Underwood v. Underwood

• Decision Date: 10 April 1953
• Citation: 64 So.2d 281
• Court: Florida Supreme Court
• Parties: UNDERWOOD v. UNDERWOOD.

Page 281

64 So.2d 281

UNDERWOOD v. UNDERWOOD.

Supreme Court of Florida, Special Division A.

April 10, 1953.

Goldstein & Goldstein and S. William Goldstein, Jacksonville, for appellant.

E. K. McIlrath, Jacksonville, for appellee.

DREW, Justice.

On September 11, 1945, after more than 24 years of married life as the wife of Herbert F. Underwood, Bertha M. Underwood filed a complaint for divorce in the Circuit Court of Duval County. At the time of the institution of the suit they had one child, a boy, of the age of 19 years.

The record shows that the defendant husband filed his answer on the following day, along with a 'waiver', a Master was appointed, testimony was taken on the same day, and on the following day a final decree of divorce was rendered by the Chancellor.

Attached to the Master's report was the following exhibit:

'Separation Agreement

'This Agreement made between Herbert F. Underwood, residing in Jacksonville, Duval County, State of Florida (hereinafter referred to as the 'Husband'), and Bertha M. Underwood, residing in Jacksonville, Duval County, State of Florida (hereinafter referred to as the 'Wife'),

'Witnesseth:

'That Whereas, the parties were married on the 16th day of March, 1921, and there is one child of the marriage, towit: Herbert Lee Underwood, now aged 19 years; and

'Whereas, in consequence of disputes and unhappy differences, the parties have technically separated and are now and for sometime have not been living as husband and wife, and, since their technical separation, have agreed to live separate and apart; and

'Whereas, the parties hereto each recognize the fact that it would be to the financial detriment to each to become involved in a prolonged Court action concerning financial arrangements to be made between the parties and, therefore, desire to stipulate concerning such arrangement:

'Now, Therefore, In Consideration Of The Premises and of the mutual promises and undertaking herein contained and for other valuable considerations, the parties agree as follows:

'1. The parties may and shall at all times hereafter live and continue to live separate and apart. Each shall be free from interference, authority and control, direct or indirect, by the other as if sole and unmarried.

'2. As and for alimony and in full and complete satisfaction of the husband's obligation to maintain and support the wife, the husband agrees to pay, or to cause to be paid, to the wife, commencing as of the 15th day of September, 1945, the sum of Two Hundred Fifty Dollars ($250.00) per month, payable One Hundred Twenty-Five Dollars ($125.00) on the 15th day of September, 1945, and Two Hundred Fifty Dollars ($250.00) on the 1st day of October, 1945, and a like amount of Two Hundred Fifty Dollars ($250.00) on the 1st day of each and every month thereafter as hereinafter provided, as and for the alimony and support of the wife for and during the remainder of her life. If the husband shall die before the wife, the said monthly payments shall not cease but the payment thereof shall be a first charge and lien against the estate of the husband, subordinate only to the expenses of his last illness and funeral expenses. It is expressly understood and agreed that said monthly payments of alimony shall not cease if a divorce is subsequently granted between the parties hereto and if, thereafter, the wife remarries, but such monthly payments shall continue during the life of the wife without any diminution or cessation.

'3. The husband has taken out an insurance policy on his life in the sum of Thirty Thousand Dollars ($30,000.00) in The New York Life Insurance Company and had had issued to him by the said company Policy No. 20206884. The wife is the beneficiary named in the said policy and it is stipulated and agreed that she shall continue to be the beneficiary of the said policy, irrespective of what the marital status of the parties may be. If, however, a divorce should be granted to the parties hereto and the wife should subsequently remarry, it is stipulated and agreed that the wife shall be beneficiary under the same policy to the extent of Twenty Thousand Dollars ($20,000.00) instead of the face of the policy in the amount of Thirty Thousand Dollars ($30,000.00), if the husband shall desire such reduction and shall notify the New York Life Insurance Company and shall have the necessary endorsements made by the Company to effect such change. Such sum of Twenty Thousand Dollars ($20,000.00) shall be paid before anything is paid to any other beneficiary.

'4. Should the wife ever sue the husband for divorce, the husband not being in default under the terms of the agreement, the wife agrees that the provisions contained in this agreement are fully satisfactory and that this agreement shall be presented to the Court for the inclusion of the terms hereof in any final decree of divorce as and for all of the wife's claim against the husband for her support. If the wife shall hereafter sue the husband for divorce, nothing herein contained nor any agreement made between the parties hereto, whether incorporated herein or not, shall preclude the husband from defending such suit for divorce as he shall see fit.

'In Witness Whereof, the parties hereto have set their hands and seals, in duplicate originals, to this agreement on this 11th day of September, A. D. 1945.

'Herbert F. Underwood (Seal)

Herbert F. Underwood

Bertha M. Underwood (Seal)

Bertha M. Underwood

'Signed, sealed and delivered in the presence of:

Paul E. Speh

T. R. Watson

As to Husband

Fred B. Noble

T. R. Watson

As to Wife.'

According to Mrs. Underwood, her husband had been urging her to get a divorce for several months. They had talked about financial matters in the event a divorce was obtained and had finally entered into the agreement which we have just quoted in full. She testified at the hearing that it had been finally consummated and entered into on the preceding day (September 11th). She was then shown the agreement, whereupon the following colloquy took place (Question by Mrs. Underwood's counsel, Mr. Noble, except where otherwise noted):

'Q. I will ask you to look at that document and state whether that is the agreement which you have arrived at? A. Yes.

'Q. What? A. Yes, that's it.

'Q. Will you state whether or not this is Mr. Underwood's signature to the document? A. Yes, it is.

'Q. And you, of course, having been married to him since 1921, know his signature? A. Definitely.

'Q. And is that your signature? A. Yes, it is.

'Q. And is it your wish to have this introduced in evidence in this case as evidence as to what you have arrived at as to property rights? A. Yes.

'Mr. Noble: We would like to offer this in evidence.

'Mr. Speh: I would like to ask her a few questions?

'Mr. Noble: All right.'

Cross-examination

'By Mr. Speh: Q. Now, Mrs. Underwood, you understand that under the terms and provisions of this agreement that you will get from Mr. Underwood only these provisions that are incorporated herein, and that as far as making any further provision for you that he isn't obligated to do so? A. Yes, sir.

'Q. And you understand that if he were to remarry or anything like that he would be free to do as he wished with his other property? A. Yes.

'Q. Other than to take care of the provisions of this agreement? A. Yes.

'Q. And the terms of it are satisfactory to you? A. Yes.

'Q. And they are clearly understood by you? A. Yes.' (Emphasis supplied.)

The final decree, omitting the formal parts, is as follows:

'It is ordered, adjudged and decreed as follows:

'1. That the bonds of matrimony heretofore existing between the plaintiff and defendant be, and they are hereby forever dissolved.

'2. As and for temporary and permanent alimony and in full and complete satisfaction of the defendant's obligation to maintain and support the plaintiff, the defendant shall pay to-wit:

'(a) One Hundred Twenty-Five Dollars ($125.00) immediately, if the same has not heretofore been paid according to the stipulation between the parties which is in evidence herein.

'(b) The sum of Two Hundred Fifty Dollars ($250.00) each month in advance beginning October 1, 1945, as and for temporary and permanent alimony or support money of the plaintiff. If the defendant shall die before the plaintiff, the said monthly payments shall not cease but the payment thereof shall be a first charge and lien against the estate of the defendant, subordinate only to the expenses of his last illness and funeral expenses.

'(c) The defendant shall, at all times, promptly pay the premiums and all other obligations necessary to keep the same in force on life insurance policy No. 20206884 issued on the life of the defendant by The New York Life Insurance Company in the sum of Thirty Thousand Dollars ($30,000.00) and shall continue the plaintiff as the beneficiary thereof as the same now provides; provided, however, that if the plaintiff, shall, during the defendant's lifetime, remarry any one except the defendant, the plaintiff shall be the beneficiary under said policy to the principal amount of Twenty Thousand Dollars ($20,000.00), instead of Thirty Thousand Dollars ($30,000.00), if the defendant shall desire such reduction and shall so notify The New York Life Insurance Company and shall have the necessary endorsements made by the Company to effect such change. Such sum of Twenty Thousand Dollars ($20,000.00) shall be paid before anything is paid to any other beneficiary.' (Emphasis supplied.)

On May 2, 1947, by consent decree, the final decree above set forth was amended by deleting therefrom those portions of the decree which are italicized. On February 8, 1952, Herbert F. Underwood filed in said original cause a 'Petition to Modify Alimony Decree.' The petition set forth the decree of September 13, 1945, supra, and the amendment thereto of May 2, 1947, and then alleged that since the 'entry of said decrees' the circumstances of the parties had changed in...