McCormick v. McCormick, 4989

• Court: Florida District Court of Appeals
• Writing for the Court: ANDREWS; SMITH; FUSSELL, CARROLL W.; FUSSELL, CARROLL W.
• Citation: McCormick v. McCormick, 181 So.2d 220 (Fla. App. 1965)
• Decision Date: 08 December 1965
• Docket Number: No. 4989,4989
• Parties: Madeline B. McCORMICK, Appellant, v. John W. McCORMICK, Appellee.

Page 220

181 So.2d 220

Madeline B. McCORMICK, Appellant, v. John W. McCORMICK, Appellee.

No. 4989.

District Court of Appeal of Florida, Second District.

Dec. 8, 1965.

Rehearing Denied Dec. 8, 1965.

D. Chanslor Howell, of Smith, Axtell, Howell & Rumph, Jacksonville, for appellant.

Gordon V. Frederick, Sanford, for appellee.

ANDREWS, Judge.

This is an appeal by the defendant Madeline B. McCormick from a final decree of divorce granted the plaintiff John W. McCormick, from denial of a motion for rehearing, and a motion to vacate the decree under F.R.Civ.P. 1.38(b), 30 F.S.A. The decree appealed from included an approval in substance of a Stipulation and Agreement between the parties as to their jointly owned property and alimony in the event of divorce.

Plaintiff, an attorney, and defendant were married on June 23, 1950, each having been previously married and each having one son by the previous marriage. The parties had not been living together continuously over a period of approximately three years prior to the filing of the complaint by the plaintiff on July 25, 1963, both the parties being residents of Lake County.

On July 18, 1963 after two conferences with an attorney, a mutual friend recommended by the plaintiff, the defendant executed a 'Stipulation and Agreement' as to a division of the jointly owned property and for alimony in the event of divorce, and an answer and waiver of further notice of all further proceedings in any divorce action that might be instituted.

The complaint, answer and waiver, stipulation and agreement, motion to waive 20-day waiting period were filed, testimony taken and final decree of divorce entered on July 25, 1963.

The final decree provided that the wife would quitclaim her interest in the home of the parties in consideration of the sum of $8,000.00 if and when sold, and pending sale the husband would pay the wife $50,00 per month to be credited on the said $8,000.00. The wife was granted the interest of the parties to a house in North Carolina, subject to a mortgage which the wife assumed and agreed to pay. Alimony was fixed at $100.00 per month until the wife should remarry or die, and an additional $50.00 per month for 13 years certain, which would amount to approximately the amount necessary to pay the mortgage on the North Carolina property. The decree also provided for an additional payment to the wife of $50.00 per month while she attended nursing school in addition to school tuition of $125.00 when due. Each of the parties was awarded their personal possessions. The wife also received title to a 1963 Volkswagen. The furniture in the home was awarded the husband, and the wife agreed to quitclaim all her interest in all other property to the husband.

Petition for rehearing and motion to vacate final decree under the provisions of F.R.C.P. 1.38(b) were filed on August 6, 1963. After two days of testimony the court denied motion for rehearing and denied motion to vacate the final decree.

The complaint alleges as grounds for divorce extreme cruelty, violent and ungovernable temper. Such allegations were established by the testimony of the plaintiff and were corroborated by a medical doctor friend of the parties. The plaintiff filed motion to waive the 20-day requirement for delay in the entry of the final judgment as authorized by F.S.A. § 65.20, on the grounds that the plaintiff had indications of a slight stroke and as a result delay would be extremely detrimental to his health. Such allegations were corroborated by the same doctor. The allegation and proof as to the divorce and as to the effect of delay upon the health of the plaintiff appears borderline, but consideration of the factual situation according to the record before the court at the time in its entirety established that the court properly denied rehearing.

We now consider the question of the allegation and proof upon which the defendant requested the court to set aside the decree upon a showing as required by F.R.C.P. 1.38(b). A careful study of the record subsequent to the entry of the final decree clearly established that fraud was perpetrated upon the court by misrepresentation of essential facts. The corroborating witness at the later hearing completely...