Cohen v. Cohen
| Decision Date | 30 March 1971 |
| Docket Number | No. 70--773,70--773 |
| Citation | 246 So.2d 581 |
| Parties | Alfred COHEN and Ewald Ziffer, as Co-Executors of the Estate of Arthur Cohen, Deceased, Appellants, v. Jeffrey B. COHEN and Lawrence Cohen, minors, by and through their mother and next friend, Joan C. Bergman, and Joan C. Bergman, individually, Appellees. |
| Court | Florida District Court of Appeals |
McCarthy, Steel, Hector & Davis, and Norman A. Coll, Miami, for appellants.
Snyder, Young & Stern and Michael H. Oritt, No. Miami, for appellees.
Before PEARSON, C.J., and BARKDULL and SWANN, JJ.
Arthur Cohen and his wife Joan executed a voluntary property settlement agreement in 1964. It provided that Arthur would pay Joan $40 a week for each of their two minor children, and 'the tuition for normal Hebrew School training for each of the boys and in addition would pay the normal and usual expenses entailed in the Bar Mitzvah' so long as the Bar Mitzvah did not exceed a certain sum per child. The agreement was made a part of their final decree of divorce. Later, Joan married and Arthur thereafter passed away. Arthur was current in child support payments at the time of his death but his estate made no payments for a period of time. Joan (Bergman) filed a claim against the estate for child support and for certain expenses for normal Hebrew School training. The claim was partially objected to by the co-executors of the estate and Joan filed suit against the estate to enforce these claims.
She sought a determination and judgment for the dollar amount payable from the estate for the support of the minor sons and for tuition for normal Hebrew School training. Defendants do not challenge the validity of the property settlement agreement or that these obligations are binding on the estate. See Reinhardt v. Reinhardt, Fla.App.1961, 131 So.2d 509; and Simpson v. Simpson, Fla.App.1959, 108 So.2d 632. They argue that the support payments made by the Social Security Administration for the support of the two minor children from the date of Arthur's death constitute a partial discharge of his obligation to pay $40 a week as support for each of the minor children and that the normal Hebrew School training mentioned in the property settlement agreement ceased upon the Bar Mitzvah of Jeffrey and Lawrence, their minor sons.
After discovery both parties filed motions for summary judgment. The trial court rendered a final summary judgment which held that Joan was entitled to her claim for child support payments; which did not allow any off-set or credit to the estate for payments made by the Social Security Administration on behalf of the children, and which held for the estate on Joan's claim against it for expenses for Hebrew School training for the children beyond the Bar Mitzvah. The executors of the estate have appealed and assign as error the failure of the trial court to rule that the Social Security payments made to Arthur's two minor children after his death constitute a partial discharge of the payments required of him under the divorce decree and property settlement agreement. Joan has cross-assigned as error the denial of her claim for certain additional costs and expenses relating to Hebrew School training for the two minor children.
The estate submits that the decisions of Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962), and Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963) require a ruling, as a matter of law, that social security benefits should be considered as a proper deduction or credit on the child support obligations of the estate. The estate also cites Fowler v. Fowler, 156 Conn. 569, 244 A.2d 375 (1968), but admits that the Fowler case is distinguishable on its facts and that it is not controlling.
The estate argues by way of analogy that a number of courts have...
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