Carter v. Carter

• Decision Date: 08 March 1962
• Docket Number: No. D-200,D-200
• Citation: 141 So.2d 591
• Parties: Rachel B. CARTER, Appellant, v. J. M. CARTER, Appellee.
• Court: Florida District Court of Appeals

Page 591

141 So.2d 591

Rachel B. CARTER, Appellant, v. J. M. CARTER, Appellee.

No. D-200.

District Court of Appeal of Florida, First District.

March 8, 1962.

Lowry & Andrews, Gainesville, for appellant.

A. K. Black, Lake City, for appellee.

WIGGINTON, Judge.

This cause is before the court on appellee's motion to dismiss the appeal.

Appellee husband instituted suit for divorce against appellant who answered, denying the allegations of the complaint and counterclaiming in her own behalf. She prayed for a decree of divorce, custody of the children, alimony and support money, an interest in the property accumulated by the parties during their marriage, court costs and counsel fees. During the pendency of the suit in the trial court, the parties entered into a written agreement which recognized the divorce proceeding then in litigation, and recited that they were desirous of settling between themselves the personal and property rights growing out of their marriage relationship. Under the terms of this contract it was agreed that appellant should be awarded custody of the children; that appellee would pay to appellant a stated sum of money as alimony and support for the children in the event a final decree of divorce is entered; that appellee would convey to appellant certain described real and personal property; that appellee would pay to appellant stipulated sums of money on stated future dates and would procure and maintain certain described insurance policies for the benefit of appellant and the children; that appellee would provide a college education for each of the children and would pay an agreed sum as attorney's fees for the services rendered by appellant's attorney in the cause.

At the final hearing appellee offered testimony in support of the allegations of his complaint, and although appellant was present and represented by counsel, she offered no evidence in opposition to that submitted by appellee, nor did she offer any evidence in support of her counterclaim. The agreement mentioned above was received in evidence as part of appellee's proof. The chancellor entered a decree awarding appellee a divorce, ratifying and confirming in all respects the agreement entered into between the parties, and ordered appellee to promptly discharge the obligations assumed by him under the terms of the agreement by transferring and paying over to appellant the property, money and other benefits called for therein.

Subsequent to the rendition of the final decree appellee fully executed the agreement by complying in all respects with the duties and obligations devolving upon him thereunder. All money, property and other benefits accruing to appellant as contemplated by the agreement were received and accepted by her. Appellant thereafter appealed and assigned as error that provision of the final decree which awarded appellee a divorce, but has not assigned as error any of the remaining provisions of the decree under which she received substantial benefits.

Appellee has moved to dismiss the appeal on the ground that appellant has accepted the benefits accruing to her under the final decree in accordance with the terms of their agreement, and she is now estopped to attack the validity of the provision of the decree which granted appellee a divorce.

It is a well established principle of law prevailing in this state that where a party recovering a judgment or decree accepts the benefits thereof voluntarily and knowing the facts, he is estopped to afterwards seek a reversal of such judgment or decree on appeal. His conduct amounts to a release of errors. His acceptance of payment or enforcement of the judgment or decree is a waiver of error, and estops the successful party from appealing. ¹ If under such circumstances an appeal were permitted which resulted in a reversal of the judgment or decree subjected to review, there would be no means by which the status quo of the parties could be restored, and would give the prevailing party an inequitable and unjust advantage over his unsuccessful adversary. ² The foregoing principle applies to appeals from decrees awarding alimony or questioning the propriety of a divorce or other provisions of the decree the same as it does to other civil suits, in the absence of a contrary statute or court rule. ³

In recognition of the principle above stated, it has been held that a wife will be estopped from questioning by appeal the validity of a decree of divorce where, after the decree was entered in the court below, she brought an action against her former husband to recover property, the exclusive possession of which could be rightfully claimed by her on the ground that the bonds of matrimony had been legally dissolved and were no longer binding between them, and recovering a judgment therefor which has not been appealed. ⁴

On July 7, 1961, the Supreme Court of Florida amended Rule 3.8(b), Florida Appellate Rules, 31 F.S.A., which amendment is as follows:

'(b) If an appeal is taken from an order or decree awarding separate maintenance, support or alimony, the lower court may in its discretion, upon proper notice and hearing, order the payment of separate maintenance, support or alimony pending such appeal in such amounts and under such terms and conditions as may be just and equitable. Such order shall be subject to supersedeas only by the appellate court upon motion and for good cause and then only upon such conditions as shall be imposed by such appellate court, including the payment of attorneys' fees. The acceptance of the benefits thereof shall be without prejudice to the rights of the beneficiary to raise as issues on the appeal the correctness of any of the terms or provisions of the original order or decree appealed.'

The foregoing amendment was made for the purpose of enabling a divorced wife...