Vitakis-Valchine v. Valchine

• Decision Date: 22 August 2001
• Docket Number: No. 4D00-2013.,4D00-2013.
• Parties: Kalliope VITAKIS-VALCHINE, Appellant, v. David L. VALCHINE, Appellee.
• Court: Florida District Court of Appeals

793 So.2d 1094

Kalliope VITAKIS-VALCHINE, Appellant, v. David L. VALCHINE, Appellee.

No. 4D00-2013.

District Court of Appeal of Florida, Fourth District.

August 22, 2001.

Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Steven L. Berzner of Steven L. Berzner, P.A., Fort Lauderdale, for appellant.

William F. Murphy, III, of Murphy & O'Brien, Miami, for appellee.

STEVENSON, J.

This is an appeal from a final judgment of dissolution which was entered pursuant to a mediated settlement agreement. The wife argues that the trial court erred in affirming the recommendations of the general master and in denying her request to set aside the settlement agreement on the grounds that it was entered into under duress and coercion. We affirm the order to the extent that the trial court concluded that the wife failed to meet her burden of establishing that the marital settlement agreement was reached by duress or coercion on the part of the husband and the husband's attorney. The wife also alleges that the mediator committed misconduct during the mediation session, including but not limited to coercion and improper influence, and that she entered into the settlement agreement as a direct result of this misconduct. For the reasons which follow, we hold that mediator misconduct can be the basis for a trial court refusing to enforce a settlement agreement reached at court-ordered mediation. Because neither the general master nor the trial court made any findings relative to the truth of the allegations of the mediator's alleged misconduct, we remand this case for further findings. Procedural background

By August of 1999, Kalliope and David Valchine's divorce proceedings to end their near twelve-year marriage had been going on for one and a half to two years. On August 17, 1999, the couple attended court-ordered mediation to attempt to resolve their dispute. At the mediation, both parties were represented by counsel. The mediation lasted seven to eight hours and resulted in a twenty-three page marital settlement agreement. The agreement was comprehensive and dealt with alimony, bank accounts, both parties' IRAs, and the husband's federal customs, postal, and military pensions. The agreement also addressed the disposition of embryos that the couple had frozen during in vitro fertilization attempts prior to the divorce. The agreement provided in this regard that "[t]he Wife has expressed her desire to have the frozen embryos, but has reluctantly agreed to provide them to the husband to dispose of."

A month later, the wife filed a pro se motion seeking to set aside the mediated settlement agreement, but by the time of the hearing, she was represented by new counsel. The wife's counsel argued two grounds for setting aside the agreement: (1) coercion and duress on the part of the husband, the husband's attorney and the mediator; and (2) the agreement was unfair and unreasonable on its face. The trial court accepted the general master's findings which rejected the wife's claim on both grounds. On appeal, the wife attacks only the trial court's refusal to set aside the couple's settlement agreement on the ground that it was reached through duress and coercion.

Third party coercion

As a general rule under Florida law, a contract or settlement may not be set aside on the basis of duress or coercion unless the improper influence emanated from one of the contracting parties—the actions of a third party will not suffice. See Cronacher v. Cronacher, 508 So.2d 1270, 1271 (Fla. 3d DCA 1987)

; Bubenik v. Bubenik, 392 So.2d 943, 944 (Fla. 3d DCA 1980); see also Herald v. Hardin, 95 Fla. 889, 116 So. 863 (1928). In this case, the record adequately supports the finding that neither the husband nor the husband's attorney was involved in any duress or coercion and had no knowledge of any improper conduct on the part of the mediator.

Because there was no authority at the time holding that mediator misconduct, including the exertion of duress or coercion, could serve as a basis for overturning the agreement, the general master made no findings relative to the wife's allegations. The mediator's testimony was presented prior to that of the wife, and, consequently, her allegations of potential misconduct were not directly confronted. Here, we must decide whether the wife's claim that the mediator committed misconduct by improperly influencing her and coercing her to enter into the settlement agreement can be an exception to the general rule that coercion and duress by a third party will not suffice to invalidate an agreement between the principals.

The former wife's claims

The wife testified that the eight-hour mediation, with Mark London as the mediator, began at approximately 10:45 a.m., that both her attorney and her brother attended, and that her husband was there with his counsel. Everyone initially gathered together, the mediator explained the process, and then the wife, her attorney and her brother were left in one room while the husband and his attorney went to another. The mediator then went back and forth between the two rooms during the course of the negotiations in what the mediator described as "Kissinger-style shuttle diplomacy." With respect to the frozen embryos, which were in the custody of the Fertility Institute of Boca Raton, the wife explained that there were lengthy discussions concerning what was to become of them. The wife was concerned about destroying the embryos and wanted to retain them herself. The wife testified that the mediator told her that the embryos were not "lives in being" and that the court would not require the husband to pay child support if she were impregnated with the embryos after the divorce. According to the wife, the mediator told her that the judge would never give her custody of the embryos, but would order them destroyed. The wife said that at one point during the discussion of the frozen embryo issue, the mediator came in, threw the papers on the table, and declared "that's it, I give up." Then, according to the wife, the mediator told her that if no agreement was reached, he (the mediator) would report to the trial judge that the settlement failed because of her. Additionally, the wife testified that the mediator told her that if she signed the agreement at the mediation, she could still protest any provisions she didn't agree with at the final hearing—including her objection to the husband "disposing" of the frozen embryos.

With respect to the distribution of assets, the wife alleges that the mediator told her that she was not entitled to any of the husband's federal pensions. She further testified that the mediator told her that the husband's pensions were only worth about $200 per month and that she would spend at least $70,000 in court litigating entitlement to this relatively modest sum. The wife states that the mediation was conducted with neither her nor the mediator knowing the present value of the husband's pensions or the marital estate itself. The wife testified that she and her new attorney had since constructed a list of assets and liabilities, and that she was shortchanged by approximately $34,000 —not including the husband's pensions. When asked what she would have done if Mr. London had told her that the attorney's fees could have amounted to as little as $15,000, the wife stated, "I would have took [sic] it to trial."

Finally, the wife testified that she signed the agreement in part due to "time pressure" being placed on her by the mediator. She testified that while the final draft was being typed up, the mediator got a call and she heard him say "have a bottle of wine and a glass of drink, and a strong drink ready for me." The wife explained that the mediator had repeatedly stated that his daughter was leaving for law school, and finally said that "you guys have five minutes to hurry up and get out of here because that family is more important to me." The wife testified that she ultimately signed the agreement because

[I] felt pressured. I felt that I had no other alternative but to accept the Agreement from the things that I was told by Mr. London. I believed everything that he said.

Court-ordered mediation

Mediation is a process whereby a neutral third party, the mediator, assists the principals of a dispute in reaching a complete or partial voluntary resolution of their issues of conflict. See § 44.1011, Fla. Stat. (2000). Mandatory, court-ordered mediation was officially sanctioned by the Florida legislature in 1987, and since then, mediation has become institutionalized within Florida's court system. See Ch. 44, Fla. Stat. (2000).¹ All twenty judicial circuits in Florida utilize some form of court-connected mediation to assist with their caseloads.² The process is meant to be non-adversarial and informal, with the mediator essentially serving as a facilitator for communications between the parties and providing assistance in the identification of issues and the exploration of options to resolve the dispute. Ultimate authority to settle remains with the parties. See § 44.1011(2), Fla. Stat. Mediation, as a method of alternative dispute resolution, potentially saves both the parties and the...