Barranco v. Barranco

MOYLAN, Judge. The appellant, Charles F. Barranco (Husband), appeals from an order of the Circuit Court for Baltimore County granting the Motion to Enforce Settlement Agreement and/or Motion for Specific Performance of Settlement Agreement filed by his wife, the appellee Mary Seeley Barranco (Wife). In April, 1990, the Wife filed a complaint for an absolute divorce based on adultery. She sought, among other things, alimony, a monetary award, an interest in the Husband’s pension, contribution for expenses relating to the maintenance of the marital home, counsel fees, and litigation expenses.

The Husband filed a counterclaim for an absolute divorce on the grounds of constructive desertion and ouster. He later amended his counterclaim, seeking a divorce on the grounds of a two-year separation. Before the trial, the parties attempted to reach a settlement regarding the disposition of their marital property. Settlement negotiations intensified as the April 5,1991, trial date approached.

The Wife contends that, on the late afternoon of April 2, 1991, the parties, through counsel, entered into a comprehensive oral settlement agreement. The attorneys thereafter dismissed the witnesses they had subpoenaed for trial. On the next day, the Husband’s ⁴¹⁷ attorney notified the Wife’s attorney that the Husband could not live with the agreement and that he wanted to renegotiate certain provisions. The Wife refused to do so.

She filed a Motion to Enforce Settlement Agreement and/or Motion for Specific Performance of Settlement Agreement. A hearing was held on the matter in open court. Following that hearing, the circuit court granted the Wife’s motion. The court found “that the parties did enter into a binding settlement agreement on April 2, 1991, which resolved all financial and property issues arising from and relating to their marriage.” On this appeal, the Husband contends that the evidence was not adequate to establish the existence of an oral settlement agreement concerning the transfer of interests in real property and that, if there was an oral agreement, it is unenforceable under the Statute of Frauds.

At the time of the settlement negotiations concerning marital property, the Husband was represented by Emma Twigg Clarke. The Wife was represented by Richard C. Burch. At the hearing on the Wife’s motion to enforce the settlement agreement, both Ms. Clarke and Mr. Burch were called to testify regarding the negotiations on April 2, 1991. Since her attorney would be testifying, the Wife chose to retain new counsel to represent her with respect to her motion.

The Husband chose not to retain new counsel. Mr. Burch testified at length regarding a series of telephone conversations he had with Ms. Clarke on April 2, 1991. During those phone conversations, a number of proposals and counter-proposals were made with respect to a settlement of the parties’ marital property. Mr. Burch testified that the Wife was in his office on the afternoon of April 2 when the negotiations continued.

Various matters were discussed, including the marital home; property which the parties owned in Nags Head, North Carolina; attorneys’ fees; litigation expenses; and debts. He testified that finally all matters were resolved. It was agreed that Ms. Clarke would prepare an outline or a document setting out the agreement so that nothing would be forgotten when the ⁴¹⁸ matter proceeded to trial on April 5. It was also agreed that the grounds for the divorce would be a two-year separation.

In the afternoon of the next day, however, Mr. Burch received a call from Ms. Clarke telling him that her client had called her and had said that “he cannot live with the deal.” She communicated a counter-proposal made by the Husband, which the Wife refused to accept. Notes made by Mr. Burch immediately after the telephone conversations with Ms. Clarke on April 2, setting out the provisions of the agreement, were admitted into evidence. Mr. Burch testified that the parties agreed, among other things, that the Husband would transfer his interest in the marital home to the Wife and that the Wife would transfer her interest in the Nags Head property to the Husband. It was further agreed that the Husband would sign a confessed judgment note for $7,500, at nine per cent interest per annum, the interest payable yearly and the principal payable in three years or upon sale of the Nags Head property, whichever occurred first.

There was also an acceleration provision in the event of a default. In addition, the parties resolved the distribution of proceeds from the sale of another piece of property in Nags Head, pension rights, personal property matters, debts, attorneys’ fees, and litigation expenses. Ms. Clarke testified that she entered her appearance on behalf of the Husband in February, 1991, and that she was still his attorney of record. She testified regarding the settlement discussions she had by telephone with Mr. Burch on April 2.

Throughout that day, she was also in telephone communication with her client concerning the various proposals and counter-proposals. Ms. Clarke testified that around 4 p.m. on April 2, “there seemed to be an