Sedell v. Sedell, A-94

• Decision Date: 27 February 1958
• Docket Number: No. A-94,A-94
• Citation: 100 So.2d 639
• Parties: Maxine Florence SEDELL (now Maxine Sedell White), Appellant, v. Thomas Roy SEDELL, Appellee.
• Court: Florida District Court of Appeals

Page 639

100 So.2d 639

Maxine Florence SEDELL (now Maxine Sedell White), Appellant, v. Thomas Roy SEDELL, Appellee.

No. A-94.

District Court of Appeal of Florida, First District.

Feb. 27, 1958.

David H. Levin, Pensacola, for appellant.

Richard H. Merritt, Pensacola, for appellee.

WIGGINTON, Judge.

This is an appeal from an order entered by the Court of Record of Escambia County modifying a former decree of divorce. Appellant, plaintiff in the trial court, assigns two principal errors. It is first contended that the court erred in modifying its former decree upon pleadings embodying contested issues of fact and law, without taking testimony or receiving evidence concerning the issues in contest. The second error assigned is the court's action in modifying the property settlement provisions of a separation agreement between the parties which was confirmed and by reference made a part of the final decree, the effect of which was to deprive plaintiff of a vested property right granted her by the agreement.

Prior to the institution of the original divorce proceedings the parties entered into a written agreement which acknowledged that they were the owners of certain property therein described, and by which it was provided that the husband should pay to the wife a stipulated sum of money each month as alimony, and an additional sum for the support and maintenance of their three children, the care and custody of whom was granted to the wife. The agreement further provided for a division of certain stated property accumulated by the parties during their marriage. Among other things, the agreement provided that the husband should continue paying the premiums which would thereafter become due on a certain life insurance policy in which the wife was named as beneficiary, and the three children were named as alternate beneficiaries. It was agreed that the husband would continue to maintain the insurance policy in full force and effect, would leave the beneficiaries therein named unchanged, and would perform no acts which would impair the efficacy of the policy. It was stipulated that the agreement might be incorporated in any action for divorce instituted by either party, and that the provisions of the agreement would be binding upon the heirs, executors and assigns of the parties.

Thereafter the wife instituted a suit for divorce against her husband. By her complaint reference was made to the separation agreement previously entered into between the parties, and she prayed that it be ratified and made a part of the decree to be entered. On final hearing plaintiff's prayer for relief was granted and the decree provided, among other things:

'That the separation agreement entered into by and between the parties on the 25th day of October, 1955, be and the same is hereby made a part of this final decree, the same as if it were fully set out herein and each party is hereby directed and ordered to comply with the provisions thereof.'

Approximately sixteen months after the entry of final decree defendant husband filed a petition for an order modifying and clarifying the decree in certain stated respects. The petition asked for a determination of the beneficiaries, or the terms under which the beneficary should hold the proceeds of the life insurance policy being maintained by defendant, and whether he could substitute a different or another insurance policy for the same amount as the one then in force and effect.

To this petition the wife filed a reply which denied that the decree should be modified in the respects prayed for by her husband, and asked that the petition for modification be dismissed.

The cause was set down before the court for hearing on the petition for modification. The record does not contain a transcript or stipulated statement of any evidence adduced or testimony taken before the court at the hearing. There appears in the record an order entered by the court which recites that the cause came on for hearing upon defendant's petition for modification of the final decree, and the court having heard the parties and their respective attorneys and having considered the same found that the insurance policy referred to in the final decree was intended to be and is a security for the benefit of the minor children of the parties. The court then proceeded to order that the final decree previously entered in the cause be modified, clarified and amplified as follows:

'That effective immediately the Ten Thousand ($10,000) Dollars life insurance policy with the Connecticut Mutual Insurance Company with the beneficiary being the plaintiff and the children of the parties as alternate or contingent beneficiaries shall remain with the plaintiff who is now Mrs. Florence Sedell White as beneficiary as trustee for the use and benefit of the minor children of the parties, such trust to remain in full force and effect until the children reach their majority or become self-supporting, and then upon the last of the said children reaching their majority or becoming self-supporting, the policy shall become the property of the defendant for him to use as he may see fit.'

With regard to the first assignment of error appellant vigorously asserts in her brief...