Court affirms finding that court record insufficient for creation of binding agreement in DVO matter — Published Opinion from Ky. Court of Appeals

Waggoner v. Waggoner

Jefferson Circuit Court

Robert Waggoner filed a petition for a Domestic Violence Order (“DVO”) against his ex-wife, Christina, after a dispute at their former marital home occurred. An Emergency Protective Order (“EPO”) was entered and a DVO hearing was set. Preceding the hearing, counsel for both parties discussed a potential settlement agreement that would allow all parties to access the marital home, dismiss the DVO petition, and set the matter for mediation. At the hearing, counsel made the court aware of these settlement discussions, and requested the matter be continued. The family court obliged, and recorded the following on the docket sheet:

“[P]ass 1 wk to 6-29-2021 @ 8:30 a.m. Mutual NUC [no unlawful contact] A.O. [agreed order] to be circulated b/w parties’ counsel/parties on divorce case to get [Christina] back in her house + to allow [Robert] to get tools . . . mediation to occur w/ Vish or Bowles.”

At the next appearance of the parties, Robert’s attorney informed the family court that Robert had changed his mind about proceeding with the agreement, based around Christina’s recent emptying of the parties’ joint bank accounts. Again, the matter was passed, and at the next hearing, Robert explained that he had additional concerns about entering a settlement agreement and dismissing the DVO petition, as Christina had “threatened to kill [him] and burn down the house multiple times[.]” As a result, Robert refused to dismiss the petition. Christina filed a motion to dismiss the DVO and enforce the settlement agreement. The family ultimately denied her motion, explaining that the agreement was not expressly adopted by both attorneys and the record, and thereafter entered a DVO. Christina appealed.

The Court found no exchange on the record that would enforce a contractual agreement. The presentation to the family court by the parties was that the agreement was only ever “a work in progress” with exact terms never being read into the record and “conditional and contingent terms” being used when discussing the agreement. Likewise, while the family court wrote an aforementioned summary of the potential settlement, such writing was insufficient to create a binding agreement. Thus, the family court’s orders denying the motion to dismiss and granting the DVO were affirmed.

K. Spencer Pierson

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