Eaton v. Eaton, 69--299

• Decision Date: 29 July 1970
• Docket Number: No. 69--299,69--299
• Citation: 238 So.2d 166
• Parties: Nancy Jane EATON, Appellant, v. Elton R. EATON, II, Appellee.
• Court: Florida District Court of Appeals

Page 166

238 So.2d 166

Nancy Jane EATON, Appellant, v. Elton R. EATON, II, Appellee.

No. 69--299.

District Court of Appeal of Florida, Fourth District.

July 29, 1970.

Richard V. Harrison, of Snyder, Hazen, Isphording & Harrison, Venice, for appellant.

George A. Williamson, Fort Lauderdale, for appellee.

OWEN, Judge.

In March, 1968, the parties hereto, then husband and wife, executed a document styled 'Marital Separation Agreement'. Among other things, it provided that the wife would have the exclusive care, custody and control of the parties' two-year old son, and that she was thereby expressly relinquishing any right she had at that time or in the future to receive child support from the husband. Six days later the wife obtained a final decree of divorce which approved the Marital Separation Agreement and by reference made it a part of the decree, with the parties directed to comply with its terms in all respects.

In December, 1968, the wife filed in the same cause a motion seeking an award of child support. The substance of the motion was that the father's obligation to support the minor child existed as a matter of law, that the obligation could not be waived by agreement of the child's mother, and that the incorporation of this void provision into the final decree by reference was through oversight, mistake or inadvertence. After a hearing which included the taking of testimony, the court entered an order decreeing that the portion of the final decree which had approved the provision in the Marital Separation Agreement whereby the wife relinquished the right to receive child support from the husband was void for the reason that the matter of child support and maintenance was one solely and exclusively within the jurisdiction of the court and the parties did not have the right to waive child support or maintenance in any manner. The court also decreed that the former husband pay the former wife 'a token payment of $10 per month' toward the support and maintenance of the minor son. The order stated that the child's father was being required to make the token payment in order that he be made aware of his obligation to contribute to the support and maintenance of his minor son, even though the court expressly found that there had been no change in circumstances of the parties from the time of the final decree and also that there existed an estoppel by reason of the agreement whereby the wife was estopped from seeking child support and maintenance. The wife appeals from this order contending that under the undisputed evidence as to the father's financial ability and the child's needs, the token award is grossly inadequate and clearly an abuse of the court's discretion.

The facts are briefly stated. Appellant wife has no income and at the time of the divorce and at all times subsequent she and her minor son have been supported by her father who has furnished her with a house and a monthly allowance of $500. From these allowances she expends the equivalent of between $215 and $265 per month to provide food, shelter and...