Cordrey v. Cordrey

• Decision Date: 17 January 1968
• Docket Number: No. 67--81,67--81
• Citation: 206 So.2d 234
• Parties: Virginia CORDREY, Appellant, v. Dr. Lee James CORDREY, Appellee.
• Court: Florida District Court of Appeals

Page 234

206 So.2d 234

Virginia CORDREY, Appellant, v. Dr. Lee James CORDREY, Appellee.

No. 67--81.

District Court of Appeal of Florida, Second District.

Jan. 17, 1968.

Rehearing Denied Feb. 15, 1968.

Robert Scott Kaufman, Miami, for appellant.

Sam Bucklew, of Bucklew, Ramsey & Stichter, Tampa, for appellee.

HOBSON, Judge.

The appellant, Virginia Cordrey, appeals a final decree of the chancellor below whereby the chancellor modified a 'Separation Agreement' entered into between the parties on December 4, 1956 in the State of Ohio. Subsequently on January 30, 1959 a final decree of divorce was granted the appellant against the appellee by a court of the State of Pennsylvania. This final decree of divorce made no mention of the said 'Separation Agreement' entered into on December 4, 1956.

The learned chancellor below has rendered an erudite opinion setting forth his findings of fact and conclusions of law with which we are in complete accord. We quote with approval his opinion and final decree:

'The plaintiff, Virginia Cordrey, brought an action in this court for specific performance of a written contract entitled 'Separation Agreement' signed by her and the defendant, Dr. Lee James Cordrey, on the 4th day of December, 1956, in the State of Ohio. The defendant filed motions to dismiss the complaint and to strike plaintiff's prayer for attorney's fees. These motions were argued before the Court on May 11, 1966, and on May 20, 1966, the Court entered an order denying the former motion but granting the latter at that stage of the proceedings, orally announcing that the motion for attorney's fees might be renewed and considered by the Court at some future point, depending upon the issues raised by subsequent pleadings. In this same order the Court allowed the plaintiff's oral motion to amend her complaint, if necessary, to specifically allege the foreign laws claimed to be involved in the cause.

'On June 14, 1966, the Court allowed the defendant to amend his answer and to file a counterclaim in the proceedings. Pursuant thereto, an amended answer and counterclaim setting up Chapter 65, Florida Statutes (F.S.A.), as subjecting the question of alimony and support to review and modification, was filed on June 21, 1966.

'The case is at issue, therefore, on the defendant's amended answer to plaintiff's complaint and the defendant's counterclaim and the plaintiff's answer thereto.

'The Court has carefully considered all evidence offered by the parties, including oral testimony of witnesses adduced before the Court, testimony contained in several depositions taken by the parties and filed in the cause and all admissible documentary evidence relating thereto. The Court has also carefully examined certified copies of proceedings had and taken in the Court of Common Pleas No. 6 for the County of Philadelphia, Pennsylvania, in the divorce proceedings instituted by the plaintiff against the defendant, resulting in an absolute decree of divorce entered by the Court on January 30, 1959. In addition, the Court has listened to comprehensive argument of counsel for the respective parties and has studied and weighed their adversary 'From the foregoing, the Court makes the following:

legal contentions as contained in copious briefs which have been filed with the Court.

FINDINGS OF FACT

'The plaintiff, a dancing instructor who was born on October 20, 1920, in North Carolina, and the defendant, a physician who was born on November 30, 1921, in Delaware, were married to each other on June 14, 1945, in the plaintiff's home town of Landis, North Carolina, at the end of the defendant's senior year in the Medical College at Temple University which is located in Philadelphia, Pennsylvania. Shortly after the wedding ceremony, the couple moved to New Jersey to live for a year, after which they went to Largo, Florida, where the defendant was called for the performance of professional duties for a period of two years. Pursuing their migratory way, to meet the requirements of the defendant's advance in his medical specialty, they left Largo and established a residence in Chamblee, Georgia, living and cohabiting there for three more years while the defendant was stationed at the Veterans Administration Hospital at that place. From Chamblee, the plaintiff and defendant transferred to Philadelphia and maintained residence in that city as man and wife for an additional two years and one month, during which time the defendant pursued duties at the Shriners' Crippled Children's Hospital and taught at Temple University. Thereafter, the defendant became a member, for one year, of the faculty of Duke University Medical School at Durham, North Carolina. The plaintiff did not live in Durham with the defendant but made periodic peregrinations on week-ends from Philadelphia to Durham, usually returning to Philadelphia on Monday mornings for the purpose of pursuing her career in the teaching of dancing at Arthur Murray Studios.

'After completing his year on the faculty at Duke University, the defendant, still ambitiously pursuing his profession, moved on to Cleveland, Ohio, where he worked and resided until he came to Tampa, Florida, in 1958.

'The plaintiff retained her residence in Philadelphia during this period but also continued her round trip week-end flights, even to Cleveland, to visit with the defendant, until the separation of the parties in 1956, as hereinafter recited.

'The plaintiff enjoyed her work at the Arthur Murray Dancing Studies in Philadelphia and, apparently, preferred to make that city her operating base from which to commute regularly on her off-hours to whatever locality in which the defendant might be residing. The defendant, on the other hand, was intensely interested in his medical practice which he enjoyed to the extent that he was engrossed in its pursuit at least eighteen hours each day. He had no hobbies and no interests outside of his work, even though he lived alone except during the plaintiff's visits.

'No children were born of the union of the plaintiff and defendant and none were ever planned by them.

'Because of their migratory and desultory existence, together with the stresses and strains, placed upon them by their divergent careers, the parties did not and could not travel together in a common main stream of life and were caught in the unpredictable and swift eddies of modern society, robbing them from the beginning of a normal and harmonious marriage. Prior to the time that the defendant became a member of the faculty of Duke University at Durham, North Carolina, the parties had experienced difficulties because of the defendant's alleged infidelities and indiscretions, some of which have not been denied by him, when the plaintiff was away. Embarrassing confrontation, relative to the defendant's disloyalty, created impasses between the parties and temporary retreats by the plaintiff from the marital relationship. These retreats usually ended upon the defendant's promise of more circumspect behaviour. The only occasions during which 'The separation agreement provided that in each calendar year, beginning with the calendar year 1957, the defendant would pay to the plaintiff for her support an amount equal to 33 1/3% Of his net income, said payments to be in periodic installments as provided in the agreement. It also provided that the obligations of the defendant to pay any money to the plaintiff would cease upon her remarriage or upon death of either of the parties.

the plaintiff and defendant lived together in peaceful communion as husband and wife after the defendant moved to Durham were on the week-end visits of the wife, during the few periods of reconciliation and withdrawal from these emotional impasses until their final separation which occurred in May, 1956, according to the testimony of the plaintiff in the divorce proceedings which finally and completely severed the union between the parties. In her deposition filed in the present cause, she testified that the final separation of the parties occurred in July or August of 1956 and that, thereafter, on December 4, 1956, the date on which the separation agreement was signed, the defendant requested her to return to him as his wife, both before and after signing the agreement. She further testified that his request before the signed agreement was refused, largely because of the infelicitous manner in which it was advanced by the defendant. She testified that, although the defendant made love to her on the occasion of the request after the signing, she refused because she hoped the separation would bring about a sound reconciliation later.

'The agreement further provided that life insurance in the amount of $50,000 would be provided as a guarantee to said wife should the defendant die leaving the plaintiff-wife surviving and unmarried. It also provided that the defendant would deposit the sum of $10,000 to be paid to the plaintiff in the event a final decree of divorce was obtained by her. This sum, which had been placed in escrow, was received by the wife upon entry of the final decree of divorce. In addition, the defendant delivered to the plaintiff bonds which had been held jointly and the household furniture except for a bedroom suite.

'The parties lived separate and apart under the separation agreement for a period of approximately two years and on January 3, 1959, (sic) the final decree of divorce was obtained by the plaintiff against the defendant in the Court of Common Pleas No. 6 for the County of Philadelphia, State of Pennsylvania, upon the grounds of 'indignities to the person.'

'The said final decree of divorce entered by the Pennsylvania Court made no mention of any agreement to pay support or alimony and made no provisions for the payment by the defendant to the plaintiff for any support whatsoever.

'The plaintiff may be adequately and satisfactorily maintained in the style and means to which she is accustomed on an income...