Clark v. Clark

• Decision Date: 23 March 1955
• Citation: 79 So.2d 426
• Parties: Alyce CLARK, Appellant, v. Lewis E. CLARK, Appellee.
• Court: Florida Supreme Court

Page 426

79 So.2d 426

Alyce CLARK, Appellant, v. Lewis E. CLARK, Appellee.

Supreme Court of Florida, Special Division B.

March 23, 1955.

Rehearing Denied April 25, 1955.

J. B. Patterson and Thomas M. Coker, Jr., Fort Lauderdale, for appellant.

Richard M. Sauls, Hollywood, for appellee.

DREW, Justice.

During the pendency of divorce proceedings between the appellant, Alyce Clark, hereafter referred to as the wife, and the appellee, Lewis E. Clark, hereafter referred to as the husband, in June, 1952, the husband and wife entered into a separation agreement the pertinent portions of which so far as this litigation is concerned are paragraphs 3, 4, and 5. For the sake of clarity, we deem it appropriate to copy these paragraphs in full:

'3. The wife shall have custody and control of the minor child. However, the husband shall have the right to have said minor child in his custody at any reasonable time during any one year, providing the length of time the husband shall have custody of said child shall not cxceed six (6) calendar months in any one year.

'The husband agrees to pay the wife the sum of Ten Dollars ($10.00) per week for the support of the minor child during the time that said child is in the custody of the wife. The husband also agrees to pay any major medical expenses incurred by the wife on behalf of the child.

'4. The husband agrees to pay the wife the sum of Four Thousand Dollars ($4,000.00) cash, which shall be complete payment for any support, alimony or interest which the wife may have in the property owned by the parties. The husband agrees to further give the wife all furniture, furnishings, fixtures and equipment contained in beauty shop and apartment occupied by the wife for her use until such time as she may vacate premises of her own accord or re-marry.

'The wife shall be permitted to keep all income from the beauty shop business for her own use and to do with as she sees fit. The wife shall not be liable for any rent or taxes or other expenses except utilities during her period of occupancy of premises.

'5. The parties hereto are the owners as an estate by the entirety of the following described property:

Lots Ten (10), Eleven (11), Twelve (12), and Thirteen (13) of Block Thirty (30), Hollywood Beach Gardens First Addition, a subdivision in the Northeast Quarter (NE 1/4) of Section Thirteen (13), Township 51 South, Range 41 East, according to the plat thereof, recorded in Plat Book 10, page 15 of the public records of Broward County, Florida; said lands situate, lying and being in Broward County, Florida; together with the improvements thereon and the furniture, furnishings and fixtures therein contained.

'The wife agrees to convey all her right, title and interest in and to the above described property and has this day executed all necessary instruments for conveyance of her interest to the husband.'

The above agreement was dated the 17th of June, 1952. From the record it appears that the subject agreement was the second such agreement between the parties, a former agreement of April 3, 1952 having been disapproved either by the master or the court at some stage in the divorce proceedings. We do not have the agreement of April 3rd before us hence we are unable to determine whether the provisions of that agreement shed any light upon the question which we are concerned with in this appeal.

The agreement of June 17th was introduced in evidence at a hearing before the master on the 20th of June, 1952. At that hearing the wife testified that the agreement was entered into freely and voluntarily and with adequate legal advice. Parenthetically, no question is raised in this proceeding concerning the fairness of the agreement nor is any point made of fraud, duress or matters of that king. The wife testified concerning her income and the income of her husband, which was derived largely from the rental of the building described in the foregoing agreement and amounted to some $200 per month whereas the wife's income ranged from $200 to $300 per month. Concerning this agreement, and after it was offered in evidence, Mr. Clark was asked 'what arrangements have you made with your wife concerning the length of the tenure of these premises' and he answered 'as long as she wants to, she has it.' At this point the wife's attorney asked her if she desired to have made a part of the agreement a provision 'if the property is sold during the occupancy of the premises by the wife, the wife shall be entitled to all furnishings, furniture and equipment contained in the beauty shop and the apartment occupied by the wife,' and she replied that she did. It was thereupon stipulated by the husband's attorney that such conditions were agreeable to the husband. Thereupon the master filed his report containing the following two paragraphs with relation to the property settlement agreement:

'2. Plaintiff testified that she is satisfied with the arrangement of said separation agreement concerning support and custody of the minor child and property settlement. A further addition to the separation agreement was agreed upon between the plaintiff and defendant which stated that if the premises which the wife is conveying to the husband is sold during the occupancy by the wife, the wife shall be entitled to all furnishings, furniture and equipment contained in the beauty shop and apartment occupied by the wife. In all other respects, both plaintiff and defendant testified that they are satisfied with the terms and conditions of the separation agreement.

'5. Your Special Master further recommends that the separation agreement dated June 17, 1952 and set out in 'Plaintiff's Exhibit 2', be approved and made a part of any Final Decree that this Court may recommend, and that as a further provision of said separation agreement, any final decree that this Court may recommend should set forth the provision that in the event the premises which the plaintiff has conveyed to the defendant are sold, during the occupancy of said premises by the...