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Furstenfeld v. Pepin

Court of Appeals of Nebraska

August 18, 2015

JUSTIN S. FURSTENFELD, APPELLANT,
v.
LISA B. PEPIN, APPELLEE

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Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Terrance A. Poppe, Benjamin D. Kramer, and Andrew K. Joyce, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

OPINION

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[23 Neb.App. 157] Moore, Chief Judge.

I. INTRODUCTION

Lisa B. Pepin filed a complaint to modify the parenting time and support provisions of a decree of dissolution. During the ensuing litigation, Pepin and her former husband, [23 Neb.App. 158] Justin S. Furstenfeld, engaged in settlement negotiations and Pepin believed an oral settlement agreement had been reached. Furstenfeld later refused to sign a stipulation memorializing the oral agreement, and Pepin filed a motion to enforce. The district court granted Pepin's motion to enforce, and Furstenfeld appeals. Finding no merit to Furstenfeld's arguments, we affirm.

II. FACTUAL BACKGROUND

At the outset, we must pause to observe that Furstenfeld's brief contains no fewer than 18 separate assertions which were not annotated to the record presented to this court. He acknowledges as much at the end of each such statement by noting the assertion is not in the record. Pepin has objected to Furstenfeld's characterization of the factual background of the case and correctly notes that a party's brief may not expand the record. See State v. Patton, 287 Neb. 899, 845 N.W.2d 572 (2014). Within our factual background, we will only include those facts which are supported by the record presented to this court.

In December 2010, Pepin and Furstenfeld's marriage was dissolved pursuant to a decree of dissolution. An amended decree was entered on January 21, 2011. While these decrees are not in our record, the district court's order in this proceeding indicates that the initial decree approved the parties' property settlement, custody agreement, and support agreement and that the amended decree corrected errors in two provisions of this agreement. On August 30, Pepin filed an amended complaint for modification of the decree, seeking an increase in Furstenfeld's child support obligation and a modification or suspension of his parenting time with the parties' minor child. The district court originally set a trial date of May 21, 2012, for Pepin's complaint for modification.

On May 16, 2012, Pepin; Pepin's attorney, Terrance Poppe; and Furstenfeld's attorney, Matt Catlett, met at Poppe's office to conduct a telephonic deposition of Furstenfeld. At the [23 Neb.App. 159] time, Furstenfeld was residing at an out-of-state rehabilitation facility. Instead of conducting a deposition, however, the parties, through their attorneys, engaged in settlement negotiations and an apparent agreement was reached. After reaching this agreement, Poppe and Catlett jointly contacted the district court judge to notify the court of the agreement and to remove the matter from the court's trial calendar. Poppe proceeded to prepare a stipulation containing the terms of the parties' agreement.

Furstenfeld refused to sign the stipulation Poppe prepared. On June 18, 2012, Pepin filed a motion to enforce the settlement agreement. Specifically, her motion stated that she sought to enforce " the oral agreement reached by the parties on May 21, 2012." The court held a hearing on Pepin's motion on April 7, 2014.

At the hearing, Pepin testified that she attended a meeting at her attorney's office on May 16, 2012. During the meeting, Pepin learned from Poppe that Catlett was also present that day in another conference room within the office; Pepin did not personally interact with Catlett. At the end of this meeting, Pepin understood that a solid agreement had been reached and

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both attorneys were to call the judge and advise the court that the matter had been settled. Pepin further testified that Poppe prepared a stipulation for modification of decree that same day which was consistent with the terms of the oral agreement that had been reached earlier in the day. Over Furstenfeld's objection, the court received a copy of the stipulation into evidence.

The stipulation for modification of decree provided, in pertinent part, that Furstenfeld's child support obligation would increase to $3,000 per month commencing June 1, 2012. The stipulation stated that a Nebraska child support calculation worksheet was attached and incorporated, although the copy of the stipulation received in evidence did not contain the worksheet. The stipulation also provided that Furstenfeld's obligation to pay 80 percent of employment-related daycare [23 Neb.App. 160] expenses would terminate on May 31, 2012; that he would remain obligated to provide health insurance for the parties' minor child; and that he would also pay the first $480 of any health care expenses for the minor child which were not covered by health insurance and 80 percent of those uncovered expenses thereafter. The stipulation further stated that the minor child's image would not be used for any purpose by Furstenfeld's band and that the child would not attend any of Furstenfeld's concerts without Pepin's prior approval. Other provisions included within the stipulation provided that Furstenfeld would pay $2,500 toward Pepin's attorney fees, that certain orders to show cause would be vacated, and that the parties would not make disparaging or derogatory comments about the other through various means of communication.

Following Pepin's testimony, Poppe called Catlett as a witness to testify in order to provide foundation for an e-mail regarding the oral settlement agreement and to establish that Catlett and Furstenfeld engaged in communications during the May 16, 2012, meeting. Catlett objected to being called as a witness and cited a number of Nebraska authorities which he believed established that an attorney does not have authority to bind a client to an agreement simply because the attorney had been retained by the client. The court overruled the objection and permitted Pepin to question Catlett on a limited basis. After determining it would allow Catlett to testify, the court permitted Furstenfeld to obtain other counsel. Furstenfeld elected to represent himself.

Catlett acknowledged that on May 15, 2012, he sent an e-mail to Poppe which contained the terms on which Furstenfeld offered to settle the case. The next day, Catlett arrived at Poppe's office to conduct a telephonic deposition of Furstenfeld. Catlett confirmed that settlement negotiations ensued, an agreement was reached, and he and Poppe contacted the court to inform it that the matter had been settled. Later that day, Catlett received an e-mail from Poppe's [23 Neb.App. 161] assistant which stated that it included the stipulation for modification of decree based on the agreement reached that morning. The e-mail further stated that Poppe would " work up" a child support calculation that " matches" the $3,000 figure to attach to the stipulation. Catlett sent the following response to Poppe's assistant:

I believe this accurately reflects the agreement. I'll send to [Furstenfeld], and once he returns to me the executed original, I will get it to [Poppe]. The trial date has been removed from the judge's calendar, so we're not under a rush, although I think we told the judge we'd get it to him for approval by the end of next week. ...

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