Ohmes v. Ohmes

• Decision Date: 28 June 1967
• Docket Number: No. 7384,7384
• Citation: 200 So.2d 849
• Parties: Mary J. OHMES, Appellant, v. Earl R. OHMES, Appellee.
• Court: Florida District Court of Appeals

Page 849

200 So.2d 849

Mary J. OHMES, Appellant, v. Earl R. OHMES, Appellee.

No. 7384.

District Court of Appeal of Florida, Second District.

June 28, 1967.

David Yost and Arthur D. Ginsburg, of Paderewski, Cramer, Robinson, Ginsburg & Ross, Sarasota, for appellant.

Gale K. Greene, Sarasota, for appellee.

PIERCE, Judge.

This is an appeal by Mary J. Ohmes, petitioner in the Court below, from a final order entered by the Manatee County Circuit Court, dismissing upon motion her petition for modification of Final Decree.

On April 6, 1966, petitioner filed in said Circuit Court her petition, alleging that on March 8, 1963, Final Decree of divorce had been entered by the Hardee County Circuit Court, Hon. Wm. K. Love, Judge, granting a divorce between her and her then husband, Earl R. Ohmes, and approving and making a part of said decree an 'Agreement of Separation' entered into by the parties thereto on February 11, 1963, at Bradenton, Florida. A copy of the Hardee Circuit Court decree and of the Separation Agreement therein referred to were attached to petitioner's petition in the instant case. The Agreement is somewhat prolix, but provides essentially that the husband, respondent here, pay to the wife, petitioner here, the sum of $25.00 per month for alimony, to continue until the death of one of the parties or remarriage of petitioner; payment by respondent of Court costs and attorney's fee for her attorneys; and execution by the parties to each other of certain reciprocal quit claim deeds and releases concerning specified real and personal properties.

The petition further alleged that, since the execution of the Separation Agreement and entry of the Hardee decree, 'there has been a change in certain circumstances in that the petitioner's income has decreased to nothing while the respondent's income has greatly increased, and he has received a substantial inheritance providing him with a greater ability to pay'. The petition thereupon prayed that the Hardee decree be modified by increasing her alimony provided therein.

Respondent filed answer and 'Affirmative Defenses', setting forth (1) that the petition failed to state a cause of action upon which relief may be granted, (2) that the Hardee decree did not 'reserve jurisdiction' to later modify the same and therefore the Manatee Circuit Court was without jurisdiction to entertain the instant petition, (3) that although 'he has received an inheritance as alleged', his overall income has in fact decreased, and (4) that petitioner has violated certain terms of the Separation Agreement by failing to indemnify him with respect to certain of the obligations therein referred to.

After hearing, the Circuit Judge held that the agreement incorporated into the Hardee divorce decree was 'a Property Settlement Agreement, which was made in good faith, and not a Separation Agreement', and therefore 'should not be disturbed by the Court', and that the Manatee Court did not have jurisdiction of the instant petition because the Hardee final decree did not reserve jurisdiction of the cause 'for the purposes outlined in the said Petition for Modification'. The instant petition was thereupon dismissed.

The petition for modification was patently brought under F.S. Sec. 65.15 F.S.A., which because of its length will be included in full only in the margin. ¹ Generally, it provides that whenever 'any Court of competent jurisdiction' has entered any decree in any divorce or separate maintenance case, requiring the payment by the husband to the wife of alimony or support payments, whether pursuant to an agreement between them or by the Court pursuant to testimony, 'and the circumstances of the parties or the financial ability of the husband shall have been changed' since the agreement was executed or the decree rendered, 'either party' may file application in any of certain specified Circuit Courts for modification of such decree, and the Court after hearing 'shall make such order and judgment as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the husband'.

Said F.S. Section 65.15 F.S.A., was originally enacted as Chap. 16780, Laws of 1935, and has been the subject matter of extensive litigation since its enactment. Only a few of the decisions are necessary to be considered here, however, for purpose of disposition of the instant case.

Respondent questioned the jurisdiction of the Manatee Circuit Court on the ground that jurisdiction had not been reserved in the Hardee County decree so as to permit subsequent modification as to the amount of alimony. This is answered, however, by the affirmative provisions of Sec. 65.15, which provide a statutory right to modification without restriction as to reservation of jurisdiction in the decree sought to be modified. Kosch v. Kosch, Fla.1959, 113 So.2d 547; Fowler v. Fowler, Fla.App.1959, 112 So.2d 411; Schraner v. Schraner, Fla.App.1959, 110 So.2d 33.

It is elementary in Florida law that the provisions of all Florida statutes touching upon the subject matter enter into and become a part of all contracts or agreements between parties to the same extent as if written therein In haec verba. Schekter v. Michael, Fla.1966, 184 So.2d 641; Proser v. Berger, Fla.App.1961, 132 So.2d 439; General Development Corp. v. Catlin, Fla.App.1962, 139 So.2d 901; Lynch-Davidson Motors v. Griffin, Fla.1965, 182 So.2d 7. Therefore, the terms and provisions of Sec. 65.15 were a component part of the Settlement Agreement here.

But as to another aspect of jurisdiction affecting the Manatee Circuit Court, a serious question, not raised by respondent, exists, which ordinarily would not be considered, but because it does pertain to the jurisdiction of the Court to adjudicate the subject matter before it, we must resolve it Ex mero motu.

F.S. Sec. 65.15 F.S.A., confers jurisdiction to entertain such modification proceedings only upon certain specified Circuit Courts. These are summarized by Mr. Justice Buford, speaking for the Supreme Court, in Norton v. Norton, 1938, 131 Fla. 219, 179 So. 414, 415, in the following language:

'The statute (Sec. 65.15 F.S.) prescribes certain jurisdictional prerequisites and the existence of these prerequisites must appear affirmatively from the allegations of the petition. They are: (1) Petition may be filed in the circuit court of the circuit in which the parties, or either of them, shall have resided at the date of the execution of a property settlement agreement; or (2) in any circuit where either party may reside at the date of such application, or in which agreement for property settlement or alimony shall have been executed; or (3) in any circuit court in which any husband has, pursuant to the decree of any court of competent jurisdiction, been required to make to his wife any payments for, or in lieu of, separate support, maintenance, or alimony.'

The petition in the instant case does not allege that either party was a resident of Manatee County, only that 'the Petitioner is a bona fide resident of the State of Florida'. Also, it is not alleged that respondent has made any payments to petitioner, or been required so to do, in Manatee County. Also, it is not alleged that either party 'resided' in Manatee County at the time the Separation Agreement in the Hardee County case was executed. They are only vaguely referred to in the Separation Agreement as being 'of the County of Manatee', which could as logically be the county of their business headquarters or temporary sojournment as well as their permanent residence.

The Agreement, however, does show to have been executed by the parties 'in Bradenton, Florida,' which, on its face, satisfies one of the several alternative prerequisites of jurisdiction. We say 'on its face' because, while copies of the Hardee decree and Settlement Agreement are 'attached' to the petition filed in the Manatee Court they are not made a 'part' of the petition nor is there any allegation whatever as to the contents of the Agreement in the body of the petition. However, upon consideration of the entire record before us, we will not hold the petitioner to have been wholly without standing in the Manatee Court upon this jurisdictional aspect. But a more attentive regard for the simple 'jurisdictional prerequisites' erected in the Statute could quite easily avoid any question such as this.

This brings us to the real heart of the case. Respondent contended that the Hardee Final Decree encompassed and adopted a 'property settlement agreement' of the parties not limited to an alimony or support agreement, and as such was not subject to the provisions of Sec. 65.15. The Chancellor agreed and dismissed the petition. The adjudicated cases construing Sec. 65.15 do not sustain such contention.

This is not a case where the parties make an agreement settling Only the reciprocal rights and interests of the parties in their real and personal holdings, and either make no alimony provision for the wife or else affirmatively disclaim such allowance. This would be a pure property settlement agreement, as to which Sec. 65.15 assuredly has no application. Such was the nature of the agreement in Dix v. Dix, 1939, 140 Fla. 91, 191 So. 205, and in Haynes v. Haynes, Fla.1954, 71 So.2d 491.

But where the agreement between the parties goes further than settling their pure property rights and provides affirmatively for payment by the husband to the wife of continuing alimony or support money for her maintenance, Sec. 65.15 does have application, albeit only as to those provisions which pertain to such payments.

This was the situation in Kosch v. Josch, Fla.1959, 113 So.2d 547. In that case Celia L. Kosch was divorced from Sidney Kosch in 1949. In 1958 she applied to the Dade County Circuit Court for an increase in the alimony payments provided for in the original decree. Such decree had ratified and confirmed a 'Property Settlement Agreement' entered...