
    COPELAND v. COPELAND. COPELAND v. COPELAND by THERRELL.
    Supreme Court of Florida, en Banc.
    June 2, 1953.
    Rehearing Denied July 20, 1953.
    
      Aronovitz & Aronovitz, Miami, for appellant.
    Sibley & Davis, Miami Beach, for ap-pellee.
   THOMAS, Justice.

A bill of complaint was filed by 'the appellant, Isabel Copeland, against her husband, Edward Rivers Copeland, by which the plaintiff sought separate maintenance and the custody of the parties’ infant boy.

In his answer the defendant-husband prayed that the court grant him a divorce and the custody of the child, and that the court decree that two pieces of property jointly owned by 'him and his wife were, in the circumstances alleged, his alone in fee simple.

During the progress of the suit the husband died so the question of divorce was eliminated and the chancellor thereafter confined his consideration to the welfare of the child and status of the property.

The members of this court are in agreement in the view there was. overwhelming testimony to support the chancellor’s conclusion that the conduct and habits of the appellant and her treatment of the child demonstrated her unfitness to' rear him and that he should remain in the custody of the persons named by the chancellor who had for a long period of time given him the excellent car.e he deserved. Of course, this custody may be altered whenever the mother can convince the chancellor that she has become rehabilitated.

After the father died the infant, through his next friend, instituted a suit for a declaratory decree defining his interest,in the properties. The two suits were consolidated and we now, having decided that the chancellor’s ruling fixing . the custody of the child should not be disturbed, focus our attention on the. question, constituting a challenge to the provisions of the decree relating to the two tracts of land.

In reviewing the facts about the conveyances, it is important to bear in mind the chronology of relevant events. The parties were married in August, 1941. In October, 1941, and in April, 1942, deeds were executed to them as man and wife conveying the two tracts respectively and creating the estates by entireties. On April, 1943, 'the little boy was born. More than eight years after his birth and about ten years after the deeds were executed the husband first questioned the state of title by claiming in his answer that: “The property was conveyed to him and the plaintiff as tenants by the entireties, upon the assumption and belief that it was the plaintiff’s intention, in good faith, to strive to make the defendant a comfortable home life and to be a proper wife to the defendant.” We have italicized that part of the quotation serving as an introduction to the contention of the appellee which the chancellor upheld.

It appears from the allegation just quoted and underscored that the creation of the estatés by the entireties :'was claimed to have been founded on the assumption by the husband that his bride would- make a good wife and, conversely, that if she did not fulfill his expectations the estates would determine because the consideration would have failed. There can be no doubt about this position for in the appellee’s brief it is asserted that the wife by “her own actions vitiated any consideration upon which title was taken as estates by the entireties * * The chancellor adopted this view when he recited that it was “apparent [from the counterclaim that the husband] created the tenancy by the entire-ties * * * with the intention of bestowing a gift upon his young wife upon the condition subsequent,, nevertheless, that she would fully discharge her duties and obligations of her marital . vows as his wife.”

We think it is fitting here to repeat that to these persons a child was born after the last conveyance was arranged by the husband. So, obviously, the marriage had an auspicious beginning, even if it did later go upon the rocks. And it is well to repeat that it was many years later when the husband had been brought into court that he first questioned the validity of his wife’s interest.

We are frank to say that we have taken into consideration the fact that the father was a respected and able member of this bar, and the presumption that during the intervening years he knew well the effect of the instruments.

The disposition of the question by the chancellor is most appealing as securing to the deserving child an interest which he could not get upon upholding the integrity of the estates intended to be created by the husband through the deeds to himself and his wife, but we believe that if we were to approve this decision of the question we would at once do what appeared to be justice in an individual case while disturbing settled principles of law. Such is not our privilege.

At the moment the deeds were executed . and delivered a definite interest in an estate long since recognized by this and other .courts came into existence and no condition subsequent • was grafted on. it. This is simply a situation, like too many others, where the behavior of one spouse deteriorated as time passed, without any preconceived plan to that end, and without the concealment of any condition that affected the marriage contract. This subsequent misconduct could not be visited back upon a transaction growing out of a presumptive voluntary gift motivated by the affection of a man for his mate.

As for fraud, we find none at all. The woman made no misrepresentation of any existing fact that led the husband to injury. All her misdeeds were developments that neither spouse had in mind nor could have anticipated.' The mother simply became addicted to the use of alcohol and her other conduct was attributable to the habit. Bad as it -became it had no retroactive effect upon a gift made to her by her husband at the outset of the marriage venture by solemn instruments establishing definite estates. Walsh v. Walsh, 372 Ill. 254, 23 N.E.2d 341; Hendrickson v. Hendrickson, 95 Cal.App. 487, 272 P. 1079; Baird v. Baird, Mont., 232 P.2d 348.

A holding that miscondüct on the part of a spouse, such as is manifest in this record, would justify invalidation of an estate by the entirety created early in the marriage venture would come perilously close to announcing that such estates -had no efficacy until death has placed the whole interest in the survivor, for not until then would it be thoroughly established that the marriage had been successful and that the expectations of rectitude had been realized.

Although adherence to the rules of law protecting such estates may appear in this case to work a hardship on an innocent child and to reward an undeserving mother, it should not be forgot that the mother is probably not beyond redemption and that her love for her child and the protection the law affords him may quite naturally result in his eventually receiving, directly or indirectly, a share in the property.

It seems to us that it would be proper for the-court to retain jurisdiction of the original cause of Isabel Copeland v. Edward Rivers Copeland for the purpose of entertaining petitions for appropriate orders affecting the custody of the child and requiring the mother to contribute to the cost of his support, care, maintenance, and education. See 39 Am.Jur. page 642.

That part of the decree relating to the property is reversed; that part adjudicating custody of the child is affirmed.

Affirmed in part and reversed in part.

TERRELL, SEBRING, HOBSON, MATHEWS and DREW, JJ., concur.

ROBERTS, C. J., concurs in part and dissents in part.

ROBERTS, Chief Justice

(concurring in part and dissenting in part).

I agree to that part of the majority opinion relating to the reservation of jurisdiction for the purpose of entering orders affecting the custody of the child and requiring the mother to contribute to the cost of his support, care, maintenance and education. I find it necessary, however, to dissent from that portion of the opinion respecting the property rights of the parties, for the following reasons:

It is the rule in this state, as indicated by the Chancellor, that where property is purchased by the husband and deeded to the husband and wife jointly, thus creating an estate by the entireties, there is a presumption that the property was intended as a gift to the wife. O’Connell v. O’Connell, Fla., 45 So.2d 882. And it is held by some courts that, even in the absence of false representations or promises, there is an implied condition to such a gift that the wife will continue to live with the husband and perform her marital duties. Moore v. Moore, 51 App.D.C. 304, 278 F. 1017; Murdock v. Murdock, 49 Cal.App. 775, 194 P. 762; Dickerson v. Dickerson, 24. Neb. 530, 39 N.W. 429; York v. Ferner, 59 Iowa 487, 13 N.W. 630. Thus, it appears to be well settled that a 'court of equity is justified in setting aside a transfer of property theretofore made by the husband to the wife because of the subsequent adultery of the wife, Thomas v. Thomas, 27 Okl. 784, 109 P. 825, 113 P. 1058, 35 L.R.A.,N.S., 124; Moore v. Moore, supra, McCalla v. Rogers, 173 Tenn. 239, 116 S.W.2d 1022; Walsh v. Walsh, 372 Ill. 254, 23 N.E.2d 341; Evans v. Evans, 118 Ga. 890, 45 S.E. 612; or because of her abandonment of her husband without cause, Dickerson v. Dickerson, supra; Meldrum v. Meldrum, 15 Colo. 478, 24 P. 1083, 11 L.R.A. 65, although it appears to be held that the intention to abandon must exist at the time of the conveyance. It also appears to be generally held that “If at the time of the transfer or gift of property to one spouse by the other, by way of gift or postnuptial settlement, the former does not contemplate keeping the marriage vows and the intention to violate them is subsequently carried out, the weight of authority supports the proposition that this conduct constitutes such a fraud on the innocent spouse in the inception of the transaction as will be a ground for avoiding it.” 29 A.L.R. page 210, note. The Appellate Court of Indiana has adopted the rule that “where a wife has proved recreant to her marriage obligations and has destroyed the marital union by her misconduct, the court granting a divorce to the injured husband may allot to him such portion of the property previously settled upon the wife by the husband as will place him, as near as may be, in the same position as he would have occupied had the marriage continued.” Keaton v. Keaton, 87 Ind.App. 39, 158 N.E. 251, 252; Blagetz v. Blagetz, 109 Ind.App. 662, 37 N.E.2d 318; Radabaugh v. Radabaugh, 109 Ind.App. 350, 35 N.E.2d 114. See also on this general question the cases of Baird v. Baird, Mont., 232 P.2d 348; Southern Ohio Sav. Bank & Trust Co. v. Burkhart, 148 Ohio St. 149, 74 N.E.2d 67; Hendrickson v. Hendrickson, 95 Cal.App. 487, 272 P. 1079.

In the instant case, there is an intimation in the testimony of two of the neighbors that the appellant might have been guilty of meretricious relations with other men, and the testimony of Mr. Copeland strongly indicates that testimony of this nature could have been produced, had he not been unwilling to blacken the character of the mother of his child. But there is no real substantial evidence along this line. The lower court found that, by her conduct, the appellant had “abandoned” the marital dom-Idle, but it was not made- to appear that it was her intention to repudiate her marital obligations at the tinje.the conveyances were made. It is clear, however, from what has been said before, that the appellant’s conduct, was such as would have eminently justified the Chancellor in entering ■a'decree granting a divorce to Mr. Copeland and awarding to him the custody of the child, had Mr. Copeland survived; and under the particular circumstances of this case, we think that, in the exercise of his authority to adjudicate the property rights, of the parties to a divorce, the Chancellor could properly have entered a decree along the same general lines as he did, in fact, enter. And the fact that Mr. Copeland •did not survive for the entry of such decree ■should not and'does not change the respective rights of the appellant and Mr. Copeland’s estate in and to such property, and the question of the appellant’s rights therein must be. auswered as though he had survived.,

The writer does not wish to advocate a general rule that where a husband is granted a divorce because of the miscon•duct of the wife, a court of equity may in all cases require the wife to reconvey to the husband property which the parties held during the marriage as tenants by the entirety ; but I have no doubt that cases may arise in which such a disposition of the property is required. And I think that the particular circumstances here present make •out such a case.

As above noted, at the time of their marriage, Mr. Copeland was 61 years of age, and the appellant was 29 years his junior. As an earnest of his total acceptance of' the good faith of the appellant in undertaking a marital venture under such disparate age 'conditions, he endowed' his bride with a portion of his savings representing more than a quarter of a century of labor. During their marriage, he- spent $15,000' on doctors’ and hospital bills in an attempt to rehabilitate the appellant so that she could fulfill her duties as a wife and mother; he contributed generously to her support during the years preceding the instant suit, when the parties were residing separate and apart as a result of the appellant’s misconduct; he was compelled to employ a couple during that time (Mr. and Mrs. Snow) to care for his child and his home — that is, to perform in these respects the duties customarily performed by a wife. In doing all of these things, he exhausted the remainder of his life’s savings, so that the property in question comprised almost all of his estate — the only remaining resources to support his Child until he attained manhood. On her part, the appellant progressively contributed disillusionment and frustration and heartbreak. Had Mr. Copeland survived, it would have been the final dash of bitters in a cup of marital hemlock to require him to relinquish to the appellant one-half of all that he possessed; under the circumstances as they presently exist, it would simply compound the tragedy if, added to the loss of his father, .the child should also lose the resources which his father hoped to leave for his support. I do not think a court of equity is required to reach such an unjust conclusion.

Accordingly, I would, hold that, under the circumstances of this case, it was not error to divest the appellant of the property in question.  