Opinion
Rehearing Denied Sept. 17, 1974.
Page 921
Ashen & Fogel, George T. Ashen, John F. Griebel, Denver, for petitioner-appellee.
Robert L. Gee, Denver, for respondent-appellant.
STERNBERG, Judge.
The respondent, husband, in this dissolution of marriage case seeks to set aside a verbal stipulation made in open court. On denial of his motion by the district court, he appeals. We affirm.
The marriage of the parties was dissolved by decree entered on March 29, 1973. Immediately prior to entry of the decree, the attorney then representing the husband read into the record a stipulation regarding matters ancillary to the dissolution. The wife and her attorney stated that they understood, agreed with, and approved the stipulation. In response to direct questions from the court, the husband stated that he also understood the agreement and felt it to be fair and equitable to both parties. The court found the agreement not unconscionable as to support, maintenance, and division of property, and accepted it. Then the court ordered that the wife's lawyer put it in 'writing, (have it) signed by the parties and their counsel, and made a part of the decree.'
The agreement was not typed up until some three months later, and by then the husband was represented by a new lawyer. Through inadvertence, two identical orders were prepared. Both were signed by the wife's attorney and presented to the court. They were dated July 2 and July 6, 1973, and both were entered by the court Nunc pro tunc to the date of the decree, March 29, 1973.
The first question relates to the validity of the stipulated agreement. At the time the stipulation was read into the record, the parties and their attorneys had reached a meeting of the minds on all essential details of the agreement, including division of property, custody, support, waiver of maintenance, and attorneys' fees. The primary explanation offered for the husband's subsequent change of mind is an assertion of undue pressure to settle exerted on him by his former attorney. The trial court found that the evidence presented on this point was totally inadequate and the record supports that finding. See Welborn v. Hartman, 28 Colo.App. 11, 470 P.2d 82. Neither is the fact that the husband changed attorneys a proper basis for invalidating the stipulation. In Eisenson v. Eisenson, 158 Colo. 394, 407 P.2d 20, the court stated explicitly that:
'A party to an action cannot stipulate in open court to one thing and then later change her mind and withdraw that consent . . .. And, change of counsel, as here, does not alter an admission made in open court.'
The husband also objects to the stipulation, apparently, because of subsequent thoughts about his desire to have custody of the children. While these new thoughts might justify the filing of a motion for a change of custody, they do not serve as a basis for voiding his agreement. In Goltl v. Cummings, 152 Colo. 57, 380 P.2d 556, our Supreme Court quoted with approval from Hansen v. Ryan, 186 S.W.2d 595 (Mo.), as follows:
'In the administration of justice and the prompt dispatch of business, courts must and do act upon the statements of counsel and upon the stipulations of parties to pending causes. Where the parties have voluntarily entered into a stipulation which appears fair and reasonable for the compromise and settlement of the issues of a pending cause, and where the stipulation is spread upon the record with the consent and approval of the court, as here, the parties are bound thereby . . ..'
The husband also urges that failure of the wife's attorney to reduce the verbal stipulation to writing as directed by the court should serve to vitiate the stipulation. The intention of the parties was unequivocally expressed in open court, and is binding on the parties. The failure of the wife's attorney to perform a ministerial act, that is, to put the agreement in writing and obtain the signatures of the parties, for whatever reasons that existed, should not defeat the stated intention of the parties. Cf. Nicholas v. Irigoyen, 100 Colo. 499, 68 P.2d 444. Both the reporter's transcript of the stipulated agreement and the written orders are in the record. A comparison of them shows no variance which would be prejudicial to the husband. Thus, we can conclude that the orders signed in July are competent summaries of the verbal stipulation and, as such, serve as written evidence thereof.
Since the other errors alleged by the husband concern matters that occurred subsequent to those covered by this appeal, and since they were not raised by the motion for new trial, we do not address them. Security Building Co. v. Lewis, 127 Colo. 139, 255 P.2d 405.
Judgment affirmed.
PIERCE and BERMAN, JJ., concur.