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Deregis v. Visco

The Court of Appeals of Washington, Division One
Nov 29, 2004
124 Wn. App. 1024 (Wash. Ct. App. 2004)

Opinion

No. 53404-1-I

Filed: November 29, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 95-3-07492-1. Judgment or order under review. Date filed: 10/24/2003. Judge signing: Hon. Douglass a North.

Counsel for Appellant(s), Richard B. Jr Cassady, Dancey Cassady LLP, 811 1st Ave Ste 100, Seattle, WA 98104.

David Deregis (Appearing Pro Se), 3000 Oak Glen Lane, Clarksville, TN 37043.

Counsel for Respondent(s), Leslie Jean Olson, Olson Olson PLLC, 1601 5th Ave Ste 2200, Seattle, WA 98101-1625.


David DeRegis and Diane Visco attempted through court ordered mediation to resolve their dispute about transportation arrangements for their twelve-year-old daughter to visit her father in Kentucky. The mediator sent DeRegis and Visco a letter outlining his understanding of their agreement and asking them if they agreed to each sign and return the letter. Neither did. At trial, the court granted Visco's motion to enforce the agreement as described in the mediator's letter. We conclude there are material issues of fact regarding the agreement, reverse the order enforcing the parties' settlement agreement and remand for further proceedings consistent with this opinion.

FACTS

When David DeRegis and Diane Visco were divorced in 1996, their daughter Kirsten was four-years-old. At the time, DeRegis was in medical school and did not know where he would live after he finished his internship and residency. The parenting plan designates Visco as the primary residential parent and provides for alternative residential arrangements depending on where DeRegis resides.

If DeRegis lives more than forty miles away, his residential time with Kirsten is three five-day periods per year, and, with ten days notice, an unlimited number of four-day long visits with Kirsten in the Seattle area. The parenting plan provides that once Kirsten started school, the schedule during the school year would continue as before, with additional residential time with her father during spring vacation, alternating winter vacations and up to four consecutive weeks with DeRegis each summer. Transportation arrangements for Kirsten and costs of transportation were addressed in the parenting plan and the child support order. The parenting plan provides:

The parenting plan also specifies that '[t]he father shall have regular, unobstructed and reasonable telephone contact with Kirsten. The father should call Kirsten on Sunday evenings one hour before her bedtime and again on Wednesday one hour before her bedtime.' Clerk's Papers (CP) at 329.

Transportation arrangements for the child, other than costs, between parents shall be as follows:

The parents shall cooperate in making transportation arrangements for Kirsten that are scheduled at appropriate times for a child of her age. If the father lives within forty miles of Kirsten or the father lives within the state of Washington, the parties are equally responsible for transportation. If the father lives more than forty miles away from Kirsten and outside the state of Washington, the father is responsible for transportation arrangements. Financial responsibility is addressed in the Order of Child Support.

CP at 330.

The order on child support provides:

Transportation costs for the father's exercise of his residential time with the child shall be paid as per the parties' respective percentage on the Order of Child Support and worksheets if the father lives more than forty miles away but within the state of Washington. If the father lives outside the state of Washington and more than forty miles away, he shall pay all the cost of transportation.

CP at 320.

DeRegis is remarried and lives in Kentucky with his spouse and two children. Kirsten is now twelve-years-old. Visco claims Kirsten is afraid of flying alone and has insisted that DeRegis fly with Kirsten each way when she visits DeRegis in Kentucky.

On November 7, 2002, DeRegis filed a petition for modification of the parenting plan based in part on Visco's alleged refusal to comply with the transportation arrangements for Kirsten to fly unaccompanied to Kentucky for her residential time with him. DeRegis asked the court to modify the transportation provision in the parenting plan to explicitly allow Kirsten to fly unaccompanied or require Visco to accompany Kirsten on flights from Seattle to Kentucky, and to order Visco to share in the long distance transportation costs.

DeRegis proposed that he would fly with Kirsten on the return trip to Seattle.

DeRegis also asked that he be allowed to spend one weekend per month with Kirsten in months when residential time is not otherwise scheduled. DeRegis also requested joint decision-making for major decisions, especially as to Kirsten's education, amendment of the dispute resolution process to specify a new arbitrator, and to be allowed to talk to Kirsten by phone at least three times per week and communicate with her by email.

The court found adequate cause for DeRegis's petition with respect to the transportation issues. The court scheduled a trial on the transportation issues and ordered the parties to mediate regarding transportation arrangements and costs, and to clarify the time visitation begins and ends.

The court also found adequate cause was established with respect to clarifying visitation times, but not on the issues of decision-making regarding education and telephone contact.

Visco moved to revise the order on adequate cause but the court affirmed the order in all respects. The court additionally ordered Kirsten to receive psychological treatment to address her fear of flying.

On September 18, 2003, DeRegis and Visco participated by phone in a mediation session with the mediator, Howard Bartlett. At the end of the session, in a conversation with Bartlett, Visco made an offer. Bartlett communicated Visco's proposal to DeRegis. When Bartlett returned to talk to Visco, he discovered she had hung up. DeRegis asked Bartlett to put the terms of the proposed agreement in writing, which Bartlett agreed to do after the session was over. DeRegis asked Bartlett what would happen if the parties did not agree to the description of the agreement in the letter, and Bartlett responded that if either party did not agree, then they would not sign. Bartlett wrote up his understanding of the terms of the agreement and sent a letter to both parties. In the letter Bartlett asked the parties to acknowledge they agreed by either signing the letter and returning it to him or by signing an order drafted by Visco's attorney incorporating the terms of the agreement. Neither DeRegis nor Visco signed the letter or an order.

On September 26, DeRegis filed a motion for a continuance of the trial date. In his motion to continue, DeRegis stated '[t]he parties had been in the process of working out a settlement, and attended a settlement/mediation session on September 18, 2003. Although a settlement in principle was reached, no agreement was signed.'

CP at 33.

On October 1, 2003, Visco filed a motion to enforce the agreement set forth in the mediator's September 18, 2003 letter.

On October 6, 2003, the trial court granted Visco's request to enforce the agreement. DeRegis was ordered to:

accompany Kirsten on all airline flights associated with his residential time, so long as Kirsten expresses the fear of flying [alone] or reaches the age of 17, whichever is earlier. If, at the age of 17, she still expresses a fear of flying alone, then Diane Visco shall accompany Kirsten on her flight to visit her father, and David DeRegis shall accompany Kirsten on her return flight to Seattle.

1. Either parent's spouse may substitute for the parent in accompanying Kirsten on the airline flights.

2. Diane Visco's responsibility for accompanying Kirsten on airline flights shall be limited to three residential periods per year.

3. David DeRegis shall arrange the flights after the parties have coordinated their respective schedules.

4. David DeRegis shall be responsible for the cost of airfare.

5. All flights shall be direct flights.

6. The residential schedule set forth in the Parenting Plan is clear.

7. Both parties affirm the language of the Parenting Plan.

8. Regarding telephone contact with Kirsten, the father shall call Kirsten on Sunday evenings between 7:00 and 8:00 p.m. P.S.T. and again Wednesday evenings between 7:00 and 8:00 p.m. P.S.T.

CP at 111-12.

On October 16, DeRegis filed a motion for reconsideration of the court's order enforcing the settlement agreement. In his declaration accompanying the motion for reconsideration, DeRegis said he did not agree to pay for all the transportation costs, although he acknowledged that he did agree to pay some costs: 'to the extent the mother flew with our daughter I would pay for the airfare and arrange the flights, as stated in Mr. Bartlett's letter.' DeRegis also said he did not agree to accompany Kirsten on all flights until she was seventeen, and he did not agree that only he and Visco and their spouses could escort Kirsten on her flights. The trial court denied DeRegis's motion for reconsideration.

CP at 113.

ANALYSIS

As a preliminary matter, DeRegis argues the trial court should not have considered Visco's motion to enforce the settlement agreement because she did not timely file a notice of settlement under King County Local Rule (KCLR) 41(e)(1). DeRegis did not make this argument below. This court may decline to review any claim of error that was not raised in the trial court. RAP 2.5(a). Nevertheless, a court may, for good reason, relax or suspend its own rules, and this court will presume the superior court had sufficient cause to waive the rule, absent evidence of an injustice. Foster v. Carter, 49 Wn. App. 340, 343, 742 P.2d 1257 (1987); Snyder v. State, 19 Wn. App. 631, 637, 577 P.2d 160 (1978). Because DeRegis had an opportunity to respond to Visco's motion in his reply declaration, the trial court did not abuse its discretion in deciding to hear Visco's motion to enforce the settlement agreement on the day of trial.

KCLR 41(e)(1) provides, in part: '[a]fter any settlement that fully resolves all claims against all parties, the parties shall, within five days or before the next scheduled court hearing, whichever is sooner, file and serve a written notice of settlement.'

DeRegis argued to the trial court that it should not address Visco's motion to enforce the settlement because her motion was not timely noted. The court ruled it would consider the motion because the parties had notice of it and it was something that should be addressed at the beginning of trial. See RP at 5-6.

DeRegis's primary argument on appeal is that the trial court erred when it concluded the parties had an enforceable agreement and entered an order enforcing the terms of the agreement set forth in the mediator's letter. DeRegis also assigns error to several of the trial court's findings, including that Visco made a settlement offer, that Bartlett's letter described the terms of her offer, and that DeRegis accepted the offer. DeRegis contends genuine issues of fact exist about the agreement and the trial court erred when it concluded CR 2A did not apply and bar enforcement of the mediator's letter. CR 2A provides:

No agreement or consent between 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.

We review the decision to enforce a settlement agreement de novo, as we would a summary judgment, to determine whether there is a dispute regarding the existence or material terms of a settlement agreement. In re Marriage of Ferree, 71 Wn. App. 35, 43, 856 P.2d 706 (1993). The burden is on the moving party to prove there is no material dispute regarding the existence and terms of the settlement agreement. Ferree, 71 Wn. App. at 41. Once the moving party establishes the absence of a genuine dispute of fact, the nonmoving party can show there is a genuine issue of material fact by affidavits, declarations or other evidence. Ferree, 71 Wn. App. at 44. The court must view the evidence in the light most favorable to the nonmoving party and decide whether reasonable minds could reach but one conclusion. Id.

Visco moved to enforce the agreement as it was described in the mediator's letter and attached the letter as an exhibit to her declaration in support of her motion. Visco stated in her declaration that at the end of the mediation, she submitted a final offer to Bartlett to transmit to DeRegis and then left. According to Visco's declaration, shortly after the mediation she received a letter from Bartlett stating that DeRegis had accepted her offer and detailing the terms of the agreement.

In response to Visco's motion to enforce the settlement agreement, DeRegis submitted a declaration in which he denied knowing he and Visco had reached agreement. He stated that Bartlett brought him Visco's offer at the end of the mediation session but Bartlett said he did not have time to put the offer in writing. According to DeRegis's declaration, Bartlett said 'he would write up what he thought the agreement was and send it to [the parties] to sign.' DeRegis goes on to say:

CP at 91.

I asked him what would happen if she did not sign it. He said then she doesn't sign, and you don't have an agreement, just like if I [sic] didn't sign. I read the letter and did not agree with it, therefore, I did not sign it. I think it is important to point out Mr. Bartlett's letter, specifically states 'if you agree with the terms of this, please sign it and return it to our office.'

I have not received any orders, letter, or phone calls from [Visco] or her attorney signifying we had any agreement, or we were not going to have any trial. Mr. Bartlett's letter ended with 'it may be easier for [Visco's lawyer] simply to draft an order and circulate it for both parties to sign,' but that did not happen.

Id.

DeRegis also said he did 'not believe [Visco was] really in agreement with the purported settlement. Had I known we had an agreement, I certainly would have not filed anything, [sic] would have been relieved this was all over. I certainly do want this to end.'

CP at 93.

At the hearing on Visco's motion to enforce the settlement agreement, DeRegis argued that although DeRegis agreed that Kirsten had to be escorted on airplane flights, the parties had not reached agreement on 'exactly when the child should be able to fly on her own,' and 'exactly when the mother would start helping.'

RP at 14.

RP at 18.

Assuming Visco met her burden to establish the existence and terms of the settlement agreement, DeRegis had to show there was a genuine dispute of fact regarding the existence or terms of the agreement. In his declarations, DeRegis stated that he did not know there was an agreement and he did not expect to be bound to an agreement until he signed Bartlett's letter or an order drafted by Visco's attorney. He did not sign Bartlett's letter because he did not agree with it. DeRegis reiterated his position that Visco's demands that he escort Kirsten on every flight and pay for all transportation expenses was not contemplated or required by the child support order or the parenting plan provisions and were overly burdensome. DeRegis also said Visco should share in the responsibility to accompany Kirsten on every flight. In short, DeRegis met his burden to show there was a dispute of fact regarding the agreement.

CONCLUSION

We conclude the trial court erred when it concluded there was no genuine issue of fact regarding the agreement. We reverse the trial court's decision to enforce the agreement and remand for further proceedings consistent with this opinion.

Because we reverse entry of the order enforcing the settlement agreement on the grounds that there was a material issue of fact regarding the agreement, we do not need to address DeRegis's alternative arguments for reversal.

Schindler, J., Agid, J., and Kennedy, J., Concur


Summaries of

Deregis v. Visco

The Court of Appeals of Washington, Division One
Nov 29, 2004
124 Wn. App. 1024 (Wash. Ct. App. 2004)
Case details for

Deregis v. Visco

Case Details

Full title:DAVID DEREGIS, Appellant, v. DIANE VISCO, Respondent

Court:The Court of Appeals of Washington, Division One

Date published: Nov 29, 2004

Citations

124 Wn. App. 1024 (Wash. Ct. App. 2004)
124 Wash. App. 1024