No. 52232-9-IThe Court of Appeals of Washington, Division One.
Filed: July 19, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-3-05242-5. Judgment or order under review. Date filed: 03/21/2003. Judge signing: Hon. Julie a Spector.
Counsel for Appellant(s), Stephen D. Cramer, Attorney at Law, 202 So. 348th St, PO Box 3767, Federal Way, WA 98063-3767.
Counsel for Respondent(s), Mark Evans Dempsey (Appearing Pro Se), 3420 290th St, Auburn, WA 98001.
PER CURIAM.
An unsigned affidavit of prejudice that is filed after the trial court has exercised its discretion is not timely and therefore does not invoke the requirement that the trial court recuse itself. Further, the trial court does not lose jurisdiction when final orders are not presented for signing within 45 days after a notice of settlement is filed. But under CR 2A, it is an abuse of discretion to enforce a disputed oral settlement agreement without any evidence of the terms of that alleged agreement. We reverse the final parenting plan, child support order, and order granting modification and remand for further proceedings.
FACTS
In October 2001, Danielle Dempsey nka Danielle Schauer filed a notice of her intention to relocate herself and her two-year old son, Jared, from Washington to Maine. Jared’s father, Mark Dempsey, was his legal custodian and cared for Jared in his home fifty percent of the time. Prompted by this intended move, Dempsey petitioned in November 2001 to modify the prior custody decree/parenting plan.
In March 2002, the court found adequate cause to modify the custody decree based upon the proposed move and ordered that Jared remain in King or Pierce County, Washington pending further proceedings. The trial court entered temporary child support orders and residential schedules and ordered that a parenting evaluation be conducted. Shortly thereafter, on August 1, 2002, Schauer moved to Maine. Jared remained in Washington with his father.
In September 2002, the trial court conducted a pretrial conference and set trial to begin on October 14, 2002. On October 11, 2002, the trial court ordered a continuance of the trial date until December 16, 2002, to allow Schauer time to arrange more economical travel to Washington for trial. On October 30, 2002, Schauer’s attorney filed a motion for change of judge, but did not sign the accompanying affidavit. The trial court did not grant the motion.
On December 5, 2002, the parties attended a settlement conference before a different superior court judge. Schauer appeared telephonically from Maine, and the parties’ attorneys and Dempsey attended in person. One week after the settlement conference, a notice of settlement signed by both parties’ attorneys was filed. The notice of settlement stated that the trial judge would retain jurisdiction to enter any final orders.
On January 28, 2003, Schauer’s attorney withdrew from the case, and Schauer proceeded as a pro se litigant. On February 24, 2003, Dempsey’s attorney mailed Schauer a copy of a proposed final parenting plan and set a notice of hearing for presentation of the final orders to the court on March 11, 2003. Dempsey’s attorney asked Schauer to contact her with any requested changes or questions regarding the proposed orders. Schauer did not contact Dempsey’s attorney, but later acknowledged that she received the documents.
At the March 11, 2003 hearing, Schauer participated telephonically. She told the court that she did not believe the parties had reached a settlement, that her former attorney did not represent her in accordance with her wishes, and that she had retained a new attorney to proceed to trial. She also objected to entry of final orders on the basis that there was no written settlement agreement.
Dempsey’s attorney disagreed with Schauer’s assertion that no settlement had occurred. She informed the court that both Dempsey and Schauer had participated for the majority of the settlement conference and that both parties left the conference after a settlement had been reached. The trial court signed Dempsey’s proposed parenting plan, indicating the need for closure of the matter, but it stated that the order could be susceptible to a motion to vacate based upon Schauer’s assertions that her attorney had failed to properly represent her. Schauer unsuccessfully moved to reconsider on the ground that no written agreement had been signed. The trial court denied this motion, and this appeal followed.
ANALYSIS
Schauer’s first argument on appeal is that she was entitled to a change of judge upon filing her October 30, 2002 motion. Any party to a lawsuit has a right to remove one superior court judge upon the timely filing of a motion and affidavit of prejudice in compliance with RCW 4.12.040 and RCW 4.12.050. State v. Waters, 93 Wn. App. 969, 974, 971 P.2d 538
(1999). `Once a party timely complies with the terms of these statutes, prejudice is deemed established `and the judge to whom it is directed is divested of authority to proceed further into the merits of the action.” State v. Cockrell, 102 Wn.2d 561, 565, 689 P.2d 32 (1984) (quoting State v. Dixon, 74 Wn.2d 700, 702, 446 P.2d 329 (1968)). A motion is not timely if it is made after the trial court has made any order or ruling invoking discretion. State v. Maxfield, 46 Wn.2d 822, 829, 285 P.2d 887 (1955). A motion for continuance invokes the trial court’s discretion. Maxfield, 46 Wn.2d at 829.
Based upon the trial court’s failure to grant her motion for change of judge filed on October 30, 2002, Schauer contends that she was wrongfully denied her peremptory right to a change of judge. There is no merit to this contention. The motion for a change of judge was filed two weeks after the trial court exercised its discretion in granting a continuance of the trial date. Moreover, the supporting affidavit was not signed. The motion was not timely, and in any event, the parties later confirmed the trial judge’s jurisdiction by entering a notice of settlement that stated the trial judge would retain jurisdiction to enter any final orders. Schauer next contends that the trial court erred in enforcing a settlement for which no CR 2A agreement was signed. Her argument is based upon two grounds: (1) the trial court lacked jurisdiction after expiry of the 45 day period following entry of a notice of settlement, and (2) both the existence and the terms of the parties’ alleged settlement were disputed. Dempsey argues that the trial court retained jurisdiction because there was no dismissal of the case before entry of the final orders. He also claims that a signed notice of settlement can substitute for a signed agreement and that Schauer waived her right to object to the settlement by not responding to his attorney’s proposed order before the hearing.
We first address Schauer’s contention that the trial court lacked jurisdiction. Schauer’s argument is based upon a misreading of KCLR 41(e). KCLR 41(e)(1) requires parties to file a written notice of settlement after they reach a settlement that fully resolves all claims in an action. KCLR 41(e)(2) contains suggested text of the notice of settlement, which states that if an order dismissing all claims is not entered within 45 days, `the case may be dismissed on the Clerk’s motion pursuant to LR 41(b)(2)(B).’ This does not mean that the court loses jurisdiction if dismissal does not occur before the final orders are entered. Mere passage of time does not cause the court to lose jurisdiction under LR 41(e). According to the King County Local Rules, even a clerk’s motion to dismiss is subject to a motion to continue the period for an additional 45 days upon a showing of good cause. Because the clerk never initiated dismissal proceedings and dismissal did not occur, the trial court retained jurisdiction to enter the final orders.
We next address the court’s entry of final orders without a supporting CR 2A settlement agreement. A trial court’s decision to enforce a settlement agreement pursuant to CR 2A and RCW 2.44.010 is reviewed for an abuse of discretion. Morris v. Maks, 69 Wn. App. 865, 868, 850 P.2d 1357
(1993). `An abuse of discretion occurs when a decision of the trial court is manifestly unreasonable or based on untenable grounds or reasons.’ Maks, 69 Wn. App. at 868.
CR 2A provides:
No agreement or consent between the parties or attorneys in respect to the proceedings in a cause, the purport of which is disputed, will be regarded by the court unless the same shall have been made and assented to in open court on the record, or entered in the minutes, or unless the evidence thereof shall be in writing and subscribed by the attorneys denying the same.
CR 2A precludes enforcement of a settlement agreement not made in writing or put on the record, whether or not common law requirements are met. In re Marriage of Ferree, 71 Wn. App. 35, 40, 856 P.2d 706 (1993).
RCW 2.44.010 provides in part:
An attorney and counselor has authority:
(1) To bind his client in any of the proceedings in an action or special proceeding by his agreement duly made, or entered upon the minutes of the court; but the court shall disregard all agreements and stipulations in relation to the conduct of, or any of the proceedings in, an action or special proceeding unless such agreement or stipulation be made in open court, or in presence of the clerk, and entered in the minutes by him, or signed by the party against whom the same is alleged, or his attorney;
`[T]he purpose of CR 2A and RCW 2.44.010 is to insure that negotiations undertaken to avert or simplify trial do not propogate additional disputes that then must be tried along with the original one.’ Ferree, 71 Wn. App. at 41. Whether an agreement is disputed depends on two criteria: there must be a dispute over the existence or material terms of the agreement and the dispute must be a genuine one. Ferree, 71 Wn. App. at 40. Further, an attorney has authority to bind his client in an action `by his agreement duly made, or entered upon the minutes of the court.’ RCW 2.44.010. A party’s change of mind does not make a settlement agreement disputed. Lavigne v. Green, 106 Wn. App. 12, 23 P.3d 515
(2001).
Summary judgment procedures apply when there is a dispute regarding the material terms or existence of a settlement agreement. In re Patterson, 93 Wn. App. 579, 584, 969 P.2d 1106 (1999). Accordingly, the moving party has the burden of showing that there are no material disputes regarding the agreement’s terms or existence. The nonmoving party can show there is a genuine issue of material fact by rebutting the moving party’s evidence with affidavits, declarations, and other evidence. Patterson, 93 Wn. App. at 584.
Affidavits and declarations are the preferable means of presenting evidence. Ferree, 71 Wn. App. at 41-42. Evidence presented to the Ferree court consisted of declarations from the moving party stating that a divorce settlement had been reached by a husband and a wife at a settlement conference and describing several material terms. The moving party also submitted a copy of proposed findings and conclusions that the nonmoving party’s former attorney had drafted after their settlement conference. Before the hearing, the husband obtained new counsel, who argued that no settlement had occurred. But the new attorney lacked personal knowledge of this assertion and he presented no sworn statements to this effect. Taking the sworn testimony in the light most favorable to the nonmoving party, the court concluded that the moving party had carried her burden and that the agreement was enforceable. Ferree, 71 Wn. App. at 45.
Occasionally, less formal evidence, such as courtroom discussions and letters signed by the parties’ attorneys can establish both the existence of and material terms of a settlement agreement. In Maks, the parties failed to enter into a formal settlement agreement, but two letters exchanged between the parties’ attorneys contained details of the material terms of the agreement and language indicating acceptance of those terms. The trial court decided that the letters constituted sufficient evidence of the settlement agreement to render it enforceable, and this court affirmed, relying on CR 2A and RCW 2.44.010. Maks, 69 Wn. App. at 871.
In contrast, in Bryant v. Palmer Coking Coal Co., 67 Wn. App. 176, 179, 834 P.2d 662 (1992), after mediation, one of the parties’ attorneys informed the court that a settlement had been reached, but the only evidence of the agreement’s terms was a letter drafted by the attorney of the party seeking enforcement. This court held that the trial court abused its discretion by enforcing the settlement because there was no stipulation regarding the settlement entered on the record in open court and there was no writing memorializing the agreement that was signed by the party to be bound. The Bryant court distinguished an earlier oral settlement agreement found enforceable in Stottlemyre v. Reed, 35 Wn. App. 169, 665 P.2d 1383 (1983). There, the objecting party’s attorney had signed an affidavit submitted to the court in which he acknowledged the existence of the settlement. Upon questioning from the trial court, that attorney later stated the terms of the agreement on the record in open court. This combined evidence was sufficient for the court to conclude that RCW 2.44.010 and CR 2A had been satisfied. Stottlemyre, 35 Wn. App. at 173.
Here, neither party presented affidavits or declarations in support of or in opposition to the entry of the final orders. But the court record contained a notice of settlement signed by both parties’ attorneys and at the March 11, 2003 hearing, the court heard both parties present their positions regarding the alleged agreement. Stottlemyre and Ferree both acknowledge that statements in court can suffice to establish the existence and terms of an oral settlement agreement. But while arguably the record here contained sufficient evidence for the court to conclude that a settlement existed, there was no evidence of its terms, and for that reason, we conclude that the court abused its discretion.
According to Dempsey’s attorney, she drafted the proposed final parenting plan to reflect the agreement reached by the parties in December 2002, but there is no affidavit or declaration stating under penalty of perjury that the proposed order’s terms were specifically agreed upon. It was Dempsey’s burden to prove both that there was no dispute as to the existence and the terms of the settlement agreement. Under these circumstances, Schauer’s failure to respond to Dempsey’s attorney with corrections or questions about the proposed order cannot be deemed a waiver of her right to object to them at the hearing, which had already been scheduled. Indeed, the invitation to correct or further discuss terms of the parenting plan suggests that some areas of the agreement had been left unresolved. Furthermore, evidence of a genuine dispute regarding a material term is found in Schauer’s assertion during the hearing that she and Dempsey had agreed that she would have two weeks of residential time upon her return to Washington in April 2003. The parenting plan does not contain such a provision, allowing only one weekend per month of residential time contingent upon Schauer being in the Seattle area. Thus, the material terms of the alleged settlement agreement were in dispute and CR 2A bars enforcement of such agreements.
We reverse the final parenting plan and related orders and remand for further proceedings consistent with this opinion.
COLEMAN, ELLINGTON and SCHINDLER, JJ.