Johnson v. Johnson

725 So. 2d 1209, 1999 WL 9780
CourtDistrict Court of Appeal of Florida
DecidedJanuary 13, 1999
Docket97-2203, 97-3603 and 98-160
StatusPublished
Cited by23 cases

This text of 725 So. 2d 1209 (Johnson v. Johnson) 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
Johnson v. Johnson, 725 So. 2d 1209, 1999 WL 9780 (Fla. Ct. App. 1999).

Opinion

725 So.2d 1209 (1999)

James Hayden JOHNSON, Jr., Appellant,
v.
Nancy Sebek JOHNSON, Appellee.

Nos. 97-2203, 97-3603 and 98-160.

District Court of Appeal of Florida, Third District.

January 13, 1999.
Rehearing Denied March 10, 1999.

*1210 William A. Daniel, Jr.; Cynthia L. Greene, Miami, for appellant.

Richman Greer Weil Brumbaugh Mirabito & Christensen; Ross & Tilghman and Lauri Waldman Ross, Miami, for appellee.

Before COPE, GREEN, and FLETCHER, JJ.

GREEN, J.

This is a consolidated appeal from a final judgment of dissolution of marriage and a post-decretal order, namely, an order denying the appellant's motion for disqualification of the trial judge.[1] Based upon our review of the record, we find no reversible error in either the judgment or the post-decretal order under review. Accordingly, we affirm.

I

The appellant, James H. Johnson, Jr. (or husband), and the appellee, Nancy Sebek Johnson (or wife), met in 1981. At that time, he was a successful general contractor who owned two homes in Coconut Grove, a vacant parcel of land in Maryland, a sports car, two boats, a steel construction company and an affiliated company. She was a receptionist/clerical worker who owned no assets of substantial significance. When they decided to wed a year later, in 1982, James insisted that Nancy execute a prenuptial agreement, in an effort to protect his existing business interests. Accordingly, James had his attorney prepare a prenuptial agreement which in its entirety, read as follows:

WHEREAS, JAMES HAYDEN JOHNSON, JR. and NANCY GAIL SEBEK expect to be married in the near future, and
WHEREAS, NANCY GAIL SEBEK may, as a result of such marriage, if she survives JAMES HAYDEN JOHNSON, JR. as his wife, acquire certain rights in the Estate of JAMES HAYDEN JOHNSON, JR., and
WHEREAS, JAMES HAYDEN JOHNSON, JR. has advised NANCY GAIL SEBEK of his assets and the nature and amount of his income, and
WHEREAS, NANCY GAIL SEBEK has agreed to accept the provisions of this Agreement in lieu of all marital rights in the property now owned or hereafter acquired individually by JAMES HAYDEN JOHNSON, JR. or in his Estate or upon his death wherein she would otherwise acquire rights as the surviving spouse,
NOW, THEREFORE, in consideration of the pending marriage of the parties and the covenants and promises set forth below, the parties hereto agree as follows:
1. Within sixty (60) days after their marriage, JAMES HAYDEN JOHNSON, JR. will take out one or more policies of term insurance on his life in the face amount of $100,000. Each such policy shall designate NANCY GAIL SEBEK as primary beneficiary and shall provide for the outright payment to her of the full principal sum upon the death of JAMES HAYDEN JOHNSON, JR. Each such policy may provide for an alternate beneficiary or beneficiaries in the event NANCY GAIL SEBEK does not survive JAMES HAYDEN JOHNSON, JR. So long as NANCY GAIL SEBEK and JAMES HAYDEN JOHNSON, JR. remain husband and wife, JAMES HAYDEN JOHNSON, JR. will pay all premiums due on all policies, will otherwise keep said policies in force and effect, and will not assign same or change the primary beneficiary in such policies.
2. NANCY GAIL SEBEK hereby waives and releases all statutory rights that she may have as the surviving spouse *1211 in the property or Estate of JAMES HAYDEN JOHNSON, JR. including (a) the right to elect to take against the provisions of any Will of JAMES HAYDEN JOHNSON, JR., whether heretofore or hereafter made, and (b) the right to take a distributive share in the event of the death of JAMES HAYDEN JOHNSON, JR. intestate, and (c) the right to share in the Estate of JAMES HAYDEN JOHNSON, JR. by way of dower, widow's allowance or otherwise, and (d) the right to act as Personal Representative of the Estate of JAMES HAYDEN JOHNSON, JR.
3. In the event that the marriage of the parties hereto shall be terminated by dissolution of marriage, annulment or other such proceeding, then NANCY GAIL SEBEK hereby agrees that all property and assets owned by JAMES HAYDEN JOHNSON, JR. upon the date of their marriage shall not be the subject of any claim by her and shall not be considered by any Court having jurisdiction over such proceeding with regard to establishment of alimony or other payments sought in connection with any such proceeding. The parties agree that all property hereafter acquired by them jointly as husband and wife during their marriage, other than items related to the business now or hereafter engaged in by JAMES HAYDEN JOHNSON, JR., shall be divided by them as agreed or determined by the Court having jurisdiction thereof or belong to the survivor of them if either should die during the marriage.
4. NANCY GAIL SEBEK, at the request of JAMES HAYDEN JOHNSON, JR., will execute, acknowledge and deliver any other instruments necessary to carry out the purposes of this agreement.

Nancy, who was unrepresented by legal counsel, executed this agreement along with James and the parties were married one month later.

After their marriage, the parties had one minor child and otherwise enjoyed a lavish lifestyle, owning expensive clothing, furs, automobiles, jewelry and boats. The couple frequently vacationed in Colorado and St. Croix. During the course of the marriage, the parties also acquired eleven parcels of rental property, ten of which were titled solely in James' name and the remaining property was titled solely in Nancy's name. The trial court found that immediately after the parties' acquisition of the rental real estate and prior to the birth of the minor child, Nancy handled all of the matters involving the management of this real estate, including the rental of these properties, collection of rents, tenant matters, cleaning and maintenance matters, and the payment of mortgages and related expenses.

II

In 1996, Nancy filed a petition for the dissolution of the marriage. The trial was bifurcated, and a separate trial was conducted solely on the validity of the prenuptial agreement. The agreement was found to be valid and the second phase of the trial commenced on the remaining dissolution issues. Among the issues to be decided were the equitable distribution of the assets acquired during the course of the marriage, James' claim that his personal guaranties of his corporate debt were marital liabilities, and the amount of his child support in terms of his most recent income. With regard to the latter issues, James testified that his business entities had recently suffered severe financial setbacks and that his businesses had taken out a $500,000 loan and a $250,000 line of credit, both of which he had personally guarantied during the marriage. At the time of trial, James' accountant had not yet prepared his 1996 personal or business tax returns. In lieu thereof, James submitted a W-2 form, which showed his 1996 income to be $76,000, as well as a financial affidavit. His tax return for the year preceding the trial (i.e., 1995) reflected a total income of $149,288. Nancy's accountant testified, however, that James' available cash for all purposes in 1995 was $213,078.

At the conclusion of the trial, the judge asked the parties to submit proposed final judgments. The parties did so on April 28, 1997. The court orally announced its ruling on May 2, 1997, via a telephone conference call to both parties. The final judgment was thereafter rendered on July 22, 1997. In it, *1212

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Cite This Page — Counsel Stack

Bluebook (online)
725 So. 2d 1209, 1999 WL 9780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-fladistctapp-1999.