Blocker v. Ferguson

• Decision Date: 18 July 1950
• Citation: 47 So.2d 694
• Parties: BLOCKER v. FERGUSON.
• Court: Florida Supreme Court

Page 694

47 So.2d 694

BLOCKER v. FERGUSON.

Supreme Court of Florida, en Banc.

July 18, 1950.

Rehearing Denied Sept. 11, 1950.

D. Niel Ferguson, of Ocala, for appellant.

Lanas Troxler, Jacksonville, for appellee.

SEBRING, Justice.

The appeal involves the propriety of an order denying a motion to dismiss a bill of complaint and the entry of a final decree in favor of the plaintiff on motion for decree on bill and answer.

As appears from the record in the cause, Edna Gatrell Ferguson, on July 2, 1927, procured a final decree of divorce in the Circuit Court of Brevard County, Florida, from her husband, R. D. Ferguson; the decree requiring the husband to pay $100 a month permanent alimony, until the further order of the court. Later, the defendant changed his residence to Marion County, Florida, and thereafter contracted a second marriage. On June 30, 1947, the defendant died, leaving a widow, who has been adjudged to be legally incompetent, and four minor children who were born of the marriage. In due course the last will and testament of the decedent was duly admitted to probate in Marion County.

Within the time prescribed by law, Edna Gatrell Ferguson filed a sworn claim against the estate of the decedent for $23,000, claiming that this amount was owed by the decedent for past due alimony from October 25, 1927, to the date of the death of the decedent. The executor of the estate refused to pay the claim or recognize it as valid. On June 30, 1948 the claimant instituted a supplementary proceeding against the executor in the divorce theretofore pending in Brevard County. The petition alleged, in substance, that the decedent had never paid any alimony during his lifetime although on two occasions during the years 1927 and 1928 the claimant had tried to enforce payment; that by reason of the refusal of the decedent to pay the alimony as and when it accrued, the petitioner had lost her home 'which was at that time encumbered by a mortgage, and as petitioner's capacity to earn a living for herself was limited to child care, she was unable to discharge and satisfy said mortgage, so that she under pressure of financial distress executed her deed to her said home to the mortgagee of same, and that for a long period of time, since she became divorced from the decedent as aforesaid, your petitioner has suffered the want of the ordinary comforts of life which the regular payment of said $100.00 monthly installments of permanent alimony would have provided * * * that the said decedent, during his lifetime, was a very successful practicing physician, and could well have afforded to make the payment of the monthly installments * * *.' The prayer of the petition was that the court adjudicate the amount of permanent alimony due and owing and that judgment de bonis testatoris be entered against the estate for the amount so adjudicated.

A motion to dismiss the petition was filed by the executor, on the grounds, among others, that the petitioner had been guilty of laches, that the claim was stale, and that the petitioner should be estopped to assert her claim because of the long period of time elapsing between the rendition of the alimony order and the suit to enforce her claim thereunder. Upon a hearing the motion to dismiss was denied and the executor was ordered to answer.

In the answer filed pursuant to the order, the executor denied that during his lifetime the decedent paid only the first three installments of permanent alimony and denied that there was any amount due and owing under the alimony order. Further answering, the executor averred, 'that of the marriage of the said R. D. Ferguson with said petitioner there was born one child, Sara Edna, who at the time of the death of the said R. D. Ferguson was thirty years of age and married; that the said R. D. Ferguson from the time of the said divorce * * * supported and educated the said Sara Edna Ferguson without any cost or hardship on the part of the said plaintiff until the marriage of the said Sara Edna Ferguson, and that the plaintiff petitioner accepted the same as compliance by the said R. D. Ferguson with the terms of the said divorce decree * * * that the said R. D. Ferguson caused the said Sara Edna Ferguson to receive from the estate of one Gardner, an estate administered in the Probate Court of Brevard County, Florida, shortly after the entry in the Circuit Court of said County of said divorce decree, the sum of five thousand dollars in cash, and that petitioner complainant treated the payment thereof to their offspring as a full and complete compromise and settlement of the said alimony and of all the differences between the said R. D. Ferguson and the plaintiff, and that the plaintiff petitioner acquiesced in the said settlement for the remainder of the period of time from that time until after the death of the said R. D. Ferguson, and the plaintiff petitioner never from that time during the remainder of the lifetime of the said R. D. Ferguson asserted any liability against the said R. D. Ferguson for any alimony thereunder, and * * * through her acts and unexplained silence and delay is now estopped to * * * have said claim enforced * * * that in these intervening approximately twenty years of unexplained and unreasonable delay the plaintiff was at all times a resident of Brevard, Orange and Marion Counties, Florida, and the said R. D. Ferguson was a resident of Brevard and Union Counties, Florida, for a short period, and the remainder of his life was spent in Marion County, Florida, and the plaintiff had free and ample opportunity to attempt to enforce the payments of said alimony * * * that during said time the said R. D. Ferguson remarried with the knowledge of the Petitioner, and at the time of his death, through his second marriage, he left him surviving his widow, who is * * * under disability, and * * * [four minor] children of the second marriage * * * and that the plaintiff well knew of the existence of the increasing family of the said R. D. Ferguson during said years, and his increasing responsibilities * * * and did nothing to enforce the payments which she well knew * * * could have been enforced if any liability therefor existed between them * * * that such circumstances were such as to make the said R. D. Ferguson or any other reasonably prudent person believe that the plaintiff had abandoned and surrendered her claim for such alimony, if any liability therefor existed, and that to allow the plaintiff to maintain and establish and enforce her stale claim for the sum of $23,000 after such unreasonable and unexplained delay in the face of the changed conditions and disadvantages occasioned by said delay, viz.: his intervening death which has silenced him and removed his testimony to the prejudice and injury of the defendant, the smallness of the resources of his estate [approximately $6,000], the resulting loss of his earning capacity with the resultant disadvantage to his estate and offspring and widow, would be inequitable and unjust, wherefore this defendant says that * * * the plaintiff is guilty of laches, and that this Honorable Court through its inherent right and power to control its decrees should not permit the plaintiff to enforce the said claim * * * and should decree that her claim should be denied the processes of this Court for enforcement and dismiss this proceeding * * *.'

Accompanying the answer was a cross bill which reaverred all the allegations of the answer and which prayed that upon a hearing of the facts the court enter its decree holding the former wife to have been guilty of laches and that she should be estopped from enforcing her claim, the payment of which from the small assets of the estate would result in the impoverishment of the legally incompetent widow and the four minor children who were the issue of the second marriage.

A motion to strike the answer and to dismiss the cross bill was filed by the plaintiff. With this motion was also filed a motion for decree on bill and answer. At a hearing on the motions the court held that 'the answer of defendant is insufficient and not amendable' and accordingly entered its decree 'that there is due and owing to the complainant Edna Gatrell Ferguson, by the Estate of Robert D. Ferguson, deceased, for accrued alimony, the sum of $23,000, and * * * that the complainant Edna Gatrell Ferguson, do have and recover out of the assets of the Estate * * * the sum of Twenty Three Thousand Dollars * * *.'

We are of the view that the chancellor did not commit error in refusing to grant the motion to dismiss the petition. It is well settled that so long as past-due installments of alimony under a valid decree remain unsatisfied they constitute vested property rights, Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205, which are enforceable against the estate of the deceased husband in the manner and by the method provided by law for the enforcement of any other claim or demand against the estate of a decedent. Fields v. Fields, 140 Fla. 269, 191 So. 512. And where payment of such a properly filed claim in the probate court is refused or disputed by the personal representative, the claimant has her remedy by bringing in the personal representative as a party to a supplementary proceeding brought for the purpose of adjudicating the validity of the demand, filed in the original suit in which the alimony decree was rendered. Compare Guinta v. Lo Re, 159 Fla. 448, 31 So.2d 704. The petitioner alleged facts sufficient to bring her case within the rules stated and hence it cannot be said that the petition was wholly without equity.

Whether the chancellor acted correctly in entering a decree on motion for bill and answer is quite a different matter. Section 63.40, Florida Statutes, 1941, F.S.A., provides: 'The plaintiff may, within ten days after the filing of the answer, or within such further time as the court may allow, move for a decree on bill and answer, and if the...