Kosch v. KoschKosch v. Kosch
We are asked to review by certiorari the decision of the District Court of Appeal, Third District, appearing at 106 So.2d 600 on the ground that it conflicts with a prior decision of this court on the sаme point of law in Marshall v. Bacon, Fla. 1957, 97 So.2d 252.
We must determine whether the decision under review conflicts with the prior decision of this court on the matter of the legality of notice to a non-resident former husbаnd in an alimony proceeding supplementary to divorce.
The factual situation is summarized in the cited opinion of the court of appeal. Petitioner Celia L. Kosch was divorced from the respondent Sidney Kosch in Florida in 1949. In 1958 petitioner Celia Kosch moved in the Circuit Court of Dade County, which had granted the divorce, to obtain an increase in alimony payments which had been provided for in the original decree. When the instant proceeding was filed respondent Sidney Kosch was a resident of South Carolina. The original divorce deсree ratified and confirmed a
It is the contention of the petitioner that under our decision in Marshall v. Baker, Fla., 97 So.2d 252, the respondent could be brought before the original trial court upon notice by mail, so long as he was afforded actual notice and a reasonable opportunity to defend.
It is the сontention of the respondent that the decree grounded on the “property settlement agreement” terminated the relationship between the parties and produced a degree of finality that would require the institution of a new proceeding based on formal service of process in order to modify the support money aspects of the original decree.
We think there is merit to the position of the petitioner.
By its opinion in Kosch v. Kosch, supra, the district court of appeal took the view that the instant case is controlled by our decisions in Norton v. Norton, 131 Fla. 219, 179 So. 414 and Cohn v. Cohn, 151 Fla. 547, 10 So.2d 77, 143 A.L.R. 428. We think it sufficient to point out that in the Norton case the prоperty settlement agreement between the parties was a complete, comprehensive final settlement. In other words, when the decree was entered approving the agreement nothing further remained to be done as between the parties themselves. There was no continuing obligation on the part of the husband to make alimony or suppоrt money payments from time to time in the future. In Norton the rights of the husband and wife as between themselves terminated with the entry of the divorce decree. There was a final exchange of money for property or conveyance of property as between the parties and a final ultimate discharge of their obligations one to the other.
Cohn v. Cohn, supra, would appear to support the position of the petitioner rather than that of the respondent. In Cohn there was an agreement by the husband to pay alimony. Subsequent to divorce he petitioned for reduction. His wife was a non-resident. He served her constructively by publication. The wife appeared specially and moved to quash the publication. The motiоn was denied. This court held that personal service was not necessary in order to bring the non-resident wife before the court. In Cohn v. Cohn, supra, this court pointed out that actually in Norton v. Norton, supra, it was not necessary to pass on the sufficiency of thе service because there was a voluntary general appearance.
The binding effect of a complete property settlement agreement that defies subsеquent modification is well-illustrated by Haynes v. Haynes, Fla. 1954, 71 So.2d 491. It will be noted that in Haynes there was
The confusion which apparently has аrisen in cases of this type we believe has resulted from the failure to recognize the nature of the so-called “property settlement agreement“. Every agreement providing for the future payment of alimony or support money is not necessarily a final property settlement agreement that precludes subsequent modification by the court which enters the divorce decree.
In fact,
It is immaterial whether the chancellor specifically reserves jurisdiction to modify. The power to modify under appropriate circumstances is retained and continued by virtue of the express provisions of
In Marshall v. Bacon, supra, as well as in Watson v. Watson, Fla. 1956, 88 So.2d 133; Thompson v. Thompson, 142 Fla. 643, 195 So. 571 and Van Loon v. Van Loon, supra, we held that proceedings to increase, decrease or enforce the alimony or child support provisions of a divorce decree are by nature supplemental to the original dеcree and are merely a continuation of the original proceeding. The parties having been properly brought within the jurisdiction of the trial court at the outset, the supplеmental proceeding which we have described can be bottomed on a reasonable notice which affords an opportunity to be heard. This notice may be by mail and its sufficiency in each particular instance should be tested by its reasonableness and by the adequacy of the opportunity afforded the opposing party to be heard and tо defend himself or herself against the petition for modification.
Our examination of the agreement upon which the original Kosch decree was grounded, leads us to the conclusiоn that it was not a final determination of the property rights of the parties as between themselves insofar as alimony was concerned. On the contrary, the agreement evidenced the recognition of a continuing obligation on the part of the respondent husband to make monthly installment payments of an annual sum due the petitioner. True there was a provision for arbitration, a factor not discussed in the decision of the court of appeal. We will not undertake to discuss it here. Neither do we discuss the
It is so ordered.
THOMAS, C.J., and TERRELL, HOBSON and DREW, JJ., concur.