Norton v. Norton
| Decision Date | 25 February 1938 |
| Citation | 179 So. 414,131 Fla. 219 |
| Parties | NORTON v. NORTON. |
| Court | Florida Supreme Court |
Suit for divorce by Katharine E. Norton against William G. Norton wherein final decree was entered granting the divorce, and thereafter claimant filed petition for modification of final decree. From an order requiring defendant to file answer defendant appeals.
Reversed with directions. Appeal from Circuit Court Dade County; Worth W. Trammell, judge.
Chappell & Brown and Earnest F. Roberts, all of Miami, for appellant.
Herbert U. Feibelman, of Miami, for appellee.
On the 7th day of January 1937, final decree of divorce was entered in the circuit court of Dade county, Fla., in a suit instituted by appellee. The final decree did not adjudicate either alimony or suit money. Paragraph 5 of the decree was as follows:
'5. That the property agreement, dated July 24, 1936, heretofore entered into between the parties herein, entered in evidence at the hearing before the Special Master, Troy C. Davis, as Plaintiff's Exhibit 1, be, and the same is hereby accepted and ratified by this Court as the final property settlement between the parties herein in lieu of any award of alimony, suit money, or attorney's fees, a true copy of the said agreement being hereto attached and made a part hereof.'
The pertinent part of the agreement referred to is as follows:
'Now, therefore, this agreement witnesseth:
'In consideration of the mutual premises herein contained and of the money agreed to be paid and property transferred, it is agreed between the parties hereto as follows:
'First: The party of the second part agrees to transfer and convey to the party of the first part all his right, title and interest of, in and to the property at Luzerne, New York, now standing in the names of both of the parties hereto. The deed conveying the interest of the party of the second part, shall be deposited in escrow with the escrowee hereinafter named to abide the terms more specifically hereinafter set forth.
'Second: The party of the second part agrees to deposit with the escrowees for the benefit of the party of the first part the sum of Five Thousand ($5,000) Dollars; One Thousand ($1000) Dollars thereof on signing hereof; One Thousand Five Hundred ($1,500) Dollars thereof shall be deposited with the Escrowees on or before July 29, 1936; and the other half, or Twenty-five Hundred ($2500.) Dollars shall be paid over to the Escrowee on or before December 1, 1936. The sum of Four Thousand ($4,000.) Dollars and the deed to the Luzerne property shall be turned over to the party of the first part by the escrowees upon receipt by the escrowees of a certified copy of a final decree of divorce in favor of the party of the first part and against the party of the second part.
'Third: The party of the second part agrees to pay to the party of the first part, in addition to the sums above set forth, the sum of Four Hundred and Fifty ($450.) Dollars to cover her personal expenses in making the trip to Florida. The sum shall be paid at the rate of $25.00 per week commencing August 1, 1936, and shall be mailed to the party of the first part at the address furnished by her.
'Fourth: In addition to that sum the party of the second part agrees to pay to Charlott K. Norton the sum of Fifteen ($15.) Dollars per week commencing on the 1st day of September, 1936, and continuing until her 2 year school period expires, not including the two months summer vacation period, if any vacation period is granted to students.
'Fifth: The party of the second part agrees to deposit with the attorney for the party of the first part the sum of Five Hundred ($500.) Dollars, to be used by the said attorney to defray the expenses of securing a divorce for the party of the first part in the State of Florida. The balance of said Five Hundred ($500.) Dollars after the payment of legal fees shall belong and be payable to the party of the first part after the entry of the final decree. The party of the first part agrees to establish her residence in the State of Florida and institute her divorce action against the party of the second part as soon as reasonably possible and prosecute the same to a speedy conclusion. In consideration of the payments made and property transferred, the party of the first part agrees to make no request for alimony in said divorce action and agrees that no alimony provision will be included in any final decree of divorce which may be granted to her. William G. Norton agrees to appear in said Florida action by an attorney so that said court shall have jurisdiction over both parties.
'Sixth: The parties hereto agree to cancel and annual and do hereby cancel and annul the separation agreement now outstanding between the parties hereto and which is dated June 1, 1933, and the party of the first part agrees to waive all dower rights in the real property of the party of the second part.
'Seventh: The parties hereto further agree to stipulate in writing through their respective attorneys to mark the case of Katharine E. Norton, plaintiff, against William Norton, Defendant, now pending in the Supreme Court of Queens County, settled and discontinued without costs.
'Eighth: The escrowees under the terms of this agreement shall be Henry E. Coleman, 535 Fifth Avenue, New York City, and Daniel J. Byrne, of Ridgewood, New York. They agree to deposit the moneys to be paid to them under this agreement with the Manufacturers Trust Company, Fifth Avenue and 43rd Street, Branch, in a special account, and they agree to pay, to the party of the first part the money, so deposited with them upon receipt of a certified copy of a final decree of divorce in favor of the party of the first part and against the party of the second part, providing said divorce decree makes no provision for alimony.
'Ninth: The escrowees are hereby authorized and directed to pay at once to the party of the first part the sum of One Thousand ($1000) Dollars out of the funds they receive pursuant to paragraph 'Second' hereof.
'This agreement shall be binding upon the parties hereto, their legal representatives and assigns.'
Jurisdiction of the cause, or of the parties, was not retained.
On April 5, 1937, appellee filed her petition in the circuit court of Dade county, Fla., for modification of final decree. Order was issued to nonresident former husband to show cause. The nonresident former husband filed special appearance and motion to quash the order to show cause on the following grounds:
'1. The said rule nisi was issued without lawful foundation to support it.
'2. It affirmatively appears that the Court has no jurisdiction over the person of the defendant.
'3. It affirmatively appears that the Court has no jurisdiction to entertain the petition of Katharine E. Morton, upon which the rule nisi was issued.
'4. It affirmatively appears that the Court has no jurisdiction to award the relief prayed for by Katharine E. Norton, in the petition filed by her, being the petition upon which the rule nisi was issued.
'5. It affirmatively appears that the said rule nisi was not served upon the said William G. Norton according to law.
'6. There is no lawful proof of service of the said rule nisi.
'Motion to quash was denied. Thereupon, motion to strike petition was interposed stating the following grounds:
'1. The said petition does not state cause for relief in favor of Katharine E. Norton, and against William G. Norton.
'2. It affirmatively appears that the Court has no jurisdiction to entertain the petition of Katharine E. Norton, or to award the relief prayed for in said petition.
'3. The petition is founded upon chapter 16780, Acts 1935, and it affirmatively appears that the Court has no jurisdiction to award relief to Katharine E. Norton, under said Act.
'4. The prayer of the petition is for an order requiring William G. Norton to show cause why an identified final decree of divorce should not be modified, and why a certain agreement identified in said petition, should not be set aside, and that Katharine E. Norton be allowed an increased allowance for support and maintenance. But it affirmatively appears that neither Katharine E. Norton, nor William G. Norton resided in the State of Florida on the date of the execution of said agreement, but on the contrary, both of said parties resided in the State of New York at the time the agreement was made and executed, and it further appears that said agreement was executed and fully performed in the State of New York. It further appears from said petition that the said Katharine E. Norton did not reside in the State of Florida on the date of her application and...
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