Opinion
D081693
04-15-2024
In re the Marriage of ELIZABETH M. and TRACY N. TIPPETTS. v. TRACY N. TIPPETTS, Respondent. ELIZABETH M. TIPPETTS, Appellant,
Dennis Temko for Appellant. Cage & Miles and John T. Sylvester for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. DN175962, Patricia Garcia, Judge.
Dennis Temko for Appellant.
Cage & Miles and John T. Sylvester for Respondent.
McCONNELL, P. J.
In 2015, Elizabeth and Tracy Tippetts stipulated to dissolve their marriage and divide their property during a mandatory settlement conference in family court. At the conclusion of the conference, the court issued a minute order stating the parties had stipulated to a divorce judgment effective that day. The order also directed Tracy's counsel to prepare a judgment in accordance with California Rules of Court, rule 5.411.Thereafter, the parties entered a Marital Settlement Agreement (MSA) setting forth the terms of the judgment. Before judgment was entered, however, the parties attempted a reconciliation and voluntarily dismissed the matter.
Subsequent undesignated rule references are to the California Rules of court.
Shortly after, the reconciliation failed and the parties continued acting on the MSA's division of property. In 2019, Tracy filed a new petition for divorce and sought enforcement of the MSA. Over Elizabeth's objection, the family court found that the parties were divorced during the previous proceeding, and issued orders directing the clerk to vacate the prior dismissal and enter judgment in the first case. Elizabeth now appeals, arguing the dismissal should not have been set aside because judgment was never entered, and thus the dismissal was effective.
For reasons we shall explain, we agree with Elizabeth. Therefore, we reverse the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Elizabeth filed for divorce from Tracy after six years of marriage (case number DN175962). The parties shared no minor children. At a mandatory settlement conference on July 30, 2015, Elizabeth and Tracy reached a settlement of their divorce proceedings. That day, the court issued a minute order adopting as an order the parties' stipulated settlement and stating "judgment" was "granted eff[ective] 7-30-2015." The minute order directed respondent, Tracy, to prepare a final order after hearing of the judgment in accordance with rule 5.411. The minute order also set a family resolution conference for December 16, 2015, and retained "jurisdiction over all outstanding issues."
Under a separate five-page stipulated order filed the same day, the parties agreed they were separated in August 2011, and each party was awarded certain property, including real estate, vehicles, and the furniture and furnishings in their possession. In addition, Tracy agreed to pay Elizabeth $10,000 as an equalization payment within 30 days; each party otherwise waived their rights of credit and reimbursement; each party received the retirement accounts, bank accounts, and credit card accounts held in their own names; and each party waived their right to spousal support.
A three-year statutory dismissal hearing took place on August 16, 2016. The minute order for the hearing shows Tracy's counsel was in the process of preparing the MSA and judgment. The final MSA was signed by Elizabeth on June 20, 2016 and by Tracy on February 20, 2017. The MSA stated the "parties appeared in open court on July 30, 2015, and entered into a stipulation which disposed of all issues before the Court. The stipulation anticipated that its terms would be incorporated into a Marital Settlement Agreement which would then be made the Judgment of the Court. Thus, the parties are entering into this Marital Settlement Agreement. At the time the stipulation was entered into, the Court terminated the parties' marital status, effective as of July 30, 2015."
The MSA recited the same spousal support waivers and division of real properties, vehicles, retirement accounts, bank accounts, and credit cards set forth in the prior stipulation. It also contained the $10,000 equalization payment to be made from Tracy to Elizabeth within 30 days. In addition, the MSA included a section titled "Reconciliation," which stated, "[a]ny reconciliation between the parties shall not cancel, terminate, or modify the force or effect of any provision of this Agreement awarding, confirming or assigning assets or obligations to either party, unless the parties agree to the contrary in writing." Finally, the MSA stated it was the "final, complete, and exclusive agreement of the parties."
At some point before June 12, 2017, the parties submitted the MSA and proposed judgment to the family court. Thereafter, the parties reconciled and, on June 12, 2017, they jointly submitted a request for dismissal of the divorce proceedings. The court granted the request and the clerk returned the previously submitted MSA and judgment.
The reconciliation failed, and on September 6, 2019, Tracy filed a new divorce petition, which was assigned a new case number, 19FL010889N. On October 7, 2019, Elizabeth filed a response, also requesting divorce. In her response, Elizabeth asserted that two real properties awarded to Tracy in the MSA were community property to be divided between them. On November 12, 2019, Tracy filed an ex parte application seeking injunctive relief to prevent Elizabeth from "selling or encumbering" one of the properties, a condominium in Puerto Vallarta, Mexico. The application stated that Elizabeth had "represented to [Tracy] and his counsel that she is the sole owner" of the condo. The application also indicated that Elizabeth had sold one of the properties awarded to her by the MSA. The court granted the request, ordering the condo "not be 'transferred,' etc.... [pending] further order of the court."
On January 7, 2020, Tracy filed a request for exclusive control of the Puerto Vallarta condo and that Elizabeth put the proceeds from the sale of another property in trust to offset any violation of the court's orders related to the condo. Tracy's declaration in support of the request explained that the Puerto Vallarta condo was held in Elizabeth's name because he is not a citizen of Mexico. However, Tracy stated the residence was paid for by his separate property savings and that he had paid for all expenses associated with the condo. In her declaration in response to the request, Elizabeth stated she was living in the condo and that she did not agree to Tracy's exclusive use of the property.
After a hearing on February 14, 2020, the court ordered that Elizabeth could remain in the Puerto Vallarta condo and Tracy could not use or possess the property, but that the condo could not be sold or otherwise encumbered. The court also denied Tracy's request for the proceeds of the sale of the other property by Elizabeth to be placed in trust.
On May 13, 2021, the parties submitted a proposed stipulated order agreeing they were separated on August 1, 2011, and stating the court could "at this time make an order terminating their status as husband and wife." They further agreed to waive spousal support, and asked that any remaining issues relative to the division of property be determined separately in a bifurcated proceeding. The court entered the stipulated order the same day.
Trial on the remaining issues took place on October 11 and 12, 2022. The issues set for trial included the division of two real properties identified by Elizabeth as community property, including the Puerto Vallarta condo, claims for breach of fiduciary duty and sanctions, and Tracy's request for "enforcement of the previously unadopted MSA." In his trial brief, Tracy asserted that the MSA remained a valid contract and that both parties had followed its terms even after they reconciled, with the exception of the Puerto Vallarta condo.
At trial, the parties agreed to bifurcate the proceedings and for the court to hear the issue of enforcement of the MSA before considering property division and the other issues. The court also accepted a stipulation that Elizabeth sold a property that she had purchased using the proceeds from the sale of another property awarded to her by the MSA. Tracy and Elizabeth both testified at trial. Tracy stated that despite the subsequent dismissal of the divorce proceeding, he understood the MSA to be valid and binding and he had complied with all of his obligations under the agreement. He also testified during cross-examination that he asked his counsel to dismiss the prior divorce proceeding.
Tracy testified that after he filed for divorce in September 2019, Elizabeth flew to Puerto Vallarta and, without notice, took possession of the condo and changed the locks. He testified that Elizabeth had not used or possessed the Puerto Vallarta condo from 2015 to that point. Tracy stated he was forced to cancel several AirBNB reservations that were booked and to fire the cleaning person, who cleaned and watered plants three times a week. In addition, he testified that Elizabeth significantly changed the condo, repainting it, changing the fixtures, and replacing the furnishings, and then began to rent it on AirBNB under a new listing she created.
Elizabeth testified that she believed after the request for dismissal was filed, the MSA was no longer valid. With respect to the termination of marital status, Elizabeth testified that she did not understand what the term "status" meant, but that on July 30, 2015, she "requested [her] last name to go back to [her] maiden name." She did not recall if the request was granted. She did use her maiden name in August 2015 on the purchase of a property, but she never changed her social security card or driver's license back to her maiden name. She also stated that when the dismissal was filed she did not believe that she was returning to the status of a married woman. In addition, Elizabeth testified that Tracy had paid her the $10,000 equalization payment under the MSA and that she was aware of his efforts to refinance another property awarded to him under the MSA so that it was no longer in her name. She also conceded that Tracy had complied with all of the MSA's terms and that she sold properties that were awarded to her as her separate property under the MSA.
During Tracy's testimony, the family court asked his counsel about the parties' marital status. Specifically, the court pointed out that the MSA stated that the court terminated marital status on July 30, 2015, and asked whether that was accurate. Tracy's counsel responded that it was and that the status was terminated on the record during the prior proceedings. Counsel later confirmed this was reflected on the court's minute order for that date, and the family court subsequently stated on the record that the minute order showed both the termination of marital status and that the prior court granted Elizabeth's request to adopt her maiden name.
The family court also asked why Tracy had filed another petition for divorce if marital status had already been terminated. Tracy's counsel stated that he did not represent Tracy at the time he filed the second petition, and that it might not have been necessary. Counsel also stated that the clerk probably should have rejected the parties' dismissal since their marital status had already been terminated at the July 30, 2015 hearing. Tracy's counsel conceded he did not know how the original family court's failure to enter judgment and its subsequent dismissal of the case affected the termination of marital status. Elizabeth's attorney stated he had seen dismissals after termination of marital status in other matters, and in those cases the parties' termination of marital status was undone by the dismissal.
At the conclusion of testimony, counsel provided closing statements. After the family court asked several questions about the July 30, 2015 hearing at which status was taken, the court took the matter under submission. On October 31, 2022, the court reconvened the parties to announce its decision. The court found that a "status judgment had already been entered on July 30, 2015, which was never set aside or vacated," thus "pursuant to Code of Civil Procedure section 581 ... the parties' request for dismissal filed on June 12, 2017 was improper and should not have been granted." The court vacated the dismissal, and found the "Status Judgment and the Stipulation &Orders signed by the parties" on July 30, 2015 "remain[ed] in full force and effect."
On December 2, 2022, the family court entered a final judgment in the original case, DN175962, stating the marital partnership status was terminated and the parties were restored to the status of single persons on July 30, 2015. Elizabeth timely appealed from that judgment.
Elizabeth also appealed from the October 31, 2022 order entered in Case No. 19FL010889N, and several other minute orders in that case. Elizabeth then filed a request to consolidate that appeal (assigned case number D081488) with this subsequent appeal of the judgment in case number DN175692. We dismissed the initial appeal on the grounds it was taken from nonappealable orders and denied the request to consolidate.
DISCUSSION
In this unusual procedural circumstance, Elizabeth asserts the family court erred by finding a judgment was entered on July 30, 2015, and that the parties' subsequent dismissal of the divorce proceeding was therefore invalid. Tracy responds that the July 30, 2015 oral rendering of judgment and minute order did constitute a valid judgment, which the family court appropriately concluded precluded the subsequent dismissal. In addition, Tracy asserts that Elizabeth waived her right to appeal by failing to provide this court with the reporter's transcript from the July 30, 2015 proceeding and that she is estopped from challenging the judgment because she unconditionally accepted the benefits of the MSA, expressly invited entry of the judgment, and has otherwise failed to demonstrate prejudice.
The crux of this case is whether the court's minute order on July 30, 2015, which states that judgment is granted effective July 30, 2015, but also directs Tracy's counsel to prepare a final judgment in accordance with rule 5.411, constitutes a final judgment precluding the subsequent stipulated voluntary dismissal of the action on June 12, 2017. Because the facts are not in dispute, and this procedural question is one of pure law, we review it de novo. (See In re Marriage of Schleich (2017) 8 Cal.App.5th 267, 276 ["We review questions of law presented on undisputed facts de novo. [Citation.] We also apply an independent standard of review to questions of statutory interpretation."]; Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 262 ["Because the trial court's application of [Code of Civil Procedure] section 581 to undisputed facts is a question of law, we apply the independent standard in reviewing on appeal the trial court's determination."].)
I
Legal Standards
Unlike civil and criminal cases, there can be more than one "judgment" in a dissolution proceeding. A legal separation, dissolution, or nullity judgment can be followed by a later judgment on spousal support, property division, and child custody. (See In re Marriage of Fink (1976) 54 Cal.App.3d 357, 366 ["the Family Law Act, as augmented and interpreted by the Judicial Council rules, authorize a trial court, in its discretion, not only to bifurcate the trial, but to enter a separate interlocutory judgment of dissolution before other issues have been litigated"].) A dissolution, or "status," judgment settles the parties' marital status and dissolves the marriage. What constitutes a dissolution judgment that precludes dismissal of the proceedings is governed by the Family Code, specifically Family Code section 2338.
Subsequent undesignated statutory references are to the Family Code.
Under subdivision (a) of section 2338, "in a proceeding for dissolution of the marriage or legal separation of the parties," the court files "its decision and any statement of decision as in other cases." Under subdivision (b), "[i]f the court determines that no dissolution should be granted, a judgment to that effect only is entered." (§ 2338, subd. (b).) Under the statute's last subdivision (c), ["i]f the court determines that a dissolution should be granted, a judgment of dissolution of marriage is entered." (§ 2338, subdivision (c).) Critically here, section 2338, subdivision (c) further provides: "After the entry of the judgment and before it becomes final, neither party has the right to dismiss the proceeding without the consent of the other." (Italics added.)
The Family Code also provides that a dissolution judgment becomes final only after the passage of six months. Section 2339, subdivision (a), states a "dissolution is final for the purpose of terminating the marriage relationship of the parties" once "six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first." The provision also allows the court to "extend the six-month period described in subdivision (a) for good cause shown." (§ 2339, subd. (b).)
Entry of judgment in the family court is a two-step process-the preparation and submission of the proposed judgment and signature and filing for entry-that is guided by the Rules of Court. (See In re Marriage of Dover (1971) 15 Cal.App.3d 675, 678, fn. 3 ["The Family Law Rules ..., including forms for use in such matters" are "controlling over both statutory and decisional law. [Citation.] We must thus look to these Family Law Rules of Court before looking to the laws applicable to civil actions generally to determine the appropriate practice and procedure."].) Where, as in the first divorce proceeding in this case, the judgment is not contested, rule 5.411 governs the judgment's entry.
The rule, titled "Stipulated judgments," states, "(a) Format
A stipulated judgment (which must be attached to form FL-180 or form FL-250) may be submitted to the court for signature as an uncontested matter or at the time of the hearing on the merits and must contain the exact terms of any judgment proposed to be entered in the case. At the end, immediately above the space reserved for the judge's signature, the stipulated judgment must contain the following:
The foregoing is agreed to by: (Petitioner) (Respondent) Approved as conforming to the agreement of the parties: (Attorney for Petitioner) (Attorney for Respondent) (b) Disposition of all matters required
A stipulated judgment must include disposition of all matters subject to the court's jurisdiction for which a party seeks adjudication or an explicit reservation of jurisdiction over any matter not proposed for disposition at that time. A stipulated judgment constitutes a written agreement between the parties as to all matters covered by the stipulation." (Rule 5.411.)
Thus, under section 2338, subdivision (c), and rule 5.411, once judgment is entered in accordance with the rule, dismissal by one party is precluded. (See Hogoboom &King, Cal. Practice Guide: Family Law (The Rutter Group 2023) ¶ 15:283, p. 15-71 ["As noted earlier, entry of a dissolution judgment simply determines a dissolution should be granted .... Until the specified finality date arrives, the proceeding remains subject to dismissal although, once the judgment is entered, a dismissal is allowed only with the consent of both parties.... Typically, a postentry/prefinality dismissal is motivated by the parties' reconciliation."]; see also Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 152 ["In a court trial, rendition of judgment occurs when the court signs and files the findings, conclusions and the judgment."].) It follows logically that dismissal of the dissolution judgment is permitted before judgment is entered in accordance with rule 5.411. A dismissal before a marital status "judgment becomes finally effective leaves the marriage or domestic partnership intact, as if the proceeding had never been commenced." (Hogoboom &King, Cal. Practice Guide: Family Law, supra, ¶ 15:283, p. 15-71.; see also In re Estate of Smith (1966) 241 Cal.App.2d 205, 209 [Parties "continue to be husband and wife until the entry of the final judgment of divorce."].)
In addition, where the parties intend the provisions of their settlement agreement to become an operative part of the judgment and to be enforceable as such, not just as a contract, the agreement must be incorporated (or merged) into the judgment. (See In re Marriage of Thorne &Raccina (2012) 203 Cal.App.4th 492, 499 ["Under the doctrine of res judicata,' "[i]f a property settlement is incorporated in the divorce decree, the settlement is merged with the decree and becomes the final judicial determination of the property rights of the parties."' "].) Filing a stipulated judgment signed by the parties, like the MSA here, does not result in a merger. Rather, merger occurs when the stipulated judgment becomes a judgment of the family court-that is, when it is signed and filed by the court. (Rule 5.411, see also In re Marriage of Jones (1987) 195 Cal.App.3d 1097, 1103-1104 (Jones) [MSA merged into interlocutory judgment of dissolution where agreement contained explicit language to that effect and evidence showed that was the intent of the parties].)
Stipulated agreements, however, if not merged into an interlocutory or final judgment, "are enforceable as a contract." (Jones, supra, 195 Cal.App.3d at p. 1104; see § 2128, subd. (b) ["Nothing in this chapter changes existing law with respect to contract remedies where the contract has not been merged or incorporated into a judgment."].) Thus, like all contracts, a marital settlement agreement that is not reduced to a judgment is "analyzed and interpreted in light of the parties' mutual intent and according to statutory requirements for the interpretation of contracts." (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 522.)" 'Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. [Citations.]' In determining this intent, '[t]he rules governing policy interpretation require us to look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it.'" (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 288.)
II
Judgment Was Not Entered in the Prior Proceeding
Under these legal standards, we agree with Elizabeth that judgment was not effectively entered in the original divorce proceeding, and therefore the parties' subsequent joint voluntary dismissal of the matter was effective. Although the July 30, 2015 minute order indicates that the judgment is effective that date, it explicitly directed Tracy's counsel to prepare the judgment in accordance with rule 5.411. There is no dispute the MSA was prepared but never entered by the court.
In addition, the later drafted MSA explicitly specified the same, stating that the "parties appeared in open court on July 30, 2015, and entered into a stipulation which disposed of all issues before the Court. The stipulation anticipated that its terms would be incorporated into a Marital Settlement Agreement which would then be made the Judgment of the Court." This language makes clear that at the time Tracy and Elizabeth entered the MSA, they understood that judgment had not yet been entered and they agreed the MSA would become the court's judgment, dissolving their marriage as of July 30, 2015. There is no dispute that the MSA, incorporating the terms of the settlement reached at the mandatory settlement conference, was prepared and signed by the parties but never signed or entered by the court.
In light of these undisputed facts, the family court's finding that judgment was entered by the court's minute order on July 30, 2015 was error. Although the parties initially intended their MSA would be presented to the court in the form of a stipulated judgment, which would become the judgment of dissolution in the initial family law case, that did not occur. Instead, Tracy and Elizabeth attempted a reconciliation and dismissed the case without prejudice. Accordingly, the family court had no basis to vacate the dismissal and direct the entry of judgment in case number DN175962.
We also note that the court was acting sua sponte in this ruling. Tracy requested only enforcement of the MSA and did not ask the court to vacate the dismissal. This was sensible since, contrary to the assertions he makes in his appellate brief that Elizabeth alone entered the dismissal, he and Elizabeth jointly dismissed the prior case.
Tracy points to Code of Civil Procedure section 581, subdivision (c) in support of his assertion that judgment was effectively entered. This statute, which applies generally in civil cases, states that a plaintiff may dismiss his or her action "with or without prejudice prior to the actual commencement of trial." (Code Civ. Proc., § 581, subd. (c).) This statute, however, is superseded in this family law case by the more specific requirements of section 2338, subdivision (c), which allows a dismissal before "entry of the judgment," even without the consent of both parties. Here, the parties filed the dismissal by agreement in accordance with section 2338 before the dissolution judgment was entered by the court. The dismissal was accepted by the court the same day. Accordingly, the dismissal was effective, and the present family court had no basis to vacate the dismissal and order entry of judgment.
Tracy argues that the stipulated judgment reached by the parties was effective on July 30, 2015, the date it was "rendered," and not at the point of entry. In support, he cites Casa de Valley View Owner's Assn. v. Stevenson (1985) 167 Cal.App.3d 1182 (Stevenson). Stevenson concerned a settlement between a homeowners association, and certain members of the association, with the defendant developer. After reaching the settlement agreement, the members of the association accepted the benefits of the settlement, $20,000, but refused to sign promised releases in favor of the homeowners association who they had separately sued. (Id. at p. 1187.) The homeowners association brought a motion to enforce the judgment under Code of Civil Procedure section 664.6 in order to obtain the releases, which the trial court granted over the members' objection. (Stevenson, at p. 1187.)
On appeal, among other challenges, the members argued the judgment the association sought to enforce was void because the association had dismissed its claims with prejudice in accordance with the settlement agreement by the time the final judgment was "entered." (Stevenson, supra, 167 Cal.App.3d at p. 1192.) In rejecting this argument, the Court of Appeal concluded that the dismissal did not preclude the association's motion because although the formal judgment had not yet been entered, the court had already "rendered" judgment in the case by granting the association's motion to enforce under Code of Civil Procedure section 664.6. The court held Code of Civil Procedure "[s]ection 581 only authorizes a voluntary dismissal 'before decision rendered by the court.' (§ 581, [former] subd. 5.) Accordingly, the [a]ssociation by filing a voluntary dismissal did not, and could not, divest the court of jurisdiction once the court announced its ruling and decision on" the association's motion. (Id. at pp. 1192-1193.)
Unlike section 2338, subdivision (c), the version of Code of Civil Procedure section 581 at issue in Stevenson allowed for dismissal only until the court's decision was "rendered," not until it was entered. Because of this critical distinction, Stevenson does not support Tracy's assertion that the July 30, 2015 minute order constituted a judgment that precluded his and Elizabeth's joint voluntary dismissal of the prior divorce proceeding. Contrary to Tracy's assertion, the crucial event in this case, under section 2338, is when judgment was entered, not when it was rendered. Because judgment was never entered, the parties' voluntary dismissal was effective and the family court's orders to the contrary were made in error.
Another case cited by Tracy, McClain v. Rush (1989) 216 Cal.App.3d 18, also has no direct bearing on this case. In McClain, the Court of Appeal rejected the plaintiffs' assertion that a judgment against certain codefendants entered after their successful summary judgment motion did not have preclusive effect because the co-defendants were later dismissed from the action. In rejecting the plaintiffs' argument, the court stated the "idea of filing a dismissal after the rendition of a judgment is an anomaly" and held the dismissal had no effect on the judgment's preclusive effect. (Id. at pp. 2526.) Unlike here, in McClain there was no question that the trial court had entered judgment in favor of the co-defendants and against the plaintiff.
Tracy raises several additional arguments in support of the family court's decision. He argues Elizabeth waived the right to set aside the "judgment" in the prior case because she failed to provide an adequate record for review. He also argues that she is estopped from appealing because she accepted the benefits of the prior judgment and she invited the entry of the judgment she now challenges. Finally, he contends that reversal is not required because Elizabeth has failed to demonstrate prejudice.
On the issue of waiver, Tracy contends the record submitted by Elizabeth is insufficient to support her appeal because she did not include a reporters transcript from the July 30, 2015 mandatory settlement conference. We disagree. As discussed, the record before this court makes clear that the prior family court and the parties did not intend to enter judgment at the July 30, 2015 settlement conference and instead contemplated the preparation of a judgment to be submitted in accordance with rule 5.411.
With respect to Tracy's estoppel arguments, we do not agree that Elizabeth accepted the benefits of a prior judgment because we conclude no such judgment was entered. Likewise, Elizabeth's agreement at the mandatory settlement conference to the terms of the settlement did not invite the current family court to err. Rather, at the time of the settlement she did agree to its terms. Thereafter, she and Tracy attempted a reconciliation and dismissed the divorce proceeding before the judgment was entered.
Lastly, Tracy contends that the family court's error was not prejudicial because "Tracy would have the right to seek enforcement of the underlying stipulation as a judgment at any time in the subsequent divorce action." However, because no judgment was entered, the MSA is not enforceable as such. Nonetheless, Tracy does maintain whatever contractual rights he has with respect to the MSA, rights he was attempting to enforce in the proceedings leading to this appeal. This fact, however, does not establish a lack of prejudice to Elizabeth from the family court's decision. Rather, in any further proceedings in case number 19FL010889N, Tracy is free to make the same contractual arguments he asserted at trial, including with respect to the MSA's provision precluding rescission by reconciliation. Elizabeth, likewise, is free to oppose such arguments. It is not this court's role to rule on the enforceability of the MSA in the first instance, and Tracy provides no basis for this court to make such a determination.
DISPOSITION
The orders of the family court vacating dismissal and directing entry of judgment in case number DN081488 are reversed. The cause is remanded to the family court with directions to conduct such further proceedings as may be necessary in case number 19FL010889N. Appellant is awarded the costs of appeal.
WE CONCUR: BUCHANAN, J., CASTILLO, J.