Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Colton v. Colton (12/23/2010) sp-6531

Colton v. Colton (12/23/2010) sp-6531

        Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 
        K   Street,   Anchorage,   Alaska   99501,   phone   (907)   264-0608,   fax   (907)   264-0878,   e-mail 


KENNETH L. COLTON,                              ) 
                                                )       Supreme Court No. S-13188 
                        Appellant,              ) 
                                                )       Superior Court No. 
        v.                                      )       3AN-08-04170 CI 
REBECCA K. COLTON,                              )       O P I N I O N 
                        Appellee.               )       No. 6531 - December 23, 2010 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Craig F. Stowers, Judge. 

                Appearances: Mary A. Gilson and Allison E. Mendel, Mendel 
                & Associates, Anchorage, for Appellant.  Leigh Ann Bauer, 
                Law Offices of Leigh Ann Bauer, Anchorage, for Appellee. 

                Before:      Carpeneti,     Chief    Justice,   Fabe,   Winfree,     and 
                Christen, Justices. [Eastaugh, Justice, not participating.] 

                CARPENETI, Chief Justice. 


                Former spouses reached agreement on property distribution and put the 

agreement on the record.  The agreement required the husband to make a cash payment 

to   the   wife. The   superior   court   issued   findings   and   conclusions   memorializing   the 

agreement and subsequently rejected the husband's request to set the agreement aside. 

The husband appeals, arguing that (1) the superior court clearly erred in finding that the 

husband agreed to make the payment because he did not understand that it would result 

----------------------- Page 2-----------------------

in   an   unequal   property   division,   and   (2)   the  superior   court   abused   its   discretion   in 

enforcing the agreement because it was made without the husband's full understanding. 

We conclude that the court did not clearly err in finding that the husband agreed to make 

the payment.     We also conclude that the superior court did not abuse its discretion in 

enforcing the agreement because the husband did not point to facts showing it was made 

without his full understanding.  Thus, we affirm the decision of the superior court. 


                After 20 years of marriage, Ken and Rebecca Colton separated and began 

divorce proceedings. On April 21, 2008, the parties engaged in court-assisted settlement 

negotiations.   Both Ken and Rebecca were represented by counsel.  The parties reached 

a global agreement on all child custody and property division issues and put it on the 

record the same day.       In this appeal, Ken argues that the agreement is unenforceable 

because it does not reflect a meeting of the minds.          The disputed item is a $47,121.04 

cash payment from Ken to Rebecca. 

        A.      Settlement On The Record 

                At the start of negotiations, Ken and his attorney provided the court with 

a document called the "Revised Settlement Spreadsheet" ("Ken's spreadsheet"), a list of 
all assets and liabilities to be divided between the parties.1  Ken's spreadsheet placed a 

value on each item and assigned each item to either Ken or Rebecca.                 Adding up the 

values by column, Ken's spreadsheet showed the "Total Assets and Debts" of the parties 

as $319,287.18 for Ken and $413,529.28 for Rebecca.                Below this appeared an item 

        1       The front page of Ken's spreadsheet reflected the proposed settlement as 

a whole and listed each major asset and liability separately, except for personal property 
which it lumped into two categories: "Personal Property Over $100" and "Personal 
Property Under $100." The personal property in those categories was broken down item 
by item on the following six pages. 

                                                 -2-                                            6531

----------------------- Page 3-----------------------

called "Payment to Equalize"; on this row, $47,121.04 was added to Ken's column and 

the same amount was subtracted from Rebecca's column. Below this, Ken's spreadsheet 

listed the ultimate "Total," including the equalization payment, as $366.408.22 for each 


                 Although all settlement talks took place off the record, it is clear that Ken's 

spreadsheet played a large part in the negotiations.   When the settlement was put on the 

record   later   that   afternoon,   the   court   said,   "the   parties   and   I   have   been   working 

principally off" Ken's spreadsheet in crafting the settlement.  When the court recited the 

agreed-upon   distribution   of   several   major   items   -   the   marital   residence,   vehicles, 

lawsuit   proceeds,   insurance,   and   retirement   plans   -   the   distribution   matched   that 

provided on Ken's spreadsheet.   The court also stated that "all the rest of the property as 

reflected on [Ken's spreadsheet] and all of the personal property as previously indicated 

on [Ken's] personal property spreadsheet . . . will each respectively go to the . . . spouse 

indicated . . . .   Then in terms of the debts, they're going to be divided as indicated on" 

Ken's spreadsheet.        Finally, the court said "at the end of the day to make a payment to 

ultimately settle the case . . . [Ken] has offered and [Rebecca] has accepted to receive 
a payment of $47,121.04 upon the refinancing of the marital home."2                 Assuming that this 

means that Ken has offered to pay $47,121.04 to Rebecca,3 this is the opposite of the 

"Equalization Payment" item from Ken's spreadsheet, which showed the same amount 

being paid to Ken from Rebecca.             Neither Ken nor his attorney objected.             In a brief 

        2        (Emphasis   added.)       We   note   that   this   sentence   was   phrased   somewhat 

ambiguously, and could be interpreted as meaning "Ken has offered . . . to receive a 
payment" from Rebecca.  However, Ken concedes that the court meant that Ken offered 
to pay, and Rebecca agreed to receive.   Further, any ambiguity is resolved by the court's 
subsequent statements that Ken should refinance the home in order to get the cash to pay 

        3        See supra note 2. 

                                                    -3-                                              6531

----------------------- Page 4-----------------------

exchange that followed, the court asked Kenwhether he could refinance the marital home 

within 60 days.       Ken promised he would try, and the court said: "If you come into a 

glitch in any respect that looks like it's going to cause delay, let [Rebecca] know, just so 

that [she's] not on the 59th day expecting to receive a check . . . ."            Again, neither Ken 

nor his attorney objected. 

                Although the court made frequent reference to Ken's spreadsheet, it made 

clear that the parties were not adopting the spreadsheet wholesale; specifically, the court 

emphasized that the parties could not come to agreement on the values of particular 

items, but rather had agreed to disagree on values and settle on the basis of an item-by- 

item distribution. 

                The attorneys questioned their clients regarding the settlement agreement. 

Both Ken and Rebecca agreed that they understood the settlement as it had been put on 

the record, that   they entered into the settlement voluntarily, that they knew it was final 

and binding, and that they believed it to be fair and equitable. Ken agreed that the court's 

recitation of the terms was a "fair and accurate description of what [he] agreed to."  The 

court   concluded   by   finding   that   both   parties   had   made   "knowing,   reasonable   and 

voluntary decisions" and that the property division was "fair and equitable."  The court 

asked that Ken's attorney prepare findings of fact and conclusions of law and attach as 

an appendix "the final version of the property spreadsheet that you submitted today 

which we were working from, as well as the supplemental or backup spreadsheet that 

indicated all the items of property and the distribution thereof, understanding that the 

parties have agreed to disagree with respect to specific values  . . . ." 

        B.      Findings Of Fact And Conclusions Of Law 

                Upon      reviewing     the  materials    in   preparation    for   drafting   the   final 

documents,   Ken's   attorney   says   she   noticed   for   the   first   time   that   an   "error"   had 

occurred.   In putting the settlement on the record, the court said that Ken was to make a 

                                                   -4-                                             6531

----------------------- Page 5-----------------------

$47,121.04       payment     to  Rebecca;     according     to Ken     and   his   attorney,   this   was 

"inconsistent with the spreadsheet adopted by the parties" -                which showed the same 

payment flowing in the opposite direction - and the attorneys' failure to correct the 

error on the record was a mutual oversight. Ken's attorney contacted Rebecca's attorney 

and tried to resolve the discrepancy. It is unclear whether Rebecca's attorney responded, 

but   she   later   stated   her   position   that   the   settlement   on   the   record   was   an   accurate 

reflection of the parties' agreement, that the parties had discussed the deviation from 

Ken's spreadsheet during the settlement negotiations, and that Ken's objections were 

simply "buyer's remorse." 

                On June 2, 2008, Rebecca's attorney filed proposed findings of fact and 

conclusions of law because Ken's attorney had not done so by the court's deadline.  The 

proposed findings and conclusions repeated the property distribution as it had been 

recited on the record and also cross-referenced each asset or liability with its appearance 

on Ken's spreadsheet.   The proposed findings included this provision: 

                Equalization Payment and Refinance of Marital Residence: 
                [Rebecca] shall receive the . . . $47,121.04 cash from [Ken] 
                . . . on or before June 21, 2008, from [Ken's] refinance of the 
                marital residence to equal the distribution of the marital estate 
                between   the   parties,   identified   as   the   next   to   the   last   line 
                listed as "Payment to Equalize" on [Ken's spreadsheet]. 

Of course, the next-to-last line on Ken's spreadsheet, labeled "Payment to Equalize," 

actually provided for Ken to receive this payment from Rebecca. The proposed findings 

further stated: 

                The     parties'    original    Property     Settlement     Agreement, 
                evidencing their agreement of the distribution of the Marital 
                Estate, is hereby incorporated by reference into the Findings, 
                and as fully set forth herein.  The parties' [sic] stipulated and 
                agreed to annex [Ken's spreadsheet] to these Findings, which 
                sets forth the equitable distribution of all personal property, 

                                                   -5-                                             6531

----------------------- Page 6-----------------------

                which   this   Court   has   incorporated   by   reference   into   the 

Annexed to the proposed findings was Ken's spreadsheet, including the overview page 

and the supplementary personal property breakdown spreadsheets. 

                Ken promptly objected to Rebecca's proposed findings.  He described the 

alleged   error   and   argued   that   "there   was not   a   meeting   of   the   minds   for   settlement 

purposes."      The court adopted Rebecca's proposed findings and conclusions in their 

entirety, including the requirement that Ken pay Rebecca $47,121.04. 

        C.	     Rebecca's Motion For Order To Show Cause And Ken's Motion For 

                The deadline passed for Ken to refinance the house and make the cash 

payment to Rebecca.       Rebecca moved for an order to show cause.             Ken responded that 

the findings and conclusions were internally inconsistent because the terms on Ken's 

spreadsheet varied from the terms recited on the record, and that he would be irreparably 

harmed if forced to refinance the home to pay an amount that he may not owe.  The court 

held an expedited hearing on the motion for order to show cause.                Rebecca's attorney 

argued that the transcript showed unambiguously that Ken had agreed to pay Rebecca: 

Ken did not object on the record when this term was recited, he stated that he could 

refinance   within   60   days   in   order   to   make   the   payment,   and   he   affirmed   that   he 

understood and agreed to the recited terms.  Rebecca's attorney also made an argument 

related to off-the-record settlement negotiations, but the court admonished that it could 

                                                  -6-	                                           6531

----------------------- Page 7-----------------------

not consider such discussions.4         The court ultimately held in abeyance whether to grant 

an evidentiary hearing on the motion for order to show cause, but said that 

                 based on the transcript . . . it's pretty clear that the parties 
                 made an agreement . . . to disagree regarding the values, and 
                 instead they distributed the property the way that they chose. 
                 .  .  .  [M]ost   importantly,     [Ken]    made    this   offer  [to  pay 
                 Rebecca] . . . . 

                 Ken moved for reconsideration.  He argued that if he was truly required to 

pay Rebecca $47,121.04, it would effect a distribution of 63% to Rebecca and 37% to 
Ken, yet "there was no discussion on the record" of this disparity.5  Further, Ken argued 

        4        Rebecca's attorney said: 

                 [W]hen   we   were   in   chambers   I   remember   distinctly   you 
                 [Judge Stowers] . . . looked atboth [Ken's attorney] and I and 
                 said, okay, so there's $47,121,         that's the . . . equity in the 
                 house to equalize, and we were talking about the volatility of 
                 assets, that basically [Rebecca] was getting a lot of . . . money 
                 from a 401(k) that was volatile and [Ken] was getting the 
                 stable asset, which was the home, and I remember you saying 
                 which   way   is   this   money   going   and   you   kind   of   did   .   .   . 
                 arrows both ways with your hands . . . and [Ken's attorney] 
                 said unequivocally we understand that $47,121 is going to 
                 [Rebecca]. . . . [T]his whole issue . . . was on the table the 
                 entire time.    There is absolutely no discrepancy, there was a 
                 meeting of the minds . . . ." 

The court responded that it had to "disregard and [did] disregard the discussion that went 
on during the settlement itself," because it was "mandatory that we don't get into a 
situation where lawyers make each other or the judge a witness to these things."                        The 
court stated that it would only consider the testimony on the record. 

        5        As   discussed   below,   Ken   concedes   that   the   parties   did   not   come   to 

agreement   on   the   values   of   particular   items  and   instead   agreed   to   an   item-by-item 
distribution.     Therefore, the percentages Ken cites here result from a calculation based 
on his own personal valuations. 

                                                    -7-                                               6531

----------------------- Page 8-----------------------

that   it  was  "bizarrely  coincidental"   that  "the  exact  amount    needed   to  make   the 

distribution equal, a $47,121.04 payment to Ken, is alleged to be the exact amount the 

parties agreed that Ken would pay to Rebecca."         Ken did not submit any affidavits in 

support of his motion.  In opposing Ken's motion, Rebecca again emphasized the clarity 

of the record with regard to Ken's agreement to pay.           In support of her opposition, 

Rebecca submitted the affidavit of her accountant, Paul Wichorek, who was present 

during negotiations and who corroborated Rebecca's version of events. 

               The court denied reconsideration, statingthat "[t]he transcript of the parties' 

settlement clearly shows that the parties agreed to disagree regarding the valuation of 

assets and instead agreed to settle on the basis of the terms set forth in the [findings of 
fact and conclusions of law] and on the record."6 

               Ken appeals. 


               We review a superior court's decision to enforce a settlement agreement for 
abuse of discretion7  and will reverse only if a  review of the entire record leaves us with 

a definite and firm conviction that the superior court has erred.8    In making this inquiry, 

the  standard of review is necessarily intertwined with the substantive law governing 

       6       Rebecca subsequently filed another motion for an order to show cause why 

Ken had not paid and the court decided to impose sanctions.          Ken then refinanced the 
house, but also moved for a stay of judgment pending appeal and reconsideration of the 
sanctions. The court denied the motion for a stay pending appeal, but granted the motion 
for reconsideration of sanctions.  The court said it would hold an evidentiary hearing on 
the sanctions issue, but held the hearing in abeyance pending the outcome of this appeal. 

       7       Mullins v. Oates, 179 P.3d 930, 935 (Alaska 2008); Worland v. Worland, 

193 P.3d 735, 738 (Alaska 2008). 

       8       Ford v. Ford, 68 P.3d 1258, 1263 (Alaska 2003). 

                                              -8-                                         6531

----------------------- Page 9-----------------------

settlement agreements.9      We review the factual findings underlying the superior court's 

decision for clear error.10  We use our independent judgment to review whether a superior 

court's findings are sufficiently detailed to permit meaningful review on appeal.11 


                Ken arguesthat the superior court clearly erred in finding that mutual assent 

was reached regarding the $47,121.04 payment and should have held an evidentiary 

hearing before summarily enforcing the agreement.  Further, Ken argues that it was an 

abuse of discretion to  enforce the agreement because the facts showed it was made 

without Ken's full understanding.  Alternatively, Ken argues that the court's findings of 

fact are internally inconsistent, thus precludingmeaningful review by this court. Rebecca 

responds that Ken's agreement to pay her $47,121.04 is fully supported by the record. 

And she argued to the superior court that Ken's belated objection to this requirement is 

simply "buyer's remorse."  At oral argument, Ken's attorney clarified that Ken is asking 

this   court   to   vacate   the   superior   court's  decision   and   remand   for   trial,   and   is   not 

advocating a remand for purposes of conducting an evidentiary hearing to determine the 

terms and existence of the agreement. 

        A.	     The Superior Court Did Not Abuse Its Discretion By Enforcing The 
                Settlement Agreement. 

        9       Notkin v. Notkin, 921 P.2d 1109, 1111 (Alaska 1996) (quoting Murphy v. 

Murphy, 812 P.2d 960, 965 (Alaska 1991)). 

        10      Barber v. Barber, 837 P.2d 714, 716 n.2 (Alaska 1992). 

        11      See, e.g., Sullivan v. Subramanian, 2 P.3d 66, 69 (Alaska 2000); Sloan v. 

Jefferson, 758 P.2d 81, 86 (Alaska 1988); Johnson v. Johnson, 544 P.2d 1028, 1029 
(Alaska 1976); Wigger   v. Olson, 533 P.2d 6, 7-8 (Alaska 1975). 

                                                  -9-	                                          6531

----------------------- Page 10-----------------------

                 Ken argues that the settlement agreement is unenforceable because there 
was "no meeting of the minds" about who was supposed to pay the $47,121.04.12  In his 

briefs to this court, Ken explained that although he did not object when the court stated 

that he would pay Rebecca, he did not realize at the time that the court had deviated from 

the   terms   on   the   spreadsheet.    Because   he   understood   the   spreadsheet   terms   to   be 

controlling, and because he was unaware that the court's recitation conflicted with the 

spreadsheet, Ken argued that he did not knowingly agree to pay Rebecca.                          From this 

explanation,   it   initially   appeared   to   be   Ken's   position   that   both   parties   had   agreed 

Rebecca would pay Ken, that the court had mistakenly transposed the payor and the 

payee in reciting this term on the record, and that the failure of Ken and his attorney to 

object was mutual oversight.           Such a position would have been consistent with (1) the 

frequency   with   which   the   court   referenced  Ken's   spreadsheet,   (2)   the   fact   that   the 

distribution of all other assets matched the distribution indicated on the spreadsheet, (3) 

the court's failure to acknowledge the departure from the spreadsheet with regard to 

responsibility for this payment, (4) the fact that the amount of the payment was identical 

- down to the penny - to the payment listed on the spreadsheet, and (5) the fact that 

Ken's attorney raised the issue in a reasonable time before the findings and conclusions 

were finalized.  We note that evidence also exists to support Rebecca's position that the 

deviation from the spreadsheet was intentional, including (1) the failure of Ken and his 

attorney   to   object   on   the   record,   (2)   Ken's   affirmative   participation   in   discussing 

refinancing   the   home   in   order   to   pay   Rebecca,   and   (3)   the   affidavit   of   Rebecca's 

accountant corroborating her position. Given these discrepancies, it is possible we would 

         12      After denying reconsideration of its findings and conclusions, the court 

enforced the settlement agreement.  It confirmed Ken's obligation to pay Rebecca. 

                                                    -10-                                                 6531 

----------------------- Page 11-----------------------

have remanded the case for an evidentiary hearing to determine whether a mistake had 
been made.13 

                At   oral  argument,     however,    Ken's    attorney   conveyed     two   important 

clarifications.   First, Ken does not argue on appeal that there is a factual dispute which 

should be remanded for an evidentiary hearing.  Rather, Ken argues that the agreement 

is unenforceable as a matter of law, and that the only appropriate remedy is to remand 

for trial. Second, Ken's attorney clarified that when putting the settlement on the record, 

Ken actually did understand that he was agreeing to pay Rebecca $47,121.04.  The only 

thing he did not understand was the "effect" of that agreement; specifically, he "didn't 

know it was going to result in an unequal property division." Ken concedes that, because 

the parties "agreed to disagree" about the values of specific items, the "inequality" of the 

property   division   is   Ken's   personal   opinion.    Thus,   we   understand   it   to   be   Ken's 

argument that, although he intentionally and knowingly agreed on the record to pay 

Rebecca   $47,121.04,   this   agreement   should  not   be   enforced   due   to   his   unspoken 

misgivings about the subjectively perceived consequences of his decision. 

                Alaska recognizes a "strong public policy in favor of the settlement of 
disputes."14  Settlement agreements facilitate communication and compromise, encourage 

voluntary resolution of disputes, and simplify litigation without taking up valuable court 

        13      A superior court may not summarily enforce a settlement agreement if there 

is a genuine dispute of material fact as to the terms or existence of the agreement. Brooks 
Range Exploration Co. v. Gordon, 46 P.3d 942, 944-45 (Alaska 2002).   We review the 
decision to summarily enforce a contested agreement de novo and will affirm only if we 
conclude that there is no issue of material fact and the agreement is valid as a matter of 
law.    Id.   at   945. See   also   Gablick   v.   Wolfe,   469   P.2d   391,   394   (Alaska   1970) 
(reformation may be sought where a mutual mistake, or a unilateral mistake of which the 
other party knows, occurs in a writing which is to evidence the parties' agreement). 

        14      Mullins v. Oates, 179 P.3d 930, 937 (Alaska 2008). See also Interior Credit 

Bureau, Inc. v. Bussing, 559 P.2d 104, 106 (Alaska 1977). 

                                                 -11-                                           6531

----------------------- Page 12-----------------------

resources.15   As we have frequently stated, settlement agreements "should not be lightly 

set aside."16  However, settlement agreements are, at base, merely a species of contract 

and    therefore    must   meet    basic   contractual    requirements,17     including    "an   offer 

encompassing all essential terms, unequivocal acceptance by the offeree, consideration, 
and an intent to be bound."18        An essential requirement of an enforceable settlement 

agreement is the parties' mutual assent to the agreement's terms.19             The mutual assent 

requirement "cannot be defeated by the unexpressed subjective intent of one of the 

parties; rather, it must rest on an objective manifestation of mutual intent regarding the 

        15      Mullins, 179 P.3d at 937. 

        16      Id.  See   also   Wooten   v.   Hinton,   202   P.3d   1148,   1155   (Alaska   2009); 

DeSalvo v. Bryant, 42 P.3d 525, 528 (Alaska 2002); Henash v. Ipalook, 985 P.2d 442, 
450 (Alaska 1999). 

        17      Mullins, 179 P.3d at 937; Walton v. Ramos Aasand & Co., 963 P.2d 1042, 

1045-46 (Alaska 1998). 

        18      Crane   v.   Crane,   986   P.2d   881,   885   (Alaska   1999)   (quoting Davis   v. 

Dykman, 938 P.2d 1002, 1006 (Alaska 1997)). 

        19      Walton, 963 P.2d at 1045-46. See also Young v. Hobbs, 916 P.2d 485, 488- 

89 (Alaska 1996) (vacating settlement agreement where parties never reached meeting 
of the minds with regard to material term); Zeman v. Lufthansa German Airlines, 699 
P.2d 1274, 1281 (Alaska 1985) ("Mutual assent  is an elementary requirement for a 
binding contract."). 

                Black's Law Dictionary defines "mutual assent" as the concept that "both 
parties to an exchange shall have a reasonably clear conception of what they are getting 
and what they are giving up." BLACK'S LAW DICTIONARY 124 (8th ed. 2004) (quoting 
66 (1999)). 

                                                -12-                                            6531

----------------------- Page 13-----------------------

essential terms of the contract."20      In other words, a party's "mental reservation[s]"21 and 

"unexpressed intentions"22 will not supercede the party's outward expressions of assent. 

                Here, Ken does not dispute that the settlement agreement complies with the 

basic contractual requirements: essential terms, consideration, intent to be bound, and 

unequivocal   acceptance.         The   only   disputed   element   is   mutual   assent   regarding   the 
$47,121.04 payment.23        Ken asserts that mutual assent is lacking because, although he 

understood he was agreeing to pay Rebecca, he did not understand that the "result" or 

"effect" of this agreement would be an "unequal property division," in terms of his 

personal valuations.   However, Ken points to no objective evidence that his assent to the 

agreement was contingent on the result being an "equal" division.  Rather, all objective 

evidence points in the opposite direction.            In "agreeing to disagree" on the values of 

specific items, the parties implicitly rejected the very concept of an "equal division." 

Ken and his attorney were present when the court recited on the record, item-by-item, the 

terms     of  the  agreement.      Neither     Ken  nor    his  attorney    stated   any   objection    or 

qualification that the agreement was premised on a particular "bottom line" calculation. 

In addition, Ken testified as follows in response to questioning by his attorney: 

        20      Howarth   v.   First   Nat'l   Bank   of   Anchorage,   596   P.2d   1164,   1167   n.8 

(Alaska 1979). See also Zeman, 699 P.2d at 1281 ("A party cannot rely on its subjective 
intent   to   defeat   the   existence  of   a   contract   if   its   words   and   actions   objectively   and 
reasonably led another to believe" that agreement had been reached.); Sea Lion Corp. v. 
Air Logistics of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990); C.J.S.CONTRACTS  35- 
36, 38 (2010) (mutual assent determined by objective standard, such as by apparent 
intention of parties as manifested by their actions). 

        21      RESTATEMENT (SECOND) OF CONTRACTS  17 cmt. c (1981). 

        22       17A AM. JUR. 2D Contracts  33 (2010). 

        23      Ken uses the term "meeting of the minds."              "Meeting of the minds" and 

"mutual      assent"   are  often   used    interchangeably,      and   refer  to  the  same    concept. 

                                                  -13-                                             6531

----------------------- Page 14-----------------------

                Q:       [You]     entered    into   lengthy     negotiations     [about] 
                        property and you've heard the Judge recite the terms. 
                        Do     you    believe    that  that's   a   fair  and   accurate 
                         description of what you agreed to? 

                A:      Yes, it is. 

                Q:      And   do   you   believe   that   it's   a   fair   and   equitable 
                         distribution of your marital estate? 

                A:      Yes, it is. 

                Q:      And do you feel like you had enough time to discuss 
                        those property negotiations with me? 

                A:      Yes. 

                 . . . 

                Q:       [D]o you understand that this is a final and binding 
                         agreement and that you can't come back tomorrow or 
                         later on tonight and change your mind? 

                A:      Yes, I do. 

If Ken had any expectation that the agreement would result in an "equal division" under 

his valuations, he did not make this expectation known.                  Under established contract 

principles, Ken's unexpressed intentions and mental reservations do not override his 

objective and unequivocal manifestations of assent to the terms of the agreement. 

                Ken further argues that superior court erred in enforcing the agreement 

because   it   was   "not   made   with   full   understanding."    Again,   we   disagree.     Where   a 

settlement   agreement   relating   to   the   division   of   property   meets   basic   contractual 

requirements, it should be enforced, absent "fraud, duress, concealment of assets or other 
facts showing the agreement was not made voluntarily and with full understanding."24 

In determining whether circumstances for avoiding enforcement exist, a party's active 

        24      See Murphy v. Murphy, 812 P.2d 960, 965 (Alaska 1991). 

                                                   -14-                                               6531 

----------------------- Page 15-----------------------

negotiation   of   settlement   terms,   affirmative   participation   in   clarifying   terms   on   the 
record, and failure to object despite the opportunity to do so are relevant considerations.25 

Here, Ken and his attorney were present for and participated in lengthy, court-assisted 

negotiations.       Ken   did   not   object   when   the   court   stated   that   he   had   agreed   to   pay 

Rebecca,   he   actively   engaged   in   conversation   about   the   mechanics   of   making   the 

payment, and he subsequently testified that he understood and agreed to the terms as they 

had been recited.       Clearly, Ken understood that he agreed to pay Rebecca $47,121.04. 

This is a sufficient basis for us to conclude that the superior court did not abuse its 

discretion in enforcing the agreement. 

                 However,   even   if   we   go   further   and   consider   Ken's   argument,   he   has 

pointed to no facts showing he lacked "full understanding" of the "effect" of his decision. 

Ken had the time and resources at his disposal to easily understand the consequences of 

his agreement.      He went into negotiations with a spreadsheet which assigned values to 

property, divided property a certain way, included a $47,121.04 cash payment from 

Rebecca to Ken, and resulted in an "equal" division.  The negotiations culminated in an 

agreement which divided property exactly as the spreadsheet divided it except for the 

cash   payment,   which   now   flowed from   Ken   to   Rebecca .            At   oral   argument,   Ken's 

attorney      could    not   explain    how,     given    these   facts,   Ken    could     possibly    have 

misunderstood that the bottom line calculation would also change, nor did Ken submit 

an affidavit to the superior court explaining his misconception.                 Because public policy 

favors   the   settlement   of   disputes,   and   because   parties   must   be   able   to   rely   on   the 

enforcement of agreements to settle, we have repeatedly said that settlement agreements 

         25      See Mullins v. Oates, 179 P.3d 930, 937-38 (Alaska 2008) (rejecting duress 

claim because appellant participated in negotiations and clarified terms on record);Pavek 
v.   Curran,   754   P.2d   1125,   1127   (Alaska   1988)   (affirming   determination   that   party 
intended   to   be   bound   because   she   did   not   object   when   her   attorney   confirmed   the 
agreement in open court). 

                                                    -15-                                               6531

----------------------- Page 16-----------------------

should not lightly be set aside.26     Here, the parties' agreement satisfies basic contractual 

requirements and the facts contained in the record do not indicate it was made without 

full understanding.      Thus, we conclude that the superior court did not clearly err in 

finding that Ken agreed to pay Rebecca $47,121.04, and did not abuse its discretion in 
enforcing the agreement.27 


        For the reasons above, we AFFIRM the decision of the superior court. 

        26      See Mullins, 179 P.3d at 937. 

        27      In   his   briefs   to   this   court,   Ken   made   the   alternative   argument   that   the 

superior court's findings were insufficiently detailed to permit meaningful appellate 
review.      Ken   based   this   argument   on   the court's   failure   to   address   the   apparent 
contradiction between its finding that Ken agreed to pay Rebecca $47,121.04, and its 
finding that the parties agreed to incorporate by reference Ken's spreadsheet, which 
showed the   payment flowing in the opposite direction.  In light of Ken's clarification at 
oral argument that he does not actually dispute that he agreed to pay Rebecca, we need 
not consider this argument. 

                                                 -16-                                              6531 
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights