J. C. DAWKINS, APPELLANT,
v.
MARY ESTHER DAWKINS, APPELLEE
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A chancellor is not bound to accept a separation agreement in its entirety, as Fla.Stat. § 65.08 vests discretion over alimony in the court, not the parties.
A husband appealed a divorce decree that incorporated a separation agreement except for the wife's alimony waiver, which the court found unfair. The t…
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The appellant, husband-defendant below, appeals a decree of divorce which incorporated therein all the provisions of a separation and property settlement agreement between the parties except a part in which the wife waived alimony. The court found that under the circumstances the rejected part of the agreement was “unfair and over-reaching,” refused to preclude alimony and retained jurisdiction on that question.
We reject appellant’s contention that the chancellor was bound to accept the separation agreement in its entirety and we affirm.
Fla.Stat. § 65.08, F.S.A., vests in the chancellor the sole discretion to settle questions relative to alimony and the parties may not by contract divest him of this discretion. Although fair and equitable agreements which are not violative of public policy may be incorporated into a divorce decree, there is no statute or rule of law which says they must be.
In ruling on this point the District Court in Florida National Bank & Trust Co. at Miami v. United States, D.C.S.D.1960, 182 F.Supp. 76, said that under Fla.Stat. § 65.08, F.S.A., and the decisions in Florida:
“[The] judge in divorce [case] is given full power at the time he enters initial divorce decree to fix rights of parties, court has right to approve of a prior separation agreement or modify or disapprove of it in its entirety and once it is approved, it becomes the order of the court and decree becomes basis for settlement.”
This discretion of the chancellor in making an alimony award in the initial decree under Fla.Stat. § 65.08, F.S.A., should not be confused with the power of the court to> modify a divorce decree which incorporated such an agreement under Fla.Stat. § 65.15,, F.S.A.
Affirmed.
SMITH, C. J., ALLEN, J., and HENSLEY, ROBERT E., Associate Judge, concur.
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Cited By (11 total)
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Spencer v. Spencer, 242 So. 2d 786 (Fla. 4th DCA 1970)…e provisions of a written agreement of the parties relative to alimony, and is not bound to accept the agreement in its entirety, but that the court may accept a portion of such agreement and reject a portion of it. Dawkins v. Dawkins, Fla.App.1965, 172 So. 2d 633; Gelfo v. Gelfo, Fla.App.1967, 198 So. 2d 353. Ordinarily, at this juncture, we would simply conclude that the trial judge was exercising his judicial discretion in making a monthly award of alimony of $260.00, and no abuse of discretion being demo…
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Ohmes v. Ohmes, 200 So. 2d 849 (Fla. 2d DCA 1967)…Fla.Jur. ‘Divorce, Separation and Annulment’ Sec. 183 et seq.” (Emphasis supplied). See also to the same effect Chastain v. Chastain, Fla.1954, 73 So. 2d 66; Chiapetta v. Jordan, 1943, 153 Fla. 788, 16 So. 2d 641; Dawkins v. Dawkins, Fla.App.1965, 172 So. 2d 633; Haynes v. Haynes, Fla.1954, 71 So. 2d 491; Hunter v. Hunter, Fla.App.1959, 108 So. 2d 478; Eisinger v. Eisinger, Fla. 1957, 95 So. 2d 502, and Rieder v. Rieder, Fla.App.1963, 157 So. 2d 93. The order appealed from dismissed the Petition for Modifi…
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Sari Posner v. Posner, 206 So. 2d 416 (Fla. 3d DCA 1968)…as been made that this was not a fair and reasonable provision for her at the time of the execution of this agreement or that she was prejudiced by any lack of information concerning her voluntarily agreeing to it. Dawkins v. Dawkins, Fla.App.1965, 172 So. 2d 633, relied upon, in part, by the majority, was discussed in my dissent in Gelfo v. Gelfo, Fla.App.1967, 198 So. 2d 353. The opinion in Dawkins, supra, does not say whether it involved a post-nuptial or antenuptial agreement. It simply sustained, withou…1 / 2
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