Mendel v. Mendel, 71--614

• Decision Date: 01 February 1972
• Docket Number: No. 71--614,71--614
• Citation: 257 So.2d 293
• Parties: James H. MENDEL, Jr., Appellant, v. Sally A. MENDEL, Appellee.
• Court: Florida District Court of Appeals

Page 293

257 So.2d 293

James H. MENDEL, Jr., Appellant, v. Sally A. MENDEL, Appellee.

No. 71--614.

District Court of Appeal of Florida, Third District.

Feb. 1, 1972.

Rehearing Denied Feb. 23, 1972.

Harold Peter Barkas, Miami, for appellant.

Milton Ferrell, Miami, for appellee.

Before PEARSON, CHARLES CARROLL and BARKDULL, JJ.

CARROLL, Judge.

On August 30, 1956, the parties entered into an eleven page property settlement agreement in which it was recited that they had married on August 31, 1951; that there were two children of the marriage, aged four and one and one-half years, respectively; that the parties had separated; and that the wife intended to file suit for divorce.

By that document the parties agreed upon certain property dispositions, agreed the wife should have custody of the children, and specified the times and manner of visitation of the children with the husband. Therein the husband agreed to purchase certain bonds to be held for the future college expenses of the children, to maintain health and accident insurance for them and a policy on his life for their benefit, and to defray their dental and medical expenses.

In addition, certain provisions were made for weekly payments for child support, which obligated the husband to pay to the wife $50 a week for each child (making an aggregate sum of $100 per week), 'to continue until such time as the respective child shall have died, married or attained the age of twenty-one (21) years, whichever event first occurs', with a proviso that in event of remarriage of the wife the obligation of the husband for payment of child support thereafter would be $25 per week for each child. That portion of the paragraph of the agreement dealing with payment of child support was as follows: '* * * provided, however, that each of the above mentioned support payments shall be reduced to Twenty-five Dollars ($25.00) per week for each child in the event that the Wife remarries during the minority of either or both of said children prior to his or her marriage.'

Following mutual releases by the parties, the agreement stated: '* * * it being the intention of the Husband and Wife that henceforth there shall be, as between them, only such rights and obligations as are specifically provided for in this agreement.' Elsewhere therein it was provided that the agreement would be effective and binding on the parties upon being presented in the divorce suit and made a part of the divorce 'decree' by incorporation therein by reference. The day after the parties entered into that agreement the wife filed her action for divorce in the circuit court of Dade County.

On September 5, 1956, a judgment of divorce was entered in which the court referred to the agreement (which was shown in the record) and made it a part of the judgment by expressly incorporating it therein by reference. In the judgment the husband was ordered to pay child support, as provided for in the agreement, as follows:

'Ordered, Adjudged and Decreed that the Plaintiff have the custody of the minor children of the parties, to-wit: Heidi Lynn, age four years and Peter Allan, age a year and a half; and that the Defendant be and he is hereby ordered to pay to the Plaintiff the sum of One Hundred and No/100 ($100.00) Dollars per week for the support of the children In accordance with the agreement between the parties referred to above, the first payment being due on September 6th, 1956, and weekly thereafter.' (Italics supplied.)

In October of 1958 the wife applied for an increase in the amount of those weekly child support payments. On December 22, 1958, an order was entered increasing the aggregate weekly amount thereof from $100 to $125.

One year later, on December 23, 1959, the wife remarried. Thereafter, as thus provided for, the husband paid the wife $50 per week, representing $25 per week for the support of each child. For the next eleven years the weekly payments of child support continued on that basis, without any objection by the wife. However, on September 8, 1970, she instituted a proceeding in the case seeking to have the husband held in contempt for claimed delinquency in payment of child support, and as an alternative for entry of judgment against him for claimed arrears of child support.

After hearing thereon, the court entered the order of May 3, 1971, which is the subject of this appeal by the husband. Therein the court held the husband was in arrears for the period since the wife remarried (for the difference between the higher weekly amounts the husband had been obligated to pay prior to the remarriage of the wife and the lesser amounts he had paid weekly after the wife remarried), and in...