Lutgert v. Lutgert

• Decision Date: 27 October 1976
• Docket Number: No. 75--1748,75--1748
• Citation: 338 So.2d 1111
• Parties: Muriel LUTGERT, Appellant, v. Raymond L. LUTGERT, Appellee.
• Court: Florida District Court of Appeals

Page 1111

338 So.2d 1111

Muriel LUTGERT, Appellant, v. Raymond L. LUTGERT, Appellee.

No. 75--1748.

District Court of Appeal of Florida, Second District.

Oct. 27, 1976.

Rehearing Denied Nov. 24, 1976.

Marion E. Sibley and Robert C. Ward of Sibley, Giblin, Levenson & Ward, Miami Beach, for appellant.

B. Clarke Nichols of Vega, Brown & Nichols, Naples, for appellee.

McNULTY, Chief Judge.

We void this day an antenuptial agreement because of involuntariness on the part of the wife.

The ten-year marriage of the parties hereto was dissolved upon the petition of the husband. An antenuptial agreement which, among other things, provided for the matter of support or alimony and a waiver by the wife of attorneys fees in the event of separation or divorce was sustained by the trial court and the questions relating to alimony and attorneys fees were adjudicated accordingly. The relevant portions of the agreement are as follows:

'FIRST: The said RAYMOND L. LUTGERT represents that his present estate consists of approximately Three Million Dollars ($3,000,000.00) in value. The nature of his assets are such that precise valuation is impossible, but this is believed to be a reasonable and conservative figure at this time.

'* * *

'THIRD: All the personal and real estate now owned by the said RAYMOND L. LUTGERT shall be his own personal estate to be dealt with by him during his lifetime or by will as freely as though this agreement had not been executed in all respects except as indicated immediately hereinafter, namely:

'* * *

'C. The foregoing provisions hereof are in contemplation of the parties remaining married to and living with each other until the death of one of them. However, it is the desire of the parties to recognize the possibility of presently unanticipated separation or divorce.

Each of the parties has been previously married and is aware of the expense and possible publicity with resultant personal embarrassment, which may result from court controversy in a divorce or separate maintenance action over financial matters, in addition to great emotional strain.

The parties therefore further agree as follows:

In the event of the separation of the parties with or without divorce the said RAYMOND L. LUTGERT will pay to the said MURIEL STEVENSON the sum of One Thousand Dollars ($1,000.00) per month so long as she shall live, and not remarry.

Such payments shall be in full of any support money or alimony from the said RAYMOND L. LUTGERT to the said MURIEL STEVENSON, and Each party shall pay his or her own attorneys fees and other expenses in any separation or divorce proceeding.' (Italics ours.)

In sustaining the agreement the trial court found in pertinent part as follows:

'1. The parties entered into a valid prenuptial agreement according to the standards set forth in Del Vecchio, 143 So.2d 17. In reaching this conclusion the Court weighed the testimony of all witnesses concerning the circumstances of the signing of the agreement, the fact that the time element from the first discussion of the agreement by the parties and, actually, from her reading of the first draft, would have allowed her to consult any attorney of her own choosing for advice on the agreement but that she did consult with the law firm of Cummings and Wyman . . . and also, the Court considered that both parties were mature and this was not a first venture onto the sea of matrimony for either party.

'As to the 'full and frank disclosure to wife, before signing of agreement of husband's worth, or, absent such disclosure, a general and approximate knowledge, by the wife of the prospective husband's property' as set forth in Del Vecchio, supra, the Court has the benefit of statements of the financial condition of husband on July 1, 1963 ($3,163,000) and again on September 30, 1974, ($3,915,929), together with a statement as to the financial condition of the prospective husband as set forth in the agreement itself . . .. In addition, testimony showed that the parties lived in close proximity to each other, moved in the same social circles, and had ample opportunity to observe the other's standard of living for a considerable period of time prior to their marriage to each other.

'The Court specifically finds the The agreement was signed freely and voluntarily by the parties, that when the wife signed same she had or reasonably should have had a general and approximate knowledge of the character and extent of the husband's property, and, as to the variation in the husband's financial status at the time of the signing of the agreement and the hearing of this cause 'the vicissitudes of his fortune in the interval were only that which can be said to have been reasonably contemplated from the nature of his assets', Singer v. Singer, 4th DCA, (1975), 318 So.2d 438. The testimony also shows that the personal financial standing of the wife also changed considerably for the better during the period of the marriage of the parties. . . .' (Italics ours.)

There is sufficient evidence in the record to support the foregoing findings of the trial court except, in our view, the findings of validity as respects the free and voluntary execution by the wife; and as indicated this is the basis of our determination that the wife can avoid the agreement.

While the testimony relating to the execution of the agreement is conflicting in several particulars, we accept the husband's version except as to the undenied portions of the wife's version. A narrative of significant events follows:

The parties, and their then spouses, were acquainted socially for a considerable period of time before their marriage in Chicago, where they previously resided. Their relationship ripened into a love affair after their respective former spouses became illicitly involved with each other and two divorces ensued. They kept company for approximately a year and became engaged some four weeks prior to their marriage herein at 12:30 in the early morning hours of Friday, April 30, 1965.

An understanding of the odd hour of the marriage can be had from the events which began on Monday evening of that fateful week, April 26, when appellee husband called and suggested that they be married shortly after midnight on Thursday, April 29, provided they could book passage for an extended honeymoon cruise on the SS Constitution, scheduled to said from New York later on that same day. The wife ecstatically agreed.

On Tuesday morning, April 27, the husband advised appellant by telephone that he had succeeded in getting passage on the Constitution and that the wedding plans could go ahead. The parties met shortly thereafter and spent the rest of that day purchasing a sable stole for her and a wedding outfit for him; getting their passports straightened out; getting blood tests; arranging for a state Court of Appeals judge to marry them; acquiring the use of V.I.P. facilities, called the 'Topflight Room' of Northwest Airlines, at the O'Hare Airport in Chicago; and inviting family and friends to the wedding.

On Wednesday, April 28, the wife purchased her trousseau, after which the parties met at their jewelers to select and fit wedding rings. Thereafter, a marriage license was procured.

The following day, Thursday, April 29, is the critical date concerning the execution of the antenuptial agreement. That afternoon the parties met again at the jewelers to finalize the sizing of the wedding rings. While they were being readied the husband took the antenuptial agreement out of his pocket and for the first time presented it to appellant and asked her to sign it. She objected, saying that it indicated lack of trust on his part and that she didn't want the marriage to start out on such a weak footing. He made light of that suggestion, proclaiming that the agreement was of no consequence anyway since they wouldn't we getting a divorce. He joked about being married for some 80 years, getting married at their age. The wife still objected; so the husband called his Chicago lawyers, Cummings and Wyman, while still at the jewelers and apparently some conversation ensued between the lawyers and the wife after the husband put her on the telephone. While the evidence is conflicting as to whether this phone conversation resulted in any change in the wording of the agreement (the husband contends it did), the documentary evidence itself irrefutably demonstrates that the document was in fact drawn up and finally drafted the preceding Monday, April 26, and was not changed in any respect thereafter.

As a further insight into the events leading up to the agreement herein, it is agreed that the subject of an antenuptial agreement had been brought up on more than one occasion for perhaps up to a year before the marriage herein. The husband testified that he wanted such an agreement because his father had advised it and because he had had extreme difficulty during his first divorce. No specific agreement nor draft thereof was made, however, until the instant agreement was prepared on April 26 of that eventful week in 1965 as aforesaid. The wife insists that she consistently objected to such an agreement, whatever its terms, and the sole testimony in rebuttal of this is the husband's statement that 'there was no refutation of any willingness to sign such an agreement.'

In any case, following the aforementioned phone call, the wife finally agreed reluctantly to sign the agreement after the husband insisted that the wedding would otherwise be called off. She contends that she signed the agreement then and there at the jewelers; but we can accept the husband's version that it wasn't signed until just before the wedding that night (i.e., about 12:30 a.m. on Friday) when the minute hand of the clock was on the rise 'for luck,' as several of the witnesses testified. Two witnesses corroborated the husband's version that the agreement was indeed signed at the airport shortly before the wedding, one Williams, the husband's nephew,...