Posner v. Posner

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM; ADKINS, C.J., and ROBERTS, BOYD, McCAIN, DEKLE and OVERTON, JJ., and FERRIS
• Citation: Posner v. Posner, 315 So.2d 175 (Fla. 1975)
• Decision Date: 16 April 1975
• Docket Number: 46153 and 45143,Nos. 41062,s. 41062
• Parties: Sari POSNER, Petitioner, v. Victor POSNER, Respondent. Sari POSNER, Appellant, v. Victor POSNER, Appellee. Victor POSNER, Appellant, v. Sari POSNER, Appellee.

Page 175

315 So.2d 175

Sari POSNER, Petitioner, v. Victor POSNER, Respondent.

Sari POSNER, Appellant, v. Victor POSNER, Appellee.

Victor POSNER, Appellant, v. Sari POSNER, Appellee.

Nos. 41062, 46153 and 45143.

Supreme Court of Florida.

April 16, 1975.

Rehearings Denied July 18, 1975.

Mallory H. Horton of Horton, Perse & Ginsberg, Miami, and Frank Ragano of Ragano & LaPorte, Tampa, for Sari Posner, petitioner, appellant, appellee.

Lawrence E. Hoffman of Hoffman & St. Jean, Miami Beach, and Ray H. Pearson, Guy B. Bailey, Jr. and James D. Little of Frates, Fay, Floyd & Pearson, Miami, for Victor Posner, respondent, appellee, appellant.

PER CURIAM.

This cause is before us on (1) a petition to require compliance with this Court's opinion and mandate reported at 257 So.2d 530, (2) an interlocutory appeal from an order awarding alimony and child support and (3) an interlocutory appeal from an order awarding attorney's fees. Our jurisdiction to consider the petition for compliance is based upon this Court's inherent power to enforce its own orders. ¹ To facilitate matters for the parties, this Court ordered the transfer from the District Court of Appeal, Third District, of the two interlocutory appeals, which appeals were consolidated sua sponte by this Court with the petition to require compliance; oral argument was heard on all three matters. The facts of the case as follows:

On December 1, 1960, the husband transferred $8,400.000.00 to an 'irrevocable trust'. Prior to the parties' marriage on December 30, 1960, the husband gave the wife a letter purportedly disclosing his financial aspects and advising her of the irrevocable trust. The parties were divorced on December 7, 1966; two children were born of the marriage. An appeal was taken, and in its decision the District Court of Appeal, Third District, held that the alimony provisions of the antenuptial contract were not binding on the discretion of the chancellor in awarding alimony. ² The District Court then certified its decision to this Court, which, in its first opinion, ³ held that:

'. . . the antenuptial agreement, if entered into under the conditions outlined in Del Vecchio . . . was a valid and binding agreement between the parties at the time and under the conditions it was made, but subject to be increased or decreased under changed conditions . . .'

This Court quashed the District Court's opinion with instructions that the case be remanded for further proceedings in the trial court. Pursuant to this Court's mandate, the District Court remanded the cause to the trial court. ⁴

Without taking any further evidence, the trial court found provisions of the agreement fair and reasonable and ruled that on any future petition for modification it would consider evidence of change in circumstances since the date of divorce. The wife was restricted by the trial court from offering evidence relating to changed circumstances occurring during the marriage. On appeal, the District Court of Appeal, Third District, affirmed. ⁵ Petitioner then filed her Petition for Writ of Certiorari to this Court, alleging that the District Court's opinion conflicts with this Court's first opinion in this case; this Court took jurisdiction on the more fundamental basis of enforcement of its own mandate. On March 8, 1972, this Court entered its opinion ⁶ in which it found the trial court's order 'entirely inadequate'; however, because this case had been in litigation since 1965 and had already been remanded once, this Court exercised its power under Section 59.34, Florida Statutes, to 'give such . . . decree as the court below should have given . . .'. Having examined the record, this Court concluded that the antenuptial agreement was void; whereupon the cause was remanded for determination of a reasonable alimony, support for the children, and property rights, if any. The trial court was specifically directed on remand to determine both the actual gross worth of the husband at the present time and the parties' standard of living in terms of dollars and cents spent by the husband; the trial court was authorized to take additional testimony in this regard. This Court awarded the wife $2,000.00 per month as alimony pendente lite, less credit for the $600.00 per month which the husband had been paying, leaving a balance due the wife of $146,400.00. The cause was then remanded with directions to the trial court for further proceedings.

On November 19, 1973, the trial court entered its 'findings of fact, conclusions of law, and award of permanent alimony and child support'. In that order, the trial court found that the wife had not carried her burden of proving that her present needs are greater than those which appeared in the record for this Court in 1972; that the husband's gross wealth was $386,409.00, i.e., as represented by his gross assets less liabilities; that, overall, the husband's total gross assets less liabilities amounted to $2,857,071.00; that there was no necessity for lump sum alimony; that the temporary alimony awarded by this Court should be increased to $2,600.00 per month based on a cost of living increase in the amount of $30%; that the child support award granted by this Court should be increased to $800.00 per...