DONALD L. HANCOCK, APPELLANT/CROSS-APPELLEE,
v.
JACQUELYN Y. HANCOCK, APPELLEE/CROSS-APPELLANT
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In this divorce enforcement case, Mr. Hancock sought to vacate a property settlement agreement on fraud grounds ten months after the judgment, but the trial court denied his motion and awarded his ex-wife attorney's fees for enforcing the agreement. The appellate court affirmed the denial of the motion to vacate but modified the attorney's fees award to place the full amount on the defaulting husband rather than splitting it.
The court affirmed the denial of the motion to vacate, finding the trial court properly determined the evidence was insufficient to support allegations of fraud. The court modified the attorney's fees award to assess the full $1,000 reasonable fee against Mr. Hancock (the defaulting party) rather than splitting it equally, as required by the property settlement agreement's express provision.
[1] A motion to vacate a judgment based on fraud, misrepresentation, or other misconduct requires sufficient evidence to support the allegations.
[2] The determination of the sufficiency of evidence presented in a motion to vacate a judgment rests within the discretion of the trial court.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the determination of the sufficiency of that evidence was properly a matter for the trial court. Appellant has not shown that determination to have been in error.”
Establishes that the appellate court defers to the trial court's factual findings regarding the sufficiency of evidence supporting fraud allegations.
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Join FLexlaw to unlock all legal intelligenceThe Hancocks' marriage was dissolved with a judgment incorporating a written property settlement agreement. Ten months later, Mr. Hancock filed a moti…
The full statement of facts, procedural history, and disposition for this case are member content.
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OWEN, WILLIAM C., Jr. (Retired) Associate Judge.
When the Hancocks’ marriage was dissolved, the judgment incorporated a written property settlement agreement. Ten months later, and pursuant to Rulé 1.540 Florida Rules of Civil Procedure, Mr. Hancock filed a motion to vacate the judgment alleging that the property settlement agreement had been procured by the wife’s fraud, misrepresentation or other misconduct. The former wife countered with a motion for a judgment for amounts then in default, together with attorneys fees. The court’s order on those motions denied Mr. Hancock’s motion to vacate and granted the former wife’s requested relief except for a portion of her attorney’s fees. Mr. Hancock appeals and the former wife cross-appeals.
The court denied the motion to vacate on the finding that the evidence was insufficient to support the allegations of the motion. Although appellant points to record evidence which would tend to support the allegations of the motion to vacate, we remind that the determination of the sufficiency of that evidence was properly a matter for the trial court. Appellant has not shown that determination to have been in error. In awarding the wife an attorney’s fee, the court determined that a reasonable fee for the wife’s attorney was $1,000 but ordered that this amount be borne equally by the parties. The property settlement agreement, the provisions of which the court had incorporated into the final judgment, expressly provided that in the event of any default the party committing such default would be responsible for any attorney’s fees incurred as a result of an action for enforcement of the judgment. Since it was Mr. Hancock whose default necessitated the former wife’s action for enforcement of the judgment, and since the court has determined that the sum of $1,000 was a reasonable fee for the wife’s attorneys, the full amount of the fees should be assessed against the defaulting husband.
That part of the order assessing the wife’s attorneys fees against the husband is modified in accordance with this opinion. As modified, the order is affirmed.
ANSTEAD and HERSEY, JJ., concur.
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Francine Matusow v. Matusow, 498 So. 2d 462 (Fla. 3d DCA 1986)…usband to pay $15,-000 of this amount. This appeal ensued. The wife contends that under the following authority, Morris v. Morris, 481 So. 2d 564 (Fla. 5th DCA 1986); Novack v. Novack, 305 So. 2d 862 (Fla. 3d DCA 1974); See also Hancock v. Hancock, 417 So. 2d 1046 (Fla. 4th DCA 1982); Davis v. Fisher, 391 So. 2d 810 (Fla. 5th DCA 1980); Sedell v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958), the trial court was required under the agreement to make the husband pay 100% of the fee determined. The appellee respond…