Hitt v. Hitt

535 So. 2d 631, 13 Fla. L. Weekly 2708, 1988 Fla. App. LEXIS 5525, 1988 WL 131610
CourtDistrict Court of Appeal of Florida
DecidedDecember 14, 1988
DocketNo. 88-0524
StatusPublished
Cited by4 cases

This text of 535 So. 2d 631 (Hitt v. Hitt) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hitt v. Hitt, 535 So. 2d 631, 13 Fla. L. Weekly 2708, 1988 Fla. App. LEXIS 5525, 1988 WL 131610 (Fla. Ct. App. 1988).

Opinion

DOWNEY, Judge.

This is a non-final appeal taken pursuant to Florida Rule of Appellate Procedure 9.130(a)(5) from an order denying appellant’s rule 1.540(b), Florida Rules of Civil Procedure, motion to vacate a final judgment of dissolution of marriage. The motion to vacate was filed within one year of the judgment.

Appellant, Marion Elaine Hitt (wife), and appellee, Robert Arden Hitt (husband), were divorced in November, 1986, after twenty-five years of marriage. At the time of the hearing on the motion to vacate, the husband was age fifty-five and the wife was age forty-five. They had two adult children, Amy, age twenty-four, and Stephanie, age twenty.

The husband had three years of college and advanced flight training and, for the past twenty-five years has been a pilot for United Airlines. His 1987 salary as a captain was $125,000. The wife is a high school graduate and she spent most of the marriage as a homemaker, raising their two children. During the salad days of the marriage the parties lived comfortably in Fort Lauderdale, Florida, and owned certain luxury items, such as boats, airplanes, and a vacation house in Bimini. During the marriage the only assets accumulated were the marital home, the Bimini house, some silver bars, an investment in a shopping center, a Minnesota Grove Trust and [632]*632the husband’s United Airlines pension valued at $200,000.

In the late 1970’s and early 1980’s, the parties began to experience marital difficulties due, apparently, to the husband’s excessive drinking. As a result, he continually found fault with the wife and eventually the parties decided they should consider a divorce. After a serious argument while the children were in the house, the parties sat down with the children and explained that they were no longer compatible and were considering terminating the marriage. The husband explained that the divorce would be amicable, that they would divide everything they had, that he would take care of the wife and see that she was never in need; and that he would provide for Stephanie’s college education. In view of that, the husband explained that they did not need to involve any lawyers as he would simply buy a divorce kit and they would handle the proceeding, such as it was, themselves. For financial reasons it was contemplated that they would postpone the actual divorce proceedings until a more propitious time. Thereafter, on numerous occasions the husband assured the wife and both girls that they need not worry because he and the wife were going to divide all of their property and he would always provide financial support for the wife. During all this period of time, the husband pleaded with his wife not to see a lawyer — they couldn’t afford lawyers, it wasn’t necessary and he intended to take care of her adequately.

Things apparently got worse rather than better and the husband acquired a girlfriend and, in due course, the wife, while on a trip to visit her daughter Amy in California, met a boyfriend. Finally, the parties decided to go forward with the divorce and they prepared and filed the necessary papers in the divorce kit. Then, at the appointed time, the wife went to an uncontested hearing and the husband’s girlfriend appeared as the residency witness. At the brief unreported hearing, the trial judge noted in the margin of the Petition for Dissolution of Marriage the name of the residency witness, “no minor children” and “no property.” At that hearing a Final Judgment of Dissolution of Marriage was entered dissolving the marriage. No other relief was requested or granted.

After the judgment was entered, the wife went to California and took up residence with her boyfriend and obtained a job as a clerk in a hardware store where she earns $968 per month. Shortly after the dissolution, the husband moved his girlfriend into the marital home and suggested to Stephanie, who lived at home, that she move out, which she did, for a while, at her father’s expense. For some months, the husband sent the wife $700 per month, assuring her that when he got straightened out financially he would send more, but he did not. Nor was there any action on the division of any of the other marital assets, joint or otherwise. The evidence is that the wife was existing on her clerk’s salary plus what the husband deigned to send her and it was a hand-to-mouth existence. Thus, in September, 1987, she filed her motion to vacate the judgment because the husband was not fulfilling his promises to her and the children.

In her petition to vacate the judgment the wife contends that her husband tricked her into asking only for a dissolution of the marriage based upon his assurances that they would divide everything and he would take care of her and his prevailing upon her not to seek the assistance of counsel. The husband filed a Unilateral Pre-Trial Stipulation, in which he admitted that the parties agreed, prior to the divorce, that they would divide all of their property.

A hearing was held on the petition, at which the court heard the testimony of the wife, the two daughters, and the husband, who was called as an adverse witness by the wife. The two daughters strongly supported the wife’s testimony that the husband was the dominant figure in the marriage; that he had told all of them on several occasions that he and the wife intended to dissolve the marriage; that they should not involve lawyers because they could not afford it and it was unnecessary since they were going to divide all of their property equally and he was always going to support her. This arrangement left [633]*633nothing to be done but to have the court dissolve the bonds of matrimony, which is exactly what happened. Under their agreement it was unnecessary to have the court divide their property, as they were to do it themselves. Thus, the wife asked for no relief but dissolution and the court noted there was “no property” to be divided.

In testifying as an adverse witness, the husband admitted the agreement to divide their property equally, although it appears his intention, if anything, was only to divide the home, furniture, the Bimini property, the silver bars, and the Citrus Town & Minnesota Grove investments. No express mention was made of the primary asset of the marriage, his airline pension fund and the tax refund of some $24,366. In any event, the critical evidence adduced to demonstrate that the husband had coerced his wife into a pro forma divorce was the promise to split their assets and take care of her financially for life. It appears from his post dissolution conduct that this was a misrepresentation, as he did not intend to do either and, in fact, did not do either. Nevertheless, the trial court, at the conclusion of the wife’s evidentiary presentation, dismissed the wife’s petition on the grounds that she had unclean hands in that she perpetrated a fraud upon the court in alleging that the only thing to be resolved was the dissolution of the marriage.

In its written order denying the motion to vacate, the trial court found, among other things, that:

(b) Prior to said final hearing, the Husband promised the Wife that he would give her half of everything and take care of her for life and the youngest of their daughters until her college graduation.
(c) The course of conduct followed by the parties to date has resulted in an unequi-table distribution of the marital assets of the parties, shortchanging the Wife in that, at present, the husband has not made the property distributions as promised.

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Bluebook (online)
535 So. 2d 631, 13 Fla. L. Weekly 2708, 1988 Fla. App. LEXIS 5525, 1988 WL 131610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hitt-v-hitt-fladistctapp-1988.