Lee v. Lee

• Decision Date: 24 May 1946
• Citation: 26 So.2d 177,157 Fla. 439
• Parties: LEE v. LEE.
• Court: Florida Supreme Court

26 So.2d 177

157 Fla. 439

LEE v. LEE.

Florida Supreme Court

May 24, 1946

Appeal from Circuit Court, Dade County; Marshall C. wiseheart judge.

Rosenhouse & Rosenhouse, of Miami, for appellant.

Rasco & Esselinger, of Miami Beach, for appellee.

BUFORD, Justice.

On September 22 1939, the parties hereto being husband and wife, entered into a separation agreement wherein a division of property was made between the parties. Then, on January 1, 1941, the parties entered into a supplemental agreement wherein it was contemplated that the husband and wife should live separate and apart from one another and wherein it was agreed that the husband at certain times would pay over to the wife stated amounts of money for the support and maintenance of herself and the two children of their marriage and that the wife should have the custody and control of the children. It was further agreed that in the event of divorce the terms of this agreement would be embraced in the final decree and that both parties would abide by the same.

Later the wife filed proceedings for divorce in Dade County, Florida, and on May 16, 1941, final decree was entered in favor of the wife in which final decree the agreement between the parties dated January 1, 1941, was approved and ratified and made a part of said decree by order of the court, the agreement being set out in that decree in haec verba. After setting forth the agreement between the parties, the decree stated:

'With the exception of the terms, conditions, covenants, agreements and stipulations, as hereinabove set out, the plaintiff is hereby denied any rights of alimony, attorney's fees or costs of this suit, as well as any rights of property, whether same be real or personal, in and to the separate estate of the Defendant, and the plaintiff, Betty Lee, and the defendant Manfred B. Lee, are hereby permanently enjoined from claiming any rights of property, or any other claims, demands, causes of action, inheritance or descent that each may have or have had against the other by virtue of the marriage between the parties herein divorced.'

On February 5 1944, the wife filed her petition for modification of the final decree under the provisions of Section 65.15, Florida Statutes 1941, same F.S.A., and prayed that the final decree be so modified as to require the husband to pay her $250 per week instead of $120 per week as was provided in the separation agreement and in the final decree. That part of the separation agreement and the final decree which is pertinent to this controversy is as follows 'Third: Commencing January 1, 1941, the husband shall, during his life, until the wife shall remarry, pay or cause to be paid to the wife weekly for her support and maintenance, and for the support, maintenance and education of said two children the sum of money hereinafter in this paragraph provided, by sending the same directly to the wife on Monday of each and every week, or if the wife should so direct, by depositing the same on Monday of each and every week to the order of the wife in any bank or trust company or with any individual whom the wife from time to time may designate in writing addressed to the husband.

'(a) On January 1, 1941, and on January 1st in each and every year thereafter and so long as this Agreement is in effect, the husband shall deliver to the wife a statement of his net earnings for the twelve month period preceding such date, showing the sources and amounts of such gross earnings together with a statement of agent's commissions and business expenses deducted from such earnings or paid by the husband during such period and a statement of Federal and State income taxes paid by the husband during such period. This annual statement of earnings (except as hereafter otherwise provided) shall be used in determining the amount to be paid weekly by the husband to the wife during the calendar year commencing immediately after the twelve month period covered by such statement.

'(b) If during the twelve month period covered by such statement the husband's annual net earnings are $7,000.00, then the husband shall pay to the wife $70. weekly during the calendar year immediately following such period. For each $1,000 increase in the husband's annual net earnings, over and above $7,000., the husband shall pay to the wife for the succeeding calendar year $10 a week more than the $70. weekly payments herein above provided, and for each $1,000. decrease in the husband's annual net earnings of $7,000., the husband shall pay to the wife for the succeeding calendar year $10. a week less than the $70. hereinabove provided; provided, however, that in no event and irrespective of such earnings shall the husband be obligated to pay the wife more than $120. a week during any annual period and provided further that the husband shall in no event and irrespective of such earnings pay the wife less than $40. a week during any annual period....