Dix v. Dix
| Decision Date | 26 September 1939 |
| Citation | 191 So. 205,140 Fla. 91 |
| Parties | DIX v. DIX. |
| Court | Florida Supreme Court |
Certiorari to Circuit Court, Dade County; Worth W. Trammell, Judge.
Suit by Judith T. Dix against Mark H. Dix to modify a property settlement and final decree approving it in proceeding wherein complainant was granted a divorce from respondent. To review an interlocutory order denying a motion to dismiss the bill of complaint, respondent brings certiorari.
Order quashed with directions to dismiss the bill.
COUNSEL S. P. Robineau and Garland M. Budd, Jr., both of Miami, for petitioner.
Aronovitz & Goldstein, of Miami, for respondent.
This cause is before us on certiorari to review an interlocutory order denying motion to dismiss bill of complaint filed for the purpose of procuring an order modifying a property settlement and a final decree approving such settlement entered at the culmination of divorce proceedings in which the complainant here was complainant and procured decree of divorce dated the 26th day of May, 1936.
The final decree in which jurisdiction was not retained for any purpose contained the following:
The agreement contained inter alia the following:
'Whereas party of the first part and party of the second part have been advised by their counsel in the above stated cause that it is proper for said parties, in contemplation of said final decree being entered in the cause, and pursuant therewith that they enter into an agreement wherein the said party of the first part does agree, in consideration of the covenants and agreements of the party of the second part, to create a trust fund for said party of the second part, to-wit, Judith T. Dix, and to provide for such other provisions in the agreement as are contained herein, and accordingly a stipulation has been entered into between the parties providing for the creation of such a trust fund by party of the first party for party of the second part, Judith T. Dix a copy of which stipulation is annexed hereto and made a part hereof.
'Now, therefore, in order to carry out the terms of the aforesaid stipulation on the part of the party of the first part, and to carry out the covenants and obligations and release agreement on the part of the party of the second part, it is hereby agreed between the parties, for valuable consideration moving from each to each, and for other good and valuable considerations, the receipt whereof is hereby acknowledged from each to each, as follows:
'1. Party of the first part, to-wit, Mark H. Dix, agrees to deliver and does simultaneously with the execution of this agreement deliver to Abe Aronovitz and J. W. Watson, Jr. Attorneys at Law, as 'Temporary Trustees' the sum of Five Thousand Dollars ($5,000.00) in lawful money of the United States of America, to be held by them in trust subject to the agreements and instructions hereinafter contained, and the said Abe Aronovitz and J. W. Watson, Jr., Attorneys at Law, as 'Temporary Trustees' undertake to hold said money under the terms and instructions of this agreement, to-wit: (A) The 'Temporary Trustees' agree, during the continuance of the trust held by them, to pay over to the party of the second part, immediately upon the entry of the final decree of divorce between the said Mark H. Dix and the said Judith T. Dix, the sum of Five Hundred ($500.00) Dollars and to pay out of the balance of forty-five hundred Dollars ($4,500.00) to Judith T. Dix, the sum of One hundred fifty dollars ($150.00) monthly until the entire fund is exhausted. The 'Temporary Trustees' shall take such steps, as soon as practical, to designate a successor trustee, such Trust Company selected by Judith T. Dix, and the 'Temporary Trustees' shall then transfer the balance of the funds on hand under an arrangement whereby the successor trustee shall follow out the instructions as above stated, to-wit, to pay to Judith T. Dix, a monthly payment of One Hundred fifty Dollars ($150.00) out of the trust funds, the trustees to have the power to invest the cash in Government bonds when in their discretion it is deemed proper, or when directed by the said Judith T. Dix to do so.
'2. In consideration of the creation of this trust and the payment of the Five Thousand Dollars ($5,000.00) to the 'Temporary Trustees' for the benefit of the party of the second part by the party of the first part, and in further consideration of the payment of the sum of Fifteen Hundred Dollars ($1,500.00) attorneys fees to Abe Aronovitz, J. W. Watson, Jr. and Franklin Parsons, as attorneys for party of the second part in the action of divorce hereinabove described, said fees being agreed upon as full and complete compensation of attorneys in the cause, and the receipt whereof is hereby acknowledged, upon the execution of this agreement by the said attorneys, and in further consideration of payment of costs in the said cause, and for other good and valuable considerations, paid to party of the second part by party of the first party, the party of the second part does for herself, her heirs, executors, administrators and assigns, agree to and does hereby release, remise, and forever discharge the said Mark H. Dix, his heirs, executors, administrators and assigns, of all and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, covenants, contracts, controversies, accounts, promises, variances, trespasses, damages, judgments, claims and demands whatsoever, in law or in equity, that against the said Mark H. Dix she the said Judith T. Dix ever had, now has, or that her heirs, executors administrators or assigns hereafter can, shall or may have, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world up to and including the date of this agreement; and does further waive, relinquish, bar and surrender and hereby agrees to and does waive, relinquish, bar and surrender all claims for maintenance and support, past, present and future, and all rights of alimony, and each and every right of dower or any other claim therein, and does hereby waive, relinquish, bar and surrender, and agrees to and does waive, relinquish, bar and surrender, all of her right, title and interest in and to any real or personal property, or mixed, wherever situated, from any rights of dower and/or homestead, belonging to or vesting in the said Mark H. Dix, now or which may at any time in the future belong to or vest in the said Mark H. Dix, fully, completely and forever.'
The stipulation referred to was:
'It is hereby stipulated between the parties hereto as follows:
'First: The complainant agrees that in lieu of all claims for maintenance and support, past, present and future, and in lieu of all rights of alimony, and the release of all rights of dower, and in lieu of all claims for counsel fees and court costs, and all other claims, that complainant may have against the defendant, complainant will accept the creation of a trust more particularly described in the separate agreement, a copy of which is attached hereto and made part of this stipulation.
'Second: The defendant agrees that he will, and has, simultaneously with the execution of this stipulation and with the execution of the agreement annexed hereto, created a trust for the complainant, in lieu of all alimony, and all claims and demands by the complainant of the defendant, upon the entry of a final decree of divorce herein, and upon the execution and delivery of the agreement of the complainant releasing all claims and demands of dower right, and all other claims and demands as set forth in said agreement.
'Third: The terms and conditions of the creation of the said trust substantially are:
'(a) Delivery of Five Thousand Dollars ($5,000.00) in lawful money of the United States of America to Abe Aronovitz and J. W. Watson, Jr., attorneys at law, as 'Temporary Trustees', to be held in trust for the complainant under the terms and conditions stated in said agreement, to-wit:
'1. The payment to the complainant of the sum of Five Hundred Dollars ($500.00) upon the entry of the final decree in the above entitled cause.
'2. Payment to the complainant of the sum of One hundred Fifty Dollars ($150.00) monthly out of the balance of the funds, until exhausted.
'3. The transfer of the funds to a successor trustee, to-wit a Trust Company selected by the complainant, which Trust Company shall follow the instructions of payment as herein contained.
'Fourth: The Complainant agrees and does relinquish all dower right in and to the real estate of the defendant at Lake Mohegan, in the State of New York, at Miami Beach, in the State of Florida, and elsewhere wherever such real estate may be owned by the defendant, completely and fully.
'Fifth: The complainant agrees that should she embark in any business enterprise she will not use the name of 'Dix' as part of any display business name but this should not preclude her from using the words 'Judith T. Dix, Proprietor' to any other business name that she may choose to use.
'Sixth: The complainant agrees that she will not molest or harass the defendant hereafter in any way or manner, directly or indirectly.'
Waiver of appeal was signed and filed as follows:
'In the Circuit Court of The Eleventh Judicial Circuit...
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Ohmes v. Ohmes
...property settlement agreement, as to which Sec. 65.15 assuredly has no application. Such was the nature of the agreement in Dix v. Dix, 1939, 140 Fla. 91, 191 So. 205, and in Haynes v. Haynes, Fla.1954, 71 So.2d But where the agreement between the parties goes further than settling their pu......
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...Cowen, Fla.1957, 95 So.2d 584; Underwood v. Underwood, Fla.1953, 64 So.2d 281; Valentine v. Valentine, Fla.1950, 45 So.2d 885; Dix v. Dix, 140 Fla. 91, 191 So. 205. The confusion which apparently has arisen in cases of this type we believe has resulted from the failure to recognize the natu......
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Haynes v. Haynes
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