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Takusagawa v. Takusagawa

September 7, 2007

IN THE MATTER OF THE MARRIAGE OF FUSAO TAKUSAGAWA, APPELLEE,
v.
MIEKO TAKUSAGAWA, APPELLANT.



Appeal from Douglas District Court; JEAN F. SHEPHERD, judge.

SYLLABUS BY THE COURT

When an oral divorce settlement agreement is recited on the record in court and acknowledged by the parties, any applicable requirements of the statute of frauds for a written, signed memorandum evidencing the agreement are met. The transcript suffices even if it is prepared later because a memorandum need not be prepared before formation of the contract to fulfill requirements of the statute of frauds. A written signature or mark by the party to be charged with the agreement is not needed when that party has acknowledged his or her assent to it on the record during a court hearing.

The opinion of the court was delivered by: Leben, J.

Affirmed.

Before MALONE, P.J., BUSER and LEBEN, JJ.

Mieko Takusagawa appeals the trial court's decision approving and enforcing an oral separation agreement in this divorce case. She raises several claims. First, she claims that she was coerced into making the agreement, a claim the trial court rejected after an evidentiary hearing. Second, she challenges the trial court's failure to inquire directly of the parties about whether the agreement was fair. Third, she argues that the trial court's independent finding that the agreement was fair is in error. Last, she argues that the separation agreement should be held ineffective in transferring interests in real estate on the basis that the parties' oral settlement agreement did not comply with the statute of frauds.

Mieko and Fusao Takusagawa were married in 1977. Fusao filed for divorce in May 2002. A divorce decree was granted on June 23, 2003. Financial issues remained unresolved, however, and a trial on those matters was set for October 15, 2003.

Two days before trial, no settlement had been reached. The events leading up to an apparent settlement were recounted in the trial court's findings:

"Two days before the scheduled hearing, [Mieko] received an email from her adult son, Ken, who forwarded to her a message that he and his sister had received from [Fusao] requesting that the children assist their mother prior to the final hearing with advice about what [Fusao] believed was an illegal action, a purported tax violation which occurred when [Mieko] failed to disclose to United States customs approximately $100,000 U.S.D. in Japanese yen which she brought into the United States from Japan. [Fusao] asked the children to advise [Mieko] about the situation so she could decide whether she wanted to settle the property issues out of court. In the email [Fusao] told the children that his attorney would raise this issue at trial. [Fusao] neither sent the email to [Mieko] nor did he ask their children to do so.

"On the day of the final hearing, the parties reached an agreement and the specifics of the agreement were put on the record. Both parties stated under oath that this was their understanding of the agreement. The hearing concluded with the attorneys agreeing to finalize the settlement paperwork according to the agreed-upon terms.

"[Mieko] later refused to sign the agreement and subsequently filed a motion to set aside the settlement agreement, alleging that [Fusao's] email constituted a threat, that her agreement to the settlement was made under duress or coercion, and that the terms were unfair, unjust, and inequitable and, as such, were void."

The trial judge, the Honorable Jean Shepherd, found no coercion. Judge Shepherd made several specific findings about the weight of the evidence on key issues. She specifically held that there was "no evidence" supporting any of these conclusions:

that the email "was sent with the purpose of threatening or coercing" Mieko;

that Fusao "intended to secure an undue advantage over [Mieko] or deprive her of her exercise of free will"; and

that the email "caused [Mieko] to act to her detriment."

Judge Shepherd held that Mieko had "failed to establish with substantial evidence" that the "email was a threat that induced [her] to act to her detriment under strain of duress or coercion." Judge Shepherd concluded that the terms of the settlement were "highly favorable" to Mieko and that the email "was little more than an attempt to prevent [Mieko's] potential liability from coming to light at the hearing." After finding no basis to set aside ...


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