Posner v. Posner

• Citation: 206 So.2d 416
• Decision Date: 23 January 1968
• Docket Number: No. 67-107,67-107
• Parties: Sari POSNER, Appellant, v. Victor POSNER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 416

206 So.2d 416

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

No. 67-107.

District Court of Appeal of Florida, Third District.

Jan. 23, 1968.

Rehearing Denied Feb. 20, 1968.

Broad & Cassel and Lewis Horwitz, Sibley, Giblin, Levenson & Ward, Miami Beach, for appellant.

Frates, Fay, Floyd & Pearson and Guy B. Bailey, Jr., Miami, for appellee.

Before CHARLES CARROLL, C. J., and HENDRY and SWANN, JJ.

HENDRY, Judge.

This is an appeal from a final decree granting a divorce to the husband and awarding alimony and child support money to the wife.

The wife, plaintiff below, brought suit for alimony unconnected with divorce on the ground of extreme cruelty, for support of the children of the parties, and for a decree that the antenuptial agreement between the parties was void. The husband denied the material allegations of the complaint, except the facts of the marriage and the existence of children, and counterclaimed for divorce. The wife denied the material allegations of the counterclaim.

The chancellor entered a final decree granting a divorce to the husband, providing $1,200.00 a month as support for the two children, holding the antenuptial agreement valid, and awarding $600.00 per month alimony to the wife, the amount of alimony being in accordance with the terms of the antenuptial agreement.

The antenuptial agreement contains the following provision:

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'9. In the event of the dissolution or termination of this marriage contemplated between the parties hereto, Sari Frazier agrees that she will accept the sum of Six Hundred Dollars ($600.00) per month, in lieu of alimony, support or financial reimbursement of any kind whatsoever and that she will assert no further claim beyond the said sum of Six Hundred Dollars ($600.00) per month, the payment of which shall continue until her death or remarriage, whichever event may first occur. In the event of the death of Victor Posner, while such payments of Six Hundred Dollars ($600.00) per month are being made, the said payments shall terminate and in place thereof, Sari Frazier shall receive a lump sum payment of Twenty-One Thousand, Six Hundred Dollars ($21,600).'

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* * * In regard to the antenuptial agreement, the final decree recited:

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'The antenuptial agreement dated December 16, 1960, entered into evidence as Plaintiff's Exhibit No. 2 is a legally binding contract between the parties.

'The antenuptial agreement entered into by and between the parties and marked as Plaintiff's Exhibit No. 2 in the record is adopted by reference and made a part of this final decree.

'As per the terms of the antenuptial agreement adopted and made a part of this final decree in the paragraph above the Defendant, Counter-Plaintiff, Victor Posner, is directed and ordered to pay to the Plaintiff, Counter-Defendant, Sari Posner, the sum of Six Hundred and No/100 ($600.00) Dollars per month as permanent alimony * * *'.

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The wife now brings this appeal, and the husband files cross assignments of error.

The wife's first contention is that the evidence was insufficient to sustain the granting of a divorce. We find this contention to be without merit and affirm the granting of the divorce.

Mrs. Posner's next point on appeal is that the court below was not bound by the terms of the antenuptial agreement in awarding alimony. We agree with this contention.

The law is settled in Florida that the chancellor has sole discretion in awards of alimony.

Section 65.08, Florida Statutes, F.S.A., provides:

'In every decree of divorce in a suit by the wife, the court shall make such orders touching the maintenance, alimony and suit money of the wife, or any allowance to be made to her, and if any, the security to be given for the same, as from the circumstances of the parties and nature of the case may be fit, equitable and just; but no alimony shall be granted to an adulterous wife * * *'.

In Dawkins v. Dawkins, Fla.App.1965, 172 So.2d 633, the District Court of Appeal, Second District, held:

'Fla.Stat. § 65.08, F.S.A., vests in the chancellor the sole discretion to settle questions relative to alimony and the parties may not by contract divest him of this discretion. Although fair and equitable agreements which are not violative of public policy may be incorporated into a divorce decree, there is no statute or rule of law which says they must be.'

The holding in Dawkins, supra, was recognized and followed by this Court in the case of Gelfo v. Gelfo, Fla.App.1967, 198 So.2d 353, wherein Judge Pearson, speaking for the court, wrote:

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'It is true that the conclusion reached in the Dawkins' case and in this case may be difficult to reconcile with statements in other cases to the effect that a property settlement agreement has the same validity as any other agreement between competent parties (citing authorities). Nevertheless, we believe that the holdings in the cited cases do not preclude a finding by a chancellor that a provision as to the alimony and support is unconscionable when the record demonstrates support for this finding.'

Under Florida law, as we construe it, the chancellor, in divorce proceedings, is given full power at the time he initially enters a divorce decree to fix rights of the parties. The court has the right to approve a prior separation agreement, to modify such agreement, or to dispose of any agreement in its entirety. But once the agreement is approved, it becomes the order of the court, and the decree becomes the basis of the settlement. The court may find an antenuptial agreement entered into between the parties to a divorce suit helpful in arriving at an appropriate alimony award, but the court is not bound to accept the judgments of the parties on the issue. For these reasons, we must hold that the chancellor was in error in construing the antenuptial agreement to be 'a legally binding contract between the parties.' Therefore, we reverse the portion of the final decree which awards the sum of Six Hundred Dollars per month as alimony, and remand the cause to the chancellor with directions to enter an order awarding alimony based upon an exercise of the chancellor's sound judicial discretion.

We have examined and considered the cross assignments of error and the contentions of appellee in regard to the award of child support. We find those contentions to be without merit, and hence, that portion of the final decree awarding support payments to the children is affirmed.

Affirmed in part; reversed in part and remanded with directions.

CHARLES CARROLL, Chief Judge (concurring specially).

I concur in the judgment, affirming the provisions of the decree granting the divorce and as to custody and child support, and reversing the provision of the decree which held valid the antenuptial agreement as to the amount of alimony to be received by the wife in event of divorce and allowing her the sum specified in the contract. However, I would place the latter ruling of this court squarely on the ground that the alimony provision of the antenuptial contract is against public policy and void.

Antenuptial contracts which provide, in the event of separation or divorce, for waiver of alimony or the amount to be paid as alimony or in lieu of alimony, are viewed almost without exception as being against public policy and void. Lindsay v. Lindsay, Fla.App.1964, 163 So.2d 336; Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783, 788; Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115, 133; Stratton v. Wilson, 170 Ky. 61, 185 S.W. 522, 525; Cohn v. Cohn, 209 Md. 470, 121 A.2d 704, 706; Scherba v. Scherba, 340 Mich. 228, 65 N.W.2d 758; Stefonick v. Stefonick, 118 Mont. 486, 167 P.2d 848, 164 A.L.R. 1211; Hillman v. Hillman, Sup., 69 N.Y.S.2d 134, aff'd 273 App.Div. 960, 79 N.Y.S.2d 325; Motley v. Motley, 255 N.C. 190, 120 S.E.2d 422, 424; Crouch v. Crouch, 1964, 53 Tenn.App. 594, 385 S.W.2d 288, 293 (cert. den.); Caldwell v. Caldwell, 1958, 5 Wis.2d 146, 92 N.W.2d 356, 361; 24 Am.Jur.2d Divorce & Separation, § 12; Annot. 70 A.L.R. 826; 2 Nelson, Divorce and Annulment, §§ 13.02, 13.22; 2 Lindey, Separation Agreements and Ante-Nuptial Contracts, § 90--3b. The only case which has come to my attention holding contra is Hudson v. Hudson, Okl.1960, 350 P.2d 596.

The reasons of policy which render such an antenuptial contract provision invalid are well stated in the annotation in 70 A.L.R. 826, 828, supra, viz.:

'An antenuptial contract limiting the husband's liability to a certain sum in case of separation invites disagreement, encourages separation, and incites divorce proceedings, thereby tending to overthrow and destroy those principles of the law of marriage requiring that the husband and wife live together during their natural life, and that the husband, within his financial ability, shall support his wife; and because of the interest that the public has in such causes, the question of alimony is a matter for the court, and the action of the court will not be controlled by an antenuptial agreement of the parties on this subject.'

Regarding the public policy relating to such a provision of an antenuptial contract the Tennessee Court in Crouch v. Crouch, supra, stated:

'* * * Such contract could induce a mercenary husband to inflict on his wife any wrong he might desire with the knowledge his pecuniary liability would be limited. In other words, a husband could through abuse and ill treatment of his wife force her to bring an action for divorce and thereby buy a divorce for a sum far less than he would otherwise have to pay.'

I do not consider it is sufficient for this court to say that when such an antenuptial contract specifying an amount for alimony is presented and relied upon in a divorce suit, the trial court is not 'bound to accept' it. To so state is to imply that the trial court has an election to accept or to reject an antenuptial contract relating to alimony. Were that the case, the parties to such a...