THIRD DIVISION
ELLINGTON, P. J.,
DOYLE, P. J. and GOBEIL, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 30, 2018
In the Court of Appeals of Georgia
A18A1345. BUCHANAN v. BUCHANAN.
GOBEIL, Judge.
Joseph Buchanan, Sr. (“husband”) appeals the Superior Court of Upson
County’s order granting Kathryn Buchanan’s (“wife”) motion to enforce a settlement
agreement in their underlying divorce proceeding.1 He argues that the settlement
agreement is incomplete for several reasons and that the trial court erred in ruling that
he and his wife had reached an enforceable settlement agreement. For the reasons set
forth below, we reverse the trial court’s order enforcing the settlement agreement and
remand the case for further proceedings.
The parties married in 1993 and have no children. In August 2016, the wife
filed a petition for divorce, requesting an equitable distribution of the property and
1
We granted the husband’s application for interlocutory appeal.
debts of the marriage, as well as reasonable attorney’s fees. It is undisputed that the
parties owned two homes in Georgia (the marital residence and a rental home
property), and three homes in Florida (one titled solely in the wife’s name, one titled
solely in the husband’s name, and one titled jointly). While the divorce action was
pending, pursuant to a consent order, the parties sold their marital residence in
Georgia and placed $60,000 of the proceeds into a joint account to be disbursed upon
further order of the trial court.
Both parties acknowledge that they met on March 31, 2017 (“the March
meeting”) and discussed various matters concerning their property, and the wife took
handwritten notes of the meeting, which the husband signed. While some of the
handwriting is difficult to read, the document is split into two sections, with the top
section appearing to represent the husband’s interest and the bottom section
representing the wife’s interest. The husband dated and signed his name in both
sections, and the wife did not sign the document. The top section lists the following:
the “rental house in Ga. (appraised)” and to the upper left of this provision are the
words “(if higher I get ½)” and to the upper right of this provision is the figure
“30,000”; a crossed-out provision listing “½ of down payment - 30,000”; “½ of joint
account,” “½ of Fl rental 5,000” and what appears to be the phrase “Joe’s IRA.” The
2
bottom section lists the following: “keep 401K”; “Down Payment 30,000” “½ joint”
with “50,000” written next to that phrase and crossed out; “IRA 30,000,” which is
crossed out; “FL. House”; and “Items not sold 3,400 - 1,700.” Finally, at the bottom
of this section is the number 3,400 on top of the number 2,500, with a line below the
two numbers and the number 3,900 written below the line.
Subsequently, on April 6, 2017, the wife presented the husband with a typed
document entitled “Divorce Agreement,” which she maintained reduced the
handwritten memorandum from the March meeting into a formal writing, but the
husband refused to sign it.2 On April 11, 2017, the husband gave the wife a check for
$1,700, and he wrote in the memo of the check that it was for “Big Red-Trailer-
Scrape.”
2
Under the terms of the document, the husband was to receive: his IRA, one-
half of a joint “UBS” account, one-half of the escrow account, and the rental house
in Georgia with the condition that an appraisal will be performed and an “[a]ppraisal
over $30,000 will be divided equally between [husband] and [wife].” The wife was
to receive: her IRA and Roth IRA accounts, one-half of a joint UBS account and the
escrow account, the “UBS AX Account,” and the “Florida House located at 7125
Fruitville Rd. 1256 Sarasota, Fl. 34240.” Additionally, the document indicated that
the husband would “pay ½ of 2017 fee for Florida House” in the amount of
$4,607.50, and that the husband would pay the wife $1,700, which was half of the
value of “[i]tems sold in Farm Sale, but not paid for.”
3
Thereafter, on May 24, 2017, the wife filed a motion to enforce settlement
agreement, in which she maintained that the handwritten memorandum from the
March meeting constituted a settlement agreement of all the property in the divorce
proceeding, and that the husband’s payment of $1,700 was consideration for that
agreement. In response, the husband maintained that they met to discuss
reconciliation and denied that the handwritten memorandum was intended to be a
settlement agreement. He explained that he paid her $1,700 because “it was the fair
and right thing to do,” as they had previously discussed that she would get half of the
value of the farm equipment at a prior mediation. He asserted that the check only
represented “her ½; it was NOT paid to her so that she would agree to the terms on
the handwritten memo.” He explained that he had been willing to accept the terms of
the handwritten memorandum, “only if [they] reconciled,” and that “[i]t was never
[his] intention [for] that [to] be the final terms of our divorce.”
The trial court held a hearing on October 16, 2017. At the hearing, the husband
testified that, at the March meeting, the parties had discussed “money, [and] what [the
wife] could have; but we did not discuss getting a divorce,” and he maintained that
the meeting was for the purpose of reconciliation. He acknowledged that he signed
the handwritten memorandum from the March meeting. And, consistent with the
4
handwritten memorandum, he further acknowledged that they had discussed that he
would “get the rental house in Thomaston;” one-half of the escrow ($30,000) from
the prior sale of the marital home; one-half of the Florida rental property they owned
jointly; one-half of a joint account (although he noted they had several joint
accounts); and that they were each going to keep their own IRA accounts and she was
going to keep her 401K. He also testified that, after the March meeting, he sold some
farm equipment and paid her one-half of the proceeds ($1,700) because he “owed her
the $1700.”
The wife testified that the purpose of the March meeting was for her and the
husband to try and reach a settlement in the divorce, and that she took notes of what
they agreed upon in the meeting. She testified that they agreed that he would get the
rental house in Georgia, they would split equally all joint accounts, and they each
would retain the investments in their individual names. She explained that the
handwritten memorandum from the March meeting had some items crossed out
because as she was copying the terms into a typed document, she had marked through
the handwritten memorandum. She pointed out that, after the March meeting, her
husband gave her a check for $1,700 as contemplated in the handwritten
memorandum. However, she acknowledged that the handwritten memorandum did
5
not discuss the husband’s pension or all three of the Florida properties that had been
acquired during the marriage. Further, contrary to her husband’s testimony, she stated
that she was to receive the Florida rental home property in full, and that the notation
under the husband’s list of “½ of Fl rental 5,000,” actually represented half of the
$10,000 annual RV park fee for the land where the rental home is situated, which the
husband had agreed to cover half for 2017.
Following the hearing, the trial court entered an order finding that “the parties
entered into a handwritten agreement settling all property issues with respect to the
divorce proceeding on March 31, 2017.” The court reasoned that the wife was the
offeror of a settlement, and the husband accepted her offer by signing the top and
bottom of the handwritten memorandum. Additionally, the court concluded that the
April 6, 2017 typed document, although not signed by the husband, was valid and
binding because the drafting of documents is not necessary to effectuate a settlement,
and the execution of settlement documents was not necessary for the husband to
accept the wife’s offer. Finally, the court concluded that the husband had ratified and
accepted the agreement by paying the wife $1,700 from the sale of the farm
equipment as contemplated in the handwritten memorandum. The trial court certified
6
its decision for immediate appellate review, we granted the husband’s application for
interlocutory appeal, and this appeal followed.
In his sole enumeration of error, the husband argues that the trial court erred
in concluding that he and the wife had reached a settlement agreement. Specifically,
he maintains that the handwritten memorandum is unenforceable because it is
incomplete as it does not address all of the items of marital property.
“We review a trial court’s order on a motion to enforce a settlement agreement
de novo,” although we will not set aside the trial court’s factual findings unless
clearly erroneous. Hart v. Hart, 297 Ga. 709, 712-13 (777 SE2d 431) (2015). “A
settlement agreement is a contract and must meet the same requirements of formation
and enforceability as other contracts. Only when a meeting of the minds exists will
an agreement be formed.” Lamb v. Fulton-DeKalb Hosp. Authority, 297 Ga. App.
529, 533 (2) (677 SE2d 328) (2009) (citation and punctuation omitted); see also Hart,
297 Ga. at 711 (“[S]ettlement agreements in divorce cases are construed in the same
manner as all other contractual agreements” with “the cardinal rule being to ascertain
the intention of the parties.”) (citations and punctuation omitted). “No contract exists
until all essential terms have been agreed to, and the failure to agree to even one
essential term means there is no agreement to be enforced.” Moss v. Moss, 265 Ga.
7
802, 803 (463 SE2d 9) (1995) (citations and punctuation omitted). While “in proper
circumstances, parties may reach partial settlements as to their divorce,” the “trial
court errs when it seeks to enforce what amounts to a settlement containing
incomplete terms of a divorce.” Rasheed v. Sarwat, 300 Ga. 639, 640 & n.2 (797
SE2d 454) (2017).
In this case, the trial court found that the “handwritten agreement settl[ed] all
property issues with respect to the divorce proceeding.” We agree with the husband
that the trial court erred in ruling that the handwritten memorandum was a full
settlement with regard to all of the property issues between the parties. Specifically,
the handwritten memorandum was incomplete with regard to the property holdings,
in that it only addressed two of the three Florida homes. Additionally, although both
parties agreed that the handwritten memorandum addressed the Florida rental
property, it appears there is an ongoing dispute about who owns the Florida rental
property based on the husband’s testimony that under the handwritten memorandum
the wife was supposed to receive one-half of the Florida rental property and her
testimony that she was to receive the Florida rental property in full . The handwritten
memorandum’s reference to “½ Florida rental 5,000” in the husband’s section and
“Fl. House” in the wife’s section does not resolve the discrepancy. The handwritten
8
memorandum also does not address who will be responsible for the mortgages on
each of the four homes still owned by the parties or how any other marital debt will
be apportioned. Further, at the hearing below, the husband noted that the parties have
“several” joint accounts , but the handwritten memorandum refers only to a single
unspecified joint account. Thus, the handwritten memorandum was incomplete as an
agreement because it “requires a great deal of inferences from unspecified sources to
determine who actually owns what,” and how some of the property will be split
between the parties. Id. at 640. Accordingly, the trial court erred in concluding that
the handwritten memorandum was an agreement settling all of the property issues in
the divorce proceeding.3 Id. (holding that the trial court erred in ruling that the terms
in a divorce settlement were a full settlement where the terms were incomplete and
did not address all required aspects of the divorce); see also Moss, 265 Ga. at 803.
3
The wife maintains that the husband’s claim should fail because the
handwritten memorandum, at a minimum, constitutes a valid and enforceable partial
settlement. We agree that, “in proper circumstances, parties may reach partial
settlements as to their divorce,” but, as in Rasheed, in the case sub judice, the trial
court characterized the handwritten memorandum as a full settlement of all the
property issues, not a partial settlement. 300 Ga. at 640 n.2. On remand, the trial court
may consider in the first instance whether the handwritten memorandum constitutes
an enforceable partial settlement in this divorce proceeding.
9
Furthermore, the handwritten memorandum indicates that the husband is to
receive the rental home in Georgia, that the home is to be appraised, and if the
property is appraised at over $30,000, the parties will divide the excess amount
equally. However, the handwritten memorandum does not address the method of
appraisal or which party is responsible for obtaining and paying for the appraisal.
Although the wife maintains on appeal that the appraisal was not an essential term of
the agreement and that the parties verbally agreed that the husband would be
responsible for the appraisal using whatever method he desired, she has not cited to
any evidence in the record supporting this contention. Moreover, in Moss, the
Supreme Court of Georgia held that, in a written divorce settlement agreement, the
method of appraisal of real property was a substantive term of the agreement and not
“merely facilitative.” 265 Ga. at 803. The court further concluded that, because the
evidence did not show that the method of appraisal had been agreed upon, the
settlement agreement was incomplete. Id. Accordingly, as in Moss, the purported
settlement agreement in this case was incomplete, and the trial court erred by
enforcing it.4
4
We note that the April 6, 2017 typed document does not resolve any of the
incomplete terms discussed above , and, therefore, the trial court’s ruling that the
typed document was valid and binding does not alter our decision. Because we
10
Consequently, in light of the above, we reverse the trial court’s order enforcing
the purported settlement agreement and remand this case to the trial court for further
proceedings.5
Judgment reversed and case remanded. Doyle P. J., concurs and Ellington,
P. J., concurs in judgment only. *
*THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF
APPEALS RULE 33.2(a).
conclude that the purported settlement agreement was incomplete and remand for
further proceedings, we express no opinion as to whether the typed document was a
valid binding agreement or whether the husband’s payment of $1,700 constituted
ratification of the agreement. The trial court may reconsider these issues on remand.
5
The wife argues in the alternative that we should affirm because the husband
failed to respond to the motion to enforce the settlement agreement in a timely
manner, in violation of Uniform Superior Court Rule 6.2. The record shows that the
wife did not raise the alleged untimeliness of the husband’s response in the trial court
below, and, therefore, the issue is waived. See Pruitt v. Tyler, 181 Ga. App. 174, 175
(1) (351 SE2d 539) (1986) (holding that an objection to the timeliness of a response
“will be deemed waived unless [the objection] is itself timely raised in the trial
court”).
11