Hagen v. Viney

• Decision Date: 30 June 1936
• Parties: HAGEN v. VINEY, Judge, et al.
• Court: Florida Supreme Court

169 So. 391

124 Fla. 747

HAGEN v. VINEY, Judge, et al.

Florida Supreme Court, Division B.

June 30, 1936

Rehearing Denied July 24, 1936.

Original petition by Walter Hagen against John I. Viney, Judge, and others, for a writ of prohibition. On demurrer to the petition for writ of prohibition.

Demurrer sustained.

BROWN J., dissenting.

COUNSEL

Kelly & Casler, of Clearwater, for petitioner.

Altman & Cooper, of Tampa, for respondents.

OPINION

TERRELL Justice.

Petitioner Walter Hagen, and respondent Edna C. Hagen were married in 1923 in the state of New Jersey and lived together as man and wife until 1927. In the year last named they separated, and though not divorced, they have continued to live apart. In July, 1933, they entered into a separation agreement in writing whereby certain property rights and differences between them were amicably adjusted, and Walter Hagen agreed to pay to Edna C. Hagen on or before the tenth business day of each month thereafter the sum of $250 for the balance of her life or until she should remarry.

It was also provided in the separation agreement that, in default of making any of the monthly payments as agreed, then the sum payable for that month and for each month thereafter until such default should be made good was to be the sum of $500, such sum or sums to be in discharge and satisfaction of all claims for alimony, suit money, or other charges for support and maintenance due by Walter Hagen to Edna C. Hagen.

Payments were promptly made under the separation agreement to September 10, 1934, when default was made in the latter payment and later in the payments which became due on the 10th day of October, November, and December, 1934, and the 10th day of January and February, 1935. The total amount of these defaults was the sum of $2,500.

In March, 1935, Edna C. Hagen filed her bill of complaint for specific performance of the separation agreement, in which she set up the foregoing facts and prayed that an account be stated between her and the defendant, Walter Hagen, and that defendant be decreed to pay whatever sum shall be found due, that it be determined what sum she should have for future support, and that said amounts be decreed to be paid her, together with costs of suit, including a reasonable attorney's fee, temporary alimony, and suit money. The bill also prayed for a writ of ne exeat against Walter Hagen to prevent him from departing beyond the boundary of the state without first entering into bond as fixed by the court to comply with such order and decree as may be entered against him in the cause.

The defendant was personally served and moved to dismiss the bill of complaint and discharge the writ of ne exeat. Both motions were denied, and in November, 1935, Walter Hagen, as petitioner, filed in this court his suggestion or petition for writ of prohibition. A rule nisi was issued directed to the judge of the circuit court commanding him to show cause why a writ of prohibition absolute should not be issued prohibiting him from further assuming jurisdiction in the cause. The respondent demurred to the suggestion for prohibition, and the cause now comes on to be disposed of on that demurrer.

It is shown that Walter Hagen and his wife, Edna C. Hagen, are citizens and are residents of the state of New Jersey, but, at the time the suit for specific performance of the separation agreement was brought, they were sojourners in the state of Florida. The defendant was served personally and appeared generally in the cause. Under such circumstances, has a court of equity in this state jurisdiction of the suit for specific performance of the separation agreement?

A suit for specific performance of a separation agreement, like one for debt, contract, and other matters relating to the person or personal property that might have happened anywhere, are transitory, and may be instituted where the defendant is found and can be served with process. In such cases it is not essential that the parties be residents of the state of Florida. McLeod v. Connecticut & P. R. R. Co., 58 Vt. 727, 6 A. 648; 7 R.C.L. 1035, continuing Supp. 319.

It is settled law that courts of one state are not required to assume jurisdiction of causes between nonresidents arising in other jurisdictions, though by the rule of comity rather than that of strict right they generally do so. After all is said, the question of jurisdiction in transitory actions between nonresidents is one of discretion on the part of the court assuming it, and no rule has yet been promulgated to guide that discretion. The chancellor should be guided by the applicable rules in such cases, but the record here reveals nothing to reverse him on this point.

On the question of whether or not this cause is one of equitable cognizance, the bill of complaint impels an affirmative answer. It alleges the marriage of the parties; the presence of the defendant within the jurisdiction of the court; that complainant and defendant are living apart and have been since 1927; that they are living apart from defendant's choice; that complainant is now and at all times has been willing to live with defendant; that she has no means of support except such as is contributed to her by defendant; that defendant is a professional golfer, and has for many years earned large sums of money; that his income from his profession and in royalties from business concerns for the use of his name in advertising their goods is in excess of $50,000 per year; that he has no other property to the knowledge of complainant that could be reached to satisfy the separation agreement; that he is amply able to pay all amounts due on the separation agreement; that the business of defendant is such that he is constantly traveling throughout the United States and Canada and seldom remains at one place long enough to enable complainant to serve process upon him, and that when he is in the state of New Jersey he conceals his whereabouts so that it is impossible for her to serve process on him for the purpose of compelling him to support her as he is required to do by law; that, though he knows her necessities, he has refused and failed to contribute anything to her support since his first default; and that he is about to remove from the state of Florida taking his property with him, in which event she will be left without any security whatever for the amount past due under the separation agreement or any amount that may be decreed by the court to be paid her for support and maintenance.

Separation agreements have generally been enforced in equity. The husband and wife may be mutual assent live apart, but this does not relieve the husband of the wife's support. Courts of equity will not enforce an agreed separation, but stipulations in such an agreement to contribute money to the wife's support will be enforced. Gallemore v. Gallemore, 94 Fla. 516, 114 So. 371; Allen v. Allen, 111 Fla. 733, 150 So. 237; Peters v. Peters, 20 Del. Ch. 28, 169 A. 298; Corrigan v. Corrigan, 115 N.J.Eq. 49, 169 A. 555; Aspinwall v. Aspinwall, 49 N.J.Eq. 302, 24 A. 926.

In the last-cited case the New Jersey court held that stipulations for the support of the wife who is living apart from her husnand with his assent have always been regarded as enforceable in a court of equity in that state. They are so enforced on the theory that there is nothing illegal in man and wife living apart by mutual consent, but that does not relieve the husband for the wife's support. When separation, as in this case, has been effected or is in immediate contemplation, it is not against public policy to allow the parties to define by contract their mutual rights and obligations respecting property and wife's support. Peters v. Peters, supra.

The separation agreement in question shows on its face that it was given in lieu of dower, separate maintenance attorney's fees, suit money pendente, and all other allowances to...