare a written agreement and decree:
"The Court: Fine. I do wish both counsel would sign it though, because I had another one in here, well all the time you get one, they don't pass it to the other counsel and all of a sudden, why, someone wants to set aside the Divorce Decree and all that so, have everybody sign it.
[Counsel for Mildred] Both counsel will sign it.
The Court: We're really in no hurry for it. Get it in the first part of next week, that's alright if everybody can sign it. Okay, thank you gentlemen."
Record at 117, 118. The order book entry for November 24, 1982 states, "Dissolution granted; hold for decree and property settlement." Record at 54 (emphasis supplied).
Subsequent to the hearing, Mildred changed her mind about the terms of the agreement. On December 7, 1982, she filed a petition to set aside the oral property settlement agreement. In her petition, she alleged that she was under medical treatment for stress and "upset to the extent that she did not realize what she was orally agreeing to on November 24, 1982." Record at 56. Further, she asserted that an oral agreement concerning a division of property was not binding upon her unless the court had a hearing and received and heard evidence that the terms were just and reasonable. Record at 56-64. On February 16, 1983, the trial court held a hearing on Mildred's petition and rejected her argument. The order book entry for that date reflects: Record at 89 (emphasis supplied).
On February 23, 1983, a decree of dissolution and agreement of settlement were filed with the court. In part the decree recites, Record at 91 (emphasis supplied). The decree further recites, "[t]hat the Settlement Agreement of the parties is approved and the parties Ordered to carry out the terms thereof." Record at 92. The decree is signed and dated by the judge and signed by counsel for Emory. The accompanying agreement of settlement is signed by Emory and his attorney, signed and approved by the judge, but not signed by Mildred or her counsel.
Mildred's motion to correct error was overruled on March 28, 1983, and she appeals.
Because we reverse, we need address only one issue:
Did the trial court err by approving and incorporating the oral agreement into the dissolution decree?
PARTIES' CONTENTIONS--Mildred says the trial court erred in denying her petition to set aside, premising her attack upon the court's failure to hear evidence as to whether the agreement was just and reasonable. She argues that a repudiated property settlement agreement should be set aside and the merits of the cause heard.
Emory responds that the trial court approved the dissolution and the property settlement agreement on November 24, 1982; thus, the agreement became a court order on that date. Therefore, the trial court did not approve a repudiated document; rather, Mildred merely refused to sign a written memorial of the court's existing order.
CONCLUSION--The trial court erred in approving and incorporating the oral property settlement agreement into the dissolution decree.
The salient fact in this case is that there never was a property settlement agreement in writing between the parties for the court to approve.
Ind.Code 31-1-11.5-10(a) provides "the parties may agree in writing" to the disposition of their property:
"To promote the amicable settlements of disputes that have arisen or may arise between the parties to a marriage attendant upon the dissolution of their marriage, the parties may agree in writing to provisions for the maintenance of either of them, the disposition of any property owned by either or both of them and the custody and support of their children."
IC 31-1-11.5-10(a) (emphasis supplied). The plain language of this provision requires a written agreement. 1
Once there is such an agreement between parties, it is not effective until approved by the court:
"In an action for dissolution of the marriage the terms of the agreement if...
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In re Hart
...dissolution proceeding by court order or decree. Anderson v. Anderson, 399 N.E.2d 391, 398 (Ind.2nd.Dist.App.1979); McClure v. McClure, 459 N.E.2d 398 (Ind.App.2nd Dist.1984) (Two-step process is required: an agreement by the parties and approval by the court); Eddings v. Eddings, 437 N.E.2......
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