IN THE SUPERIOR COURT OF GUAM 2
3 MADELINE T. HORlNOUCHI, ) ) 4 Plaintiff, ) DOMESTIC CASE NO. DM0673-11 5 ) vs. ) 6 ) DECISION AND ORDER KEITH M. HORINOUCHI, ) 7 ) 8 Defendant. )
9 INTRODUCTION 10 This matter came before the Honorable James L. Canto II on Defendant's motion to 11 enforce stipulated judgment of divorce, filed November 13, 2012. Oral arguments were heard 12 on December 10, 2012. Attorney Daniel S. Somerfleck, Esq. appeared on behalf of the 13 Defendant and Attorney William B. Pole, Esq. represented the Plaintiff. Having considered the 14 parties' briefs, oral arguments, and the applicable law, the Court now issues the following 15 Decision and Order. 16 BACKGROUND 17 In this divorce action, Plaintiff and Defendant do not have children and seek to divide 18 their property. On July 30, 2012, both parties appeared with their attorneys for a bench trial. 19 Plaintiffs counsel represented that an oral settlement agreement was reached and counsel read 20 the following terms of the agreement into the record: (Record Log at 9:17, July 30, 2012.) 21 Plaintiff shall keep and refinance parties' Kauai real property in her name and keep a 22 Lexus vehicle. Id. Defendant shall keep and refinance parties' Lorna Linda real property in his 23 name and keep a Mitsubishi vehicle. Id. Plaintiff shall keep her 401k retirement account and 24 frequent flyer mileage accounts. Id. Defendant shall keep his 401b retirement account, his 25 business named "Horinouchi Wellness Clinic", and his frequent flyer mileage accounts. Id. 26 Plaintiff shall remove Defendant's name from, and be solely responsible for, all encumbrances 27 on the Kauai property and a Chase credit card. Id. Defendant shall remove Plaintiffs name 28 from, and be solely responsible for, all encumbrances on the Lorna Linda property and all other
Page 1 of 4 credit cards. !d. Any other joint accounts will be closed and the parties shall file taxes 2 separately from 2011 onward. !d. 3 Plaintiffs counsel explained that the parties shall split any gain or loss in the value of 4 the Kauai property. !d. Plaintiff shall have the property appraised by the refinance lender and if 5 its value exceeds $535,000 then Plaintiff shall pay Defendant one-half (1/2) of the difference in 6 value above $535,000. !d. If the value is less than $535,000 then Defendant shall pay Plaintiff 7 one-half (1/2) of the difference in value below $535,000. !d. Defendant shall also pay $3,000 8 to Plaintiff by check and $2,000 to her by promissory note. !d. Finally, Plaintiff shall keep the 9 Kauai property furnishings except for some of Defendant's personal effects that he shall specify 10 in a list at a later time. !d. 11 Defendant's counsel agreed to the foregoing terms and stated that the parties shall 12 memorialize the agreement together in a proposed interlocutory and final decree of divorce. !d. 13 at 9:23. When a joint submission was not forthcoming, Defendant filed an interlocutory and 14 final decree of divorce on October 23, 2012. Defendant's interlocutory and final decrees of 15 divorce accurately represent the open court settlement agreement and further identify his 16 personal effects. On November 13, 2012, Defendant filed the present motion to enforce the ' 17 decrees. Defendant argues that he relied upon the stipulated property settlement agreement and 18 sent Plaintiff a check for $3,000. Plaintiff argues that she did not consent to the agreement and 19 that the statute of frauds as well as 21 GCA § 41 01 require the agreement to be in writing. 20 DISCUSSION 21 Under Guam law, "stipulations will be recognized as binding only when made in open 22 court." Local Rules of the Super. Ct. of Guam GR 3.1(a). Guam law does not specifically 23 apply this rule to divorce stipulations, but many jurisdictions recognize marital separation 1 24 agreements that are read in open court as binding and enforceable agreements. An oral 25 stipulation in the presence of the court is: 26
1 27 See e.g. Grisham v. Grisham, 289 P.3d 230, 233-234 (Nev. 2012); Holland v. Holland, 266 N.E.2d 580, 582 (Ohio Ct. App. 1970); Meyer v. Rosenbaum, 248 N.W.2d 558, 560 (Mich. Ct. App. 1976); Linehan v. Linehan, 649 28 S.W.2d 837, 839 (Ark. Ct. App. 1983); Harrington v. Harrington, 479 N.Y.S.2d 1000, 1002-1003 (N.Y. App. Div. 1984); Davidson v. Davidson, 477 A.2d 423,424-426 (N.J. Super. Ct. Ch. Div. 1984); Dominick v. Dominick, 463
Page 2 of 4 [a] traditionally favored device for fostering authentic and reliably recorded settlements, the procedure dates back at least to the nineteenth century. Thus, 2 writing in 1889, Justice Oliver Wendell Holmes repelled a statute of frauds 3 challenge to a stipulated oral agreement, stating simply: "It is a sufficient answer to this proposition that the statute requiring a signed writing plainly is not 4 intended to apply to an agreement like the present, made in open court, and acted on by the court." The formality, publicity, and solemnity of an open court 5 proceeding protects parties against hasty and improvident settlement agreements 6 by impressing upon them the seriousness and finality of the decision to settle. In addition, placing the agreement on the record in open court ensures that there is a 7 formal record to memorialize the critical litigation events and, modernly, a 8 transcript beyond dispute and the fallibility of memory. Grisham, 289 P.3d at 233-234 (internal quotations and citations omitted). 9 For these reasons, many jurisdictions do not apply the statute of frauds to stipulated IO judgments made in open court even when the subject matter is real property. Id. at 234 (citing II multiple authorities). See also Eberle, 505 N.W.2d at 771; Takusagawa, 166 P.3d at 447. I2 In this case, the parties stipulated to a property settlement agreement that Plaintiffs l3 counsel read it into the record in open court. Plaintiff did not object or correct her attorney as I4 he read the stipulations and the agreement is not void if Plaintiff later withdraws her consent. I5 See e.g. Grisham, 289 P.3d at 236 (consent to order agreement into record minutes is implied in 16 absence of objection or correction); Meyer, 248 N.W.2d at 559-560 (public policy to enforce I7 open court bargains despite later changes in consent). 2 The terms of the agreement are definite 18 and Plaintiff does not allege fraud, mistake, overreaching or challenge a finding that the 19 settlement is fair and reasonable. Finally, the Court does not agree with Plaintiffs remaining 20 assertion that the real property agreements must be in writing pursuant to the statute of frauds 21 and 21 GCA § 4101. The risk of fraud does not apply to this marital property agreement 22
23 N.E.2d 564,567-568 (Mass. App. Ct. 1984); Perras v. Perras, 726 P.2d 617,619 (Ariz. Ct. App. 1986); Roskindv. 24 Roskind, 552 So.2d 1155, 1155-1156 (Fla. Dist. Ct. App. 1989); In re Marriage of Lorton, 561 N.E.2d 156, 158- 159 (Ill. App. Ct. 1990); Luber v. Luber, 614 A.2d 771, 773-774 (Pa. Super. Ct. 1992); Matter of Estate of Eberle, 25 505 N.W.2d 767, 771 (S.D.
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IN THE SUPERIOR COURT OF GUAM 2
3 MADELINE T. HORlNOUCHI, ) ) 4 Plaintiff, ) DOMESTIC CASE NO. DM0673-11 5 ) vs. ) 6 ) DECISION AND ORDER KEITH M. HORINOUCHI, ) 7 ) 8 Defendant. )
9 INTRODUCTION 10 This matter came before the Honorable James L. Canto II on Defendant's motion to 11 enforce stipulated judgment of divorce, filed November 13, 2012. Oral arguments were heard 12 on December 10, 2012. Attorney Daniel S. Somerfleck, Esq. appeared on behalf of the 13 Defendant and Attorney William B. Pole, Esq. represented the Plaintiff. Having considered the 14 parties' briefs, oral arguments, and the applicable law, the Court now issues the following 15 Decision and Order. 16 BACKGROUND 17 In this divorce action, Plaintiff and Defendant do not have children and seek to divide 18 their property. On July 30, 2012, both parties appeared with their attorneys for a bench trial. 19 Plaintiffs counsel represented that an oral settlement agreement was reached and counsel read 20 the following terms of the agreement into the record: (Record Log at 9:17, July 30, 2012.) 21 Plaintiff shall keep and refinance parties' Kauai real property in her name and keep a 22 Lexus vehicle. Id. Defendant shall keep and refinance parties' Lorna Linda real property in his 23 name and keep a Mitsubishi vehicle. Id. Plaintiff shall keep her 401k retirement account and 24 frequent flyer mileage accounts. Id. Defendant shall keep his 401b retirement account, his 25 business named "Horinouchi Wellness Clinic", and his frequent flyer mileage accounts. Id. 26 Plaintiff shall remove Defendant's name from, and be solely responsible for, all encumbrances 27 on the Kauai property and a Chase credit card. Id. Defendant shall remove Plaintiffs name 28 from, and be solely responsible for, all encumbrances on the Lorna Linda property and all other
Page 1 of 4 credit cards. !d. Any other joint accounts will be closed and the parties shall file taxes 2 separately from 2011 onward. !d. 3 Plaintiffs counsel explained that the parties shall split any gain or loss in the value of 4 the Kauai property. !d. Plaintiff shall have the property appraised by the refinance lender and if 5 its value exceeds $535,000 then Plaintiff shall pay Defendant one-half (1/2) of the difference in 6 value above $535,000. !d. If the value is less than $535,000 then Defendant shall pay Plaintiff 7 one-half (1/2) of the difference in value below $535,000. !d. Defendant shall also pay $3,000 8 to Plaintiff by check and $2,000 to her by promissory note. !d. Finally, Plaintiff shall keep the 9 Kauai property furnishings except for some of Defendant's personal effects that he shall specify 10 in a list at a later time. !d. 11 Defendant's counsel agreed to the foregoing terms and stated that the parties shall 12 memorialize the agreement together in a proposed interlocutory and final decree of divorce. !d. 13 at 9:23. When a joint submission was not forthcoming, Defendant filed an interlocutory and 14 final decree of divorce on October 23, 2012. Defendant's interlocutory and final decrees of 15 divorce accurately represent the open court settlement agreement and further identify his 16 personal effects. On November 13, 2012, Defendant filed the present motion to enforce the ' 17 decrees. Defendant argues that he relied upon the stipulated property settlement agreement and 18 sent Plaintiff a check for $3,000. Plaintiff argues that she did not consent to the agreement and 19 that the statute of frauds as well as 21 GCA § 41 01 require the agreement to be in writing. 20 DISCUSSION 21 Under Guam law, "stipulations will be recognized as binding only when made in open 22 court." Local Rules of the Super. Ct. of Guam GR 3.1(a). Guam law does not specifically 23 apply this rule to divorce stipulations, but many jurisdictions recognize marital separation 1 24 agreements that are read in open court as binding and enforceable agreements. An oral 25 stipulation in the presence of the court is: 26
1 27 See e.g. Grisham v. Grisham, 289 P.3d 230, 233-234 (Nev. 2012); Holland v. Holland, 266 N.E.2d 580, 582 (Ohio Ct. App. 1970); Meyer v. Rosenbaum, 248 N.W.2d 558, 560 (Mich. Ct. App. 1976); Linehan v. Linehan, 649 28 S.W.2d 837, 839 (Ark. Ct. App. 1983); Harrington v. Harrington, 479 N.Y.S.2d 1000, 1002-1003 (N.Y. App. Div. 1984); Davidson v. Davidson, 477 A.2d 423,424-426 (N.J. Super. Ct. Ch. Div. 1984); Dominick v. Dominick, 463
Page 2 of 4 [a] traditionally favored device for fostering authentic and reliably recorded settlements, the procedure dates back at least to the nineteenth century. Thus, 2 writing in 1889, Justice Oliver Wendell Holmes repelled a statute of frauds 3 challenge to a stipulated oral agreement, stating simply: "It is a sufficient answer to this proposition that the statute requiring a signed writing plainly is not 4 intended to apply to an agreement like the present, made in open court, and acted on by the court." The formality, publicity, and solemnity of an open court 5 proceeding protects parties against hasty and improvident settlement agreements 6 by impressing upon them the seriousness and finality of the decision to settle. In addition, placing the agreement on the record in open court ensures that there is a 7 formal record to memorialize the critical litigation events and, modernly, a 8 transcript beyond dispute and the fallibility of memory. Grisham, 289 P.3d at 233-234 (internal quotations and citations omitted). 9 For these reasons, many jurisdictions do not apply the statute of frauds to stipulated IO judgments made in open court even when the subject matter is real property. Id. at 234 (citing II multiple authorities). See also Eberle, 505 N.W.2d at 771; Takusagawa, 166 P.3d at 447. I2 In this case, the parties stipulated to a property settlement agreement that Plaintiffs l3 counsel read it into the record in open court. Plaintiff did not object or correct her attorney as I4 he read the stipulations and the agreement is not void if Plaintiff later withdraws her consent. I5 See e.g. Grisham, 289 P.3d at 236 (consent to order agreement into record minutes is implied in 16 absence of objection or correction); Meyer, 248 N.W.2d at 559-560 (public policy to enforce I7 open court bargains despite later changes in consent). 2 The terms of the agreement are definite 18 and Plaintiff does not allege fraud, mistake, overreaching or challenge a finding that the 19 settlement is fair and reasonable. Finally, the Court does not agree with Plaintiffs remaining 20 assertion that the real property agreements must be in writing pursuant to the statute of frauds 21 and 21 GCA § 4101. The risk of fraud does not apply to this marital property agreement 22
23 N.E.2d 564,567-568 (Mass. App. Ct. 1984); Perras v. Perras, 726 P.2d 617,619 (Ariz. Ct. App. 1986); Roskindv. 24 Roskind, 552 So.2d 1155, 1155-1156 (Fla. Dist. Ct. App. 1989); In re Marriage of Lorton, 561 N.E.2d 156, 158- 159 (Ill. App. Ct. 1990); Luber v. Luber, 614 A.2d 771, 773-774 (Pa. Super. Ct. 1992); Matter of Estate of Eberle, 25 505 N.W.2d 767, 771 (S.D. 1993); In reMarriage of Assemi, 872 P.2d 1190, 1195 (Cal. 1994); Carter v. Carter, 869 S.W.2d 822, 827-829 (Mo. Ct. App. 1994); Carlin v. Wallace, 809 So.2d 1017, 1020-1021 (La. Ct. App. 26 2001); In reMarriage ofTakusagawa, 166 P.3d 440, 445-448 (Kan. Ct. App. 2007). Cf Mcintosh v. Mcintosh, 328 S.E.2d 600, 601-602 (N.C. Ct. App. 1985) (stipulation must also be acknowledged by parties); Gaffney v. 27 Gaffney, 613 S.E.2d 471,477 (Va. Ct. App. 2005) (stipulation must also be affirmed by parties). 2 Plaintiff's withdrawal of consent may further invoke judicial estoppel where Defendant may lose $3,000 in 28 reliance upon the Court's acceptance of the bargain. See generally New Hampshire v. Maine, 532 U.S. 742, 750- 751, 121 S.Ct. 1808, 1815, 149 L.Ed.2d 968 (2001) (factors to apply judicial estoppel).
Page 3 of 4 because it was decided in a formal, public and solemn open court proceeding and its terms are 2 recorded in a transcript that is beyond dispute and the fallibility of memory. For these reasons, 3 the motion to enforce the stipulated judgment of divorce shall be granted. 4 Ill 5 Ill 6 Ill 7 CONCLUSION 8 Based upon the foregoing, the Defendant's motion to enforce stipulated judgment of 9 divorce is hereby GRANTED and the Court shall enter Defendant's interlocutory and final 10 decrees of divorce. 11
12 SO ORDERED this ~ day of March, 2013. 13
16 BoN. JAMES L. CANTO II Judge, Superior Court of Guam 17
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