Cox v. Cox

• Decision Date: 20 June 1994
• Docket Number: No. 91-4159,91-4159
• Citation: 638 So.2d 586
• Parties: 19 Fla. L. Weekly D1377 Kimi Lea COX, Appellant, v. James H. COX, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 586

638 So.2d 586

19 Fla. L. Weekly D1377

Kimi Lea COX, Appellant, v. James H. COX, Jr., Appellee.

No. 91-4159.

District Court of Appeal of Florida,

First District.

June 20, 1994.

Pamela Dru Sutton of Stone & Sutton, P.A., Panama City, for appellant.

Carroll L. McCauley of McCauley & Peters, Panama City, for appellee.

PER CURIAM.

We have for review a final order of dissolution. The trial court awarded Kimi Lea Cox (wife) no portion of the military retirement of James H. Cox, Jr. (husband). The wife's entitlement to a portion of the military retirement is the only issue on appeal. We reverse.

The Coxes were married in August 1978, when the husband was in the military reserves. The husband went on Air Force active duty in 1979, and has remained on active duty; he at present holds the rank of major. Four children were born of the marriage. The parties divorced in March 1988 in Guam. ¹ The parties entered into a settlement agreement (the Guam agreement), in which the parties were "represented" by one lawyer. The parties resumed living together in August 1989; they remarried in November 1989, in Apalachicola, Florida. They separated in December 1990, before the instant dissolution.

It is undisputed that the Coxes genuinely reconciled, and remarried, following the Guam divorce. The husband testified, regarding the Guam agreement, that their Guam lawyer told them it would be less expensive to have one lawyer, and that he gave them forms to execute regarding their property. The lawyer advised the Coxes that they had to decide who was to be the petitioner; the wife decided to be the petitioner. The divorce was uncontested, and was granted in a week. The Guam agreement contains a detailed list of the Coxes' property, under the headings "community property" and "separate properties"; the agreement contains no mention of the husband's retirement under either heading.

The husband earned a masters degree during the marriage. The wife had a high school education; she occasionally worked part-time during the marriage. The wife moved each time her husband's career required it--a total of six times. After the Guam divorce the wife earned an A.A. degree and worked in her father's store. The wife testified that the husband handled the finances during the marriage. She first learned the amount of her husband's income after she consulted a lawyer at the base legal office, after the separation preceding the instant dissolution. The wife also testified that, at the time of the Guam divorce, she had no knowledge that she was entitled to a portion of the husband's military retirement.

The wife argues that, as a matter of law, the Guam agreement must be set aside. We disagree with the wife's reading of this court's prior cases. This court first addressed the question of whether a marital agreement ought to be set aside after reconciliation in Mills v. Mills, 460 So.2d 545 (Fla. 1st DCA 1984). We held that "under the particular circumstances of [the] case" a postnuptial settlement agreement was abrogated by reconciliation and a subsequent six-year cohabitation. Id. at 546. We stated: "We do not conclude that, as a matter of law reconciliation abrogates all settlement agreements." Id.

We also addressed the question whether a remarriage of the parties serves to abrogate a prior agreement in Thomas v. Thomas, 571 So.2d 499 (Fla. 1st DCA 1990). We concluded that "the trial court abused its discretion in failing to set aside the prior property settlement agreement, for purposes of an equitable distribution of the marital assets in this case." Id. at 506 (emphasis added). We found "an abuse of discretion in the trial court's determination that the dissolution of marriage should be considered a three-year marriage for purposes of the division of property and consideration of an award of alimony to the wife [in view of the prior thirty-year marriage of the parties]." Id. at 507.

Professor Clark, in his treatise on the law of domestic relations, notes that the effect of reconciliation on separation agreements is a "difficult question," resulting in several lines of cases. Homer H. Clark, Jr., The Law of Domestic Relations Sec. 19.7, at 438 (2nd ed. 1987) [hereinafter Clark ]. One line of cases holds that the intention of the parties governs. See Gerard v. Gerard, 636 So.2d 849 (Fla. 1st DCA 1994) (holding that there was competent substantial evidence to support the conclusion that the parties intended to void the marital settlement agreement and a deed when they reconciled). Another line holds that reconciliation voids a separation agreement but not a property settlement--an approach Clark disparages, because he views such a distinction as "specious." Clark, supra, at 439. Another line of cases holds that reconciliation abrogates the executory portions of the separation agreement but does not affect the executed portions. Id. There is authority for this view in Florida. See Miller v. West Palm Beach Atlantic Nat'l Bank, 142 Fla. 22, 194 So. 230, 231 (1940) (holding that where husband conveyed property to wife as part of a separation agreement and the husband and wife reconciled a few months later, wife's devise of that property ten years later was not voided by the reconciliation; this case is distinguished in Gerard ). Other cases hold that the agreement is void. Weeks v. Weeks, 143 Fla. 686, 691, 197 So. 393, 395 (1940) ("It appears to be well settled that reconciliation of husband and wife and resumption of marital relations for any period of time will render a previous contract and settlement of...