In-Court Acknowledgment of Divorce Settlement Becomes "Electronic Signature"

Here is a curious case. A divorce settlement calling for a transfer of real property is read into the record on the day set for trial. Both parties orally acknowledge the settlement in court, and the court's reporter duly transcribes their remarks. However, one party later refuses to sign the agreement. She claims, among other things, that enforcement of the settlement agreement would be unlawful because state law requires a writing to transfer real property.

The Kansas Court of Appeals recently entertained this argument and rejected it, remarking along the way' that an electronic signature was created in the trial judge's courtroom, thereby satisfying the state-law requirement of a writing for real property transactions.

The court said this was so because Kansas had adopted the Uniform Electronic Transactions Act. Under UETA -- with some exceptions that aren't relevant here -- qualifying digital records, sounds, symbols, you-name-it, will be treated as 'writings' if a writing is required by state law. UETA, the court said, 'probably' makes the electronically produced record of the divorce litigant's in-court statement the legal equivalent of a written signature:

The record does not disclose the type of equipment used by the court reporter, but it would be quite rare today for a court reporter's equipment not to at least require electricity. The UETA deems records generated by electronic means, including the use of electrical or digital magnetic capabilities, to be electronic records.

In order for a record to qualify as an electronic signature, a party must also adopt the record 'with the intent to sign.' The court doesn't make much of an effort to explain how the litigant in this case 'adopted ... with the intent to sign' the court reporter's record of her remarks. Apparently, it was enough that the litigant uttered aloud her acknowledgment of the divorce settlement that had been recited in open court. '[A]ssuming that the court reporter's equipment was consistent with modern practice, it would appear that the electronic capture of Mieko's oral assent that this was the agreement would satisfy the statute of frauds.

The case is In re Marriage of Takusagawa, No. 95,508 (Kan. Ct.App. Sept. 7, 2007)

SOURCE FOR POST: E-Commerce and Tech Law Blog

Comments

[Christian M. Frank Fas]

This makes absolutely no sense. How is an oral acknowledgment of a settlement in court a voluntary manifestation to transfer real property? This is possibly one of the best cases of putting a square peg in a round hole by mix-matching the law to a specific action, and worse yet, it may set a precedent for all subsequent settlements.

Here, in PR, real property can be transferred by means of an oral contract. Although the action itself may be simple, and no written formalism is required, a transfer of property, be it physically or symbolically (from the roman traditio) must occur. This guarantees that actions and words concur. A "yes, your honor" just wouldn't cut it here, and neither should it in Kansas.