Rasheed v. Sarwat

Opinion

300 Ga. 639 FINAL COPY

S17F0168. RASHEED v. SARWAT.

MELTON, Presiding Justice.

In this divorce action, Imran Rasheed (Husband) appeals the trial court’s

grant of a motion to enforce a settlement agreement filed by Maryam Sarwat

(Wife) and its incorporation into a final decree of divorce, contending that no

settlement had ever been reached and that, in any event, the trial court’s order

setting forth what it found as a complete settlement1 and the subsequent decree

of divorce incorporating that settlement are too incomplete to be enforced. For

the reasons set forth below, we reverse the trial court’s order enforcing the

settlement agreement, vacate the decree of divorce, and remand the case for

further proceedings.

The record shows that, on March 25, 2014, Wife filed a complaint for

divorce from Husband. After entering a temporary settlement agreement,

1 The order enforcing the settlement purports to set forth “an enforceable agreement resolving the full terms of [the parties’] divorce.” (Emphasis supplied.) Husband and Wife participated in a mediation on April 6, 2015, at which time

the parties agreed on some issues of the divorce, but not all of them. Husband

offered Wife terms for all other outstanding issues, and the parties continued to

negotiate through telephone calls and e-mail correspondence between their

attorneys. By April 26, 2015, it appears that both parties believed that a full

agreement had been reached, and both sides corresponded with the trial court to

announce a settlement. Further correspondence indicates that Husband’s counsel

asked Wife’s counsel to draw up the settlement agreement for the parties, and

Wife’s counsel drafted an approximately 20-page agreement of terms. Following

this point, however, disagreement resumed between the parties, and no

settlement agreement was ever signed. On October 30, 2015, Wife filed a

Motion to Enforce Settlement Agreement, arguing that, on April 26, 2015, the

parties had reached an enforceable agreement covering all terms of their divorce.

The trial court agreed, and, on March 10, 2016, it entered a two-page order

setting forth the terms of the settlement agreement. The trial court considered

these terms to represent the full terms of the parties’ divorce, and, as such,

incorporated the settlement enforcement order and its terms into the final

divorce decree on May 25, 2016.

2 As an initial matter, we are unable to address Husband’s first contention

regarding the propriety of any settlement agreement between the parties because

the trial court’s order gives no indication of the source of the settlement terms

it cites. While the trial court instructed Wife’s counsel to draft an order

reflecting prior agreements made by the parties in mediation and in exchanged

e-mails, the order, itself, neither incorporates nor references any set of

documents or correspondence. Therefore, as the order currently stands, we

cannot determine whether the trial court correctly set forth terms corresponding

to the discussions of the parties or whether the trial court properly concluded

that a settlement occurred in the first place.

With regard to Husband’s second contention, however, we agree that the

terms of the settlement agreement as found by the trial court are incomplete, and

these terms do not address all required aspects of the divorce.2 Though visitation

is cursorily addressed, the word custody never even appears in the order.

Furthermore, the order setting forth the settlement does not contain a permanent

2 We note that, in proper circumstances, parties may reach partial settlements as to their divorce. In this case, however, the terms set forth in the order enforcing the settlement are presented as a full settlement, not partial. 3 parenting plan that complies with OCGA § 19-9-1. The order regarding

settlement terms also appears to be incomplete with regard to property holdings,

or, at the very least, requires a great deal of inferences from unspecified sources

to determine who actually owns what, what must be sold, and how any proceeds

should be split between the parties. A trial court errs when it seeks to enforce

what amounts to a settlement containing incomplete terms of a divorce. See,

e.g., Moss v. Moss, 265 Ga. 802 (463 SE2d 9) (1995). Therefore, the trial court

erred by enforcing the settlement in this case, either by enforcing an agreement

that was not complete or by issuing an order that failed to set forth all the

material terms. By incorporating such an incomplete settlement into the parties’

divorce decree and using that settlement as the decree’s operative terms, the

infirmities of the incomplete settlement agreement became the infirmities of the

divorce decree, which omits fundamental considerations such as the custody of

the minor children.

Based on the orders now before us, which neither identify nor incorporate

any other documents containing additional terms, we must find that the terms

of any divorce agreement appear incomplete and, therefore, reverse the trial

court’s order enforcing the settlement, vacate the divorce decree incorporating

4 the incomplete settlement, and remand this case to the trial court for further

proceedings.

Judgment reversed in part and vacated in part, and case remanded. All the

Justices concur.

Decided February 27, 2017.

Domestic relations. Gwinnett Superior Court. Before Judge Beyers.

Thompson, O’Brien, Kemp & Nasuti, Michael C. Clark, for appellant.

Carter Pilgrim Stroud, Amy M. Carter, Philip P. Pilgrim, Jr., for appellee.