Simpson v. Simpson
| Decision Date | 04 February 1959 |
| Docket Number | No. 400,400 |
| Citation | 108 So.2d 632 |
| Parties | Marjorie B. SIMPSON, Florida National Bank of Jacksonville, as Guardian of Clay Otto Simpson, a minor, and Clay Otto Simpson, Appellants, v. Clifford L. SIMPSON, as Executor of the Estate of M. Clay Simpson, deceased, substituted in the place of M. Clay Simpson, Appellee. |
| Court | Florida District Court of Appeals |
Carey & Harrison, St. Petersburg, for appellants.
Thomas V. Kiernan, St. Petersburg, for appellee.
The question presented to the court through this appeal is whether the obligation for payment of a monthly allowance for support of a minor child through a separation agreement incorporated in a final decree of divorce survives the death of the promisor-father.
Marjorie B. Simpson and M. Clay Simpson were divorced in 1949, and the mother was awarded custody of their two minor children. Incorporated in the final decree was a separation agreement under which the husband was to pay support money for each child. This agreement provided, in part:
'Whereas, first party desires to arrange for the support and maintenance of second party and their two children,'
'First party agrees to pay to second party, beginning with the date of any such divorce decree which may be entered, the sum of $125.00 per month for each of the children * * *'
'It Is Further Understood and Agreed that the payments of $125.00 per month hereinabove specified for each of the named children shall continue until each child respectively shall have reached the age of eighteen years.'
The payments were made promptly by the father for his daughter, the elder child, until she became eighteen years of age and for Clay Otto Simpson, the younger child, until the father's death.
On May 7, 1957, M. Clay Simpson died. The executor for his estate declined to make the payments of support money for Clay Otto Simpson, who was fourteen years and ten months of age at the time of his father's death. The guardian of the person and property of Clay Otto Simpson duly filed a claim in the probate court for all of the monthly payments in arrears. The executor filed objections upon the ground that it was not a valid claim against the estate of the minor's father. Thereupon, the guardian filed petition for an order to direct the executor to pay out of the estate of the deceased father all of the monthly payments which had accrued since the father's death. The chancellor denied the petition on the premise that the obligation for the support of the minor son terminated upon the father's death; and this appeal ensued.
Predicated on the common law is the rule that a father is under no legal responsibility to provide for the support of his minor children subsequent to his death. Florida has, by divided court, aligned herself with other jurisdictions which have subscribed to the principle, in cases where no agreement is involved, that upon the death of a father who has been ordered to make payments for the support of a child, the order terminates as to payments which would have accrued subsequent to his death. See Guinta v. LoRe, 1947, 159 Fla. 448, 31 So.2d 704; and Flagler v. Flagler, Fla.1957, 94 So.2d 592. Although Florida has not directly established a controlling precedent with reference to the particular problem under scrutiny, cases resolved by other jurisdictions have resulted in the holding that an agreement incorporated in a decree of divorce, and also in instances not so incorporated, remains in force and effect after the father's death, and the liability devolves upon his estate until the specified age or time limitation has run.
Thus, in the case of Silberman v. Brown, Ohio Com.Pl.1946, 72 N.E.2d 267, the court held that a separation agreement embodied in a divorce decree, giving custody of the three minor children to the wife and providing that support payments would be made until each had reached 'the age of 18' years, created a contractual obligation to make payments after the father's death. The court concluded, in the case of Smith v. Funk, 1930, 141 Okl. 188, 284 P. 638, that a separation agreement and...
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