Opinion
No. 72-277
Decided August 21, 1973.
Defendant in divorce action challenged trial court order ratifying settlement agreement signed by the parties' attorneys, but not by the parties. From refusal to set aside the order and from finding that plaintiff was in contempt of that order, defendant appealed.
Reversed
1. ATTORNEY AND CLIENT — Stipulation — Parties' Attorneys — Presented to Court — Authority — Enter Agreement — Challenged — Burden of Proof — On Client. By presenting stipulation to the court and having the court enter an order thereon, the parties' attorneys were representing to the court, as officers of the court, that their clients had made the divorce agreement as evidenced by the stipulation; thus, when defendant challenged his attorney's authority to sign the stipulation, he had the burden of going forward and proving by a preponderance of the evidence that no such agreement as set forth in the stipulation had been agreed to by the parties.
2. Hearing — Determine — Attorney's Authority — Enter Stipulation — Extent — Attorney's Testimony — Described. In hearing on issue of attorney's authority to enter stipulation for defendant, although defendant's attorney could testify as to what he did in the course of his relationship with the defendant insofar as his actions bear on the issue of whether an agreement had been reached between the parties, his declarations are not admissible to prove either the fact of agency nor the extent of his authority.
3. Hearing — Determine — Attorney's Authority — Enter Stipulation — Ruling — Attorney's Testimony — Essential — Reversible Error. In hearing at which defendant challenged his attorney's authority to submit stipulation for and on behalf of defendant, the trial court committed reversible error by ruling that the testimony of defendant's attorney was essential for defendant to establish his claim.
Appeal from the District Court of Grand County, Honorable Don Lorenz, Judge.
No appearance for plaintiff-appellee.
Anthony V. Zarlengo, for defendant-appellant.
Plaintiff filed suit for divorce. While the matter was pending, a stipulation was presented to the court resolving the matters of alimony, child support, and the disposition of certain insurance policies. The stipulation was signed only by the attorneys of record and did not contain the signature of either party nor did either party indicate his or her approval thereon in any manner. The court entered an order approving and ratifying the stipulation on July 27, 1971.
On August 16, 1971, defendant discharged his attorney, retained a new attorney, and on August 27, 1971, filed a petition requesting that the order be set aside. While this motion was pending, defendant defaulted in making some of the payments required in the order, and plaintiff thereupon caused a contempt citation to be served on defendant. After hearing the motion relative to setting aside the order, the court denied the same. It then heard the contempt citation and found defendant to be in contempt of court and entered judgment against him for arrearages in alimony and child support payments as required by the terms of the stipulation and order.
Defendant appeals contending that the court erred in failing to vacate the order entered pursuant to the stipulation and in finding defendant in contempt of court. We agree and reverse.
At the hearing to set aside the order approving the stipulation, defendant testified that there had been preliminary negotiations relative to certain sums set forth in the stipulation but that such sums had been used in connection with defendant's buying plaintiff's interest in a business and pertained only to a property settlement. Defendant further testified that he did not give his attorney authority to sign the stipulation in his behalf and that he did not know there had been any order entered until a few days after its entry. He then inquired of the clerk of court as to its contents.
At the hearing on defendant's motion to vacate the order, his former attorney was not present to testify as to his authority to sign the stipulation, but defendant testified that he knew nothing of the contents of the stipulation at the time he called the clerk's office and that his attorney had no authority to submit such a stipulation on his behalf. The court in denying the motion treated the matter as though the attorney had apparent authority to sign the stipulation on behalf of his client and remarked that, since an order had been entered based upon the stipulation, the presence of the attorney was required to negate the presumption that he had authority to enter into the stipulation.
[1-3] In the instant case, the attorneys, by presenting the stipulation to the court and having the court enter an order thereon, were representing to the court, as officers of the court, that their clients had made the agreement as evidenced by the stipulation. When defendant challenged his attorney's authority to sign the stipulation, he was in effect asserting that there had been no agreement reached between himself and plaintiff. Consequently, since he was the one challenging the order, he had the burden of going forward and proving to the court by a preponderance of the evidence that no such agreement as set forth in the stipulation had been agreed to between the parties. State ex rel. Gould v. Superior Court, 151 Wash. 413, 276 P.2d 98. While it was not mandatory that defendant's attorney be present and testify, he could have testified as to what he did in the course of his relationship with the defendant insofar as his actions bear on the issue of whether an agreement had been reached. However, his declarations are not admissible to prove either the fact of agency or the extent of authority. Robert E. Lee Silver Mining Co. v. Englebach, 18 Colo. 106, 31 P. 772. The court's ruling that the testimony of the attorney was essential to a determination of the authority of the attorney to submit the stipulation for and on behalf of defendant and that without such testimony defendant's claim must be denied constitutes reversible error.
Judgments of contempt and arrearage are set aside and the cause is remanded with directions that the trial court hold such further hearings as may be required to determine whether the parties had agreed to the contents of the stipulation, and for such further proceedings as may be necessary to resolve any remaining issues.
JUDGE ENOCH and JUDGE PIERCE concur.