Evans v. Evans
| Citation | 212 So.2d 107 |
| Decision Date | 26 June 1968 |
| Docket Number | No. 1195,1195 |
| Parties | Janice R. EVANS, Appellant, v. Richard H. EVANS, Appellee. |
| Court | Court of Appeal of Florida (US) |
Charles E. Beall of Beall & Beall, Palm Beach, for appellant.
Harold G. Maass of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellee.
Plaintiff, Janice R. Evans, was divorced from defendant, Richard H. Evans, in 1958. The final decree of divorce incorporated an agreement by the terms of which defendant was required to pay $1,000 per month for alimony and for support of two minor children so long as both parties remained alive or until plaintiff remarried.
On May 31, 1966, plaintiff and Robert Emmett McCaffrey were married. Defendant discontinued the alimony and support payments.
Plaintiff rapidly became disenchanted with her new husband and sought an annulment on grounds of fraud. In her complaint for annulment she alleged that McCaffrey, prior to their marriage, told her that he was employed at a salary of $50,000 per year; yet during their marriage he failed to contribute anything to their support. She alleged further that he never intended to consummate their marriage but intended only to live off plaintiff's means; and, since he had been drunk almost continuously throughout their marriage there had been no consummation. After a hearing at which McCaffrey was not represented, she received an uncontested annulment on August 9, 1966. Plaintiff then petitioned for modification of the divorce decree which had earlier terminated her marriage to Evans. Essentially she sought the restoration of the alimony and support payments from defendant, Richard H. Evans.
The trial court in its order of October 24, 1966, held that plaintiff, as a result of her subsequently annulled marriage to McCaffrey, no longer had a right to alimony from defendant. However, it was ordered that defendant pay $500 per month as child support for the parties' one remaining minor child.
Subsequent to the trial court's order, the Supreme Court issued its decision in the case of Reese v. Reese, Fla.1966, 192 So.2d 1. Plaintiff filed a motion for reconsideration based upon the Reese decision on December 22, 1966, which motion was considered an untimely petition for rehearing by the trial court and was denied.
Plaintiff appeals, urging that her alimony be restored. We affirm.
As a general proposition, alimony ceases to be an obligation of an ex-husband upon remarriage of his former wife. 1 In the present case such a provision was expressly included in the alimony agreement. But it is plaintiff's contention that the Reese decision made the trial court's decision in this case erroneous. We disagree.
The Reese case involved an action by a former husband to have alimony provisions stricken from his divorce decree. His ex-wife had entered into a bigamous second marriage not knowing of her new 'husband's' incapacity. One and one-half days after the ceremony her new husband committed suicide.
The third district held that the wife, as the innocent partner in the bigamous marriage, had a right to support from her presumed second husband. Therefore, she,
2
Therefore her right to alimony from her first husband was ruled terminated.
The Supreme Court of the State of Florida reversed the third district, concluding that:
'The situation, in our opinion, should be governed by the simpler and well established principle that a bigamous marriage under our law is void and therefore ineffective to alter the legal rights of the parties involved in this controversy.' (citation omitted.) 3
The factual distinctions between Reese and the present case are clear. Reese involved a bigamous remarriage absolutely void and ineffectual to alter the legal rights of the parties to the original marriage. Such a marriage is void even in the absence of a judicial decree avoiding same. 4
In contrast, the present case involves a remarriage which was annulled on grounds of fraud and concealment. A marriage procured by fraud is not void but is voidable only and therefore is valid and binding upon the parties until such time as it is annulled by a court of...
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...(1971); Chavez v. Chavez, 82 N.M. 624, 485 P.2d 735 (1971); Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567 (1971). See also Evans v. Evans, 212 So.2d 107 (Fla.App.1968); 21 Drake L. Rev. 645 (1972); 18 Drake L. Rev. 291 (1969); Annot., 45 A.L.R.3d 1033; cf. Nelson v. Nelson, 282 Mo. 412, 221......
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