Gelfo v. Gelfo, 66--613
Decision Date | 02 May 1967 |
Docket Number | No. 66--613,66--613 |
Citation | 198 So.2d 353 |
Parties | Charles GELFO, Appellant, v. Dorothy GELFO, Appellee. |
Court | Florida District Court of Appeals |
Horton & Schwartz, Preddy, Haddad & Kutner, Miami, for appellant.
Quinton & Leib and Robert L. Parks, Miami, for appellee.
Before PEARSON, BARKDULL and SWANN, JJ.
The controlling question on this appeal is whether a trial judge may, in a divorce proceeding, enforce an agreement between husband and wife as to a division of their property, and at the same time grant alimony where the agreement contains a paragraph purporting to be a waiver of that right.
The appellant and the appellee were married in 1946. In 1965 they entered into an agreement entitled 'Separate Property Agreement.' The last paragraph of the agreement contains the provision which is the basis for this appeal.
'The Wife accepts the provisions herein made for her in lieu of and in full settlement and satisfaction of any and all claims whatsoever against the Husband for support, maintenance, alimony and attorney's fees and in full settlement and satisfaction of any and all other claims and rights in property owned by Husband, including claims for inchoate rights of dower in any property which the Husband owns or might hereafter acquire.'
The agreement was complied with, in part, by the husband prior to his wife's action for divorce some three months later. No reference to the agreement was made in the wife's complaint for divorce. The appellant, as a part of his initial pleading, moved to strike all matters pertaining to property from the complaint upon the ground that they were precluded by the agreement. He attached a copy of the agreement to his motion. The court denied the motion to strike; allowed temporary attorneys' fees, and proceeded to trial on the issues raised by the complaint and answer.
During the trial of the cause, testimony was taken as to the purpose of the agreement and as to the circumstances of its execution. We consider that the issue as to the enforceability of the agreement was before the court pursuant to Rule 1.15(b) Florida Rules of Civil Procedure 1965, now Rule 1.190(b), 1967 Revision, 30 F.S.A.
There is no testimony that the agreement was fraudulently procured, although the record does reveal that the instrument was drawn by appellant-husband's attorney, and that the appellee wife was not represented by an attorney. At the conclusion of the trial, the trial judge found as to the agreement as follows:
On this appeal appellant urges first that the evidence is insufficient to show that the agreement as to alimony was unconscionable or that the paragraph was without consideration. Secondly, it is urged that if the agreement is not to be enforced in its entirety, the law requires that it be rescinded in its entirety, and the wife be required to return all of the benefits that she received under the agreement. We do not find error demonstrated under either point and affirm the decree of the chancellor.
The chancellor's determination that paragraph 14 was unconscionable, is supported both by the title of the agreement and the testimony of the plaintiff-wife as to the circumstances surrounding the making of the agreement. The chancellor took into consideration the fact that both parties worked during the entire marriage, and that both had contributed to the purchase and maintenance of the property involved. It was the chancellor's opinion that there was consideration for that part of the agreement which disposed of the property obtained during the marriage. He was unable to find any consideration for the reference made to alimony at the tail end of the agreement.
It has previously been held that when in a divorce proceeding the chancellor finds a provision in a settlement agreement for the support of the wife to be unconscionable under the circumstances of the case, then he may reject that provision. Dawkins v. Dawkins, Fla.App.1965, 172 So.2d 633. The holding of the District Court of Appeal, Second District, is unequivocal:
'We reject appellant's contention that the chancellor was bound to accept the separation agreement in its entirety and we affirm.
This holding was without doubt the basis for the trial...
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