Lindsay v. LindsayLindsay v. Lindsay
Charles F. LINDSAY, Appellant,
v.
Genevieve R. LINDSAY, Appellee.
District Court of Appeal of Florida. Third District.
*337 Harry O. Traylor and O.B. White, Miami, for appellant.
Daniel Neal Heller, Miami, for appellee.
Before HORTON, TILLMAN PEARSON and HENDRY, JJ.
HENDRY, Judge.
Thе parties, husband and wife, were married on December 24, 1957, prior thereto they entered into an ante-nuptial agreemеnt which provided, in pertinent part:
"7. It is the intention of the parties that in the event of divorce or separation, neither shall make claim upon the property of the other, and the wife, hereby forgoes any legal obligation which might be owed tо her at the time of any separation of divorce, that is, alimony, temporary or permanent, attorney's fees, costs, or separate maintenance money, or * * *".
The wife initiated an action for divorce and sought temporary alimony, and attorney's fees. The husband countered that pursuant to the above portion of the ante-nuptial agreement she is not entitled to any alimony or attorney's fees. The chancellor entered an order declaring the above cited portion of the agreement void as against public policy. This interlocutory appeal claims error in that ruling.
Appellant contends that this case is controlled by Del Vecchio v. Del Vecchio, Fla. 1962,
Del Vecchio, supra, recognizes the vаlidity of ante-nuptial agreements if they conform to judicially imposed standards. The case specifically holds that dower rights can be contracted away if the court determines there has been adequate provision made for the wife. By implication, the opinion holds that the parties may contractually determine alimony provisions in the event of sepаration or divorce, but the case does not decide the question of the validity of an ante-nuptial agreement wherеin the future wife waives her right to alimony, support, or attorney's fees, and receives nothing in return.
The present agreement imposed no requirements upon the husband. He was relieved of his obligation to support his wife. This is not in conformity with the test laid down by the Suрreme Court in Del Vecchio:
"The basic criterion is the element of fairness between the parties, which will be evaluated in the light of the facts touching the husband's property and the question of whether the provisions made for the wife will enable her to live after the dissolution of the marriage ties in a manner reasonably consonant with her way of life before such dissolution and certainly no less comfortably than before the marriage. The element of fairness should, of course, be measured аs of the time of the execution of the agreement."143 So.2d at 20 .
The parties may by contract determine what their respective rights will be in the event of separation, but this contract is subject to judicial review.
The husband may not completely relieve himsеlf of his obligation to support *338 his wife. The Del Vecchio case clearly stated that dower, which is a property provision, may be waived by contract, but the court will review that contract to determine whether it is fair to the wife. Del Vecchiо did not decide whether the continuing obligation to support a wife could be waived, and for that proposition we must loоk to the decisions of our sister states.
In Stratton v. Wilson,
Del Vecchio has ruled that dower cаn be waived, but has not answered the question as to alimony. We answer that question in accordance with Stratton v. Wilson, supra, and the majority of other states.[1]
The New York Court of Appeals in Garlock v. Garlock,
"By rеason of the marriage relation there is imposed on the husband the duty to support and maintain his wife in conformity with his condition аnd station in life. [Citations omitted.] Marriage is frequently referred to as a contract entered into by the parties, but it is more than а contract; it is a relationship established according to law, with certain duties and responsibilities arising out of it which the law itsеlf imposes. The marriage establishes a status which it is the policy of the State to maintain. Out of this relationship, and not by reasоn of any terms of the marriage contract, the duty rests upon the husband to support his wife and his family, not merely to keep them frоm the poor house, but to support them in accordance with his station and position in life. This works both ways. When he is prosperous, they prosper; when financial misfortune befalls him, the wife and family are also obliged to receive less. The duty of the husband, however, as a matter of policy and as an obligation imposed by law, cannot be contracted away."[2]18 N.E.2d at 522 .
The Supreme Court of Wisconsin in Ryan v. Dockery,
"The law requires a husband to support, care for, and provide comforts for his wife in sickness, as well as in health. This requirement is grounded upon principles of public policy. The husband cannot shirk it, even by contract with his wife, because the public welfare rеquires that society be thus protected so far as possible from the burden of supporting those of its members who are not ordinarily expected to be wage earners, but may still be performing some of the most important duties pertaining to the social order. Husband and wife may contract with each other before marriage as to their mutual property rights, but they cannot vary the personal duties and obligations to each other which result from the marriage contract itself." [Emphasis supplied.]
It is therefore obvious that although the wife may contract away dower rights, *339 she may not in an ante-nuptial agreement, do the same with regаrd to support.[3] This is not to say that husband and wife may not enter into a valid separation agreement. Since, by this contract, аppellant had no obligation to his wife and never would, we must withhold judicial approval.
Accordingly the order appealed is affirmed.
NOTES
Notes
[1] See Annotation,
[2] Although New York has a statute, § 51 Domestic Relations Law, which prohibits such contracts, the court stated that such a statute was merely a codification of the long established common law.
[3] Motley v. Motley,