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Settlement Agreement Enforced Over Party’s Objection

Recently, the Georgia Court of Appeals affirmed the enforcement of a divorce settlement agreement over the wife/mother’s objection. In that case, the father filed for divorce and sought legal and physical custody of the parties’ children. Martinez v. Martinez, 301 Ga. App. 330 (2009). While the divorce proceedings remained pending, the father filed a motion to enforce a settlement agreement. He contended that the parties had reached the agreement wherein he would be the primary custodial parent and the mother would have visitation rights. Id. The trial court granted the father’s motion and entered a “Final Order on Custody and Visitation” in accordance with the terms of the settlement agreement. Id.

The mother appealed, alleging that the trial court erred in enforcing the settlement agreement “because she did not assent to the terms of the settlement and lacked capacity to contract at the time in question due to her medical condition,” and argued that the trial court “refused to receive any evidence from the parties” at the hearing on the father’s motion. Id. at 332. The mother’s allegations regarding evidence at the hearing, however, were disputed by the father and inconsistent with the trial court’s order on the motion. The Georgia Court of Appeals, therefore,affirmed, citing well established case law stating that “'[i]n order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings.'” Atwood v. Southeast Bedding Co., 236 Ga. App. 116 (1) (511 S.E.2d 232) (1999). Id. at 332-333. Further, “‘where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.'” Enchanted Valley RV Park Resort v. Weese, 241 Ga. App. 415, 417 (1) (c) (526 SE2d 124)(1999). Id. Because there was no transcript or other evidence in the record on appeal, the Georgia Court of Appeals was bound to presume that the trial court was correct.

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