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Bahn v. Small

Supreme Court of Maine

May 9, 2019

JOSEFINE BAHN
v.
MARK SMALL

          Submitted On Briefs: April 24, 2019

          Mark Small, appellant pro se

          Martha Novy-Broderick, Esq., Lincoln, for appellee Josefine Bahn

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          GORMAN, J.

         [¶1] Mark Small appeals from a judgment of the District Court (Houlton, Daigle, J.) modifying the terms of his 2016 divorce from Josefine Bahn as to parental rights and responsibilities for the parties' two children. Small contends that the court erroneously determined that the parties agreed to the terms of the modified divorce judgment. We agree and vacate the judgment.

         [¶2] Josefine Bahn and Mark Small were divorced by an agreed-to judgment entered by the court [O'Mara, J.) in 2016.[1] Both parties later moved to modify the judgment as to parental rights and responsibilities. On July 23, 2018-the date set for a hearing on the motions to modify-the parties and the guardian ad litem (GAL) instead engaged in a judicial settlement conference [Daigle, /.), after which the court stated on the record that an agreement was reached on all points. Without creating any record that would show the terms of any such agreement and the parties' confirmation of it, the court entered a judgment dated August 30, 2018, purporting to memorialize that agreement.[2]

         [¶3] Small moved for relief from the judgment on the ground that it did not accurately reflect the parties' agreement. See M.R. Civ. P. 60(b). Based on its review of the "notes of the agreement read into the record on July 23, 2018," the court found that "[f]ull agreement was reached by the parties and the Guardian ad Litem" during the settlement conference, the GAL agreed to incorporate the agreement terms into a proposed order, the parties then had an "opportunity to express any disagreement with any of the terms of the proposed Order," Small "filed with the [c]ourt several points of disagreement" with the proposed order, and the court considered the points of disagreement before issuing the modified judgment. The court denied the motion for relief from judgment, concluding, "[T]he terms of the proposed Order are accurate in all respects, and accurately set[] forth all of the several terms agreed by the parties and the Guardian at the judicial settlement conference." Small appeals, arguing that the court erred by modifying the divorce judgment with terms to which he did not agree.

         [¶4] When a judicial settlement conference results in an agreement, a "[c]omplete record" of the agreement must be created: "The parties may memorialize their mutual assent by signing a written agreement or by placing their oral stipulation on the record in open court." Dewhurst v. Dewhurst, 2010 ME 99, ¶¶ 10-11, 5 A.3d 23. "The creation of such a record assures this Court and the trial court that the parties know what they have agreed to and that they are satisfied with the result."[3] Id. ¶ 11. We consider any such agreement as a contract, the existence of which is a question of fact that we review for clear error. Id. ¶ 5; see Kilborn v. Carey, 2016 ME 78, ¶ 16, 140 A.3d 461.

         [¶5] In Muther v. Broad Cove Shore Association, for example, we affirmed a decision based on the parties' oral commitment of the complete agreement to the record: "[T]he transcript of the settlement agreement, without more, conclusively establishes the existence of a binding settlement agreement as a matter of law, and subsequent disputes that arose while attempting to reduce the settlement to a stipulated judgment did not affect the authority of the court to enforce the agreement through the entry of a judgment incorporating the terms previously stipulated to by the parties." 2009 ME 37, ¶ 8, 968 A.2d 539; see also Toffling v. Toffling, 2008 ME 90, ¶¶ 9, 11, 953 A.2d 375 (affirming the entry of a judgment by agreement when one party had orally agreed to the opposing party's recitation of the terms of the agreement in open court); Page v. Page, 671 A.2d 956, 957-58 (Me. 1996) (upholding a judgment because "[t]he terms of the settlement were discussed at length on the record, and at that time all parties agreed to the settlement"); Transamerica Commercial Fin. Corp. v. Birt, 599 A.2d 65, 65 (Me. 1991) ("The oral stipulation entered on the record during the second day of trial was adequate to support the entry of a judgment finally disposing of the litigation at that time.").

         [¶6] In contrast, in Dewhurst, the terms of the parties' agreement in a divorce matter were captured only by the GAL's handwritten edits to a proposed judgment that previously had been prepared by one party's attorney. 2010 ME 99, ¶ 2, 5 A.3d 23. Although the parties had reviewed the edited draft with the court, neither party signed the proposed judgment or made any statement on the record regarding the terms of the agreement. Id. In the absence of a signed agreement or oral stipulation, we vacated the divorce judgment incorporating the purported agreement based on the insufficiency of the record of the agreement. Id. ¶¶ 8-12.

         [¶7] Here, as in Dewhurst, 2010 ME 99, ¶ 2, 5 A.3d 23, the parties' purported agreement was neither written down and signed by the parties nor entered in the record by oral stipulation. Rather, the court expressly stated at the end of the settlement conference that it would not recite on the record the terms of the parties' agreement and would instead rely on the handwritten notes taken by the court and by the GAL:

Full agreement has been reached, which will result in a modified order. We are going to -- not indicate, because we don't have time -- we're not going to indicate into the record right now what has been agreed to. I have notes indicating what all of those agreed-to terms are. [The GAL] has been good enough to take notes and we've reviewed as we completed negotiation of each separate provision to make sure that we're all on the same page.

         The written record contains what appear to be various pages of handwritten notes, but it is not clear who authored those pages or which of those notes were intended to reflect the terms of the parties' ...


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