Gribbin v. Gribbin
| Decision Date | 03 December 1986 |
| Docket Number | No. 85-2880,85-2880 |
| Citation | 499 So.2d 858,11 Fla. L. Weekly 2527 |
| Parties | 11 Fla. L. Weekly 2527 Marjorie GRIBBIN, Appellant/Cross Appellee, v. John F. GRIBBIN, Appellee/Cross Appellant. |
| Court | Florida District Court of Appeals |
Appeal and cross appeal from the Circuit Court for Palm Beach County; Richard I. Wennet, Judge.
Robert V. Romani and Joseph D. Farish, Jr., of Farish, Farish & Romani, West Palm Beach, for appellant/cross appellee.
Richard B. Kay, Jupiter, for appellee/cross appellant.
AFFIRMED.
GLICKSTEIN, J., concurs specially with opinion.
This is an appeal and cross appeal, both of which this court has affirmed, from a final judgment of dissolution tried pursuant to the parties' pre-trial stipulation, which recites, in part:
The Husband admits the execution of the Separation and Property Settlement Agreement dated June 18, 1984, but alleges that the Respondent/Husband was not well nor represented by counsel and that he signed the same under duress, and that the same is not fair and equitable and should be rejected by the Court.
The property settlement provided as follows:
1. The husband was to convey to the wife all of his interest in the marital home.
2. In the event any legal proceedings were instituted for dissolution of marriage, the husband agreed to pay $850.00 per month as permanent alimony to the wife until death or remarriage.
3. The parties agreed that the wife would receive the 1983 Oldsmobile Cutlass, and that the husband would own the 1977 Cadillac in his name.
4. The husband agreed to pay to the wife the sum of $15,000.00 from his savings at the credit union with his employer.
5. The husband was to continue to pay health and accident insurance premiums covering the Wife.
6. The husband agreed to pay all reasonable attorneys' fees and costs that the wife may incur in the event of a Final Judgment of Dissolution or other legal proceedings.
The trial court, after considering the evidence, announced to the parties with respect to their agreement that it found the agreement:
[f]acially unreasonable and so financially burdensome and onerous that it should be set aside.
It also said:
That there was no reason for the wife to receive all of the house, which makes it facially unreasonable and, based upon the other facts and testimony that I have heard, that the wife imposed her will on the husband in obtaining his signature, not physical but mental coercion and duress, it is thereupon, ordered and adjudged that the parties are granted a final judgment of dissolution of marriage, that the parties shall have the marital home at the address, lot 119, Village of Wood Lake as tenants in common.
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The court specifically finds that both parties have put in an equal share, and neither party is entitled to any special equity in the home, that the $32,000 from the wife is equalled by the approximate $32,000 by the husband and that the additional ten thousand dollars came from joint assets, that the wife is entitled to permanent alimony based on the length of the marriage and, accordingly, he shall pay $245 bi-monthly to the wife, that is on the 1st and 15th of each month with each of his paychecks, that the wife is entitled to a reasonable attorney's fee which the Court finds to be $4,000.00, and accordingly, judgement is entered against the husband for $4,000.00 in favor of the wife's attorney for which amount let execution issue.
It then set aside the agreement, directed that the parties shall own the marital home as tenants in common, awarded permanent alimony to the wife of $425.00 bi-monthly as well as an attorney's fee of $4,000, $15,000 of the funds held by the husband in his credit union, and medical and health insurance so long as the husband's employer makes it available, thus retaining some aspects of the agreement and vitiating others.
The marriage commenced in 1973. At the time of final hearing the wife was 64 and the husband was 56. She was then unemployed. Her assets consisted of the marital home, automobile and furniture. The husband's gross income with a major company was $2,944.00 per month. His assets consisted of $30,000.00 in his retirement fund and personal property.
The husband commenced an affair in February, 1984, with a woman in Connecticut where his employment took him, and told the wife about it sometime before June 1984 when the agreement was signed. The wife testified it was the husband's idea that she retain an attorney to prepare an agreement. He does not refute that. She claims the husband had the agreement for eight days and read it eight times. He says he received it four days before signing it and that he read it once.
She claims she quit her job at a bank in 1979 when her mother-in-law moved into the parties home; and that she cared for her husband's mother 24 hours a day until the latter went into a nursing home. The husband claims she quit before his mother moved in but does not dispute great care and attention of his mother.
The parties' mutual anger at final hearing was evident by their respective descriptions of the other. She accused him of having communicated a venereal disease from his affair, which he denied. It was cured by four pills, according to the wife.
The wife contends here that the trial court should have left the agreement alone and erred in not recognizing the wife's special equity in the marital home. The husband contends that the trial court did not go far enough and erred in awarding the wife permanent alimony and attorney's fees. The panel has affirmed and this writer believes that he should not substitute his judgment for that of the trial court in the result; but I wish to discuss a number of matters.
The first question to be considered is the trial court's conclusion of the agreement's facial unreasonableness, the basic impact of which is to return to the husband his one-half interest in the marital home.
Pursuant to the agreement the husband had conveyed the marital home to the wife in June 1984. Final hearing occurred in the fall of 1985. Evidence in the record to support the numbers recited by the trial court include (a) the wife's testimony that she used the $32,000 from the sale of her Ohio home in 1974 to pay off a $10,000 mortgage on the husband's Florida home and to improve it prior to its sale; and (b) her testimony that the husband's mother received $28,000 from the sale of her home which was deposited into the parties' joint account and used to pay for the marital home in contention.
This writer cannot determine how the figure of $32,000 on the husband's side of the ledger was derived. He testified that his portion of the purchase price of the marital home for $73,000 was $40,000 but he does not explain the figure. Notwithstanding the absence of obligation on the part of the trial court to make specific findings of fact as eliminated by Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984), it would have been of great assistance if they had been made with specificity.
Nevertheless, and bearing in mind that an appellate judge is bound by the reasonable person test of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the writer does not perceive a defensible reason to reverse the trial court's conclusion. Fleming v. Fleming, 474 So.2d 1247, 1248 (Fla. 4th DCA 1985), echoed earlier decisions in that although the term "facially unreasonable" might suggest otherwise, in weighing the fairness and reasonableness of the provision the courts will consider the relative situation of the parties, their respective ages, health and experience, their respective properties, their family ties and connections and such other factors as tend to show whether the agreement was understandingly made. Del Vecchio v. Del Vecchio, 143 So.2d 17, 20 (Fla.1962); Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981); Bailey v. Bailey, 300 So.2d 294 (Fla. 4th DCA 1974). The trial court apparently did so.
The burden was upon the husband to prove his assertion in the pre-trial stipulation as to the agreement. While duress is expressed therein, there is no mention of coercion.
The record is void of any evidence of duress. As that term has been used in a family law setting, the writer agrees with the First District Court of Appeal, which said in Paris v. Paris, 412 So.2d 952, 953 (Fla. 1st DCA 1982):
We agree that there can be no duress without there being a threat to do some act which the threatening party has no legal right to do--some illegal exaction or some fraud or deception. See Fuller v. Roberts, 35 Fla. 110, 17 So. 359 (1895); Kohen v. H.S. Crocker Co., 260 F.2d 790 (5th Cir.1958); 25 Am.Jur.2d Duress & Undue Influence, § 5.
In a setting involving avoidance of a contract, the court said in Corporacion Peruana de Aeropuertos y Aviacion Comercial v. Boy, 180 So.2d 503, 505 (Fla. 2d DCA 1965):
In another early Florida case, Herald, et al v. Hardin, Fla.1928, 95 Fla. 889, 116 So. 863, the Florida Supreme Court defined duress as follows:
"Duress is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition."
There can be no legal duress, however, unless the act of the party compelling the obedience of another is unlawful or wrongful; Fuller, et al v. Roberts, Fla.1895, 35 Fla. 110, 17 So. 359, and the burden of proof to show duress and the illegality of the embargo is on the Defendant. Hough v. Menses, Fla.1957, 95 So.2d 410.
Id. at 505. See also Norris v. Stewart, 350 So.2d 31 (Fla. 1st DCA 1977), and other cases cited therein. In a setting of criminal law, the supreme court, in discussing "extreme duress," as expressed in section 921.141(6)(e), Florida Statutes (1981) said:
"Duress" is often used in the vernacular to denote internal pressure, but it actually refers...
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