Posner v. Posner

• Court: Florida Supreme Court
• Writing for the Court: BOYD; ROBERTS
• Citation: Posner v. Posner, 257 So.2d 530 (Fla. 1972)
• Decision Date: 08 March 1972
• Docket Number: No. 41062,41062
• Parties: Sari POSNER, Petitioner, v. Victor POSNER, Respondent.

Page 530

257 So.2d 530

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

No. 41062.

Supreme Court of Florida.

March 8, 1972.

Rehearing Denied April 12, 1972.

Mallory H. Horton, of Horton, Schwartz & Perse, Miami, and Frank Ragano of Ragano & La Porte, Tampa, for petitioner.

Ray H. Pearson, and James D. Little, of Frates, Floyd, Pearson & Stewart, Miami, for respondent.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 245 So.2d 139. In this, the second appearance of the cause here, the question presented is whether the lower courts have followed the mandate of our original decision, reported at 233 So.2d 381 (Fla.1970).

On the merits, the case involves the validity of an antenuptial agreement executed fourteen days before the marriage of the parties on December 30, 1960. After six years of marriage and two children, the parties were divorced by decree dated December 7, 1966. Under the terms of the antenuptial agreement, Posner, a very wealthy man, pays $600 per month in alimony and $600 per month per child for support.

In its decision reported at 206 So.2d 416 (Fla.App.3rd 1968), the District Court held that the alimony provisions of the antenuptial contract were not binding on the discretion of the Chancellor in awarding alimony. The District Court certified its decision as one passing on a question of great public interest, to-wit:

'Whether a provision of an antenuptial contract, specifying an amount of alimony to be accepted by a prospective wife in the event of separation or divorce is valid, or is void as against public policy.'

This Court, in its first opinion, held: ¹

'We have given careful consideration to the question of whether the change in public policy towards divorce requires a change in the rule respecting antenuptial agreements settling alimony and property rights of the parties upon divorce and have concluded that such agreements should no longer be held to be void ab initio as 'contrary to public policy.' If such on agreement is valid when tested by the stringent rules prescribed in Del Vecchio v. Del Vecchio, supra, 143 So.2d 17, for ante-and post-nuptial agreements settling the property rights of the spouses in the estate of the other upon death, and if, in addition, it is made to appear that the divorce was prosecuted in good faith, on proper grounds, so that, under the rules applicable to postnuptial alimony and property settlement agreements referred to above, it could not be said to facilitate or promote the procurement of a divorce, then it should be held valid as to conditions existing at the time the agreement was made.' (e.s.)

We further noted that the future binding effect of such antenuptial agreement is controlled by Florida Statutes § 61.14, F.S.A., which provides that when 'the circumstances of the parties or the financial ability of the husband has changed Since the execution of such agreement or the rendition of the order, either party may apply to the circuit court . . . for a judgment decreasing or increasing the amount of support, maintenance or alimony. . . .' ² (italics supplied)

In conclusion, this Court in the original Posner decision here, held: ³

'In summary, we hold that the antenuptial agreement, If entered into under the conditions outlined in Del Vecchio v. Del Vecchio, supra, 143 So.2d 17, 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 as provided in § 61.14, Florida Statutes, F.S.A.

'Accordingly, the decision under review is quashed with instructions to the District Court of Appeal, Third District, to vacate that portion of the final decree of the trial court relating to alimony and support money and remand same for further proceedings in the trial court not inconsistent with this opinion.' (e.s.)

Pursuant to this Court's mandate, the District Court returned the cause to the trial court for 'further proceedings not inconsistent' with our opinion. ⁴

The trial court, Without taking any further evidence, found the 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 the divorce on December 7, 1966. The wife was restricted by the trial court from offering any evidence relating to change of circumstances that occurred since the execution of the agreement in December of 1960, and prior to the divorce in December of 1966.

On appeal, the District Court affirmed, holding that 'it appears that the chancellor did follow our mandate and did not commit error in limiting the application of § 61.14, Fla.Stat., F.S.A., to a change in circumstances subsequent to the final decree of divorce.' ⁵ This decision is presently before us for review on petition for writ of certiorari.

Petitioner alleges that the decision of the District Court sought to be reviewed is in conflict with this Court's 1970 decision in Posner v. Posner. ⁶ A more fundamental basis for our jurisdiction is the enforcement of this Court's mandate in that decision requiring that further proceedings be had and findings made that the conditions outlined in Del Vecchio have been met. ⁷ This Court has inherent power to see that its own mandates are properly complied with. ⁸ By all that appears in the record before us there has never been a determination of the question of full and fair disclosure or knowledge of respondent's actual wealth. The disproportionate provision for the wife makes this finding In Del Vecchio we stated: ⁹

'Inadequacy of provision for the wife does not in itself vitiate an antenuptial agreement. If, when she signed the contract freely and voluntarily, she had some understanding of her lights and had been fully informed by the husband as to his property of if, notwithstanding the husband's failure to disclose, she had or reasonably should have had a general and approximate knowledge of the character and extent of his property she will be bound.'

In addition, the mandate of this Court required consideration by the trial court of Florida Statutes § 61.14, F.S.A., which provides that a change in circumstances of the party since The date of the agreement can be considered by the Chancellor in modification of support and alimony provided for in an antenuptial agreement.

The order of the trial court entered pursuant to the mandate of our first decision in this cause, is entirely inadequate. That order essentially found that:

'(T)he sum provided for alimony and support was fair and reasonable under the circumstances of the parties at the time of the entry into the Agreement and the marriage, and were fair and reasonable sums at the time of the divorce in 1966.'

What is required is more than a statement of legal conclusions, especially where the provision for the wife is clearly disproportionate to the wealth of the prospective husband at the time the agreement is executed. In the instant case, it is apparent on the face of the record and essentially without dispute that the provision made for Mrs. Posner under the terms of the agreement was and is disproportionate to the wealth of Mr. Posner and not in keeping with the standard of living of the parties. Under these circumstances, the husband has the burden of proving that the wife had full knowledge of the extent of his property at the time she executed the agreement. In Del Vecchio, we stated: ¹⁰

'Where, as in this case, the provision made for the wife is, upon the face of the agreement, disproportionate to the means of the husband the burden, under the Weeks rule ¹¹, is cast upon the executor to show that the wife, at the time she executed the agreement, had or reasonably ought to have had Full knowledge of the husband's property.'

We reiterate that inadequate and disproportionate provision for the wife, even to the extent evidenced in the instant case, will not vitiate an antenuptial agreement. If the prospective wife has full knowledge of her rights, and in the absence of willful or unintentional fraud, or the withholding of material facts, she will be it she would be entitled to a greater share of her husband's wealth.

Freedom to contract includes freedom to make a bad bargain. But freedom to contract is not always absolute. The public interest requires that antenuptial agreements be executed under conditions of candor and fairness. As stated in Del Vecchio: ¹²

'The relationship between the parties to an antenuptial agreement is one of mutual trust and confidence. Since they do not deal at arm's length they must exercise a high degree of good faith and candor in all matters bearing upon the contract.'

This Court has inherent power to enforce its mandates and to give such judgment, sentence, or decree as the court below should have given. The instant case calls out for the exercise of that power since the cause has been in litigation since 1965 and has already been remanded one time under our 1968 decision. In the 1968 decision remanding the cause we sought to afford the trial court an opportunity to consider the Del Vecchio case and determine if the standards laid down in that case for post nuptial agreements have been met by the antenuptial agreement in the instant case. Apparently that intention was not completely clear to the court below and we are now faced with the alternative of remanding again for reconsideration of the validity of the agreement with extensive time consuming litigation, or undertaking to determine the matter here on the record before us. We have chosen the latter alternative in the interest of affording relief to the parties involved in this case who have long suffered the delay of this litigation, and as an aid in the future application of the principles stated in our first Posner decision and in Del Vecchio.

Since the provision for the wife...