Ellis v. Ellis, 70--596
| Decision Date | 08 January 1971 |
| Docket Number | No. 70--596,70--596 |
| Citation | 242 So.2d 745 |
| Parties | Uzelle ELLIS, Appellant, v. Haybe ELLIS, Appellee. |
| Court | Florida District Court of Appeals |
Ellen S. Mills, of Kirsch & Druck, Fort Lauderdale, for appellant.
John D. Mendez, of Mendez, Shaw, Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
This is a case of putting the cart before the horse. Reversible error resulted.
Wife sued for separate maintenance. Husband counterclaimed for divorce. Final hearing was concluded in January 1968. Counsel stipulated that the Court would withhold adjudication until the husband had fully performed a comprehensive rpoperty settlement agreement at which time the wife would come forward and amend her pleadings to pray for divorce instead of separate maintenance.
Almost three years have elapsed. The trial court has faithfully withheld adjudication. The husband has largely performed and conveyed real estate and paid a good part of $100,000 lump sum alimony. However, neither have completely performed and there have been multiple efforts to compel performance and modify. Finally, the water has been muddied by a new charge of misconduct against the wife which has accrued since hearing. However, the husband, at least so far, has indicated only that he wanted to use that proposition in support of a modification of the agreement effort and not as a ground for divorce.
The appealed order reflects the dilemma:
'THIS CAUSE coming on to be heard on Defendant's Motion for Modification together with Plaintiff's Motion for Contempt with both being considered by the Court. Heretofore this Court received testimony and reserved entry of the Final Judgment because of complicated matters in connection with the Property Settlement Agreement. As this Judge looks back, it now appears this piecemeal type of approach as he permitted here was perhaps not in the best interests of the parties because many matters and things can creep into differences between the parties when a period of time is permitted to expire. Here, as we now know, both parties claim shortages as against the other. Over and above that, the very serious question has occurred because of the question of misconduct because the Court had not entered a Final Judgment which the Defendant claims did have an adverse effect because everyone knew they still had not been divorced. On the question of misconduct, this Court permitted only the proffer of such evidence, but concluded that the Defendant was estopped. While I so ruled, I do believe that this involves a much more serious question of proper policy which would apply to parties who still remain married in the eyes of the law to be with others traveling around the world as a single person. It now remains, of course, whether to set aside the entire matter and to start anew or whether again to attempt to resolve this matter by some compromise.
'Among other things, the Defendant was to have delivered to the Plaintiff the sum of $50,000.00. She in turn was to deliver certain documents, including stock certificates, plus personal property objects. This, of course, does not in any way set forth the complete and complex agreement into which the parties had entered into for there are other matters. In any event, these are remnants of the highlights of the problem. In view of the foregoing, it is
'ORDERED AND ADJUDGED that the Property Settlement Agreement hereinabove referred to be and it is hereby set aside unless the parties agree as follows:
1. The Defendant shall pay the Plaintiff the sum of $32,500.00, $2,500.00 of which will be earmarked as attorney fees for the Plaintiff's attorney within sixty (60) days.
2. That all documents, stock certificates as well as personal property objects shall be delivered by the Plaintiff to the Defendant within sixty (60) days of this Order.
'Failure to comply with the foregoing Order on or before the sixty (60) day period and of satisfying the Court so that a Final Judgment may be entered in this matter, this matter shall then be tried anew.
'DONE AND ORDERED at Fort Lauderdale, Broward...
To continue reading
Request your trial
-
Kaylor v. Kaylor, s. 84-890
...continues to exist. He cites several cases to support his position. See, e.g., Field v. Field, 68 So.2d 376 (Fla.1953); Ellis v. Ellis, 242 So.2d 745 (Fla. 4th DCA 1971); Miller v. Eatmon, 177 So.2d 523 (Fla. 1st DCA These cases, however, either involved actions for separate maintenance, e.......
-
Kaplus v. First Continental Corp.
...68 So.2d 376 (Fla.1953) (it is error to adjudicate the parties' property rights without dissolving the marriage); Ellis v. Ellis, 242 So.2d 745, 747 (Fla. 4th DCA 1971) (the judicial authority to adjudicate property rights between a husband and a wife can only be exercised where the marriag......
-
Lamers v. Lamers, 72--38
...portion of the final judgment awarding to the appellee exclusive title and ownership of jointly held real property. In Ellis v. Ellis, Fla.App.1971, 242 So.2d 745 and Martin v. Case, Fla.App.1970, 231 So.2d 279, this court reaffirmed the well established principle that a court cannot adjudi......
-
Leeds v. C. C. Chemical Corp.
...Until the cause is at issue it may not be set for pretrial conference or for trial. See Rule 1.440 F.R.Civ.P., 30 F.S.A.; Ellis v. Ellis, Fla.App.1971, 242 So.2d 745. The orders appealed from are ...