Belcher v. Belcher

• Decision Date: 23 August 1972
• Docket Number: No. 42023,42023
• Citation: 271 So.2d 7
• Parties: Annabelle G. BELCHER, Petitioner, v. John A. BELCHER, Respondent.
• Court: Florida Supreme Court

Page 7

271 So.2d 7

Annabelle G. BELCHER, Petitioner, v. John A. BELCHER, Respondent.

No. 42023.

Supreme Court of Florida.

Aug. 23, 1972.

Rehearing Denied Dec. 15, 1972.

Carr & Warren, Miami, for petitioner.

Horton, Schwartz & Perse and Milton M. Ferrell, Miami, for respondent.

DEKLE, Justice.

We reach here yet another milepost on the 'antenuptial' trail over which a journey was rather recently begun which the classic Del Vecchio ¹ and thereafter propelled periodically in a perceptive progression of pedagogic pronouncements pertaining to preeminent progeny, Posner, Lindsay and others. ² Conflict is asserted between the Third District's holding at 256 So.2d 75 and these earlier mileposts and also with Astor ³ and Contractors Contract Noy 5948, ⁴ regarding a husband's basic obligation to provide support. Jurisdiction vests under Fla.Const. art. V, § 4(2), F.S.A.

The query here is an extension of the questions posed on earlier legs of our journey; we are now asked whether or not by express provision in an antenuptial agreement the husband can, by the payment of a present, fixed consideration, contract away his future obligation to pay alimony, suit money and attorney's fees during a separation prior to dissolution of the marriage. This is the sole determination here. Previously this Court in the above-mentioned cases has held, and now reiterates, that antenuptial agreements in Florida are valid and binding in accordance with the criteria set forth in Del Vecchio and Posner as to full disclosure, fair and reasonable provisions for support and valid consideration. However, we now hold further that Before and pending Dissolution of the marriage a husband's obligation of support While still married continues under the historical principle supported by an unbroken line of cases since shortly after Florida became a state in 1845 ⁵ which we decline to reverse, as would be necessary in order to accept the husband's contention here that his agreement extends as controlling to the period while his marriage continues. This provision of such an agreement is a factor to be considered but not the sole factor, nor conclusive, in a determination of support Pendente lite.

For temporary support, suit money and temporary attorney's fees, the State remains an interested party and cannot be excluded by contract during this period of continuance of the legal relationship of husband and wife. Contracts are made in legal contemplation of existing, applicable statutes ⁶ and so it is that marriage contracts ⁷ and any ante or post-nuptial contracts are entered into subject to then existing law, including the law of this state that makes a husband responsible for the support of his wife while she is married to him.

We recall with approval Mr. Justice Roberts' (now Chief Justice) initial premise in Posner I: (233 So.2d p. 382)

'At the outset we must recognize that there is a vast difference between a contract made in the market place and one relating to the institution of marriage.'

This suit is for 'alimony unconnected with divorce' (dissolution) under Fla.Stat. § 61.09 (1969). ⁸ Neither party has asked for a divorce. We do not have present here those problems presented in earlier cases dealing with initial disproportionate provisions for the wife, failure to make full disclosure, overreaching or fraud. We simply have the query: 'Can the husband CONCLUSIVELY 'buy out' of his admitted obligation to support a wife Prior to divorce by an advance agreement?' It must depend upon the factual situation. If the wife is adequately cared for by her own income and assets (including any then remaining assets or income to her as earlier consideration in the antenuptial agreement) then, just as in non-antenuptial cases, the husband need not provide temporary alimony. Similarly, suit money and attorney's fees turn on the wife's relative ability at the time of suit. Raley v. Raley, 50 So.2d 870, 872 (Fla.1951); former Fla.Stat. § 61.09 now § 61.16, F.S.A.

The measure of adequate care is the historical need of the wife, ability of the husband to pay and their standard of living. ⁹ The husband cannot cut her adrift without further obligation wheh he pleases, if 'when he pleases,' her circumstances During coverture while they remain man and wife are such, despite earlier considerations paid (though this is a factor), she is not at this critical time of separation before any dissolution of marriage, adequately cared for, consistent with her needs, their standard of living ¹⁰ and his ability to pay at this time. These criteria may substantially differ between the date of the antenuptial agreement and the time for its application at Separation. Thus in attempting to 'settle in advance' a Continuing marital obligation, the husband must remain subject to his legal obligation while still married. The State still imposes upon marriage contracts the obligation that the wife shall not become dependent upon welfare or others; it requires that an able husband support a needy wife during coverture. ¹¹ To be borne in mind is the basic fact that the parties are still husband and wife which remains the predicate for support of the wife by the husband so long as they are still married.

Provision for 'permanent' settlement After dissolution of the marriage is another matter; fair provisions thereon will be recognized as a matter of contract; indeed post-nupital settlement agreements are regularly approved upon meeting proper requirements of disclosure and fairness. The contract here is skillfully drawn and has studiously provided by its terms for the eventualities After court dissolution or upon dissolution by death as to the husband's estate. The Belcher contract, however, then attempts to go one step further than the Posner contract, which only purported to apply 'after divorce' (despite the inadvertent reference in the district court's certified question to 'separation or divorce'). The Belcher agreement seeks to apply its provisions as to considerations paid, to 'be also accepted' by the wife in advance 'in lieu of any and all claims which may or could be made by her against First Party (husband) for alimony, suit money or other maintenance during the lifetime of First Party; and Second Party (wife) hereby waives, renounces and relinquishes' any and all such claims against him. This we hold cannot be Conclusively done for the period prior to dissolution. The contract provisions in this additional respect during the separation, o.are to be given consideration but are to be considered together with all other pertinent conditions of need, ability to pay and the current standard of living of the parties at the time of the hearing for support during the separation, until any later dissolution of the marriage. From all of the evidence on this aspect of the case, the chancellor would then determine, as in cases without such an agreement, what, if any, additional support, suit money and attorney's fees should be awarded to the wife.

This holding does not affect the validity of the antenuptial contract in the other respects in which it is tested under Del Vecchio and Posner. It is upon the dissolution of the marriage, by divorce or death, that these other classic provisions regarding dower, property, estate and permanent alimony are thereby invoked.

Until there is a decree of dissolution of the marriage, thus ending her role as wife, the wife's support remains within long-established guidelines of support by the husband which cannot be conclusively supplated by his advance summary disposition by agreement.

Petitioner and respondent were married on January 20, 1970; on May 11, 1971, respondent informed her that he no longer wanted the responsibility of marriage and wanted the responsibility of marriage and remove herself from the martial home. Then, apparently realizing that the home was one of the assets he had given to her as the consideration in their antenuptial agreement, moved out himself. It is alleged that respondent has asserts in excess of $3 million. The husband responds by asserting the antenuptial agreement as a complete defense to any demand for temporary alimony, suit money and attorney's fees.

The learned chancellor noted that what he was awarding was alimony Pendente lite, suit money and attorney's fees in an 'action for separate maintenance.' After correctly ruling that the husband had a duty to support his wife During their marriage after separation, notwithstanding the antenuptial agreement, the chancellor conducted a limited hearing to determine her needs and his ability to pay. At the hearing, the wife presented a statement of estimated needs and the husband submitted evidence of his actual worth. In determining the amount of reasonable living expenses for the wife, the chancellor kept the status quo: the husband must continue to support his wife during coverture by paying generally the same expenses (omitting long range and vacation items) and by pahing amounts he had been providing prior to their separation--not unlike similar orders over the years in separation. From these two orders interlocutory appeals were taken to the Third District, reversed and this certiorari followed.

The historical balance of 'need and ability' remains as the formula in determining alimony during coverture. This principle is repeatedly cited in the authorities as the basis for alimony, support and attorney's fees to the wife from a husband more able to pay; it continues to undergird support provisions despite the present changes in our divorce laws (now 'dissolution of marriage'). ¹² It would be inequitable to deny a needy wife support from an able husband by reason of an earlier provision in an antenuptial agreement, thereby leaving her 'the ward of the state' or dependent upon others or simply deprived.

Under this settled formula, we have reviewed the record before us and it indicates that the chancellor's evidentiary hearing on temporary allowances...