Cowen v. Cowen
| Decision Date | 05 June 1957 |
| Citation | 95 So.2d 584 |
| Parties | Isabel M. COWEN (Papert), Appellant, v. Edward L. COWEN, Appellee. |
| Court | Florida Supreme Court |
Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellant.
Brigham, Black, Niles & Wright, Miami, for appellee.
This appeal brings for review an order or decree dismissing with prejudice a bill in the nature of a bill of review filed by the appellant, plaintiff in the lower Court. By her bill the plaintiff seeks to have the Court vacate and set aside the separation agreement of the parties in the divorce case and that part of the decree of divorce which satisfies, confirms and approves the separation agreement. By the terms of this agreement, which was later incorporated in the divorce decree, the plaintiff received 100 shares of A. T. & T. common stock of the then value of $15,000 plus the sum of $100 each week for 525 weeks, the payment of which to be secured by cash or securities of the market value of $50,000 to be deposited with a national bank in the city of Miami Beach.
The reason or grounds for such relief is that the
'plaintiff avers that said separation agreement was entered into be reason of a breach of confidence on the part of her attorney and positive misrepresentation on the part of the defendant; that it is contrary to equity and good conscience for the plaintiff to be held and bound by said separation agreement under the terms and provisions as herein averred'.
The complaint further alleges that at the time said agreement was entered into the plaintiff possessed no knowledge of the wealth of the defendant and she had no means of ascertaining the defendant's financial status, and seeks an allowance of $500 per week.
The question involved in this appeal is whether the Chancellor, under the evidence and the applicable law, properly dismissed the complaint with prejudice.
The parties to this proceeding were married in the city of New York on the 21st day of September, 1950, and the marriage lasted until the 16th day of July, 1953, the date of the final decree, a period of approximately two years and ten months. Immediately upon the marriage, the parties embarked on a honeymoon trip to California, which lasted three to four weeks, driving in a brand new Cadillac 'presumably a wedding gift for me (plaintiff) so I was told'. During the first year of their marriage the plaintiff testified she spent about $7,500 for clothes and purchased a fur jacket for $5,000; the second year she spent about $3,000 for clothes and her husband never objected and 'there was no special limit' and she could buy anything she wanted; that upon their return to Miami Beach the parties lived lavishly, giving expensive parties, one of which the plaintiff testified cost $1,500 for between 50 and 60 people; that the defendant deposited $5,000 in the bank for her account; that he had offered to set up a trust fund for her in the sum of $50,000; that at one time they contemplated the purchase of a home on Miami Beach for which the defendant offered the sum of $72,000. And it is further alleged in her complaint that the living expenses for the two of them were approximately $40,000 a year.
The record is replete with evidence of the lavish scale on which the parties lived and the items herein mentioned, though briefly, are indicative of such scale and clearly indicate the plaintiff could not help but be aware of the defendant's financial status, that he was a man of considerable financial means, and she could not possibly have been ignorant thereof, as she alleged.
At the time of the marriage of the parties, the plaintiff was 49 years of age, had been a widow for approximately 20 years, was the mother of two adult children, and was earning as a sales woman from $125 to $150 a week, so that the plaintiff could not have been without ordinary or...
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...The burden of proof to show duress or coercion in the execution of a legal instrument lies with the party claiming duress. Cowen v. Cowen, 95 So.2d 584, 586 (Fla.1957). As a general rule, a threat of lawful arrest does not constitute duress, which would authorize a court of equity to set as......
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