
    Mary Elizabeth BLAIS, Appellant, v. Michael Roland BLAIS, Appellee.
    No. 83-1712.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1985.
    Rehearing Denied July 19, 1985.
    Robert J. Winicki of Mahoney, Hadlow & Adams, Jacksonville, for appellant.
    Berrien Becks, Jr., of Becks, Becks & Wickersham, Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order denying a “motion to set aside a property settlement agreement.” Of course, there is no precedent for “setting aside” a property settlement agreement, we shall construe appellant’s intentions and the court’s order to mean that she requested and was denied an order setting aside a judgment. Although inartfully drawn, in fact inadequately drawn, the motion sought relief, we suppose, on account of some alleged fraud on the part of appellee in failing to disclose all of his assets and income at the marriage dissolution trial.

Aside from the weakness of the pleadings on behalf of appellant which fail to sufficiently make allegations for relief we are also faced with an inadequate record. There is no proof at all that appellee committed any fraud or that he concealed from the court or misrepresented anything to the court during the dissolution trial. Appellate counsel was not trial counsel. The later motion for relief was not filed by original trial counsel.

The trial began with appellant testifying and then the trial was aborted because the parties, both of them, advised the trial judge that they had agreed to a settlement. This came after the judge gave a preliminary indication as to what his ruling may be and before the appellee ever had an opportunity to testify or present any evidence.

About five weeks after the trial the parties reduced to writing and executed their agreement and submitted it to the court for approval and incorporation into the judgment.

Later appellant felt she was misled by appellee and sought to reopen the entire matter of financial obligations. A hearing was held and the court specifically found from evidence in the record that:

The wife complains that the husband concealed assets from her and one of the items complained of was monies contained in a corporation account known as Physicians & Surgeons Building, Inc., of approximately $55,000.00. Yet the Court finds that it was mentioned before this Court that said funds existed in the said corporate account by the Respondent’s Attorney on June 21st, 1982 and the attorney for the Petitioner, Michael S. Teal, was present when said monies were discussed. Therefore, the wife, through her counsel, had notice of these monies at the time of taking testimony in this cause and for about five weeks before she executed the formal written Property Settlement Agreement on July 28th, 1982. The Court further finds that substantially all of the assets of the Respondent, MICHAEL ROLAND BLAIS, were revealed to the wife or her attorneys, either in the financial affidavit filed by MICHAEL ROLAND BLAIS with the court, or through other means, such as discovery conducted by the wife’s attorneys by the trial date on June 21st, 1982 in this cause.

This ruling is a factual ruling in accordance with the law and no abuse of discretion has been demonstrated. We affirm the order appealed.

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

This case involves an appeal by the former wife from an order denying her motion to set aside a property settlement agreement. The final order granting dissolution, entered on August 3, 1982, incorporated the parties’ property settlement agreement which, inter alia, established the amount of permanent alimony the wife was to receive. On August 31, 1982, the former wife moved to set aside the order incorporating the property settlement agreement on the basis of fraud. At an evidentiary hearing on her motion, her attorney argued the agreement and final judgment should be set aside because the agreement was unreasonable, unfair to the wife, and was based on fraud or concealment of assets.

In my view, the former husband’s failure to disclose his actual income, which the record shows was the key element of the property settlement agreement, including the alimony provisions, requires that the agreement be set aside. The husband’s affidavit presented to the trial court at the dissolution trial understated his income by approximately $40,000.00 for the year 1982. He claimed an income of $48,000.00 when in fact it was at least $86,351.67.

At the hearing to set aside, the husband had no plausible explanation for this discrepancy. He admitted he had received an approximate $40,000.00 “bonus” one month before the final dissolution. Yet at the trial, during the settlement negotiations alluded to by the majority, his attorney maintained his income was only $48,000.00. Further, the tax return for the former husband for 1982 was not available or prepared until after the dissolution hearing.

• Granted, a mere error on a financial affidavit is not a sufficient basis to prove fraud, Cf. West v. West, 399 So.2d 428 (Fla. 5th DCA 1981), but a $40,000.00 discrepancy is hardly “mere.” Parties should be entitled to rely upon the approximate accuracy of financial affidavits submitted pursuant to Florida Rule of Civil Procedure 1.600. Weinstein v. Weinstein, 447 So.2d 309 (Fla. 4th DCA 1984).

I think the record in this case clearly showed failure of the former husband to disclose the amount of his actual income. That makes the property settlement agreement subject to attack. Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). Further, the former wife did not have equal access to her husband’s salary records and tax return, or possess independent knowledge of her husband’s salary. Compare Bailey v. Bailey, 300 So.2d 294 (Fla. 4th DCA 1974). Such a gross understatement of actual income, whether intentional or mistaken, and the failure to update the financial data proffered in court, is in my view adequate grounds to set aside the settlement and final judgment incorporating it. Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA), review denied, 402 So.2d 607 (Fla.1981). 
      
      . Since this motion to set aside was filed so promptly, we are not dealing with "extrinsic” versus "intrinsic” fraud. See DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984).
     