Shilling v. Shilling

IN THE SUPREME COURT OF THE STATE OF DELAWARE

STEPHANIE P. SHILLING,1 §
§ No. 66, 2024
Petitioner Below, §
Appellant, § Court Below: Family Court
§ of the State of Delaware
v. §
§ File No. CN15-03650
EBON T. SHILLING, § Petition No. 23-06331
§
Respondent Below, §
Appellee §

Submitted: September 11, 2024
Decided: December 4, 2024

Before TRAYNOR, LEGROW and GRIFFITHS, Justices.

Upon appeal from the Family Court of the State of Delaware. REVERSED AND
REMANDED.

Kara M. Swasey, Esquire, BAYARD, P.A., Wilmington, Delaware, for Appellant
Stephanie P. Shilling.

Jennifer A. Hartnett, Esquire, HARTNETT & HARTNETT, Hockessin, Delaware,
for Appellee Ebon T. Shilling.

1
The Court assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d).
TRAYNOR, Justice:

This case concerns an ex-wife’s failed effort to enforce an agreement that she

believed she had reached with her ex-husband respecting the sale of her interest in

certain property acquired by the parties during their marriage. The record shows

that, in an exchange of email messages, the ex-husband offered to purchase the

interest, and the ex-wife accepted the offer. But the Family Court found that the

offer and acceptance did not result in an enforceable contract because the parties had

not adequately manifested their intent to be bound by what they said in the email

exchanges and that the exchanges did not contain all the contractual terms that were

material to the parties. In consequence of these findings, the Family Court declined

to enforce the putative agreement.

We view the matter differently. As we see it, the Family Court overlooked

the most relevant evidence of the parties’ intent and the terms they deemed material

to the sale of the ex-wife’s interest in the subject property. And this oversight led

the court to the erroneous conclusion that the parties’ communications did not form

an enforceable contract. We therefore reverse the Family Court’s judgment and

remand the matter so that the court can consider what relief is appropriate in light of

our determination that the parties’ email exchanges gave rise to an enforceable

contract.

2
I

A

When Stephanie P. Shilling (“Wife”) and Ebon T. Shilling (“Husband”)

divorced in April 2016, they owned interests in three commercial buildings—one in

Seaford, one in Smyrna, and one in Dover. In a November 3, 2017 letter decision

and order resolving matters ancillary to the parties’ divorce (the “Ancillary Order”),

the Family Court ordered Husband and Wife to sell their interests in the three

commercial properties and split the proceeds from each sale; Wife would receive 55

percent of the proceeds, and Husband would receive the remaining 45 percent. Until

the interests in the three properties were sold, Wife would receive 55 percent of any

income generated from the properties, and Husband would receive the remaining 45

percent.

Shortly after the Family Court issued the Ancillary Order, the parties agreed

to exchange their interests in the Seaford and Smyrna properties; Wife became the

sole owner of the Seaford Property and Husband became the sole owner of the

Smyrna Property. This resulted in Husband and Wife only sharing an interest in the

Dover Property. Selling their interest in that property, however, proved to be more

complicated.

Husband and Wife did not directly own the Dover Property. Instead, the

Dover Property was held by a Delaware limited liability company (the “LLC”). At

3
the time of the parties’ divorce, Husband owned a 50 percent interest in the LLC

with two other members, each of whom owned a 25 percent interest. This created

two obstacles for Husband and Wife. First, to sell the Dover Property, Husband

needed the consent of the other LLC members, and neither of them consented to a

sale. Second, the members of the LLC were required by the LLC’s operating

agreement to rent office space in the Dover Property. Accordingly, Husband’s

medical practice operated out of the Dover Property. So to sell his interest, Husband

would either need to find a buyer who did not plan to use the space and would allow

Husband to stay as a tenant or uproot his medical practice. Consequently, it was not

feasible for Husband to sell the Dover Property as a whole or to sell his interest in

the LLC. Because a sale was not immediately possible, Wife continued to receive

55 percent of the income generated from the parties’ interest in the Dover Property

under the Ancillary Order.

In 2019, a dispute arose between Husband and Wife regarding the income

generated from the Dover Property. The Family Court entered a Stipulation and

Order Resolving Petition Rule to Show Cause (the “Stipulated Order”) requiring that

Husband pay Wife 55 percent of the taxable income from the Dover Property

reported on Husband’s Schedule K-1 (the “K-1 Payments”).

4
B

In May 2021, one of the two other LLC members announced that he was

retiring, which rekindled discussions about selling the Dover Property. In November

2021, Husband informed Wife that he and the remaining LLC member had listed the

Dover Property for sale and had received a $2.2 million offer. In January 2022,

Husband emailed Wife an update on the sale of the Dover Property. In that same

email, Husband also told Wife, “I would be potentially willing to buy your shares as

well. I am not sure if you would now have to pay taxes on this[.]”2

As far as we know, the issue lay dormant for several months. But in August

2022, discussions resumed and appeared to have culminated in a resolution. On

August 3, Husband sent Wife another email, this time informing her that he and the

other remaining LLC member had agreed to purchase the retiring member’s interest

in the Dover Property. In that same email, Husband wrote:

I assume that you are not interested in selling your ownership stake in
the building and we will keep things the same. If you are interested let
me know. Your share would be valued at $605,000. I could write a
check for this. So let me know your thoughts.3

2
App. to Opening Br. at A94.
3
Id. at A65. See also id. at A7–8. The value of Wife’s share reflected Husband’s 50 percent
interest in the LLC, the approximate value of the Dover Property ($2.2 million), and the Wife’s
right under the Ancillary Order to receive 55 percent the sale price of the parties’ interest in the
Dover Property ($2.2 million x 50% x 55% = $605,000).
5
Two days later, Husband sent Wife a follow-up email reiterating his offer to buy

Wife’s interest in the Dover Property. Husband told Wife:

I am again asking you if you would like to sell your shares of the
building for a similar price. I can write you a personal check for the
$605,000 that [I] can pay you immediately if [i]nterested. . . . I will
assume if you don’t respond by [A]ugust 31, 2022 that you are not
interested and we will keep things the way they are.4

On August 24, 2022, Wife emailed Husband back. Wife wrote, “I will agree

to sell my interest in [the Dover Property]5 to you for $605,000. Please let me know

how you would like to proceed.”6 Husband responded via email the next day,

stating, “. . . I spoke to the attorney. There really is not much to do except for you

to sign a release and for me to give you a check.”7 Additionally, Husband gave Wife

two options for the sale. Husband said that they could conduct the sale by the end

of September 2022 for $586,643.20 or they could conduct the sale in May 2023 for

$605,000.00.8 Specifically, Husband said, “So if you are ok with me giving you a

4
Id. at A66.
5
Wife referred to the name of the LLC in this email, and the Court has redacted the name of the
LLC to preserve the parties’ anonymity. The parties sometimes referred to the Dover Property by
the name of the LLC that owned the building. See Opening Br. Ex. A at 9 [hereinafter Opinion]
(“While the LLC owns the commercial property, and during the ancillary hearing the asset was
sometimes referred to as the Dover Commercial Property and sometimes [by the name of the LLC]
. . . .”).
6
App. to Opening Br. at A68.
7
Id. at A69.
8
See id. Husband requested an adjustment to the initial offer price of $605,000 to account for
advance K-1 Payments he had made to Wife under the Stipulation Order. Husband had already
made K-1 Payments to Wife for May 2022 through April 2023. If the Sale occurred at the end of
September, Husband would have already paid Wife $18,356.80 for seven months in K-1 Payments
that he was no longer required to make. Therefore, Husband offered to pay Wife $585,643.20
($605,000 - $18,356.80), rather than Wife having to return a portion of the advance K-1 Payments.
6
check for . . . $586,643.20 by the end of September and you sign a release at the time

of receipt of the check, I am good.”9

On August 27, 2022, Husband sent Wife a follow-up email asking for her

preference as to which of the sale options—the September 2022 or the May 2023—

she was interested in. Husband told Wife, “If I don’t hear back from you by Tuesday

after Labor Day I will assume you are not interested.”10 That same day, Wife

emailed Husband back, writing, “I accept your calculation and want to do it as of

Sept 30, 2022.”11 Less than half an hour later, Husband replied, “Yes. We can do

that.”12

Three days later, in the same email chain, Husband emailed Wife about his

purchasing of her interest in the Dover Property (the “Sale”). Husband wrote, “As

per our recent communication, we have agreed that I will write you a personal check

for $586,643.20 in exchange for a release of all remaining residual interest in [the

Dover Property].”13 Husband also told Wife that his lawyer was “going to prepare

the paperwork for [them].”14

9
Id. (emphasis in original).
10
Id. at A71.
11
Id. at A72.
12
Id. at A73.
13
Id. at A75. In this email, Husband called the property by the name of the LLC. The Court has
redacted the name of the LLC to preserve the parties’ anonymity.
14
Id.
7
C

As of September 21, nine days before the Sale was to occur, Husband had not

yet sent Wife any “paperwork” from his lawyer. Wife sent Husband an email asking

for the paperwork so that her attorney could review it. In the same email, Wife stated

that if she does not “receive [the paperwork] in enough time that allows for review,

the buyout date will have to be pushed back to next month.”15 Husband emailed

Wife back the same day, and expressed reservations about the Sale. Husband wrote:

“I am not 100 percent sure I want to do this now with the way the real estate market

is and the stock market vs. just keeping the cash and putting it in the stock market in

the near future.”16 Despite his second thoughts, Husband said that he would check

with his lawyer and send the paperwork for Wife’s review.

On September 27, just three days before the Sale was to occur, Husband

emailed Wife again. He told Wife that there was “risk going forward” with the Sale,

and that he could “earn almost the same amount of money [investing in bonds] and

not pay taxes.”17 Husband ended the email, writing “. . . all things considered, I have

no interest in pursuing the [Sale] at this time. I would do it for $500,000 cash but

nothing less.”18 Wife did not respond to this email.

15
Id. at A77.
16
Id.
17
Id. at A79.
18
Id.
8
The day before the Sale was set to occur, Husband finally emailed Wife the

paperwork that his lawyer had prepared. Despite his reservations only days before,

Husband wrote in the email: “All things considered, this is the best way for us to

move forward. . . . Given the amount of money, I would like to sign the paperwork

at [my lawyer]’s office one day and get it notarized etc.”19 Attached to the email

was a Stipulation of Satisfaction (the “Settlement Stipulation”).20 The Settlement

Stipulation stated that “the parties have negotiated a buyout of Wife’s interest[] in

the Dover Commercial Property/[the LLC] including all interest, rights or

entitlements to rental income or other benefits of ownership.”21 When it came to the

price of the Sale, however, the Settlement Stipulation was blank; it merely stated

that “[Husband] shall pay [Wife] the sum of _____ as a final buyout of [Wife]’s

interest” in the Dover Property.22 Husband emailed Wife about an hour later, stating,

“Not sure [the previous email] went through. Here it is again. Let me know how

you wish to proceed.”23 Attached to this follow-up email was another copy of the

Settlement Stipulation that included a price of $586,643.20.24

On October 3, 2022, Wife’s attorney emailed Husband about the Settlement

Stipulation. After reviewing the Settlement Stipulation, Wife’s attorney proposed

19
Id. at A80.
20
Id. at A81–82.
21
Id. at 81.
22
Id. at A82.
23
Id. at A83.
24
Id. at A85–86.
9
three changes to it: (1) an adjustment to the buy-out price to account for the advance

K-1 Payments as the initial price contemplated a September closing date; (2)

clarification that Wife’s interest was in the Dover Property, not in the LLC; and (3)

an adjustment to the provision stating that Husband would receive all rental income,

adding that Husband would also be responsible for all obligations of the Dover

Property.25 Neither Husband nor his attorney responded to Wife’s proposed changes

to the Settlement Stipulation.

Throughout October, November, and December 2022, Husband, Wife, and

their attorneys emailed back and forth about the Sale. Husband refused to move

forward with the Sale unless Wife agreed to add to the Settlement Stipulation a

provision addressing tax implications of the Sale. Wife refused to do so, stating that

tax consequences were not part of, or relevant to, their agreement, and that tax

implications could be dealt with by each party how they wished. Despite these

complications, Wife was still interested in pursuing the Sale based on the initial

$605,000 offer. Husband refused to proceed, however, until the parties included a

provision about taxes in the Settlement Stipulation.

25
See id. at A87, A90–92. The second and third changes that Wife’s attorney made were to clarify
that Wife had never been a member of the LLC, had no interest in the LLC, and therefore was not
responsible for any pre-existing debts or liabilities of the LLC.
10
D

On March 24, 2023, Wife petitioned the Family Court for specific

performance of the agreement that the parties had apparently struck in the waning

days of August 2022. Specifically, Wife requested that the Family Court require

Husband to pay Wife $605,000 for her ownership interest in the Dover Property,

alleging that the parties’ email correspondence contained “all of the essential terms

of a contract,” which the court should enforce.26 In the alternative, Wife’s petition

sought a modification of the Ancillary Order to require Husband to buy out Wife’s

marital interest at the price agreed upon in their email correspondence. The Family

Court disagreed and denied both Wife’s claim for specific performance and for

modification of the Ancillary Order.

The Family Court denied Wife’s claim for specific performance because the

court found that no contract had been formed. The court gave three reasons why the

email messages between Husband and Wife did not, in its opinion, create a valid and

enforceable contract. First, the Family Court found that there was no meeting of the

minds between Husband and Wife regarding the Sale. In particular, the court found

that the email messages did not contain all material terms and that the parties did not

intend for the email messages to bind them. Second, the Family Court found that

“[e]ven if the parties included all the essential terms and intended to be bound by the

26
Id. at A37.
11
contract, signing the [Settlement Stipulation] was a condition precedent to the legal

obligation to perform under this agreement”27 Third, the Family Court concluded

that, even if there was a contract, it was repudiated by Husband, and Wife acquiesced

in Husband’s repudiation by continuing to negotiate. The court also denied Wife’s

request for modification of the Ancillary Order because it was a consent judgment

that was neither the product of a mutual mistake nor subject to such extraordinary

circumstances as would warrant the requested relief. Wife now appeals the Family

Court’s denial of her Petition for Specific Performance, challenging each of these

three conclusions, as well as the court’s decision not to modify the Ancillary Order.

II

A

Whether a contract has been formed is a mixed question of law and fact.28

Whether a party intended to be bound by a contract is a question of fact,29 and we

determine what terms are material to a contract “on a case-by-case basis.”30 A trial

court’s application of an equitable defense, such as acquiescence, also presents a

27
Opinion at 11.
28
Tigani v. Fisher Dev. Co., 2022 WL 1039969, at *2 (Del. Super. Ct. Apr. 6, 2022), aff’g 2021
WL 1346526 (Del. Com. Pl. Apr. 9, 2021). See also Eagle Force Hldgs., LLC v. Campbell, 187
A.3d 1209, 1229–1232 (Del. 2018) (“Eagle Force I”) (stating that the first element of contract
formation—intent to be bound—is an “issue of fact,” whereas the second element of contract
formation—definiteness of the material terms—is “mostly . . . a question of law.”).
29
See Eagle Force Hldgs., LLC v. Campbell, 235 A.3d 727, 735 (Del. 2020) (“Eagle Force II”)
(“Whether a party manifested an intent to be bound is a question of fact.”).
30
See Eagle Force I, 187 A.3d at 1230.
12
mixed question of law and fact.31 We review the Family Court’s “factual

determinations for clear error and its legal rulings de novo.”32 In our analysis, “we

conduct a limited review of the factual findings of the Family Court to assure that

they are supported by the record and are not clearly erroneous.”33

B

“A valid contract requires an offer, acceptance, and consideration, and the

parties must have intended that the contract would bind them.”34 Additionally, a

“contract must contain all material terms in order to be enforceable,”35 and those

terms must be sufficiently definite.36

Here, it cannot be seriously disputed that Husband offered to purchase Wife’s

interest at a specified price and that Wife communicated her unequivocal acceptance

31
See Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (Del. 2014) (“A trial court’s
application of equitable defense presents a mixed question of law and fact.”); Julin v. Julin, 787
A.2d 82, 84 (Del. 2001) (“Acquiescence is an equitable defense . . . .”).
32
Eagle Force I, 187 A.3d at 1228 (citing Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158
(Del. 2010)).
33
Stewart v. Stewart, 41 A.3d 401, 404 (Del. 2012).
34
Trexler v. Billingsley, 166 A.3d 101, 2017 WL 2665059, at *3 (Del. 2017) (TABLE) (citing
Osborn, 991 A.2d at 1158). In this case, Husband did not contend, nor did the Family Court find,
that there was no agreement because of the absence of consideration. Even so and for
completeness, we note that, where a contract is executory—that is, when the acts contemplated by
the contract remain unperformed, such as when one party agrees to sell and the other to buy land—
“the promises of each party supply the consideration necessary to support the contract.” See Wolf
v. Crosby, 377 A.2d 22, 27 (Del. Ch. 1977) (citing Mobil Oil Corp. v. Wroten, 303 A.2d 698, 701
(Del. Ch. 1973), aff’d, 315 A.2d 728 (Del. 1973)).
35
Osborn, 991 A.2d at 1159 (quoting Ramone v. Lang, 2006 WL 905347, at *10 (Del. Ch. Apr. 3,
2006)). See also Eagle Force I, 187 A.3d at 1229 (citing Osborn, 991 A.2d at 1158.) (“[T]he
parties intended that the instrument would bind them, demonstrated at least in part by its inclusion
of all material terms.”).
36
See Eagle Force I, 187 A.3d at 1229 (citing Osborn, 991 A.2d at 1158–59).
13
of that offer. Indeed, in his August 5 email message to Wife, Husband described his

proposal as “a fair and reasonable offer.”37 To keep discussions on track, Husband

gave Wife a deadline to respond to his offer. Before that deadline, on August 24,

Wife replied, “I will agree to sell my interest in [the Dover Property] to you for

$605,000.”38 Had the email correspondence ended there, one might reasonably

contend that Wife’s reply—“I will agree to sell”—was not an unequivocal

acceptance.39 If that were so—and we need not decide that issue—then it would

follow that, that as of August 24, there was no contract between Husband and Wife.

But the parties’ correspondence did not end there.

On August 25, after Wife said she “will agree,” Husband gave Wife two

options for the Sale—he offered to buy her interest by the end of September 2022

for $586,643.20 or on May 1, 2023, for $605,000. Again, Husband gave Wife a

deadline to respond to his offer. When Wife did not immediately respond, Husband

followed-up on August 27 with the same offer. That same day, well before

Husband’s deadline, Wife responded with a clear acceptance—she wrote “I accept

your calculation and want to do it as of Sept 2022.”40 Husband acknowledged Wife’s

37
App. to Opening Br. at A66 (emphasis added).
38
Id. at A68.
39
See Kokorich v. Momentus Inc., 2023 WL 3454190, at *8 (Del. Ch. May 15, 2023) (citing 2
Richard A. Lord, Williston on Contracts § 6:10 (4th ed. May 2023 update)) (finding that the
language “will agree” does not convey a present intent to be bound), aff’d, 308 A.3d 1192 (Del.
2023) (TABLE).
40
App. to Opening Br. at A72 (emphasis added).
14
acceptance that same day when he replied, “Yes. We can do that,”41 and again on

August 30, when Husband emailed Wife, “we have agreed that I will write you a

personal check for $586,643.20 in exchange for a release of all remaining residual

interest in [the Dover Property].”42 Therefore, as of August 27, Husband and Wife

clearly entered into a contract.

Despite this unequivocal offer and acceptance, the Family Court found that

the parties’ email messages were insufficient to form a contract. It did not find that

there was no offer and acceptance, but rather that the August 27 email exchange did

not contain all terms material to the agreement. Specifically, the court concluded

that the “parties did not have an understanding of what Wife was selling”—interest

in the LLC or the real estate that the LLC owned—and had not worked through the

tax implications of the Sale.43 Additionally, the court found that the parties did not

intend for the email messages to bind them. We disagree. As we develop more fully

below, the Family Court did not adequately consider the content of parties’ email

exchanges when determining what terms were material and placed undue weight on

the parties’ intention to memorialize their agreement in the Settlement Stipulation.

41
Id. at A73.
42
Id. at A75.
43
Opinion at 10.
15
1

To form a contract, the parties must agree to all material terms of the contract.

Determining whether a term is material to a contract does not lend itself well to a

one-size-fits-all approach. Rather, “[w]hat terms are material is determined on a

case-by-case basis, depending on the subject matter of the agreement and on the

contemporaneous evidence of what terms the parties considered essential.”44

2

We first address the Family Court’s conclusion that “the parties did not seem

to agree on what exactly they were exchanging.”45 Granted, Husband’s offer

referred to the subject matter of the Sale as Wife’s “shares of the building,” while

Wife’s email correspondence in response referred to it as her interest in the LLC in

whose name the building was titled. But as the court itself noted in its opinion, the

parties have used terms interchangeably to describe the interest being sold,

sometimes referring to it as the “Dover Commercial Property” and sometimes by the

name of the LLC. And more to the point, there is no evidence in the record remotely

suggesting that the parties did not understand what they were exchanging, regardless

of whether they called it Wife’s interest in the “property,” the “building,” or the

LLC. Neither Husband nor Wife, moreover, exhibited any confusion about the

44
Eagle Force I, 187 A.3d. at 1230.
45
Opinion at 9.
16
interest that was being sold. Accordingly, we are not persuaded that the parties’

inexact naming of the object of the Sale is of any substantive moment in the analysis

of whether a contract was formed.

According to the Family Court, the tax implications of the Sale—an issue not

covered in the parties’ email exchanges—were essential because Husband refused

to close the Sale until the tax issue was resolved. But given Husband’s omission of

any reference to that tax issue in his offer to purchase Wife’s interest, his later refusal

to close the Sale until the tax issue was decided does not transform that issue into a

material term. It is more appropriate to examine the contemporaneous evidence and,

in particular, Husband’s and Wife’s email exchanges leading up to the August 27

agreement to determine whether the tax implications for each party were essential to

the Sale.

When, in January 2022, Husband first floated the idea of buying Wife’s

interest, he said that he was “not sure if [Wife] would now have to pay taxes” if she

chose to sell her interest to him.46 Husband thus acknowledged that someone would

have to pay taxes associated with the Sale and implied that it could be Wife’s

problem. Despite his awareness of possible tax implications, Husband never raised

the question again in his multiple offers to Wife. Husband did not raise the issue on

August 3, 2022 when he offered to purchase Wife’s interest; on August 5, 2022,

46
App. to Opening Br. at A94.
17
when he asked Wife again about buying her interest; on August 25, 2022 when he

gave Wife the September 2022 and May 2023 buying options; on August 27, 2022

when he emailed Wife again about which buying option she preferred; and finally,

on August 27, 2022 when he emailed Wife, “Yes. We can do that” after she accepted

his offer.47

The first time Husband actually raised the tax-implication subject was when

he emailed Wife’s attorney on October 24, 2022—almost a full month after the Sale

was initially set to occur. Tellingly, Husband raised the tax issue only after he

expressed hesitation about moving forward with the Sale. Husband was clearly

suffering from buyer’s remorse, as evidenced by his emails in late September, in

which he told Wife that he could make more money investing in stocks and bonds

than he could from buying her interest.48 And more revealing than that was

Husband’s omission of any reference to the tax issue in the Settlement Stipulation—

drafted by Husband’s own lawyer—which Husband sent to Wife in September. In

sum, it seems evident that Husband raised the tax issue as an afterthought brought

47
Id. at A73. It bears noting that the concern Husband raised in the October 24 email—that he
would not be able to increase his cost basis in the Dover Property—was promptly dispelled by
Wife’s attorney, who noted that, from a tax standpoint, the Sale would be a “negative” for Wife.
Id. at A120.
48
See id. at A77 (“I am not 100 percent sure I want to do this now with the way the real estate
market is and the stock market vs. just keeping the cash and putting it in the stock market in the
near future.”); id. at A79 (“A [t]wo year bond is now paying over 4 percent interest and you can
get them tax free.”).
18
on by his remorse over the deal he struck in August. Seen in this light, the issue was

immaterial to the agreement that the parties struck on August 27.

By crediting Husband’s ex post rationalization for renouncing his agreement

to purchase Wife’s interest in the Dover Property to the virtual exclusion of the

contemporaneous evidence of what the parties deemed essential to the agreement,

the Family Court reached the clearly erroneous conclusion that an enforceable

contract had not been formed.

3

We turn next to the Family Court’s conclusion that a contract was not formed

because there was no manifestation of mutual assent. Specifically, the Family Court

found that Husband and Wife did not intend to be bound by their email messages

because they agreed to memorialize the agreement in the Settlement Stipulation.

The court found that Husband did not intend to be bound by the email messages

because he insisted that the parties sign the Settlement Stipulation and expressed

hesitation about proceeding with the Sale. The court found further that Wife also

did not intend to be bound by the email messages. According to the court there was

“no persuasive evidence” that Wife intended to be bound by the parties’ proposed

agreement because she never signed the Settlement Stipulation, and, instead,

directed her attorney to make changes to it.49

49
Opinion at 11.
19
It is the “overt manifestation of assent—not subjective intent—[that] controls

the formation of a contract.”50 In determining whether an overt manifestation of

assent has occurred in a particular case, we “look[] to the parties’ intent as to the

contract as a whole, rather than analyzing whether the parties possess the requisite

intent to be bound by each particular term.”51 Additionally, “in applying this

objective test for determining whether the parties intended to be bound, the court

reviews the evidence that the parties communicated to each other up until the time

that the contract was signed—i.e., their words and actions—including the putative

contract itself.”52 In our view, the parties’ email exchanges in August 2022 clearly

and overtly manifested assent to the Sale.

Husband emailed Wife multiple times to express his desire to purchase Wife’s

interest in the Dover Property. Husband went so far as to send Wife a follow-up

email after she did not respond to his first email, where he explicitly stated, “I can

write you a personal check for the $605,000 that [I] can pay you immediately if

[i]nterested. . . . I will assume if you don’t respond by [A]ugust 31, 2022 that you

are not interested.”53 Additionally, on August 30, Husband emailed Wife, stating,

“As per our recent communication, we have agreed that I will write you a personal

50
Eagle Force II, 235 A.3d at 735 (quoting Eagle Force I, 187 A.3d at 1229).
51
Eagle Force I, 187 A.3d at 1229.
52
Id. at 1229–30 (citing Black Horse Cap., LP v. Xstelos Hldgs., Inc., 2014 WL 5025926, at *12
(Del. Ch. Sept. 30, 2014)).
53
App. to Opening Br. at A66.
20
check for $586,643.20 in exchange for a release of all remaining residual interest in

the [Dover Property].”54 Wife’s actions also manifested an intent to be bound.

Wife’s email on August 24 stated, “I will agree to sell my interest in [the Dover

Property] to you for $605,000,”55 and Wife’s email on August 27 stated, “I accept

your calculation and want to do it as of Sept 30, 2022.”56 We cannot look past the

parties’ use of the terms “agreement,” “will agree,” and “accept,” and determine that

overt manifestation was not present. This unambiguous language clearly

demonstrates that the parties intended to be bound by their August 27 email

exchange.

In reaching the opposite conclusion, the Family Court placed undue weight

on the fact that the parties did not sign the Settlement Stipulation. That parties intend

to “prepare and adopt a written memorial” of an agreement “will not prevent contract

formation if the evidence reveals ‘manifestations of assent that are in themselves

sufficient to conclude a contract.’”57 In other words, merely because parties wish to

adopt a written memorial of an agreement does not mean that a memorialization is

required for an enforceable contract to have been formed. As of August 27, a valid

and enforceable contract existed between Husband and Wife. Although Husband

54
Id. at A75 (emphasis added).
55
Id. at A68 (emphasis added).
56
Id. at A72 (emphasis added).
57
Loppert v. WindsorTech, Inc., 865 A.2d 1282, 1288 (Del. Ch. 2004) (quoting Restatement
(Second) of Contracts § 27 (Am. L. Inst. 1981)), aff’d, 867 A.2d 903 (Del. 2005) (TABLE).
21
and Wife intended to sign the Settlement Stipulation to memorialize this agreement

and the release that was part of it, the fact that it was never signed does not invalidate

the contract that was formed on August 27, 2022.

C

Next, the Family Court found that, even if there was a contract, the parties’

signing of the Settlement Stipulation was a condition precedent to the Sale. Whether

a condition precedent exists is a question of contract interpretation, the answer to

which we review de novo.58 A condition precedent is a condition that “must be

performed or happen before a duty of immediate performance arises on the promise

which the condition qualifies.”59 A condition precedent may consist of “either an

act of a party that must be performed or a certain event that must happen before a

contractual right accrues or a contractual duty arises.”60 The use of terms like “‘if,’

‘provided that,’ ‘on condition that,’ or some other phrase that conditions

performance” usually connotate “an intent for a condition rather than a promise.”61

58
See Aveanna Healthcare, LLC v. Epic/Freedom, LLC, 2021 WL 3235739, at *25 (Del. Super.
Ct. July 29, 2021) (citing Casey Emp. Servs. Inc. v. Dali, 634 A.2d 938, 1993 WL 478088, at *4
(Del. Nov. 18, 1993) (TABLE) (subjecting claim that a disputed contract term created a condition
precedent to plenary review)).
59
13 Richard A. Lord, Williston on Contracts § 38.7 (4th ed. May 2024 update).
60
Id.
61
See Murphy Marine Servs. of Delaware, Inc. v. GT USA Wilm., LLC, 2022 WL 4296495, at *12
(Del. Ch. Sept. 19, 2022) (quoting 13 Richard A. Lord, Williston on Contracts § 38.16 (May 2022
update)).
22
The parties’ understanding that the “contract should be formally drawn up and

put in writing [does] not leave the contract incomplete without binding force,” unless

there is “a positive agreement that it should not be binding until so reduced to writing

and formally executed.”62 Thus, the narrow question here is whether the parties

positively agreed that there was no binding contract until the Settlement Stipulation

was signed.63

The Family Court found that Husband made it clear that the parties’ signing

of the Settlement Stipulation was a condition precedent. To support this conclusion,

the court relied on Husband’s August 27 email, in which Husband wrote that “[t]here

is not much left to do except for you to sign a release,”64 as well as Husband’s email

on September 29 stating that he would like to have the Settlement Stipulation

notarized at his attorney’s office. The court also pointed to Wife’s September 21

email, in which she stated that the Sale date may need to be pushed back so that her

attorney would have sufficient time to review the Settlement Stipulation. In the

62
Universal Prods. Co. v. Emerson, 179 A. 387, 394 (Del. 1935) (emphasis added). See also
Grunstein v. Silva, 2014 WL 4473641, at *18 (Del. Ch. Sept. 5, 2014) (finding that parties’
mention of executing a written agreement was not “an unequivocal statement that a written
executed contract was a condition precedent to an agreement.”), aff’d, 113 A.3d 1080 (Del. 2015)
(TABLE).
63
See Loppert, 865 A.2d at 1287 n.33 (“Positive” is defined as follows: “Laid down, enacted, or
prescribed. Express or affirmative. Direct, absolute, explicit.” (quoting Black's Law Dictionary
1324 (4th ed. 1968))).
64
Opinion at 11 (quoting App. to Opening Br. at A69).
23
Family Court’s view, the parties’ mere references to a written release and desire to

get it signed were sufficient to establish a condition precedent. We disagree.

Here, the Settlement Stipulation was not a condition precedent to the Sale.

There is no evidence in the record that the parties positively agreed to be bound only

if the Settlement Stipulation was signed. At most, the record indicates that the

parties desired to have their agreement and Wife’s release of Husband memorialized

in writing. The parties formed an enforceable contract on August 27 when Wife told

Husband, “I accept your calculation and want to do it as of Sept 30, 2022.”65 At that

moment, there was no other act or condition that needed to occur to make the

contract enforceable.

Furthermore, none of the offers that Husband made to Wife contained

language indicating that a condition precedent existed. In Husband’s August 5 offer,

he wrote, “I can write you a personal check . . . that I can pay you immediately if

interested.” Husband did not say, “I can pay you immediately, if you sign a written

release.” In Husband’s offer on August 25, he wrote, “So if you are okay with me

giving you a check . . . and you sign a release at the time of receipt of check, I am

good.” Husband did not write, “So if you are okay with me giving you a check,

provided that you sign a release . . . .” Finally, Husband’s August 27 offer, which

Wife unequivocally accepted, did not even mention a signed writing. The lack of

65
App. to Opening Br. at A72.
24
conditional language in the Husband’s offers demonstrates that the signing of the

Settlement Stipulation was not a condition precedent. The parties merely sought to

memorialize their agreement by signing the Settlement Stipulation.

D

In the final step of its contractual analysis, the Family Court found that, even

if the email messages formed a contract and there was no condition precedent, Wife

still could not enforce the contract because she acquiesced in Husband’s repudiation.

Under this alternative finding, the court reasoned that Husband repudiated the

contract on September 21, 2022 when he said, “I am not 100 percent sure I want to

do this . . .”, and that Wife acquiesced in his repudiation by continuing to email back

and forth with Husband.66 The Family Court also found that Wife’s proposed

modifications to the Settlement Stipulation constituted a new deal altogether that

included terms more favorable to her.

We reject the Family Court’s finding that Wife acquiesced. A party is deemed

to have acquiesced to a complained-of act, such as a repudiation of a contract, when

the party

has full knowledge of his rights and the material facts and (1) remains
inactive for a considerable time; or (2) freely does what amounts to
recognition of the complained of act; or (3) acts in a manner

66
Opinion at 12.
25
inconsistent with the subsequent repudiation, which leads the other
party to believe the act has been approved.67

Whether a party acquiesced to a repudiation is “fact-specific and context-specific.”68

Thus, our analysis of “acquiescence is fact intensive, often depending, as here, on

an evaluation of the knowledge, intention and motivation of the acquiescing party.”69

We do not view Wife’s actions as acquiescing in Husband’s repudiation.

Husband expressed doubts about whether he wanted to go through with the Sale. In

response, Wife and her attorney continued to discuss tax implications—a non-

material term—with Husband in an attempt to resolve Husband’s concerns and

prompt his performance. Furthermore, Wife’s communication after Husband’s

repudiation was not inconsistent with the original contract; rather, it appears that

Wife and her attorney were attempting in good faith to work out disagreements with

Husband before litigating the issue.

The Family Court likened this case to Stallings v. Stallings, in which this

Court upheld the Family Court’s determination that a husband had acquiesced in a

wife’s repudiation when he continued to negotiate with her after she refused to sign

a separation agreement.70 There, the husband had continued to litigate and negotiate

67
Klaassen, 106 A.3d at 1047 (quoting Cantor Fitzgerald, L.P. v. Cantor, 724 A.2d 571, 582 (Del.
Ch. 1988)).
68
Stallings v. Stallings, 303 A.3d 1230, 2023 WL 5368362, at * 3 (Del. 2023) (TABLE).
69
Julin, 787 A.2d at 84.
70
See Opinion at 12–13 (citing Stallings, 2023 WL 5368362).
26
with wife until two months before trial, and in doing so acted inconsistently with the

separation agreement.71 The husband had also appeared interested in renegotiating

or repudiating specific terms in the separation agreement.72 Stallings is inapplicable

here. Wife did not act inconsistently with the Sale—she did not accept Husband’s

lower sale offer of $500,000, nor did she agree to add a statement about tax

implications to the Settlement Stipulation. Wife merely sought to enforce the Sale

under its original terms.

The Family Court also found that Wife’s modifications to the Settlement

Stipulation constituted a new agreement that contained terms more favorable to her.

This conclusion, however, is unsupported by the record. Wife made no substantive

changes to the Settlement Stipulation. Wife’s suggested modifications related to

clarifying that she was not a member of the LLC and adjusting the price to account

for the later closing date. Thus, Wife never acted inconsistently with the original

contract that the parties formed in their email messages on August 27. Additionally,

Wife did not remain inactive for a considerable amount of time, nor did Wife ever

freely recognize Husband’s repudiation—she steadfastly insisted that the tax

implications were not relevant to the Sale and reminded Husband about the original

terms of their agreement. Therefore, we do not find that Wife acquiesced in

71
Stallings, 2023 WL 5368362, at *3.
72
Id.
27
Husband’s repudiation. The Family Court’s findings to the contrary are not

supported by the record.

III

We turn finally to Wife’s alternative claim for relief. As mentioned above,

Wife requested, as an alternative to specific performance, that the Family Court

modify the Ancillary Order to effectuate the Sale at the agreed-upon price. Under

13 Del. C. § 1519(a)(3), a modification or termination of an order for the disposition

of property stemming from divorce can only be made “upon a showing or

circumstances that would justify the opening or vacation of a judgment under the

Rules of the Superior Court.” Superior Court Civil Procedure Rule 60(b)(6) allows

the court to modify the order for “any other reason justifying relief from the

operation of the judgment.” “A party seeking modification must satisfy an

‘extraordinary situation or circumstances’ test, which requires more than a mere

change of position.”73

Wife did not ground her request to modify the Ancillary Order in the parties’

agreement as reached in the email correspondence—discussed at length above—in

which Husband agreed to purchase the Dover Property for a sum certain. Put

differently, Wife did not ask the court to modify the Ancillary Order on the grounds

73
Stanley v. Stanley, 956 A.2d 1, 3 (Del. 2008) (quoting Campbell v. Campbell, 522 A.2d 1253,
1254 (Del. 1987)).
28
that the parties in effect agreed to the modification. Instead, Wife alleged that the

intent of the parties when they consented to the terms of the Ancillary Order had

been frustrated by subsequent developments. Wife alleged that the Ancillary

Order’s “splitting of income from the [Dover Property] was intended to be temporary

until Husband’s interest in the property or the property itself was sold.” 74 She then

listed a host of reasons why the sale of the property had been impracticable.

Because Wife framed her request in this way, the Family Court made short

work of it:

Wife appears to be alleging the parties were mistaken as they
anticipated the building would sell more quickly. When the case
involves a consent judgment, relief is only available when the mistake
is mutual between the parties. Likewise the Court does not find that
there was evidence of “extraordinary circumstances” warranting Rule
60(b) relief in the interest of justice. The Court cannot modify where
the party “had [their] day in Court” but is unhappy with the settlement.
There must be an end to litigation. Both parties had the opportunity to
finalize the distribution of this asset at the ancillary hearing.75
To support this conclusion, the court cited D.J.C. v. C.B. F.,76 a 2006 Family Court

order denying a party’s motion under Family Court Civil Rule 60(b) for relief from

a property division order. The court in that case relied on this Court’s clear

pronouncement in Campbell v. Campbell concerning the proper role of Rule 60(b)(6)

in marital property division cases:

74
App. to Opening Br. at A38.
75
Opinion at 13 (footnotes omitted).
76
2006 WL 2389276 (Del. Fam. Ct. Feb. 14, 2006).
29
A judgment which seeks finally to resolve the terms of a previous
relationship should not be revisited simply because there is a post-
judgment change in circumstances. Even the all-encompassing
language of Rule 60(b)(6) does not contemplate that result. . . . Where
property rights have vested as a result of the judgment, even though
when measured by subsequent events the terms of the judgment may
seem to work a disparity, those rights should not be disturbed. . . . The
need for finality, particularly in the property aspects of final judgments
in marital disputes, precludes modification in circumstances which
might permit reopening of a hearing after the conclusion of evidence
but before the entry of the judgment.

To permit the opening of final judgments in divorce actions to modify
property awards based on a post-judgment change of circumstances not
only ill serves the principle of finality but would lead to chaotic results.
If post-judgment ill fortune can justify reallocation, so too should a
subsequent beneficial change of circumstances which alters the
comparative financial positions of the parties. An unexpected
inheritance or gift which was not factored into the property allocation
may “enrich” one party to the point where the property previously
awarded is disproportionate to present needs. To entertain reopening of
final judgments on such grounds would lead to endless applications
based on little more than turns of fate.77

Here, we see no error in the Family Court’s faithful application of these principles

to Wife’s request—as framed—for modification of the Ancillary Order.

We note, however, that the Family Court’s disposition of Wife’s Petition as a

whole hinged largely on the court’s determination that the parties had not formed an

enforceable contract to allocate their interests in the Dover Property—a resolution

that inarguably departs from the terms of the Ancillary Order. In light of our reversal

of that determination, we conclude that it is appropriate to remand this matter to the

77
Campbell, 522 A.2d at 1255.
30
Family Court to consider what, if any, remedial relief is appropriate and within the

court’s jurisdiction to grant.

IV

For the reasons set forth above, we REVERSE the judgment of the Family

Court and REMAND for further proceedings consistent with this opinion.

Jurisdiction is not retained.

31