Edelkind v. Boudreaux
Edelkind v. Boudreaux
Opinion of the Court
We granted discretionary appeal from the final judgment and decree entered in this divorce action, which incorporated a purported verbal settlement put on the record but not reduced to writing or executed by the parties. We did so to consider questions of the enforceability of the alleged agreement as well as the standing of former divorce counsel to seek its enforcement. Because we find that the attorney lacked such standing and that the superior court abused its discretion in enforcing the agreement, we reverse.
A divorce action between wife Boudreaux and husband Edelkind was initiated on June 2, 1997.
On July 30,1998, the day before Steele planned to report back to the court
On August 18, 1998, MIJS moved to intervene as plaintiff in the divorce action. On September 16, 1998, the parties executed a written settlement agreement consistent with what was announced by Edelkind’s attorney on July 31, 1998. Edelkind was to pay to Boudreaux $1,250 per month as alimony beginning December 15, 1998 and continuing each month thereafter until March 15, 2004; there was no provision for the direct payment of attorney fees.
At a hearing on September 18, 1998, Steele petitioned the court to make what was recited on the record on July 23, 1998, the final judgment and decree. Steele stated that if the court decided not to do so at that time, then he wanted to intervene as a party in the case in order to have the issue of payment of his attorney fees heard.
1. It was error to allow former divorce counsel Steele, over the parties’ objection, to seek to enforce the alleged July 23 agreement for the purpose of collecting fees from his former client. Steele and MIJS claim standing to have done so on the basis that they were intended third party beneficiaries of the asserted July 23 agreement, as the $25,000 in attorney fees was to be paid directly to Steele’s office and Boudreaux intended to satisfy part of the legal fees she owed through the award of the townhouse. Pretermitting threshold questions of the propriety of the conveyance of the interest in the townhouse to MIJS during the pendency of the divorce, the claim of pursuing enforcement as third party beneficiaries is unavailing.
It is true that under OCGA § 9-2-20 (b), a third party beneficiary to a contract may bring suit to enforce the contract. Miree v. United States, 242 Ga. 126,135 (3) (249 SE2d 573) (1978); Backus v. Chilivis, 236 Ga. 500, 502 (II) (224 SE2d 370) (1976); Page v. City of Conyers, 231 Ga. App. 264, 265 (1) (499 SE2d 126) (1998). But accepting arguendo that the alleged oral divorce agreement conferred third party beneficiary status on the attorney and/or the firm, neither Steele nor MIJS brought suit. Nor were they granted intervention as a party in the divorce action before petitioning for enforcement of the parties’ purported agreement. Under OCGA § 19-6-2, an attorney may also bring an action in the attorney’s own name to enforce a grant of attorney fees made pursuant to the Code section. But, there is no claim that such an award of fees is at issue in this case.
2. Oral settlement agreements in divorce cases are contracts and may be enforced if their existence is established without dispute; but, such a contract does not exist until all essential terms have been agreed to. Reichard v. Reichard, 262 Ga. 561, 564 (2) (423 SE2d 241) (1992). See also Bridges v. Bridges, 256 Ga. 348, 349 (1) (349 SE2d 172) (1986); Herndon v. Herndon, 227 Ga. 781, 783 (183 SE2d 386) (1971). “[T]he failure to agree to even one essential term means there
Here, the transcript of the July 23 hearing makes questionable whether the parties or their respective attorneys at that point had reached agreement on all items necessary for final settlement of the marital estate. This was not a situation where counsel merely recited an agreement for the record; the case, in large measure, was still being tried by the court. There was continuing debate and argument among counsel, the parties, and the court regarding, among other things, the parties’ access to the townhouse, and the whereabouts and ownership of the parties’ personal property. This was significant because Edelkind’s counsel made it clear that Edelkind’s willingness to relinquish claims to equity in the real property was dependent, in some measure, on his award of personal property.
Even accepting that the recitation was sufficiently clear, definite, and certain so as to constitute a settlement agreement of the divorce, that does not end the inquiry. In a divorce action, the court has the discretion to approve or reject the agreement, in whole or in part, before it becomes the judgment of the court itself. Franz v. Franz, 268 Ga. 465, 466 (3) (490 SE2d 377) (1997); Bridges v. Bridges, supra at 350 (1). But this discretion is not absolute and can be abused. Mathes v. Mathes, 267 Ga. 845, 846 (483 SE2d 573) (1997).
Here, the court focused on Steele’s petition aimed at procuring attorney fees, and the court refused to go beyond the fact that the July agreement was put on the record. As has been discussed, an oral agreement may indeed be enforceable, Reichard v. Reichard, supra, for certainly this state has a strong public policy of encouraging negotiations and settlements, Robinson v. Robinson, 261 Ga. 330, 331 (404 SE2d 435) (1991). But, a divorce decree should accurately reflect
3. The judgment must be reversed and the case remanded to the superior court for further proceedings consistent with this opinion, including but not necessarily limited to, a determination of the enforceability of the parties’ written settlement agreement executed on September 16, 1998.
Judgment reversed and case remanded with direction.
In conjunction with the divorce, a standing order issued, restraining and enjoining each party, inter alia, from selling, encumbering, contracting to sell, or otherwise disposing of or removing from the jurisdiction of the court, any of the property belonging to the parties except in the ordinary course of business.
Boudreaux claimed an undivided interest in the townhouse by virtue of a 1992 quitclaim deed in her favor from Edelkind.
This hearing was before a judge sitting for the assigned superior court judge.
Steele intended to present the documents to the judge who had presided at the July 23 hearing.
Along with a request for enforcement of the asserted July 23 agreement “against” Boudreaux and Edelkind, the law firm’s proposed “Complaint of Intervention” alleged the fraud
Boudreaux was not represented by counsel at the hearing.
The September 18 hearing was conducted and the subsequent ruling made by the superior court judge assigned the case.
Boudreaux contended that Edelkind had moved personal property, in which she had an interest, from the marital residence to the townhouse. Edelkind maintained that what remained in the townhouse belonged to his tenants. There was so much still in dispute, that the court stated that the parties were “being stubbornly litigious” and commented, “I’m not sure I’m going to stay here and accept an agreement where they can’t agree on a thing.” Suggested resolution of the property claims ranged from awarding the contents of both the marital residence and the townhouse to Boudreaux because she then expected to receive both the real properties; to keeping the personal property that each party then had in his or her possession; to having the attorneys inventory the property and report back to the court. Finally, the court suggested that the parties exchange lists of personal items, and that the court would rule on the listed items.
Dissenting Opinion
dissenting.
I respectfully dissent as to Division 2 of the majority opinion.
An oral settlement agreement announced in open court must meet all of the requirements of a contract: offer, acceptance, consideration and a meeting of the minds. Blum v. Morgan Guaranty Trust Co., 709 F2d 1463 (11th Cir. 1983) (applying Georgia law). Thus, the parties have to agree on essential terms. Bridges v. Bridges, 256 Ga.
As to Division 1,1 believe that any questions concerning Steele’s
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