Reichard v. Reichard, S92A0559
| Decision Date | 01 December 1992 |
| Docket Number | No. S92A0559,S92A0559 |
| Citation | 423 S.E.2d 241,262 Ga. 561 |
| Parties | REICHARD v. REICHARD. |
| Court | Georgia Supreme Court |
Maria S. Georgeton, Augusta, for Janet W. Reichard.
Edward J. Coleman, III, Surrett, Walker, Creson & Colley, Augusta, for Sherwood Reichard.
This appeal raises several issues stemming from the superior court's grant of a motion to enforce a purported settlement agreement between the parties to a divorce action. We conclude that the trial court erred in ending the hearing on the motion without having permitted appellee's counsel to complete cross-examination of her former counsel and to present evidence and argument. Moreover, we conclude that the court erred by adopting and incorporating into the final judgment and decree a document that was not the purported settlement agreement. Finally, we conclude that an estoppel argument by appellee was not raised in the trial court, and therefore presents nothing for our review. For these reasons, we reverse the judgment and decree of divorce and remand this case with direction.
On March 1, 1991, after a recess from an interlocutory hearing in the divorce case, Richard E. Allen, who was counsel for plaintiff-appellant Janet Reichard, informed the trial court in open court that the parties had entered into a settlement agreement. Allen said that Edward J. Coleman, III, who was counsel for defendant-appellee Sherwood Reichard, "and I both have been scribbling, it's a little bit complicated, but let me see if I can get it out." After stating that "[t]his will be a final settlement of the entire matter," Allen then orally announced the terms of the purported settlement agreement, while dictating the announcement into a tape recorder (the proceeding was not attended by a court reporter). 1 He then asked Coleman whether he (Allen) had "left out anything," to which Coleman responded by clarifying a term of the agreement. Allen then said, "I think that's it." Allen asked the court whether "that [was] acceptable," to which the court replied it was, and Allen then said "we will prepare an Order and get it to you." (Hereinafter, the foregoing oral announcement (meaning the statements by both attorneys) will be referred to as "the announcement.")
Allen and Coleman subsequently conducted negotiations concerning revision of the purported settlement agreement. Coleman eventually drafted and submitted to appellant a proposed revision of the purported settlement agreement (hereinafter "the proposed revision") which included revisions of certain terms in the announcement and additional terms that had not been in the announcement (hereinafter the revisions of terms and the additional terms will be referred to collectively as "the non-announcement terms"). The non-announcement terms included a change in the amount of monthly alimony, as well as allocation of the parties' bank accounts, appellee's retirement plan, two automobiles, and debt payments. When appellant refused to sign the proposed revision, appellee moved to enforce "the terms of the settlement of this divorce case as announced by Plaintiff's counsel." In his motion, appellee referred to the announcement as "a complete summary of the settlement."
Before the hearing on the motion, appellant retained new counsel, Maria S. Georgeton. Appellee commenced the hearing by calling Allen as a witness. He testified that the announcement was He testified that the subsequent changes to the announcement had been partly to "accommodate" requests by appellant and partly "to clean up the somewhat inarticulate verbal settlement we had." He said there were "some other things that we just hadn't been real specific about that Coleman put in the written agreement; and some things were fine and some we disagreed with, some were changed, some were debated and negotiated."
When asked on cross-examination by Georgeton whether the proposed revision was "an adequate representation" of the announcement, Allen testified that the proposed revision was "substantially accurate." Allen was later asked whether the announcement had been "presented to the Court as the whole agreement between the parties." He replied that it
As Georgeton began further questioning of Allen about the non-announcement terms, appellee objected to any further discussion of the terms of the proposed revision, characterizing any differences between it and the announcement as "minor details." Georgeton replied that she did not consider the additional terms to be "minor details," and that appellant's contention was that The trial court sustained the objection, and then, in response to a request by Georgeton for clarification of its ruling, seemed to indicate that it considered the proposed revision to be that which appellee wished enforced. 2 Coleman once again indicated to the court that appellee was not asking the court to enforce the proposed revision:
Your Honor, if I could interrupt just a moment. The purpose of my objection was to say basically we're not seeking to enforce the separation agreement that I prepared, which, quite frankly, does not reflect exactly the settlement that was reached. And, therefore, since she wouldn't sign that, I think we go back to the settlement.
....
Your Honor, if I could just clarify one thing. The settlement statement given by Mr. Allen in court reflects those things that were to flow to the plaintiff, Mrs. Reichard. It does not necessarily state everything....
But if Mr. Allen didn't state that it flowed to her, the implication and the understanding between the parties was that it stayed with him. [Emphasis supplied.]
The court then ruled that it was terminating the hearing, and that "the separation agreement that was announced [would] be incorporated in the final decree." Subsequently, a judgment and decree of divorce was entered which purported to grant appellee's motion to enforce. However, notwithstanding the representations of Coleman to the court that appellee only wished to have the purported settlement agreement enforced, the court adopted and incorporated the proposed revision into the final decree and judgment. 3 The court subsequently amended the judgment to add an additional term. 4 We granted appellant's application for discretionary review.
1. Appellee contends that appellant is estopped from appealing the trial court's judgment because she accepted benefits pursuant to the announcement. However, the record does not reflect that this issue was raised or considered and ruled on in the trial court, and we therefore will not consider it on appeal.
2. Oral settlement agreements are enforceable if their existence is established without dispute, but "where the very existence of the agreement is disputed, it may only be established by a writing." LeCroy v. Massey, 185 Ga.App. 828, 829, 366 S.E.2d 215 (1988) (authored by Judge, now Justice, Benham). Accord, Abrams v. Abrams, 262 Ga. 170, 416 S.E.2d 88 (1992). "No contract exists until...
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