D'Amato v. D'Amato
| Decision Date | 29 June 1965 |
| Docket Number | No. 65-6,65-6 |
| Parties | Joseph D'AMATO, Appellant, v. Marie J. D'AMATO, Appellee. |
| Court | Florida District Court of Appeals |
Leff & Pesetsky, North Miami Beach, for appellant.
Tobias Simon and Carl Spatz, Miami, for appellee.
Before CARROLL, HENDRY and SWANN, JJ.
This is an appeal from a final decree awarding twenty-five hundred dollars as fees for services rendered by the wife's attorneys in a divorce action.
The appellant was the husband and defendant below. Appellee was the wife and plaintiff below. The parties will be referred to as in the trial court.
The plaintiff filed a suit for divorce against the defendant, and during the pendency of the action the parties executed an instrument entitled, 'Property Settlement Agreement', which provided in part:
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WHEREAS, the parties to this agreement have beemed (sic) it advisable to settle their rights and interests in and to properties held by them and to further adjust their differences for the best interst of the minor children of the parties; and * * *
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* * * NOW, THEREFORE in settlement, adjustment and compromise of all questions and rights and in compromise of all questions concerning the support and maintenance of the wife and the minor children and all other claims, rights and duties arising out of said marital relations, and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable considerations, each to the other in hand paid, the receipt whereof is hereby acknowledged, and in further consideration of the mutual promises, undertakings, agreements and releases contained herein, the parties hereto mutually agree as follows:
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The agreement thereafter made disposition of certain assets of the parties; provided for child custody and support; contained a waiver of alimony from the wife in lieu of the payment of twenty-five dollars per week until remarriage; provided that the husband would pay one hundred dollars towards the wife's attorneys' fees, and provided that the agreement should be incorporated in a divorce decree, if acceptable to the court.
Thereafter, each of the parties obtained new counsel and the plaintiff moved to set the agreement aside on various grounds, including, inter alia, the fraudulent and willful concealment by the defendant as to his financial circumstances. There was to contest as to the grounds for divorce.
The court held a special hearing to determine the validity of the agreement and ruled that it was valid and binding. A judgment was entered awarding twenty-five hundred dollars as fees for the plaintiff's attorneys. The defendant appealed, contending that he was only obligated for the attorneys' fees of one hundred dollars as set forth in the agreement.
We reverse. The parties had entered into the agreement freely and voluntarily while represented by competent counsel. The plaintiff admitted that she had read the contract and understood it fully, as evidenced by the following question by the court:
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'Q Paragraph seventeen: Were you aware of that particular paragraph?
'A Yes.'
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The plaintiff had received part of the assets of the parties under the agreement, and there has never been any offer to return the defendant to status quo, by a return of the assets received. The trial court specifically found that there was no fraud or concealment in...
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