Demaggio v. Demaggio, 74-308
| Decision Date | 27 August 1975 |
| Docket Number | No. 74-308,74-308 |
| Parties | Margaret E. DEMAGGIO, Appellant, v. Biagio Gene DEMAGGIO, Appellee. |
| Court | Florida District Court of Appeals |
Frank A. McClung, Brooksville, for appellant.
D. J. Bradshaw of Bradshaw, Wagner & Mountjoy, Inverness, for appellee.
This is an appeal from a denial of a motion filed pursuant to Rule 1.540(b) (3), RCP, which seeks relief from a judgment of dissolution of marriage. The issue involved is whether appellant-wife established a sufficient basis for requiring, as a matter of law, a determination by the trial judge that there was fraud in the execution of a separation agreement which was incorporated in the judgment of dissolution. We think there was such a basis, and we reverse.
The parties hereto severed their marital ties after twenty-six years of marriage, for the last twelve of which the wife had been a chronic alcoholic. In fact, within the last two years of the marriage she had been confined no less than three times for treatment. The agreement in dispute here was entered into in September, 1972, within a few says after her last confinement, and her contention is that the circumstances surrounding the entering into of that agreement give rise to a presumption of fraud in the execution thereof. We agree; and the basis for our conclusion is that the appellee-husband unfairly concealed from the wife his true wealth resulting in a grossly disproportionate settlement agreement.
To begin with, it is undisputed that for the last several years the wife was essentially debilitated by her alcoholism. The husband was clearly the dominant figure in the marriage and had accumulated considerable wealth consisting of approximately 200 separate parcels of property which included a home, lots, acreage and business property in Massachusetts and Florida and, in addition, automobiles, boats, savings accounts, mutual funds, tractors and other items of personal property. Most of this property was individually owned by the husband. The wife was never informed nor was she aware of the extent of this wealth, although it's obvious she knew they were able to live most comfortably.
Secondly, at the time the parties entered into the agreement herein the wife was not represented by counsel. At the husband's insistence, the parties went to the office of the husband's attorney who prepared all the necessary papers both for the agreement and for the dissolution proceedings which followed the execution of the agreement. The husband admitted that he arranged the settlement conference, that he told the wife that he intended to seek a dissolution of the marriage but that, if she signed a settlement agreement and 'straightened out', he would remarry her in 60 to 90 days (which obviously will not come to fruition).
While the husband testified that he was of the opinion his attorney was fairly representing both parties, the attorney himself denied it saying that he represented only the husband. Both the husband and...
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Bell v. Bell, 92
...is unfair it is presumed to be invalid and the burden is on the party seeking to enforce it to prove otherwise); Demaggio v. Demaggio, 317 So.2d 848 (Fla.App.1975) (presumption of fraud created where agreement was grossly disproportionate, husband concealed assets, and wife was unrepresente......
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Tenneboe v. Tenneboe
...417 (Fla. 3d DCA 1979) (coercion and duress); Moss-Jacober v. Moss, 334 So.2d 89 (Fla. 3d DCA 1976) (overreaching); Demaggio v. Demaggio, 317 So.2d 848 (Fla. 2d DCA 1975) (fraud); Kern v. Kern, 291 So.2d 210 (Fla. 4th DCA), cert. denied, 294 So.2d 657 (Fla.1974) (misrepresentation). See als......
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Adams v. Adams
...the agreement aside. Posner v. Posner, 257 So.2d 530 (Fla.1972); Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962); Demaggio v. Demaggio, 317 So.2d 848 (Fla.2d DCA 1975); McCormick v. McCormick, 181 So.2d 220 (Fla.2d DCA 1965), cert. denied, 188 So.2d 807 (Fla.1966). The husband next chal......
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Eckstein v. Eckstein
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