Kosch v. Kosch

• Decision Date: 10 July 1959
• Citation: 113 So.2d 547
• Parties: Celia L. KOSCH, Petitioner, v. Sidney KOSCH, Respondent.
• Court: Florida Supreme Court

Page 547

113 So.2d 547

Celia L. KOSCH, Petitioner, v. Sidney KOSCH, Respondent.

Supreme Court of Florida.

July 10, 1959.

Morris Berick, Miami Beach, for petitioner.

Talianoff & Waller, Miami Beach, for respondent.

THORNAL, Justice.

We are asked to review by certiorari the decision of the District Court of Appeal, Third District, appearing at 106 So.2d 600 on the ground that it conflicts with a prior decision of this court on the same point of law in Marshall v. Bacon, Fla.1957, 97 So.2d 252.

We must determine whether the decision under review conflicts with the prior decision of this court on the matter of the legality of notice to a non-resident former husband in an alimony proceeding supplementary to divorce.

The factual situation is summarized in the cited opinion of the court of appeal. Petitioner Celia L. Kosch was divorced from the respondent Sidney Kosch in Florida in 1949. In 1958 petitioner Celia Kosch moved in the Circuit Court of Dade County, which had granted the divorce, to obtain an increase in alimony payments which had been provided for in the original decree. When the instant proceeding was filed respondent Sidney Kosch was a resident of South Carolina. The original divorce decree ratified and confirmed a 'PROPERTY SETTLEMENT AGREEMENT' ENTERED INto between the parties. by this agreement the parties had made disposition of various property interests and had generally released each other from any responsibility one to the other. The sole exception to this broad release provision was the husband's agreement to pay to the wife a certain annual amount payable in monthly installments. There was a provision for increase or decrease of this amount, depending on the circumstances of the parties. There was also a provision for arbitration in the event the parties could not agree upon a requested increase or decrease. In the instant matter the petitioner filed a motion requesting an increase in the monthly payments. She served notice upon the respondent by mail to his address in South Carolina advising him of the time and place of a hearing on her motion. She also sent a copy of the notice to various attorneys allegedly representing the respondent. The respondent filed a special appearance contending that the proceeding instituted by the petitioner was an entirely new suit and that she should have to institute the matter by proper service of process. The chancellor agreed with the respondent and sustained his special appearance. The court of appeal affirmed the chancellor. We are now asked to review the decision of the appellate court.

It is the contention of the petitioner that under our decision in Marshall v. Baker, Fla., 97 So.2d 252, the respondent could be brought before the original trial court upon notice by mail, so long as he was afforded actual notice and a reasonable opportunity to defend.

It is the contention of the respondent that the decree grounded on the 'property settlement agreement' terminated the relationship between the parties and produced a degree of finality that would require the institution of a new proceeding based on formal service of process in order to modify the support money aspects of the original decree.

We think there is merit to the position of the petitioner.

By its opinion in Kosch v. Kosch, supra, the district court of appeal took the view that the instant case is controlled by our decisions in Norton v. Norton, 131 Fla. 219, 179 So. 414 and Cohn v. Cohn, 151 Fla. 547, 10 So.2d 77, 143 A.L.R. 428. We think it sufficient to point out that in the Norton case the property settlement agreement between the parties was a complete, comprehensive final settlement. In other words, when the decree was entered approving the agreement nothing further remained to be done as between the parties themselves. There was no continuing obligation on the part of the husband to make alimony or support money payments from time to time in the future. In Norton the rights of the husband and wife as between themselves terminated with the entry of the divorce decree. There was a final exchange of money for property or conveyance of property as between the parties and a final ultimate discharge of their obligations one to the other.

Cohn v. Cohn, supra, would appear to support the position of the petitioner rather than that of the respondent. In Cohn there was an agreement by the husband to pay alimony. Subsequent to divorce he petitioned for reduction. His wife was a non-resident. He served her constructively by publication. The wife appeared specially and moved to quash the publication. The motion was denied. This court held that personal service was not necessary in order to bring the non-resident wife before the court. In Cohn v. Cohn, supra, this court pointed out that actually in Norton v. Norton, supra, it was not necessary to pass on the sufficiency of the service because there was a voluntary general appearance.

The binding effect of a complete property settlement agreement that defies subsequent modification is well-illustrated by Haynes v. Haynes, Fla.1954, 71 So.2d 491. It will be noted that in Haynes there was no provision for continuing alimony payments. The agreement between the parties was in no fashion executory in natrue. It became a binding, obligatory executed contract upon the entry of the final decree. There was no future commitment to the payment of alimony upon which Section 65.15, Florida Statutes, F.S.A. could operate. See also, Rice v. Rice, 148 Fla. 620, 4 So.2d 850; Cowen v. Cowen, Fla.1957, 95 So.2d 584; Underwood v. Underwood, Fla.1953, 64 So.2d 281; Valentine v. Valentine, Fla.1950, 45 So.2d 885; Dix v. Dix, 140 Fla. 91, 191 So. 205.

The confusion which apparently has arisen in cases of this type we believe has resulted from the failure to recognize the nature of the so-called 'property settlement agreement'. Every agreement...