ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

JULIE SHEDDAN

APPELLANT

V.

JACOB C. SHEDDAN

APPELLEE

CA02-1301

December 17, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. DR 2002-0531]

HON. COLLINS KILGORE,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

On July 30, 2002, the trial court entered a decree of divorce and property settlement agreement that awarded custody of the parties' two minor children to appellee based upon the terms of the settlement agreement between the parties. Appellant brings this appeal, contending that the trial court erred in awarding custody of the parties' children to appellee based upon the agreement between the parties because the court did not conduct an independent investigation into or recite any findings regarding the best interests of the children. We affirm.

Appellee filed a complaint for divorce on February 4, 2002, seeking custody of the parties' children and other relief. Appellant also sought custody of the children. Following a hearing, the court entered a temporary order on March 21, 2002, granting temporary custody of the children to appellee and ordering that the parties submit to psychological evaluations by Dr. Paul DeYoub. The parties were also ordered to make the children available for evaluation if the doctor requested to see them.

Dr. DeYoub thereafter submitted a report to the court recommending that custody of the children be placed with appellee. On June 24, 2002, the parties appeared for trial and advised the court that they had reached a settlement agreement regarding all issues, including custody of the children and visitation privileges. Counsel recited into the record the terms of the settlement agreement, including the provisions that custody of the children would be awarded to appellee and specific visitation privileges would be awarded to appellant. The trial court questioned the parties separately, and they both replied affirmatively that they understood the agreement, that it covered everything, and that they were willing to accept the settlement. On July 30, 2002, the trial court entered a decree that embodied the parties' agreement.

On August 9, 2002, appellant filed a motion for new trial, arguing that there was an irregularity in the proceedings that prevented her from having a fair trial. She contended that the trial court should have made its own investigation and determination, aside from the agreement of the parties, regarding the custody issue. As no order granting or denying the motion was entered, the motion was deemed denied, and appellant now brings this appeal.

Appellant makes no contention that she did not understand the settlement agreement or that the agreement did not accurately reflect the intent of the parties. Her argument is that since the best interest of the child is the primary consideration in any custody determination, the trial court erred in implementing the agreement of the parties regarding custody without first making its own investigation into and determination regarding the best interests of the children. Appellee's response is that an agreement made between two parties and read into the record is binding upon both parties.

In Grumbles v. Grumbles, 238 Ark. 355, 381 S.W.2d 750 (1964), which involved child support and alimony issues, the parties put on evidence, and the court then made findings of fact and conclusions of law, and announced that a decree would be entered in accordance therewith. At that time, the parties announced that they wanted to confer in order to reach an agreement regarding the property settlement issue. The court agreed. The parties later came back into open court, and appellant informed the court that an agreement had been reached and, reading from a written memorandum, stated the terms of the agreement. The court approved the agreement and instructed counsel for appellee to draw a precedent for a decree embodying the terms of the agreement. When the precedent was presented to the court, appellant objected to it being entered as a decree, not because it did not embrace the agreement as made, but because appellant had apparently changed her mind. The trial court overruled appellant's objection. In affirming the trial court's decision, our supreme court said that under the circumstances, the court had the discretion to overrule appellant's objection to entering the decree to which appellant had previously consented. The supreme court concluded that, based upon the record before it, it could not say that the trial court abused its discretion.

Carden v. McDonald, 69 Ark. App. 257, 12 S.W.3d 643 (2000), involved a boundary-line dispute, and the issue was the enforceability of a settlement agreement entered into between the parties and dictated into the record. Soon after the hearing at which the agreement was read into the record, appellant changed her mind about the settlement and protested entry of a judgment based on the settlement agreement. She filed a motion to set aside the judgment and a motion for a new trial, which were denied. She then contended on appeal that until the order had been actually written, signed by the chancellor, and filed of record, either party could withdraw his or her consent to the settlement agreement. Carden based her position that her agreement could be revoked on the case of McIlroy Bank & Trust v. Arco Corp., 30 Ark. App. 189, 785 S.W.2d 47 (1990), which held that the trial court had erred in signing a consent decree under the circumstances of that case. In affirming the trial court, we stated that our language in McIlroy Bank had been overly broad, and noted that Grumbles, supra, clearly stands for the proposition that a trial judge has the discretion to enter a judgment based on a settlement agreement read into the record, even over the objection of a party, at least when it appears that there is no disagreement as to the terms of the agreement. We noted that the order accurately reflected the agreement of the parties, and concluded that when the agreement was dictated into the record of the hearing, it became valid and binding on all parties.

In Lawson v. Madar, 76 Ark. App. 23, 60 S.W.3d 497 (2001), the trial court entered an order based on the parties' settlement of all issues, finding Lawson in contempt and awarding to Madar a money judgment for past-due child support. Lawson appealed, raising various issues relating to the proof before the trial judge and alleging error in the misapplication of certain presumptions of law. We affirmed, noting that the decree was clearly a consent decree, and that appellant did not contend that the order did not accurately reflect the agreement of the parties. We cited Martin v. Houck Music Co., 79 Ark. 95, 94 S.W. 932 (1906), where our supreme court held that when a party has entered into a decree by consent, he has no right to ask the appellate court to reverse that decree. The Martin court further noted that if there was error in the decree, it was error invited by the party.

In Lawson, we noted that the decision in Martin was in accord with current general law and cited the following provision from 4 C.J.S. Appeal and Error § 189:

A party is not aggrieved by a judgment, order, decree, or ruling regularly rendered or made, on agreement or otherwise, with his express or implied consent, therefore he cannot appeal or sue out a writ of error to review it . . . A party consenting to a judgment is conclusively presumed to have waived all errors, except those going to the jurisdiction of the court.

We concluded that Lawson could not agree to the entry of an order and then contend on appeal that the trial court erred in entering it.

Our case law makes it clear that a party cannot consent to a settlement agreement between the parties being read into the record, then question on appeal the decree based upon that agreement. Appellant seems to argue that her situation is beyond the purview of this statement of law because it involves a child-custody determination. In support of her position, appellant cites Marr v. Marr, 213 Ark. 117, 209 S.W.2d 456 (1948), in which the supreme court stated that despite any custody agreement between the parties, it was the duty of the court, before rendering the original decree, to make the necessary investigation and determine where the best interests of the child required its custody to be vested.

We note, however, that the supreme court immediately went on to say, "We assume that this was done, and that the decree was based on such investigation," and affirmed the decree as modified for visitation privileges. 213 Ark. at 118, 209 S.W.2d at 457. On appeal, absent any evidence to the contrary, we must assume that the trial court considered and correctly applied the law. See, e.g., Davis v. Office of Child Supp. Enfc'mnt, 68 Ark. App. 88, 5 S.W.3d 58 (1999); Brouwer v. Stephens, 7 Ark. App. 87, 644 S.W.2d 329 (1983).

In the case now before us, the trial court awarded temporary custody to appellee, and ordered both parties to submit to psychological evaluations. The doctor recommended that the children be placed in appellee's custody. At the hearing, the parties announced that they had reached an agreement providing, in part, that appellee was to have custody of the children. The trial court questioned both parties regarding the agreement, and appellant responded that she understood the agreement, that it covered everything, and that she was willing to accept the settlement.

The trial court had the discretion to enter a decree based upon the parties' agreement, and we find no abuse of this discretion. Likewise, we find no evidence that the trial court failed to properly apply the law in this case. We therefore assume, as did the court in Marr, supra, that the trial court made a proper determination as to the best interests of the children before rendering its final decree. Accordingly, we affirm.

Affirmed.

Stroud, C.J., and Baker, J., agree.