Pemelman v. Pemelman

• Decision Date: 20 May 1966
• Docket Number: No. 6172.,6172.
• Citation: 186 So.2d 552
• Parties: Betty Lou PEMELMAN, Appellant, v. Charles R. PEMELMAN, Appellee.
• Court: Florida District Court of Appeals

186 So.2d 552

Betty Lou PEMELMAN, Appellant, v. Charles R. PEMELMAN, Appellee.

No. 6172.

District Court of Appeal of Florida. Second District.

May 20, 1966.

Hal H. McCaghren, West Palm Beach, for appellant.

Walter R. Talley, Bradenton, for appellee.

SHANNON, Acting Chief Judge.

This is an appeal by the defendant-wife from a decree of divorce entered in favor of the plaintiff-husband, which decree incorporated the terms of a property settlement reached by the parties. The wife contends that it was error to admit the agreement into evidence and to incorporate it in the decree because it was inequitable, overreaching, fraudulent and procured by coercion. The agreement also provided that custody of the four minor children of the parties be with the husband, and this provision is also contested on appeal by the wife.

This divorce action was commenced by the husband in April, 1964. The complaint made reference to the property settlement agreement, which had been signed earlier that month. At the divorce hearing there was evidence that the marriage had been in effect for eighteen years; that the husband and wife had operated several business ventures together; that all the business inventory and equipment were jointly owned as an estate by the entireties; that there were several parcels of real estate similarly owned; and that the value of all the property was disputed. The main parcel of real property was valued on the basis of just valuation at $27,000.00, but was encumbered by a $13,000.00 mortgage.

The wife attempted to show that the property settlement was inequitable, in that she relinquished her rights to valuable property for a small consideration. She stated that when the agreement was signed she was distraught, upset and in such a nervous state that she would have signed anything. She was not represented by an attorney at the negotiating or signing of the agreement, which was drawn up by her husband's attorney, in whose office it was signed.

There was evidence, however, that both the husband and his attorney repeatedly cautioned and advised the wife to secure legal counsel before signing the agreement, but that the wife refused. There is also evidence that the wife did not appear unduly nervous at the signing.

Following the presentation of evidence by both sides, the husband moved to reopen the testimony to allow the introduction into evidence of the property settlement, previously referred to and made the subject of testimony. Notice of the motion was served on the wife's counsel, but he waived appearance at the hearing. The agreement was therefore offered and admitted into evidence without objection.

There is no doubt that separation agreements executed by husband and wife prior to divorce will be respected by the courts, unless there has been fraud, overreaching or concealment. Sedell v. Sedell, Fla.App. 1958, 100 So.2d 639. The general rules relating to these agreements have been stated as follows.

In Miller v. Miller, 1942, 149 Fla. 722, 7 So.2d 9, the Supreme Court said:

"* * * Agreements made in good faith, free from fraud, deceit or trickery relating to alimony between husband and wife, or the adjustment of their property rights, though made in contemplation of divorce, can or may be sustained or upheld by the courts. * * *" Id. at 726, 7 So.2d at 11.

The Miller case, as well as Masilotti v. Masilotti, 1947, 158 Fla. 663, 29 So.2d 872, and Cowen v. Cowen, Fla. 1957, 95 So.2d 584, also hold that the burden is on the person seeking to set the agreement aside to establish by competent evidence that there was fraud, deceit, duress, coercion or overreaching. After our examination of the record and briefs in this case, we have no hesitation in affirming the chancellor, because the wife fell far short of the showing necessary to invalidate the agreement.

There is no basis here for shifting the burden to the husband to establish the validity of the agreement, as the Supreme Court did with the antenuptial agreement in Del Vecchio v. Del Vecchio, Fla. 1962, 143 So.2d 17. The situation there contemplated was one in which the woman had no knowledge of the husband's assets and no full and fair disclosure of his assets was made to her.

Here the wife, who had worked intimately in the husband's business for many years, was thoroughly acquainted with the amount and value of property involved. Therefore, the wife may not claim ignorance on her part, nor concealment or...