Donner v. Donner

• Decision Date: 24 September 1974
• Docket Number: 73--1350 and 73--1399,Nos. 73--1207,73--1234,73--1347,s. 73--1207
• Citation: Donner v. Donner, 302 So.2d 452 (Fla. App. 1974)
• Parties: Charles N. DONNER et al., Appellants, v. Beatrice Rosalie DONNER and Edward David Donner, Appellees.
• Court: Florida District Court of Appeals

Page 452

302 So.2d 452

Charles N. DONNER et al., Appellants, v. Beatrice Rosalie DONNER and Edward David Donner, Appellees.

Nos. 73--1207, 73--1234, 73--1347, 73--1350 and 73--1399.

District Court of Appeal of Florida, Third District.

Sept. 24, 1974.

Rehearing Denied Nov. 18, 1974.

Podhurst, Orseck & Parks, Heller & Kaplan, Broad & Cassel and Lewis Horwitz, Miami Beach, for appellants.

Mershon, Sawyer, Johnston, Dunwody & Cole, Sinclair, Louis & Siegel, and Paul A. Louis and Paul Siegel, Miami, Cabot, Scott, Wenkstern & Casteel, Fort Lauderdale, Dubbin, Schiff, Berkman & Dubbin, Miami, for appellees.

Before CARROLL and HENDRY, JJ., and GOBBIE, EVELYN, Associate Judge.

HENDRY, Judge.

These consolidated appeals were filed by defendants below from a judgment of the circuit court of Dade County. Therein the court granted specific performance against the executors of the estate of Samuel Donner, deceased, of an agreement he had made to make a will containing certain devises and bequests to the appellees herein.

The agreement was in writing, but because it did not have subscribing witnesses it was allegedly unenforceable under a provision of the Florida Probate Law. Section 731.051 Fla.Stat., F.S.A. entitled 'Agreements to make a will, requirements,' provides as follows:

'(1) No agreement to make a will of real or personal property or to give a legacy or make a devise shall be binding or enforceable unless such agreement is in writing signed in the presence of two subscribing witnesses by the person whose executor or administrator is sought to be charged.

'(2) This section shall apply to agreements made on, after or prior to January 1, 1958.' ¹

On March 2, 1959, in the State of New York, the deceased, Samuel Donner, and his then wife, Beatrice Rosalie Donner, entered into a written separation agreement in contemplation of divorce. In addition to provisions dealing with matters generally covered by such agreements, there were included therein agreements by Samuel Donner to make a will devising and bequeathing one-third of his set estate to Beatrice Donner, ² and one-third of his estate to Edward David Donner, (their son, who was not a party to the agreement). ³

Beatrice and Samuel Donner were divorced in an action filed in Alabama on April 10, 1959, a so-called one-day divorce. By counsel, Samuel answered Beatrice's complaint in the divorce action. In the complaint, Beatrice alleged she was a resident of Alabama, and by his answer Samuel admitted her residency. Further, the husband specifically submitted himself to the jurisdiction of the Alabama court, and he waived notice of submission of the cause. A decree was entered, and paragraph four of the decree read as follows:

'The provisions of the agreement of March 2, 1959 are ratified, approved and incorporated in this decree by reference, and the parties are ordered to abide by and carry out the provisions of said agreement, which said agreement is not merged into the decree, but survives same as a separate agreement.'

We are advised by Beatrice's able appellate counsel that the reason the agreement specifically was not merged into the decree was to afford the wife an extra measure of protection. Since a divorce decree may be subject to modification under certain circumstances (Cf. Salomon v. Salomon, Fla.1967, 196 So.2d 111; Underwood v. Underwood, Fla.1953, 64 So.2d 281; Fla.Stat. § 61.14, F.S.A.), the above-quoted language was intended to provide 'the best of two worlds' for Beatrice.

The agreement provided that upon divorce of the parties it would be incorporated in the final judgment, and that it would be interpreted according to New York law and would be binding upon the parties' heirs, executors and other legal representatives.

Subsequently, between 1961 and 1966 further litigation occurred between the parties to enforce certain support provisions of the agreement. The first proceeding was held in Dade County Circuit Court, and by order dated April 13, 1962, the Alabama divorce decree was domesticated in Florida.

Thereafter, a post-divorce proceeding was instituted by Beatrice in New York. There, for the first time, Samuel Donner attacked the validity of the separation agreement contending the same was collusive and under Section 51 of the, McKinney's Consol.Laws, c. 14, New York Domestic Relations Law was against public policy, illegal and void. In a lengthy, scholarly opinion, provided to this court by the appellees, written by Judge Backer of the New York Supreme Court (the trial court in that state), the husband's argument was rejected. The judge stated with regard to the Alabama and Florida proceedings:

'No contention is made by the defendant that he did not have full opportunity to litigate Any defense he then wished to raise including the defense of illegality now advanced for the first time under section 51 of the New York Domestic Relation Law . . .. Having failed to raise the section 51 defense in either the Alabama or Florida actions, and having failed to appeal the resulting judgments of either Court, it must be held that the defendant is now prevented, under the Full Faith and Credit Clause of the United States Constitution (art. IV, § 1) from making that issue the basis of a collateral attack in the instant action.'

Samuel Donner died on January 25, 1973. His will was admitted to probate in Broward County, Florida, and the executors thereunder were appointed. The will contained specific bequests to certain named beneficiaries, and a bequest of $200,000 in trust for the son Edward Donner with provision for his support therefrom and for distribution of the corpus to the son in stages, upon his attaining certain ages.

Appellee, Beatrice Donner, was the decedent's first wife. Pursuant to the terms of the written separation agreement, drawn by New York counsel, the decedent was making substantial alimony payments to Beatrice. Of course, upon his death, these payments ceased, and Beatrice now receives no alimony.

Ruth Jean Donner, appellant herein, is the decedent's second wife. He divorced her on October 10, 1972, approximately three months before he died. See, Donner v. Donner, Fla.App.1973, 281 So.2d 399. In accordance with a property settlement agreement entered into during the course of that proceeding, the decedent left Ruth a $1,000,000 specific bequest in his will. However, the decedent did not perform in accordance with the provisions of the New York separation agreement with Beatrice. He omitted the latter from his will.

Appellant Larna Katz Donner is the decedent's third wife, married to him aproximately one month before his death. The decedent died while on his honeymoon with Larna. He devised and bequeathed to her the residue of his estate.

Beatrice Donner filed this action against the executors of the decedent's estate and the beneficiaries under the will, seeking specific performance of the provision of the 1959 agreement by Samuel Donner to devise and bequeath one-third of his net estate to her. By a cross-claim Edward Donner sought similar relief with reference to the agreement to devise and bequeath such an interest to him.

By answer the defendants contended the agreement, being without subscribing witnesses, was unenforceable by virtue of § 731.051 Fla.Stat., F.S.A., and the defendant Larna Katz Donner moved for summary judgment so holding. The plaintiff Beatrice Donner and cross-plaintiff Edward Donner moved for summary judgment for specific performance of the agreement. The court granted summary judgment, specifically enforcing the agreement as to Beatrice Donner and Edward Donner, holding each entitled to one-third of the net estate, and denied the motion of the defendant Larna Katz Donner. The trial court held the agreement for devises and bequests was enforceable in Florida under and because of the divorce decree of the Alabama court. The defendants styled above as the appellants appealed.

In our view, Samuel Donner had his day in court. The terms of the separation agreements as incorporated in the Alabama decree, domesticated in Florida, and accorded full faith and credit in New York are now binding upon the decedent's estate.

We do not disagree with Judge Carroll's pronouncement of the law pertaining to res judicata. See, Gordon v. Gordon, Fla.1952, 59 So.2d 40. However, we think that the provisions of the separation agreement relating to Samuel Donner's promise to make provisions in his will for Beatrice and the couple's adopted son, appellee Edward David Donner, and matters which might have been or should have been litigated in either the prior Alabama, Florida, or New York proceedings.

The appellants vigorously contend that full faith and credit and res judicata are inapplicable in this situation because the agreement to make a will was contingent upon Beatrice's surviving the decedent and remaining unmarried, and until the contingency occurred the validity and enforceability of the contract were not ripe for judicial consideration.

We disagree with this argument because unlike a will which clearly is ambulatory in nature and therefore may readily be revoked by a competent testator, a contract to make a will may be irrevocable and therefore subject to specific enforcement by the courts. Cook v. Cook, 80 Wash.2d 642, 497 P.2d 584 (1972); Magids v. American Title Insurance Co., Miami, Florida, 473 S.W.2d 460 (Texas 1971); Fitch v. Oesch, 30 Ohio Misc. 15, 281 N.E.2d 206 (Ohio C.P., P.Div.1971); Cf. Hagan v. Laragione, supra; Lindeburg v Lindeburg, Fla.App.1964, 162 So.2d 1. ⁴ Thus, at the time the Alabama decree was entered and during the subsequent Florida and New York actions, the issue of the enforceability of the contract to make a will might have been raised, and at least with respect to the Florida post-divorce proceeding Should have been raised.

In our view, Samuel Donner was bound by the judicial proceedings in three different states to perform the provisions of the separation...