Hirsch v. Hirsch, 74-1348

• Decision Date: 18 February 1975
• Docket Number: No. 74-1348,74-1348
• Parties: Moe HIRSCH, Appellant, v. Fay HIRSCH, Appellee.
• Court: Florida District Court of Appeals

Page 47

309 So.2d 47

Moe HIRSCH, Appellant, v. Fay HIRSCH, Appellee.

No. 74-1348.

District Court of Appeal of Florida, Third District.

Feb. 18, 1975.

Rehearing Denied March 19, 1975.

Haves & Teller, Miami, for appellant.

Abbott, Frumkes & Alhadeff, Miami Beach, for appellee.

Before BARKDULL, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.

NATHAN, Judge.

This is an interlocutory appeal by the husband challenging an order of the trial court granting temporary attorney's fees to the wife and striking all of the husband's pleadings. We are entertaining this cause on interlocutory appeal for the third time.

A detailed recitation of the facts is unnecessary. Suffice it to say, this case concerns a settlement agreement entered into by the husband and the wife in New York in 1968. The parties were subsequently divorced and both parties are now Florida residents. The agreement contains a provision that: 'All matters affecting the interpretation of this agreement and of the rights of the parties hereunder shall be governed by the laws of the State of New York.'

In April of 1973, the wife filed a complaint in circuit court in Dade County, Florida, for modification of the agreement. On February 8, 1974, an order was entered granting to the wife temporary alimony in addition to the amount of the husband's payments to her pursuant to the agreement. The husband filed an interlocutory appeal and the order was affirmed. ¹ Thereafter, on June 5, 1974, the court entered an order to compel the husband to comply with a notice to produce, whereupon the husband filed his second interlocutory appeal. This order was not superseded. On appeal it was affirmed. ²

On July 1, 1974, the husband instituted legal proceedings against the wife in New York, alleging that her action in Florida caused him damage. The wife then filed a motion in the Dade County Circuit Court to enjoin the husband from continuing the New York action. The court entered an order on the motion on August 27, 1974, which was during the pendency of the second interlocutory appeal, in which the court determined that the purpose of the New York action was to harass the wife, but that it was without jurisdiction to enjoin the husband from pursuing such litigation in New York. The order further struck all of the husband's pleadings for failure to produce pursuant to Rule 1.380(b), RCP, and awarded temporary attorney's fees to the wife. This order is the subject matter of the instant appeal.

The husband contends that the court erred in awarding temporary attorney's fees to the wife and in striking all of his pleadings because of the pending interlocutory appeal and because the court lacked jurisdiction over the subject matter of this entire cause ab initio in that it concerns a separation agreement entered into in the State of New York.

The wife contends that the court was correct in its actions because it does have jurisdiction to modify a separation agreement entered into in New York where both spouses are now Florida residents. In addition, she cross-appeals, citing as error the court's determination that it lacked jurisdiction to enjoin the husband from proceeding further in his New York action.

As to the wife's cross-appeal, we find that the court had jurisdiction to enjoin the husband from proceeding further in the New York action, but we find no abuse of discretion in his choosing not to enjoin the husband from pursuing the remedies which he might desire in the courts of New York.

The question of whether a Florida court has jurisdiction over the subject matter of a New York separation agreement is answered by a review of § 61.14, Fla.Stat., which provides in pertinent part that modification of agreements in connection with an action for dissolution or separate maintenance or in connection with any voluntary property settlement, where (as in this instance) the parties, or either of them, are resident of the State of Florida, may be made upon application to the circuit court.

Having determined then, that the court does have jurisdiction to modify the subject agreement, we acknowledge that clause in the separation agreement wherein the parties have agreed to be governed by the laws of the State of New York on matters affecting the said agreement. The principle is well established that when the parties to a contract have indicated their intention as to the law which is to govern the contract, then it will be governed by such law in accordance with the intent of the parties. 15A CJS Conflict of Laws § 11(4); 6 Fla.Jur., Conflict of Laws § 11. In accord therewith, the trial...