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09/23/93 MARRIAGE MARTHA JAN CARTER AND BRIAN EARL

September 23, 1993

IN RE THE MARRIAGE OF MARTHA JAN CARTER AND BRIAN EARL CARTER. MARTHA JAN CARTER, RESPONDENT,
v.
BRIAN EARL CARTER, APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable J. Miles Sweeney, Judge

Crow, Flanigan, Garrison

The opinion of the court was delivered by: Crow

By a decree entered October 14, 1992, the trial court dissolved the ten-year marriage of Martha Jan Carter and Brian Earl Carter. Brian *fn1 appeals, asserting the trial court erred in (A) refusing to disqualify the law firm that represented Martha at trial, and (B) enforcing an unsigned "Marital Settlement and Separation Agreement." The first of Brian's four points relied on pertains to contention "A"; the other three pertain to contention "B."

We first address point I. It requires a brief historical account of the litigation and dramatis personae.

May 22, 1990. Martha, represented by lawyer Stephen L. Shepard of Shepard & Rahmeyer, P.C., files petition for dissolution of marriage.

June 6, 1990. Brian, represented by lawyer John R. Lightner of Dorr, Baird and Lightner, P.C., files answer and cross-petition for dissolution of marriage. Lawyer Nancy Steffen Rahmeyer, an employee of Lightner's firm, is the wife of the lawyer with the surname Rahmeyer in Shepard & Rahmeyer, P.C.

October 10, 1990. Brian, accompanied by lawyer Lightner, meets with Martha and lawyer Shepard at Shepard's office to discuss settlement. After several hours of negotiations, the meeting ends. A few days later, Lightner sends Shepard, by facsimile transmission, a document which, according to Lightner, sets forth "what I thought our agreement was." At trial, the document was identified as Petitioner's Exhibit W. Brian never signed it. Further evidence about this aspect of the case appears (infra) when we reach point II.

October 25, 1990. Martha, through lawyer Shepard, files "Motion to Enforce Settlement Agreement." The motion avers, inter alia, that the parties agreed on a settlement October 10, 1990, but Brian thereafter declared he did not intend to honor it. The motion prays the court to (a) compel Brian to execute the agreement, and (b) enter a decree of dissolution of marriage.

November 30, 1990. Lawyer Lightner files motion for leave to withdraw as attorney of record for Brian.

December 4, 1990. Trial court grants Lightner's motion of November 30, 1990.

December 12, 1990. Lawyer Stephen P. Seigel enters appearance as attorney for Brian.

December 17, 1990. Lawyer Shepard files motion for leave to withdraw as counsel for Martha.

December 20, 1990. Trial court grants Shepard's motion of December 17, 1990.

January 30, 1991. Lawyer John S. Pratt of Pratt and Fossard enters appearance as attorney for Martha.

On a date undisclosed by the record, but after lawyer Lightner received leave to withdraw as counsel for Brian, lawyer Nancy Steffen Rahmeyer leaves the employ of Dorr, Baird and Lightner, P.C. Sometime thereafter, on a date undisclosed by the record, lawyer Nancy Steffen Rahmeyer joins the firm of Pratt and Fossard.

May 16, 1991. Lawyer Seigel sends lawyer Pratt a letter which reads, in pertinent part:

My client, Brian Carter, has asked me to file a Motion to Disqualify the Law Firm of Pratt & Fossard on the basis that Nancy Steffen Rahmeyer, during the period of time in which she was with the law firm of Dorr Baird & Lightner, represented Brian Carter . . . .

Please give this matter your consideration, and let me know your feelings on the matter before it is necessary for me to file a motion to disqualify.

May 22, 1991. Lawyer Pratt sends trial court a letter regarding lawyer Seigel's letter of May 16, 1991. Pratt's letter asks trial court for a hearing on the disqualification issue.

June 4, 1991. Lawyers Seigel, Pratt and Nancy Steffen Rahmeyer appear in trial court. Lawyer Rahmeyer files affidavit stating that at the time she was employed with Dorr, Baird and Lightner, she had no knowledge or involvement in the instant case. Lawyer Rahmeyer also files letter to her dated May 31, 1991, from lawyer Lightner which reads, in pertinent part:

This will confirm that while you were employed with Dorr, Baird and Lightner, P.C. you did not assist or counsel with Brian Carter or have any involvement with the Carter case, to my knowledge. I never brought the case to your attention and you never assisted on the case.

Trial court's docket sheet bears entry dated June 4, 1991, which reads, in pertinent part: "Court overrules Resp's oral Motion to Disqualify."

January 16, 1992. Lawyer Seigel, on Brian's behalf, files written "Motion to Reconsider Court's Ruling on Motion to Disqualify Law Firm of Pratt & Fossard." Motion alleges that because lawyer Nancy Steffen Rahmeyer was employed by lawyer Lightner's firm at the time that firm represented Brian, the firm of Pratt and Fossard has a conflict of interest in representing Martha.

January 22, 1992. Trial court denies Brian's Motion of January 16, 1992.

July 20, 1992. Trial begins. Martha appears in person and with lawyers Pratt and Nancy Steffen Rahmeyer. Brian appears in person and with lawyer Seigel. Seigel orally renews Brian's contention that the firm of Pratt and Fossard be "disqualified" as Martha's counsel. Trial court denies request. Martha, through counsel, announces: "We're asking the Court . . . to bifurcate this trial. We have filed a motion to enforce the settlement agreement and we want to first of all offer evidence as to why the settlement agreement should be enforced."

Over objection by Brian, through Seigel, that Pratt had indicated Martha was not going to enforce the alleged agreement, trial court rules it will hear evidence on the issue. After evidence by both sides, trial court dictates findings into record and holds the parties made a separation agreement October 10, 1990, and that the terms thereof are correctly set forth in the document prepared by lawyer Lightner (Petitioner's Exhibit W). Trial court finds agreement is not unconscionable.

October 14, 1992. Trial court enters decree of dissolution of marriage incorporating "Martial Settlement and Separation Agreement" drafted by lawyer Lightner (Petitioner's Exhibit W). ...


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