Gessler v. Gessler

• Decision Date: 17 December 1959
• Docket Number: No. 17695.,17695.
• Citation: 273 F.2d 302
• Parties: Annette C. GESSLER, Appellant, v. Nina Ross GESSLER, as Administratrix of the Estate of John M. Gessler, Deceased, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

273 F.2d 302 (1959)

Annette C. GESSLER, Appellant, v. Nina Ross GESSLER, as Administratrix of the Estate of John M. Gessler, Deceased, Appellee.

No. 17695.

United States Court of Appeals Fifth Circuit.

December 17, 1959.

Edward I. Cutler, Tampa, Fla., for appellant.

David C. G. Kerr, Chester H. Ferguson, of Macfarlane, Ferguson, Allison & Kelly Tampa, Fla., for appellee.

Before HUTCHESON, TUTTLE and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The question for decision is the enforceability in Florida, as against the creditors of an insolvent estate, of a Pennsylvania separation agreement providing for the support of a decedent's minor children.

On June 11, 1956, the plaintiff-appellant, Mrs. Annette Gessler, and John Gessler, her husband, entered into a written separation and support agreement under seal, "this agreement to be binding upon the parties hereto, and their respective heirs, executors and administrators". The agreement required Gessler to pay to his wife specific monthly amounts for the support of his minor children.¹ It provided that it "shall be governed by and be construed in accordance with the laws of the Commonwealth of Pennsylvania". The substance of the agreement was embodied in a stipulation, and later in an order of court of the Court of Quarter Sessions of Montgomery County, Pennsylvania.² Mrs. Gessler had previously filed in that court an action for the custody and support of the children.

Gessler died intestate June 18, 1957 domiciled in Florida. The estate was insolvent. No payments for support of the children were made after June 1, 1957. Accordingly, Mrs. Annette Gessler filed a claim against the estate in the probate court of Hillsborough County, Florida on behalf of her minor children. The administratrix, Nina Ross Gessler, denied liability. Mrs. Annette Gessler then filed suit against the administratrix in the district court for the Southern District of Florida, asking that the defendant be required to perform the decedent's agreement. She asked for a judgment in the amount of $41,400 on the assumption that the failure to pay the monthly payments when due matured the entire obligation.

The defendant moved to dismiss, on the ground that enforcement of the agreement would permit children who are heirs to secure a preference, under the guise of support, over creditors of an insolvent estate, contrary to the public policy, statutes, and decisions of Florida. The district court sustained the motion to dismiss and entered judgment for the administratrix. Mrs. Gessler appeals on behalf of her minor children. We reverse.

The contract was "made and concluded at Philadelphia, Pennsylvania", for the support of minor children domiciled in Pennsylvania, payment to be made to the children's mother, a resident of Pennsylvania. Under ordinary rules of conflicts of law, Pennsylvania law controls as to the validity³ and performance of the contract.⁴ In addition, the parties agreed that the contract "would be governed by and be construed in accordance with the laws of the Commonwealth of Pennsylvania". The parties' connection with Pennsylvania was so substantial and Pennsylvania's interest in the support of resident children so great, that we consider that the Gesslers clearly were entitled to select Pennsylvania law for their contract and to have it enforced in a Florida forum⁵, unless there is a strong public policy in Florida against the enforcement of such contracts.⁶

Under Pennsylvania law the contract is valid and is enforceable against the father's estate. In re Fessman's Estate, 1956, 386 Pa. 447, 126 A.2d 676; Huffman v. Huffman, 1933, 311 Pa. 123, 166 A. 570.

It would be something of a shock to this Court if we should discover that it is against the public policy of Florida to enforce the Gessler agreement. As we pointed out in Sun Insurance Office Limited v. Clay, 5 Cir., 1959, 265 F.2d 522, 525:

"The following representative decisions demonstrate the Florida courts\' tendency, based on their interpretation of the requirements of due process and their recognition of the general common law rules of comity, to refrain from attempting to apply Florida statutes or their own notions of public policy to foreign contracts which are valid where entered into: Connor v. Elliott, supra 79 Fla. 513, 85 So. 164; Sovereign Camp, Woodmen of the World v. Mixon, 79 Fla. 420, 84 So. 171; Equitable Life Assur. Soc. of United States of America v. McRee, 75 Fla. 257, 78 So. 22; American Fire Ins. Co. v. King Lumber & Mfg. Co., 74 Fla. 130, 77 So. 168, affirmed 250 U.S. 2, 39 S.Ct. 431, 63 L.Ed. 810."

The precise question before us was before the Florida courts in the recent case of Simpson v. Simpson, Fla.App. 1959, 108 So.2d 632, 635. In that case a separation agreement required the father to pay $125 a month for the support of each child until the child reached eighteen years of age. The District Court of Appeal, citing the Pennsylvania case of Huffman v. Huffman among other cases, held that "the agreement provision for the child's support embodied in the final decree of divorce remained vital and effective so as to survive the death of the father as a contractual liability against his estate". The Court said:

"The courts are ever solicitous of the welfare of the child. The need of a child for food and shelter and other exigencies of life does not end with the death of the father. Since a father by contract can create a continuing debt in favor of strangers which would constitute a claim against his estate, then why could he not similarly create such a continuing debt in favor of his children? This court cannot conclude that it is consonant with justice and reason that a properly covenanted obligation on the part of the father to assume responsibility for support payments for his child through a given period of time should be held invalid at his death."

The administratrix argues that Simpson v. Simpson is a decision of a lower appellate court and is contrary to two decisions of the Florida Supreme Court, Guinta v. Lo Re, 1947, 159 Fla. 448, 31 So.2d 704 and Flagler v. Flagler, Fla.1957, 94 So.2d 592. These decisions are referred to in the opinion in Simpson and, to our mind, properly distinguished; there was no support agreement in either case. In the common law, unlike the civil law, a father is under no legal responsibility to provide for his minor children after his death. And Florida, along with a...