In the Supreme Court of Georgia



                                          Decided: February 1, 2016


                      S15F1535. STEELE v. STEELE.

      HUNSTEIN, Justice.

      Pursuant to Supreme Court Rule 34 (4), we granted the application for

discretionary appeal filed by Appellant Thomas Jerry Steele (“Husband”)

seeking leave to challenge the final judgment and decree effectuating his divorce

from Appellee Ashley Olivia Steele (“Wife”). Husband contends that the trial

court improperly incorporated into the divorce decree a settlement agreement

that is unenforceable. We find no error and affirm.

      Wife filed her complaint for divorce in 2011. Just before jury selection

in their November 2014 specially-set trial, the parties, through their counsel,

negotiated a Memorandum of Settlement, which was memorialized in a partially

typewritten and partially handwritten document signed by both parties and their

counsel. In the Memorandum, the parties agreed, inter alia, that Wife would

receive lump-sum alimony, to be satisfied either by a $400,000 cash payment,

to be made by November 24, 2014, or else by a deed granting Wife a 40%
interest in Husband’s residence in Rosemary Beach, Florida. The Memorandum

also provided that Husband would file, or cause others to file, a dismissal with

prejudice of certain lawsuits being prosecuted by him and his adult sons against

Wife. The parties announced to the trial court their settlement, with each

acknowledging, under oath, that they had signed the Memorandum and believed

it was “fair and reasonable.”

      Wife’s counsel thereafter drafted a proposed divorce decree incorporating

the terms of the Memorandum and presented it to Husband’s counsel. Husband

refused to execute it. Approximately one month later, still lacking Husband’s

agreement, Wife filed a motion to enforce. Following a hearing, the trial court

granted Wife’s motion to enforce and entered the decree proposed by Wife as

the Final Judgment and Decree of Divorce.

      1. Husband contends that the trial court erred in adopting the provisions

of the Memorandum because it lacked essential terms and was therefore

unenforceable. Our review of the enforceability of a settlement agreement is de

novo. Allen v. Sea Gardens Seafood, Inc., 290 Ga. 715 (2) (723 SE2d 669)

(2012). It is well-established that “[s]ettlement agreements in divorce cases are

construed in the same manner as all other contractual agreements.” Buckner v.


                                       2
Buckner, 294 Ga. 705, 708 (1) (755 SE2d 722) (2014). No contract exists

unless the parties have agreed on all essential terms, and “the failure to agree to

even one essential term means there is ‘no agreement to be enforced.’” Reichard

v. Reichard, 262 Ga. 561, 564 (2) (423 SE2d 241) (1992). Essential terms of a

contract include the subject matter and purpose of the contract, the identity of

the parties, and the consideration. John K. Larkins, Jr., Ga. Contracts Law and

Litigation § 5:1 (2d ed.) (database updated Sept. 2015). Compare Moss v.

Moss, 265 Ga. 802 (463 SE2d 9) (1995) (method of appraising real property

was an essential term of divorce settlement agreement requiring transfer of

property of a specified value), with Kreimer v. Kreimer, 274 Ga. 359 (2) (552

SE2d 826) (2001) (identity of particular stocks to be transferred under divorce

settlement agreement was not an essential term where parties had agreed that

transfer would leave each party with shares of equal after-tax value).

      Husband recites a litany of items that were not addressed in the

Memorandum of Settlement and, on this basis, contends the Memorandum was

incomplete and incapable of enforcement. None of these omitted items,

however, was essential to the formation of a binding agreement. Most of these

items – for example, the time frame for execution of the written agreement and


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approval by the trial court and the “method for presentation” of the agreement

to the court – relate only to non-material procedural matters, not the substance

of the parties’ rights and obligations. See Buckner, 294 Ga. at 707 (time and

method for exchange of awarded property was not an essential term). Likewise,

the omission of a legal description or address for the Rosemary Beach property

is of no consequence, as it is undisputed that Husband owns only one property

in Rosemary Beach. The same is true of the failure to include the case names

or styles of the lawsuits Husband agreed to dismiss, where there is no dispute

between the parties as to the identity of the suits in question.1              The

Memorandum’s failure to address jointly owned property, which Husband also

decries, is not a fatal omission, given that he has adduced no evidence (nor even

alleged) that any such property exists. In short, the Memorandum “was not

inadequate or unenforceable as a result of leaving substantive matters for later

resolution.” Buckner, 294 Ga. at 708.

      1
       Regarding this provision, Husband also claims the Memorandum is
unenforceable because it requires Husband to ensure the performance of third parties
who are not bound by the agreement – namely, his sons. However, though this fact
might pose challenges to Husband’s ability to perform under the agreement, it does
not render the agreement unenforceable. If Husband believed he lacked the ability
to convince his sons to dismiss the lawsuits – a dubious contention given that they
apparently share the same counsel in at least some of their litigation – then he was
unwise to agree to this provision.
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      2. Once a trial court determines that a divorce settlement agreement is

enforceable, it then must discharge its “duty to make an independent

determination of ‘whether [the agreement’s] contents are within the bounds of

the law.’” Buckner, 294 Ga. at 710. In fashioning its final judgment and decree,

the trial court retains “the discretion to approve or reject a divorce settlement

agreement in whole or in part.” Id.; accord Gravley v. Gravley, 278 Ga. 897 (2)

(608 SE2d 225) (2005).

      Here, the trial court conducted an evidentiary hearing on Wife’s motion

to enforce, at which it heard testimony from Husband’s former attorneys – who

had by that time withdrawn from the case – regarding the negotiation and

execution of the Memorandum. The court also received evidence that, a few

weeks after the Memorandum was signed, Husband conveyed the Rosemary

Beach property to a judgment creditor to secure payment under a consent

judgment settling separate litigation. To the extent Husband now claims that

this “change of circumstances” militates against enforcement of the

Memorandum, we disagree. See Arnold v. Arnold, 282 Ga. 246 (647 SE2d 68)

(2007) (trial court did not abuse discretion in approving and incorporating

divorce settlement agreement despite circumstances arising after execution


                                       5
thereof). This is particularly true here, where Husband himself agreed to

mortgage the property despite having full knowledge of the obligations he had

already assumed under the Memorandum. See generally Mobley v. Lott, 127

Ga. 572 (56 SE 637) (1907) (party may be held liable for breach of contract

where he renders his performance impossible by his own acts). The trial court

did not, therefore, abuse its discretion in incorporating the terms of the

Memorandum into the final divorce decree.

      3. Once a trial court has approved a divorce settlement agreement, the

court must ensure that the resulting divorce decree accurately reflects the terms

of the settlement. DeGarmo v. DeGarmo, 269 Ga. 480 (1) (499 SE2d 317)

(1998). In this case, comparing the Memorandum of Settlement to the final

judgment and decree of divorce, we conclude that the latter accurately reflects

the former. Contrary to Husband’s contention, the mere fact that the divorce

decree sets forth certain terms more artfully and with greater specificity than the

Memorandum does not render it inaccurate or improper. Though Husband

makes much of the fact that the divorce decree states that the parties’ marriage

is “irretrievably broken” while the Memorandum is silent on the grounds for

divorce, the addition of this term in the final divorce decree was proper given


                                        6
that the grounds for divorce have never been in dispute. See Buckner, 294 Ga.

at 707-708 (addition of provision regarding assignment of debt on assets was

not improper, where such assignment was never contested between the parties).

The fact that the Memorandum provided that each party would keep all property

“in their respective names,” whereas the final decree states that each party is to

keep all property in their “possession,” is of no moment, absent any evidence

that either party actually possesses property that is titled in the other’s name. Cf.

DeGarmo, 269 Ga. at 480-481 (final decree did not accurately reflect settlement,

where decree contained exceptions to award of property that were not included

in the settlement agreement, and other substantive terms regarding inheritance

rights and confidentiality were added). In sum, the final judgment and decree

accurately reflects the terms set forth in the Memorandum.

      4. To the extent the final decree incorrectly represents that both parties

have consented to its entry, such infirmity is of no consequence, as the decree

is, in substance, an order enforcing the parties’ settlement agreement. See Allen,

290 Ga. at 717. The trial court did not err in entering the final judgment and

decree to dispose of Wife’s motion to enforce. Accordingly, we affirm.2

      Judgment affirmed. All the Justices concur.

      2
          Wife’s motion to dismiss is hereby denied.
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