Berger v. Berger, 83-2664
| Decision Date | 27 March 1985 |
| Docket Number | No. 83-2664,83-2664 |
| Citation | 10 Fla. L. Weekly 803,466 So.2d 1149 |
| Parties | 10 Fla. L. Weekly 803 Patricia G. BERGER, Appellant, v. William V. BERGER, Appellee. |
| Court | Florida District Court of Appeals |
Edna L. Caruso, P.A., West Palm Beach, and Andrew Siegel, Plantation, for appellant.
Hugh T. Maloney and James E. Zloch of Patterson & Maloney, Fort Lauderdale, for appellee.
The issue here is whether a property settlement agreement was voluntarily entered into or whether it was procured by coercion and duress. The trial court found that it was the former. We disagree and reverse.
There can be no doubt that the wife signed the property settlement agreement without having an actual gun at her head. Equally without question is the fact that she did have independent legal advice and that both her lawyer and a friend cautioned her not to sign it. Nonetheless, she did so. All this being so, at first blush, it would appear she not only signed the agreement voluntarily and with full disclosure, but indeed insisted on signing it. However, the coercion and duress aspect inescapably arises because the husband admittedly insisted that she sign it or he would turn her and her partners in to the Internal Revenue Service. Apparently, the wife had been failing to report substantial cash receipts from the operation of her beauty salon business. Her unrebutted testimony is that fear of the I.R.S. is the only reason that she signed it.
The husband argues that the only reason that he made these threats was to make sure that the wife would not try to hide the level of her income in the divorce proceedings in order to secure more alimony. We have a certain amount of sympathy for that position, but the fact remains he committed the crime of extortion under Section 836.05, Florida Statutes (1983), which specifically deems it a second degree felony to threaten to expose another for the commission of any crime or offense for one's own pecuniary advantage. There can be no doubt that this statute covers the kind of situation before us. See State v. McInnes, 153 So.2d 854 (Fla. 1st DCA 1963), where the statute was specifically found to cover a threat to turn one in to the I.R.S. In our view, the completed crime of extortion must inevitably involve coercion and duress.
We certainly agree that the husband had a legal right to actually turn her in to the I.R.S. and that a claim of coercion cannot be predicated on a threat to do an act which the person has a lawful right to do. However as we have already discussed above, the husband does not have the right to threaten to do it for his own pecuniary advantage. See Paris v. Paris, 412 So.2d 952 (Fla. 1st DCA 1982).
Any lingering doubt as to whether she would have signed the agreement without the threats, are laid to rest not only by her own unrebutted testimony, but also by the fact that the property settlement agreement gave her nothing. Under its terms, she gave up...
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