ROBERT SERAYDAR, APPELLANT,
v.
MARY SERAYDAR, APPELLEE

Fla. 3d DCA | 1965-08-10
No. 64-953
Before HENDRY, C. J., and CARROLL and BARKDULL, JJ.
178 So. 2d 32 Florida District Court of Appeal, Third District (1965) Positive Treatment
Cited by 2 cases

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Holding

The court held that while the wife was entitled to separate maintenance and attorney's fees for defending the divorce action, the inclusion of property settlement benefits as alimony in the final decree was erroneous but harmless.


Facts & Procedural History

Husband sought a divorce, and the wife counterclaimed for separate maintenance. The parties had previously entered into a property settlement agreemen…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

By this appeal, the appellant seeks review of a final decree denying him a divorce on his original complaint and finding for the wife on her counterclaim for separate maintenance. The appellant has preserved three points for review: 1) The propriety of the chancellor’s final decree denying him a divorce. 2) The propriety of the final decree awarding separate maintenance to the wife and incorporating therein the provisions of a property settlement agreement. 3) The award of attorney’s fees.

*33Prior to the institution of the divorce suit, the parties entered into what was styled a “Property Settlement Agreement”.1 At the time of the filing of the divorce action, the property settlement agreement had been executed in almost all material respects by the parties dividing the properties which had been held in their individual names and in their joint names, pursuant to the provisions of the agreement. And, from the evidence, it appears that the contract in no wise was contingent on the dissolution of the marriage, this provision having been specifically stricken from the agreement because such a contingency would have made it invalid. See Potter v. Potter, 101 Fla. 1199, 133 So. 94; Allen v. Allen, 111 Fla. 733, 150 So. 237; 10 Fla.Jur., Divorce, Separation and Annulment, § 184.

The chancellor’s decree arrived in this court with a presumption of correctness. See: Bennett v. Bennett, Fla. App.1962, 146 So.2d 588; Dings v. Dings, Fla.App.1964, 161 So.2d 227. It was incumbent upon the appellant to demonstrate error in the determination of the issues by the chancellor. See: Tyler v. Tyler, Fla. App.1959, 108 So.2d 312; Cole v. Cole, Fla.App.1961, 130 So.2d 126. If there is substantial, competent evidence to support the chancellor’s final decree it should be affirmed. See: Bruggisser v. Bruggisser, Fla.App.1961, 133 So.2d 654; Cherney v. Cherney, Fla.App.1962, 146 So.2d 914. Examining the record in light of these principles, we find no error in the chancellor’s final decree denying the divorce and granting the relief sought by the counterclaim. The evidence was insufficient to grant the husband a divorce and was sufficient to sustain the wife’s counterclaim. However, in view of the fact that the record revealed and the chancellor found that the wife had ample funds to support herself because of the property settlement agreement entered into prior to the institution of the suit, it was erroneous to award the benefits of said agreement as alimony which would have been in the nature of a “lump sum” award. Under the circumstances, such an inclusion in the decree, at most, constitutes harmless error and should be considered mere sur-plusage in the final decree, as the wife derived her property rights from the prior settlement agreement and not f.rom the chancellor’s decree.

*34 As to the complained of error in the award of attorney’s fees, it appears that although the wife might not have been entitled to same in prosecuting her counterclaim for separate maintenance [in view of the provisions of the settlement agreement], she certainly was entitled to them in defense of the' divorce proceedings which she successfully resisted. The reasonableness of the fees is not before us properly, because the record upon which they were awarded has not been brought before us for review. See: Downing v. Bird, Fla.App.1962, 145 So.2d 559; Worcester Mutual Fire Insurance Company v. Eisenberg, Fla.App.1962, 147 So.2d 575; Reynolds v. Reynolds, Fla.App.1963, 155 So.2d 188; Gleim v. Gleim, Fla.App.1965, 176 So.2d 610 (opinion filed June 29, 1965).

Therefore, for the reasons above stated, the final decree here under review is hereby affirmed, except as indicated as to the propriety of including as alimony to the wife that which she already had by virtue of the property settlement agreement.

Affirmed.


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Citator

Cited By

  • S. Am. Fire Ins. Co. v. I. B. H. Liquor Corp., 242 So. 2d 731 (Fla. 3d DCA 1971)
    …the reasonableness of said fees when the order granting same clearly indicates that it was entered after receiving the evidence. Worcester Mutual Fire Insurance Company v. Eisenberg, Fla.App.1962, 147 So. 2d 575; Seraydar v. Seraydar, Fla.App.1965, 178 So. 2d 32. Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.…

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