Tenneboe v. Tenneboe

• Decision Date: 14 March 1990
• Docket Number: No. 88-0503,88-0503
• Citation: 558 So.2d 470
• Parties: 15 Fla. L. Weekly D736 Terry TENNEBOE, Appellant, v. Suzanne TENNEBOE, Appellee.
• Court: Florida District Court of Appeals

Page 470

558 So.2d 470

15 Fla. L. Weekly D736

Terry TENNEBOE, Appellant, v. Suzanne TENNEBOE, Appellee.

No. 88-0503.

District Court of Appeal of Florida,

Fourth District.

March 14, 1990.

Valentine Gabaldon, West Palm Beach, for appellant.

Jack Edward Orsley of the Law Offices of Orsley & Cripps, P.A., West Palm Beach, for appellee.

ESQUIROZ, MARGARITA, Associate Judge.

The former husband appeals a final judgment of dissolution of marriage, parts of which approved and incorporated a property settlement agreement and also incorporated the court's earlier order denying the husband's motion to set aside the agreement. We reverse.

Two weeks after the former wife filed her petition for dissolution of marriage, the parties executed a property settlement agreement. The husband sought to challenge the agreement on grounds of misrepresentation and overreaching, initially raising these claims by answer and affirmative defenses filed roughly one month after execution of the agreement. The husband raised these grounds again in his motion to set aside the agreement, which was heard and denied by the trial court some five weeks prior to the final hearing on the petition for dissolution of marriage. Following the final hearing, the court entered the final judgment under review.

At the hearing on the husband's motion to set aside the agreement, the husband, an electrician by trade, testified that he must work seven days a week, taking only one day off per month, in order to earn gross wages of about $1,000.00 per week. According to the husband, if he were to work a regular work week, he would gross just over $640.00 per week. Yet his monetary obligation under the terms of the agreement amounts to $700.00 per week, of which $340.00 represents permanent periodic alimony, and $360.00 represents child support ($60.00 per week for each of the couple's six minor children). The husband testified that, netting barely over $800.00 per week in a seven-day work week, he lacks the ability to support himself, but must be supported by another person if he is to continue to meet the all-too burdensome payments called for by the agreement. Additionally, in light of the heavy work schedule that he must maintain to meet the payments, he cannot even afford to become ill. The husband's financial affidavit filed at the time of the final hearing reflects net earnings of $812.57 per week. Of this figure, he attributes $757.57 to net wages from his employer of nine years, Pratt and Whitney, and $55.00 to outside electrical contracting work. The wife is a homemaker who has not worked in the last few years.

The husband testified that he was not represented by an attorney at the time of either the preparation or execution of the agreement, which was drafted in its entirety by the attorney representing the wife. He testified that when he signed the agreement at the wife's attorney's office, he protested that the payments were more than he "could handle," and inquired of the wife's attorney whether, by virtue of the agreement, the permanent alimony payments were set for the rest of his life. In response, the wife's attorney told him that he could return to court at a future time to have the payments modified, but according to the husband, the wife's attorney did not tell him that he would have to show a substantial change in circumstances or financial ability in order to obtain such reduction. The wife contradicted the husband's testimony on this issue, stating that the attorney did tell the husband "that there would have to be a substantial change in income" for a later modification of the payments. The husband testified that he signed the agreement at that time in reliance on the attorney's representation, and that he would not have signed the agreement had he known that in order to prevail on a later request for modification, he would have to establish a change in circumstances or financial ability. Thus, the husband testified at the final hearing of dissolution that he did not enter into the agreement freely and voluntarily.

In his written order denying the motion to set aside the agreement, the trial judge first wrote that the husband had failed to prove "that which the law requires in order to set aside the agreement," but then proceeded to leave open a clear avenue for relief by specifically adding the following language:

The court notes that he may be entitled to some relief at final hearing if he can show a substantial change of circumstances between the time of the agreement and the time of the hearing. The court requests that the attorneys research that point prior to hearing. (Emphasis in original)

At the final hearing, however, the trial judge refused to hear any evidence or entertain the husband's request for relief any further, expressing the view that the order entered after the initial hearing was "the law of the case dispositive of that issue." ¹ The judge then proceeded to approve the agreement and incorporate it into the final judgment of dissolution of marriage.

In Casto v. Casto, 508 So.2d 330 (Fla.1987), the supreme court recently revisited the principles governing the trial court's decision to vacate or modify a post-nuptial agreement in dissolution proceedings. Essentially, the supreme court in Casto approved two separate grounds by which either spouse may challenge a marital agreement and have it vacated or modified. The second ground is inapposite to this case, inasmuch as there is no claim or issue herein of concealment or nondisclosure of marital assets or income by either spouse. Focusing on the first ground endorsed by Casto, a spouse may set aside or modify a marital agreement by establishing that the agreement was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching. Casto v. Casto, 508 So.2d at 333. This avenue has provided a traditional and fertile ground under Florida law by which parties to the marital relationship have successfully challenged marital agreements upon proper allegations and proof of fraud, misrepresentation, overreaching, or other forms of misconduct expressly recognized by the cases. See, e.g., Hitt v. Hitt, 535 So.2d 631 (Fla. 4th DCA 1988) (fraud and misrepresentation); Berger v. Berger, 466 So.2d 1149 (Fla. 4th DCA 1985) (coercion and duress); Paris v. Paris, 412 So.2d 952 (Fla. 1st DCA 1982) (coercion and duress); Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981) (fraud and misrepresentation); Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3d DCA 1979) (coercion and duress); Moss-Jacober v. Moss, 334 So.2d 89 (Fla. 3d DCA 1976) (overreaching); Demaggio v. Demaggio, 317 So.2d 848 (Fla. 2d DCA 1975) (fraud); Kern v. Kern, 291 So.2d 210 (Fla. 4th DCA), cert. denied, 294 So.2d 657 (Fla.1974) (misrepresentation). See also Lanes v. Lanes, 454 So.2d 782 (Fla. 4th DCA 1984) ("mistake" under Fla.R.Civ.P. 1.540(b)). Equally well established in Florida law is the principle that lack of legal representation of one of the parties to a marital settlement agreement is not sufficient, in and of itself, as a ground to have the agreement vacated or modified. Bubenik v. Bubenik, 392 So.2d 943 (Fla. 3d DCA 1980); McGuire v. McGuire, 385 So.2d 151 (Fla. 3d DCA 1980). Cf. Casto v. Casto, 508 So.2d at 332, 334-335. ² Rather, the presence or absence of legal representation is just one factor for the court to consider and weigh, along with all other circumstances in the case, when claims of fraud, duress, or other actionable misconduct are made by the spouse challenging a marital agreement. See Paris v. Paris, 412 So.2d at 954; Moss-Jacober v. Moss, 334 So.2d at 91. See also Baker v. Baker, 394 So.2d at 468.

In the present case, the husband brought an almost instant challenge to the property settlement agreement following its execution. The husband's prompt actions not only lend credence to his claims, but also debilitate the notion that the challenge could have come as an afterthought.

At the initial hearing, the court received testimony from both parties concerning the circumstances surrounding the execution of the agreement. The wife's testimony differed from that of the husband mainly on the issue of whether the wife's attorney informed the husband of the change in circumstances requirement. Otherwise, it is undisputed from the testimony of both husband and wife, as well as that of the wife's attorney who chose to testify ³, that the wife's attorney did hold a conversation with the husband at the attorney's office on the subject of the husband's claimed inability to afford the alimony payments called for by the agreement. Indeed, the wife's testimony corroborated that her attorney discussed with the husband the prospect of a later modification of the alimony payments. ⁴ If the wife's attorney told the husband that he could return to court later to have the payments reduced, without also explaining that he would have to establish a substantial change in circumstances or financial ability, he misinformed him. ⁵ Indeed, the husband's efforts to obtain relief in the trial court met with resounding defeat, both at the hearing on the motion to set aside the agreement as well as at the final hearing of dissolution, which only served to confirm the intricacies inherent in successfully obtaining such relief. In any event, the advice given by the wife's attorney was, at best, an oversimplification. ⁶

On the husband's claim of overreaching, the terms of the agreement leave him with the meager sum of $112.57 every week, with which he must cover all of his living expenses and debts. ⁷ Additionally, the husband is to quit claim to the wife all of his interest in the marital home, virtually the sole marital asset, thereby leaving her with the parties' full equity of $30,000.00 in the home. He is also to transfer to the wife the parties' 1982 Chevrolet van, assume all their debts, and contribute $750.00 to the wife's attorney's fees and costs. The husband is to keep only the...