Opinion
November 4, 1952.
Appeal from the Circuit Court for Orange County, Frank A. Smith, J.
Baker Thornal, Orlando, for appellant.
Heskin A. Whittaker and Thomas E. Kirkland, Orlando, for appellee.
Defendant husband appealed from an adverse judgment at law below, and states the following question, the answer to which both parties agree is conclusive of the controversy, although they disagree as to the form of the question:
"Is an agreement between a husband and wife providing for certain monthly monetary benefits to the wife for life, invalid and unenforceable as contrary to public policy if such agreement conclusively requires the permanent, irrevocable separation of the parties, and absolutely and conclusively precludes and excludes every possibility of a reconciliation, and by its own terms makes it a violation of the agreement for either party even to ask the other to resume and restore the marital relationship?"
The emphasized portions are challenged by appellee as being conclusions which are not justified by the record.
The agreement entered into was executed in Pennsylvania, while the parties were residents of that state.
Except for the language "She shall not and will not at any time ask him to live with her", in one paragraph of the agreement, and the converse "He shall not and will not at any time ask her to live with him", in another, the wording of the challenged provisions is exactly that used in an agreement which was the subject of litigation in the case of In re Cheponis' Estate, 148 Pa. Super. 515, 25 A.2d 779, decided by the Superior Court of Pennsylvania in 1942. This would seem to indicate that the form is in more or less common use in that state, — it could hardly be a coincidence. The Court held the agreement valid, and cited with approval an early Pennsylvania case which provided that the parties should thereafter live separate and apart "as if divorced". See also Roden v. Roden, 29 Ariz. 398, 242 P. 337.
We do not attach any particular significance to the language first quoted in the preceding paragraph. It may properly be disregarded as a "nudum pactum", — certainly it is not such a crucial part of the agreement as would move a Court to declare a breach because of the violation of that clause alone.
We do not consider that the public policy of Florida is other than that of Pennsylvania in the particulars here involved. We accordingly hold that the agreement is not contrary to the public policy of this State.
Judgment affirmed.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.