R. William Kasserman, Esq.
Seibert, Kasserman, Farnsworth,
Gillenwater, Glauser & Richardson
Wheeling, West Virginia
Counsel for Betty Jo Summers
William J. Leon, Esq.
Vorbach & Gianola
Morgantown, West Virginia
Counsel for Samuel David Summers
JUSTICE WORKMAN delivered the Op inion of the Court.
1. "Even though there is an express legislative preference
in divorce cases for a separation agreement to be in writing and
signed by the parties, we do not prohibit per se the practice of
orally placing on the record the terms of a separation agreement
if certain conditions are met." Syl. Pt. 1, Gangopadhyay v.
Gangopadhyay, 403 S.E.2d 712 (W. Va. 1991).
2. "Where an oral separation agreement is dictated on the
record, additional inquiries must be made by the court or the
family law master to ascertain that the parties understand its
terms and have voluntarily agreed to them without any coercion.
Furthermore, the court or the family law master must find that
the terms of the agreement are fair and equitable. This latter
inquiry requires a disclosure of the financial background of the
parties sufficient to justify the conclusion of the court or the
family law master." Syl. Pt. 2, Gangopadhyay v. Gangopadhyay,
403 S.E.2d 712 (W. Va. 1991).
3. A post-decree settlement agreement, whether written or oral, must be presented to the family law master and circuit court just as a pre-decree agreement must be submitted for approval pursuant to W. Va. Code § 48-2-16(a) (1986) to permit the court to make the necessary inquiries to determine that the
agreement is fair and reasonable and that it was not procured
through fraud, duress, or other unconscionable conduct.
4. Both family law masters and circuit courts have
jurisdiction to consider for approval and enforceability a post-decree settlement agreement that includes among its terms, issues
of property distribution.
Issues raised in this consolidated appeal include the enforceability of an unsigned post-decree property settlement agreement and the existence of jurisdiction to modify a divorce decree in view of this Court's decision in Segal v. Beard, 380 S.E.2d 444 (W. Va. 1989), wherein we ruled that family law masters and circuit judges are without jurisdiction to hear modification petitions which lack issues of spousal or child support, custody, or visitation. For the reasons set forth below, we conclude that a Segal v. Beard jurisdiction problem was not present here and that the Taylor County Circuit Court should have inquired into the post-decree settlement agreement to ensure that both parties voluntarily entered into the agreement and that the agreement was not obtained by fraud or duress. Accordingly, we reverse and remand the lower court's decision.
The parties were married in 1967 and four children resulted from that marriage. Mrs. Summers initiated the underlying divorce proceedings, seeking a divorce on grounds of irreconcilable differences. By order dated August 26, 1987, the family law master issued his recommended findings of fact, which included, inter alia, that Mr. Summers should get custody of the minor childrenSee footnote 1 of the parties whose ages at that time were seventeen, fourteen,
and thirteen. The family law master further recommended the sale
of substantially all of the marital assets, the proceeds of which
were to be applied to any outstanding indebtedness, and then to the
parties in equal portions. Additionally, Mrs. Summers would
receive the sum of $200 per month as alimony for a period of five
years or until remarriage. By order dated November 13, 1987, the
circuit court adopted verbatim the recommendations of the family
law master and granted a divorce on the requested grounds.
Pursuant to a motion filed on February 10, 1988, by Mrs.
Summers to clarify certain aspects of the November 1987 final
decree of divorce, the parties appeared on that same date before
the family law master for a further hearing on this matter.
Following that hearing, the family law master issued additional
findings of fact and recommendations by order dated March 2, 1988,
which, in addition to ordering the payment of a $600 alimony
arrearage, suggested that the parties select an auctioneer to sell
the remaining marital assets within 120 days. By order dated March
14, 1988, the circuit court directed the parties to act in
accordance with the family law master's recommendations as set
forth in the March 2, 1988, order.
The next procedural event which occurred was the filing of a petition by Mrs. Summers seeking a rule to show cause on May 27, 1988. The petition was prompted by Mr. Summers' failure to comply with prior court orders concerning payment of alimony and signing
auction contracts, as well as permitting the marital homeSee footnote 2 to be
foreclosed upon. Subsequent to the court's issuance of a rule to
show cause, the circuit court entered an order dated July 29, 1988,
directing that funds from the sale of the marital home be held in
escrow and that all remaining property be sold pursuant to prior
On March 6, 1989, Mr. Summers filed a petition seeking to
enforce an alleged oral post-decree settlement agreement dated July
18, 1988. Pursuant to this agreement, Mrs. Summers allegedly
agreed to accept the sum of $30,000 in exchange for her rights in
all marital real property which had not been previously
distributed. Mrs. Summers responded to this petition on March 28,
1989, claiming that the attorney who represented her at the time of
the alleged agreement had no authority to settle the matter on her
behalf; that she was under duress when she consented to the $30,000
figure contained in that agreement; and further, that she was
fraudulently induced by her former attorney to accept the $30,000
The settlement agreement at issue was never reduced to writing and executed by the parties. The only "writing" in this case is an unsigned letter from Mrs. Summers' former attorney to Mr. Summers dated July 18, 1988, which purports to set forth the alleged terms
of the agreement. Since a copy of the letter "agreement" was not
included in the record designated for appeal,See footnote 3 we are limited to
the family law master's findings set forth in his Recommended
Decision of July 25, 1989, to identify the provisions of the
alleged agreement. According to the Recommended Decision, the
"agreement" resulted from the following chain of events:
V. The evidence adduced herein indicated
that immediately after adjournment of the
hearing held on 12 July 1988, Mr. Straface
[Mrs. Summers' former counsel] approached
defendant [Mr. Summers] and advised defendant
of his belief that if the property was sold at
the trustee's sale, there would be no net
proceeds available for distribution to the
parties. Mr. Straface therefore requested
that defendant make an offer to settle the
dispute between the parties concerning the
division of their marital assets and thereby
avoid the scheduled foreclosure sale. In
response to this request, defendant stated
that he would be willing to pay $30,000.00 to
the plaintiff [Mrs. Summers] in exchange for
her interest in all the marital property and
that he would assume responsibility for all
marital debts. On or about 14 July, Mr.
Straface contacted defendant and requested
that in addition to his offer to pay
$30.000.00, defendant also pay one half the
proceeds from the sale of a certain high lift
tractor, one half of the net proceeds from the
sale of a motor home and that defendant pay
attorneys fees previously ordered by the Court
and certain court costs. Defendant testified
that he agreed to these terms.
VI. . . . By letter dated 18 July 1988 which was admitted into evidence as Defendant's Exhibit 1, Mr. Straface wrote to Mr. Summers setting forth the proposed agreement.
With regard to this petition and counter-petition, the family
law master prepared a recommended decision dated July 25, 1989,
wherein he found that Mrs. Summers' former attorney had apparent
authority to negotiate on her behalf; the family law master and the
circuit court lacked jurisdiction to modify prior decrees
concerning the sale of marital property in view of Segal v. Beard;
and, in effect, that the court could not reverse the property
transactions that had already been effectuated. Finally, on
February 8, 1990, the circuit court entered an "Order on Petition
for Enforcement of Distribution" adopting the family law master's
recommendation as set forth in the July 25, 1989, order, finding
that the issue of real property distribution had been settled and
compromised such that Mr. Summers had title to all unsold real
property and that distribution of any remaining property would be
carried out in accordance with prior court orders. It is from this
order that both parties appeal.
We address initially the enforceability of the unsigned post-decree property settlement agreement. Settlement agreements which are executed following a court order are enforceable even if the underlying proceeding is a divorce proceeding. See D. H. Pritchard, Contractor, Inc. v. Nelson, 147 F.2d 939 (4th Cir. 1945); see also 1A Michie's Jurisprudence, Accord & Satisfaction § 2 (1980) (noting that judgments and obligations under seal may be settled); Somerville v. Somerville, 369 S.E.2d 459 (W. Va. 1988) (post final-decree settlement incorporated in further court order
which established unequal marital property division void based on
court's failure to make specific reference to W. Va. Code § 48-2-32(c) factors).
This Court recently made clear its preference for written
property settlement agreements in Gangopadhyay v. Gangopadhyay, 403
S.E.2d 712 (W. Va. 1991). In that case, which involved the oral
recordation of a property settlement agreement at a final divorce
hearing, this Court explained that certain "cogent policy reasons
. . . cause us to encourage the use of written separation
agreements,[See footnote 4] signed by the parties[:]"
Obviously, such a procedure [oral
placement of settlement terms on record] is
fraught with the potential for
misunderstanding and abuse. If the agreement
is the product of eleventh hour negotiations
or is agreed to on the eve of hearing, it may
not bear the deliberateness and informed
consent of a prior written agreement. The
first time the court will hear the agreement
is when it is dictated into the record. . . .
both the court and the parties may have
difficulty remembering and understanding its
terms. Finally, the potential for fraud,
duress, or coercion is much greater where the
agreement is not reduced to writing before
being presented to the court.
Id. at 715-16 (footnote omitted and emphasis supplied). We further noted that "a prudent attorney would make certain that a separation agreement was in writing and signed by the parties to indicate
their approval of its terms." 403 S.E.2d at 715. As we previously
concluded, there is no question that "requiring the parties to sign
a written agreement . . . militate[s] against a later claim that
the agreement was coerced or inequitable." Id.
Notwithstanding the salutary policy reasons behind requiring
written settlement agreements, we held as follows in Gangopadhyay:
1. Even though there is an express
legislative preference in divorce cases for a
separation agreement to be in writing and
signed by the parties, we do not prohibit per
se the practice of orally placing on the
record the terms of a separation agreement if
certain conditions are met.
2. Where an oral separation agreement is dictated on the record, additional inquiries must be made by the court or the family law master to ascertain that the parties understand its terms and have voluntarily agreed to them without any coercion. Furthermore, the court or the family law master must find that the terms of the agreement are fair and equitable. This latter inquiry requires a disclosure of the financial background of the parties sufficient to justify the conclusion of the court or the family law master.
403 S.E.2d at 712, Syl. Pts. 1 & 2.
Given the factual contrast between the Gangopadhyay case where the settlement agreement was spread upon the record at the final hearing and the instant case where the alleged oral agreement was neither placed on the record nor presented for approval by the court, this case presents a much weaker argument for enforcement than was present in Gangopadhyay. In resolving whether the subject agreement is enforceable, we look to W. Va. Code § 48-2-16(a), the
reasoning applied in Gangopadhyay, and the law of other
West Virginia Code § 48-2-16(a) begins "[i]n cases where the
parties to an action commenced under the provisions of this article
have executed a separation agreement, if the court finds that the
agreement is fair and reasonable, and not obtained by fraud, duress
or other unconscionable conduct by one of the parties. . . ." W.
Va. Code 48-2-16(a) (emphasis supplied). As W. Va. Code § 48-2-16(a) makes clear, settlement agreements which are executed prior
to the issuance of a final decree of divorce must be presented to
the court for approval. See id.; In re Estate of Hereford, 162 W.
Va. 447, 487, 250 S.E.2d 45, 51 (1978) (holding that "parties may
do anything which they wish by their property settlement agreement
as long as it is approved by the circuit court").
The agreement at issue in this case can be viewed at best as an oral agreement given the unsigned nature of the only document which even purports to represent the terms of the alleged compromise. As we reasoned in Gangopadhyay, the need for court approval and inquiry is greater "where the agreement is oral instead of written and where there are allegations of fraud, duress, or coercion." 403 S.E.2d at 716 (footnote omitted). Notwithstanding the factual differences between this case and Gangopadhyay, the policy reasons which we articulated in Gangopadhyay for requiring both court inquiry and approval of oral
settlement agreements in domestic cases are equally applicable to
the case at bar. Given the oral nature of the post-decree
settlement agreement under inquiry here, we conclude that the court
must make those same inquiries required by W. Va. Code § 48-2-16(a)
to determine whether such an "agreement is fair and reasonable, and
not obtained by fraud, duress, or other unconscionable conduct"
before the agreement can be enforced.
While we feel that no lengthy explanation is necessary to
expound further upon the need for court approval of settlement
agreements, be they pre- or post-decree, we offer several
observations to elucidate our decision. Underlying the requirement
of court approval set forth in W. Va. Code § 48-2-16(a) is an
obvious recognition of the important interests that are at stake in
a typical settlement agreement and the concomitant need to ensure
that one party does not take advantage of the other when these
interests are being compromised. While the interests at stake in
the instant case pertained solely to disposition of certain real
property and the changing of a beneficiary on an insurance policy,
subjects such as child support, visitation, and alimony may
properly be included in a property settlement agreement. See W.
Va. Code § 48-2-1(h). These domestic issues are obviously areas
which courts have historically been charged with supervising on
behalf of the underlying state interest in protecting the general
welfare of its citizens. Furthermore, a legislative directive is
arguably created by the requirement imposed by W. Va. Code § 48-2-16(a) for court approval of separation agreements. We can find no
reason to except post-decree settlement agreements from this same
requirement of court approval, since they fall within the
definition of separation agreements. See n.4, supra.
While the need for court approval of post-decree property
settlement agreements that dispose of issues other than property
interests may be easier to understand, the state, nonetheless, has
an interest in protecting its citizens from agreements that are
fraudulently induced or agreed to as a result of duress or
coercion. Similar to Gangopadhyay where the wife alleged that her
husband intimidated her into agreeing to a settlement just prior to
the final hearing, this case includes allegations of fraud and
duress. See 403 S.E.2d at 717. The factual situation presented by
Mrs. Summers at the hearing held on June 7, 1989, before the family
law master presents a scenario of her own attorney badgering her
into the settlement:
VIII. Betty Jo Kidd [Mrs. Summers]
testified that after the hearing held 12 July
1988, she was very emotional and she had just
had an argument with her daughter. After Mr.
Straface [her attorney] had his private
conference with Mr. Summers, he met the
plaintiff [Mrs. Summers] in front of the
Taylor County Courthouse and advised her of
Mr. Summers' offer of Thirty Thousand Dollars
and that if she did not take Thirty Thousand
Dollars that she would probably not get a
penny and that he was tired of fooling with
IX. [Witnesses] all testified that
during the meeting between Mr. Straface and plaintiff . . . he was yelling at plaintiff, using profanity, pointing his finger and shaking it very close to plaintiff's face and yelling that if she
did not accept Thirty Thousand Dollars she would
not get anything.
The implications of these allegations, if true, certainly suggest a need to question further whether Mrs. Summers was indeed a voluntary party to the alleged agreement.
Ultimately, a hearing on the enforceability of the alleged
agreement did take place. However, due to the family law master's
conclusion that he lacked jurisdiction to address this issue and
the circuit court's affirmance of his conclusion, no true and full
inquiry was made into Mrs. Summers' allegations of fraud, duress,
and coercion. Accordingly, we reverse and remand the circuit
court's order of February 8, 1990, based on our ruling that a post-decree settlement agreement, whether written or oral, must be
presented to the circuit court just as a pre-decree agreement must
be submitted for approval pursuant to W. Va. Code § 48-2-16(a) to
permit the court to make the necessary inquiries to determine that
the agreement is fair and reasonable and that it was not procured
through fraud, duress or other unconscionable conduct. Other
jurisdictions have concluded similarly. See Masse v. Masse, 112
R.I. 599, 313 A.2d 642 (1974) (post-decree settlement agreement
regarding modification of alimony and support provisions would have
been enforceable if presented to the family court for approval and
if the terms appeared fair and reasonable).
We do not mean to suggest that we buy, lock, stock and barrel, Mrs. Summers' arguments regarding the alleged involuntariness of
her actions with respect to the agreement at issue. There are
certain factors present which weigh against her position. One of
these factors is Mrs. Summers' fulfillment of certain aspects of
the agreement. For example, she signed a deed on August 22, 1988,
and in exchange for transferring her interest in six parcels of
real estate covered by such deed, she received the thirty thousand
dollars as provided for by the terms of the alleged agreement. The
court on remand must consider this fact as well as the length of
time which passed prior to Mrs. Summers' objection to the
agreement. We note additionally that Mrs. Summers never initiated
any proceedings to raise objections to the agreement. Only when
Mr. Summers filed his petition seeking enforcement of the agreement
on March 6, 1989, did Mrs. Summers, in her reply to said petition
which was filed on March 28, 1989, raise the issues of duress and
fraud. This failure on Mrs. Summers' part to complain about the
agreement until more than eight months after the fact is clearly
another factor which the court must weigh in determining whether
the parties did have a "meeting of the minds" with respect to the
terms of the settlement agreement at issue.
With regard to Mr. Summers' argument that the doctrine of accord and satisfaction prevents Mrs. Summers from raising the issue of the alleged agreement's enforceability, we note the inapplicability of that doctrine. By definition, an accord and satisfaction requires full performance of the terms of the compromise. Once the parties have fully complied with the terms of
the compromise agreement, the doctrine is invoked and acts as a bar
to all actions upon the same agreement. See 1A Michies, Accord &
Satisfaction at § 1; Masse, 313 A.2d at 645. By Mr. Summers' own
admission, as demonstrated by the allegations of his petition
seeking enforcement of the settlement agreement, Mrs. Summers did
not perform all of her part of the agreement. Accordingly, the
satisfaction never occurred even if an accord was reached.
The final issue which we address is the circuit court's
adoption of the family law master's conclusion that he lacked
jurisdiction to rule on prior decrees ordering the sale of the
parties' marital property. The family law master based his
conclusion on the following syllabus points from Segal v. Beard:
1. A family law master lacks jurisdiction to
hear a petition for modification of an order
when the modification proceeding does not
involve child custody, child visitation, child
support or spousal support. W. Va. Code, 48A-4-1(i)(4) .
2. A circuit court lacks jurisdiction under W. Va.
Code, 48-2-15(e)  to modify a divorce decree
when the modification proceeding does not involve
alimony, child support or child custody.
380 S.E.2d 444 at Syl. Pts. 1 & 2.
The family law master erred when he concluded that this Court's holding in Segal negated jurisdiction to address Mr. Summers' petition. Importantly, Mr. Summers was not seeking a modification of the previously-entered divorce decree as to issues of property distribution as was the case in Segal. See 380 S.E.2d
at 446. In this case, Mr. Summers filed his petition, not seeking
a modification, but instead seeking enforcement of a post-decree
settlement agreement. As we concluded above, family law masters
and circuit courts clearly have an obligation to examine such
agreements to ensure that they are fair, reasonable, and entered
into on a voluntary basis by the parties. Accordingly, the family
law master and the circuit court wrongly refused to rule on the
enforceability of the alleged settlement agreement on the grounds
of nonexistent jurisdiction. We note this error to clarify the
misapplication of our previous rulings in Segal. A correct
statement of the law is that while circuit courts and family law
masters lack jurisdiction to modify a divorce decree on property
issues as fully discussed in Segal, they both have jurisdiction to
consider for approval and enforceability a post-decree settlement
agreement that includes among its terms, issues of property
Based on the foregoing opinion, the decision of the Circuit
Court of Taylor County is reversed and remanded for further
proceedings consistent with this opinion.
Footnote: 1The family law master's decision indicates that the infant children "have, essentially, elected to stay with their father."
Footnote: 2The final order of divorce does not specify in any way which party was required to make mortgage payments. It appears that the home was to be sold at a public sale.
Footnote: 3The Recommended Decision of the family law master dated July 25, 1989, states that the 7-18-88 letter "was admitted into evidence as Defendant's (Mr. Summers') Exhibit 1."
Footnote: 4As defined by W. Va. Code § 48-2-1(h) (1986), the term "separation agreement" includes "a written agreement entered into by a husband and wife whereby they agree . . . to . . . settle and compromise issues arising out of their marital rights and obligations. . . ."