Petition — Simon v. Simon

epee:

a RILEDBD

} MAY 28 1976

IN THE riey

SUPREME COURT OF THE UNITED STATES:

Term, 1976

no. %5-1733

SALLY LEE SIMON, Petitioner

v.

CHARLES SIMON, Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

MICHAEL H. EGNAL

Daniel Neal Heller Attorney for Petitioner

HELLER & KAPLAN EGNAL AND EGNAL, P.A.

1205 Ainsley Bldg. 1315 Walnut St. Bldg.

Miami, Fla. 33132 Philadelphia, Pa. 19107

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA, PA. 19187 (215) 561-4050

TABLE OF CONTENTS

Page

ic oa U ENN Eye 50 880 os Os wee eun'e ds 1

545% bh eWaewes bade ed eed edness céenst 2

Statements of the Questions Involved .............. 2

Ee GE I oo vec S ess Seen bu cau sbewbeus 3

Reasons for Granting the Writ .................... 6

ED Su debs CONE s oe mawe sel oedet eee okaeeda 17

Appendix:

Final Judgment Dissolving Marriage .......... Al

Order on Motion to Dismiss ................. A8

An Interlocutory Appeal from the Circuit Court

for Dade County, General Jurisdiction Division,

Major B. Harding, Judge. (Opinion filed April

Be SE 5 Fhe oS Non be shde s bekas.osereceNe All

An Appeal from the Circuit Court for Dade

County, Major B. Harding, Judge. (Opinion filed

Ts I ai ae bs CU ARs FE 6 5 00 eke oe or Al17

Order from The District Court of Appeal, Third

District, (Thursday, September 11, 1975) ...... Al18

Order from the Supreme Court of Florida

(Wednesday, March 10, 1976) ............... Al19

TABLE OF CITATIONS

Cases: Page

Barker v. Barker, 331 P.2d 628 (Calif.) 1958) ...... 10

Fall v. Easton, 215 U.S. 1 (1909) .............. 7, 8, 16

Fogel Refrigerator Co. v. Oteri, 398 Pa. 82 (1960) .... 13

Haefele v. Davis, 399 Pa. 504 (1960) .............. 13

Hanson v. Denckla, 357 U.S. 257 (1958) .......... 15, 16

Healey v. Bowman, 217 Pa. 293 (1921) ............ 13

Killion v. Wright, 34 Pa. 91 (1859) ..............5. 13

McRary v. McRary, 47 S.E. 2d 27 (N.C. 1948) ...... 10

Parks v. Pennsylvania Clay Co., 60 Pa. Super. 567

SE ee eee Ve bad 54 60 wk Oe 0 0 13

Reading Co. v. Spink, 263 Pa. 445 (1919) .......... 13

In Re: Reynold’s Will, 85 N.W. 2d 553 (N.D. 1957) .. 14

Shapiro v. Shapiro, 424 Pa. 120 (1966) ............ 11

Sharp v. Sharp, 166 Pac. 175 (Okla. 1916) ....... 8,9, 10

Simon v. Simon, 293 So.2d 780 (1974) ............ 1,5

Simon v. Simon, 317 So.2d 83 (1975) .............. 1,5

Steelman v. Sites’ Executors, 35 Pa. 216 (1859) .... 13

Other Authorities:

RESTATEMENT OF JUDGMENTS ................... 13, 14

RESTATEMENT, SECOND, Conflict of Laws ........... 14

United States Constitution Article IV, Section 1, Four-

I Toa oe eu sumed 12

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 1976

No. 76-

SALLY LEE Simon, Petitioner

v.

CHARLES SIMON, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

OPINIONS BELOW

The opinion of the District court of Appeals of Flor-

ida, Third District, which reversed the Order of Judge

Major B. Harding, Circuit Court, Dade County, and held

the parties’ rights to the property in Pennsylvania were

adjudicated as a matter of law, is reported at 293 So.2d

780 (1974) (table) and appears at page All of the ap-

pendix to this petition. The opinion of the District Court

of Florida, Third District, affirming the Summary Final

Judgment order issued by Judge Major B. Harding, Circuit

Court, Dade County, is reported at 317 So.2d 83 (1975)

(table) and appears at page Al7 of the appendix to this

petition.

2

JURISDICTION

The judgment of the District Court of Appeals of

Florida, Third District, was entered on July 29th, 1975; a

timely Petition for Rehearing was denied on September 11,

1975, and a timely Petition for Writ of Certiorari was de-

nied by the Florida Supreme Court on March 10th, 1976.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1257(3).

STATEMENT OF THE QUESTIONS INVOLVED

I. Can the courts of Florida utilize a judgment en-

tered by operation of law not on the merits which directly

affects title to real estate in Pennsylvania, by an extension

of its in personam jurisdiction, in contravention of prior

doctrine established by the United States Supreme Court,

for the purpose of denying the petitioner the right to con-

tinue actions in Pennsylvania asserting claims to real es-

tate situate therein?

fi. Can the said Florida judgment, obtained by op-

eratiori ef law, be the basis for enjoining the petitioner

from continuing her law suits in the State of Pennsylvania

where it appears that under the legal principles in the ~

State of Pennsylvania, the said judgment would not be

accorded full faith and credit because it was not obtained

on the merits, purports to affect the title « real estate

directly contrary to the doctrine established by the United

States Supreme Court and the conveyances in Pennsyl-

vania are by a husband and «ife to husband and others

without consideration and th wife’s signatures to the

deeds in question were forged’

III. Can the said judgment be made effective to de-

termine the title to the real estate in Pennsylvania and by

its injunctive powers restrain and prohibit the petitioner

from continuing her law suits in Pennsylvania where the

judgment resulting from operation of law in Florida is

contrary to the Pennsylvania Public Policy?

3

STATEMENT OF THE CASE

This petition seeks review of the decision of the Flor-

ida District Court of Appeals, 317 So.2d 83 (1975), which

affirmed a lower court order enjoinii.g petitioner and de-

priving her of her right to continue to assert in the courts

of Pennsylvania, her claims to Pennsylvania :eal property,

which under the existing facts and applicable federal and

state law, would not accord full faith and credit to the said

judgment. The Florida Supreme Court on March 10, 1976,

denied a Petition for a Writ of Certiorari.

The Petitioner, Sally Lee Simon, was, at various times

in 1969, a tenant by the entireties, with her then husband,

Charles Simon, of a variety of real property located in

Philadelphia, Pennsylvania, valued in excess of $4,000,000

(accruing annual income in excess of $400,000). She was

divested of her interest by deeds naming her and her hus-

band as grantor and her husband and others as grantees.

Her signatures on the deeds were forged. There was also

no consideration paid to her in said conveyances and the

deeds so recite.

In late 1971, the petitioner instituted several actions

in the Court of Common Pleas of Philadelphia County

against Charles Simon and others seeking to recover her

interest in the Pennsylvania real estate consisting of shop-

ping centers and apartment house projects and an ac-

counting of the accruals therefrom which has been col-

lected and retained by Charles Simon.

In four of the principal actions pending in the Court

of Common Pleas of Philadelphia County, Charles Simon

alleged as the basis for successive motions for judgments

on the pleadings the entry by the Florida courts of the

judgment for which review is being sought. On March 14,

1975, the court denied the successive motions of Charles

Simon for judgment on the pleadings predicated on the

said Florida judgment. Subsequently, a Petition for Re-

consideration was granted and on November 17, 1975,

4

further proceedings in that connection were stayed pend-

ing a final determination of the Florida litigation.

The various Florida proceedings have developed as

follows:

On December 27, 1968, petitioner filed a Complaint

in Divorce in the Circuit Court of Dade County, Florida.

After a brief reconciliation in 1969, the action was reacti-

vated and on April 14, 1970, Charles Simon filed a Coun-

terclaim against the petitioner.

Subsequently, Charles Simon attempted to amend his

pleadings to bring into issue, in the Florida proceeding,

the property rights of the parties to the aforementioned

Pennsylvania real estate. The petitioner opposed these

efforts, contending, inter alia, these issues were being fully

litigated in the Pennsylvania courts. The Florida trial court

disallowed the amendment as untimely and directed that

the case proceed to final judgment without an adjudication

of those property rights.

On March 20, 1972, the Florida court entered a Final

Judgment Dissolving the Marriage and adjudicated only

the Florida real estate then owned by the parties. (Al)

On October 24, 1972, Charles Simon filed a Complaint

for Injunction in the Circuit Court in Broward County,

Florida. He sought to enjoin petitioner from continuing the

Pennsylvania actions to recover her interests in Pennsyl-

vania real property. Mr. Simon claimed he was suffering

irreparable injury as a result of the Pennsylvania law suits,

and the property rights to the Pennsylvania real estate

which petitioner asserted in these actions were finally and

conclusively settled and determined by operation of law

under the aforesaid judgment.

The power of the Florida court in extending its in

personam jurisdiction and directly effecting the title to the

real estate in Pennsylvania in contravention of the appli-

cable decisions of this Court, came about in the following

manner.

The Complaint for Injunction was transferred to the

Dade County Circuit Court and assigned to Honorable

5

Major B. Harding, who had presided over the divorce pro-

ceedings. Judge Harding struck those allegations of the

Complaint for Injunction which asserted that the claims

to property in Pennsylvania were adjudicated in the di-

vorce action holding that:

“Inasmuch as the ownership or property rights

of the parties was the subject of actions pending in

the Pennsylvania courts at the time of the final judg-

ment of dissolution of marriage hereinabove referred

to, this court does not deem it appropriate to deter-

mine whether said judgment divested the Pennsyl-

vania court of its jurisdiction or otherwise acted as a

bar to further proceedings there.”

Judge Harding’s order striking those allegations, was

appealed by Charles Simon. The District Court of Appeals

reversed, holding that by operation of law, all property

rights of the parties were conclusively determined by the

divorce decree in spite of the fact that the parties were

litigating some of those claims in the Pennsylvania courts

at the time the decree was entered. 293 So.2d 780 (1974).

On the basis of this reversal and remand, the trial

court entered a Summary Final Judgment in favor of

Charles Simon on October 24, 1974, permanently enjoin-

ing the petitioner from prosecuting all actions then pend-

ing in the Court of Common Pleas of Philadelphia County

claiming an interest in the Pennsylvania property formerly

owned by the parties as tenants by the entireties and now

by Charles Simon, based on facts or circumstances which

existed prior to March 20, 1972, the date of the final di-

vorce decree.

The summary judgment injunction was appealed to

and affirmed by the District Court of Appeals of Florida,

Third District, 317 So.2d 83 (1975).

A timely petition for rehearing was denied. Petitioner

filed a petition for writ of certiorari in the Florida Supreme

Court, which was denied on March 10, 1976.

6

The issues involved herein were raised in the Florida

proceedings.

This petition followed.

REASONS FOR GRANTING THE WRIT

I. (a) The Florida anti-suit injunction contravenes the

prior decisions of this Court which restricted the

power of a state Court to annul a deed or to establish

a title beyond the borders of its jurisdiction by a

direct decree.

(b) Under the facts and applicable legal principles,

the Pennsylvania court would not give full faith and

credit to the Florida judgment.

(c) Petitioner is being deprived of her right to estab-

lish the Florida judgment is not res judicata in her pro-

ceedings in ‘’ennsylvania.

The anti-suit injunction, which is the subject matter

of this petition, was issued by the Florida trial court in a

summary judgment proceeding. The injunction was issued

without an opportunity for petitioner to answer the com-

plaint for injunction on the merits.* The trial court spe-

cifically held that it was authorized to issue the injunction

because, as a matter of law, “the Final Judgment Dissolv-

ing Marriage of the parties, aforesaid, was by operation of

law a bar to the seven actions described in [Charles Si-

mon’s] complaint instituted by [petitioner] against [Mr.

Simon] in the courts of the State of Pennsylvania, in

*The portions of the complaint on which the trial court relied

in issuing the injunction were originally stricken by that court.

When they were reinstated by order of the District Court of

Appeals, petitioner sought leave to amend her answer to the com-

plaint to respond to those allegations. Without allowing the

amended answer, the trial court granted summary judgment in

favor of Charles Simon and issued the injunction.

7

which she claimed special equities and other property

rights in the separate property of [Charles Simon] located

in that state.” (emphasis added )

This decision was affirmed by the District Court of

Appeals.

II. (a) The Florida court in projecting in Pennsylvania

the force of the divorce decree by means of extending

its in personam jurisdiction, will deprive the petitioner

of the right to establish, in Pennsylvania, the said

judgment is bereft of full faith and credit in Penn-

sylvania.

(b) The Florida divorce decree on which is superim-

posed the injunction, as interpreted by the Florida courts,

is one which directly affects title to Pennsylvania real

estate and, as such, is not entitled to recognition by the

Pennsylvania courts as established by the doctrine enunci-

ated by the United States Supreme Court.

(a) The landmark decision which defines the outer

parameters of the power of a court in one state to decide

title to real property located in another state, is Fall v.

Easton, 215 U.S. 1 (1909).

In Fall, a husband and wife were divorced in the

State of Washington. At the time of the divorce, the

spouses owned a piece of real estate in Nebraska. In the

divorce case, the husband claimed the property was his

alone, the wife claimed that it was community property,

and asserted a claim to be declared sole owner. Washing-

ton State law directed a court, in granting a divorce, to

“make such disposition of the property of the parties as

shall appear just and equitable. . . .” The Washington court

found in favor of the wife as to the Nebraska real estate

and appointed a commissioner to execute a deed to her.

The husband, meanwhile, sold the property to Eastin and

a deed to that effect was recorded. The wife then brought

an action to quiet title in Nebraska.

8

This Court held that the Washington decree was not

entitled to full faith and credit, since it purported to di-

rectly affect title to real estate in Nebraska:

“The territorial limitation of the jurisdiction of

courts of a state over property in another state has a

limited exception in the jurisdiction of a court of

equity, but it is an exception well defined. A court of

equity, having authority to act upon the person,

may indirectly act upon real estate in another state,

through the instrumentality of this authority over the

person.” Id. at 8. (Emphasis added)

However, while the Florida court seeks to exercise its

in personam jurisdiction, it is, in effect, implementing a

decree by which it directly effected the title to the Pennsyl-

vania real estate.

Most of the cases which have arisen in this area since

Fall, involve an attempt by the foreign court to bring about

some change in record ownership. In such cases, the dis-

tinction between direct and indirect normally turns on the

precise manner in which the foreign court seeks to bring

about this change. Thus, a decree is indirect (and hence

valid ) if it simply acts upon the party; that is, it orders the

party to transfer the property to the other spouse and such

a transfer is accomplished by the party pursuant to the

order. A decree is direct (and hence invalid) if it purports

to operate thru the force of the judgment automatically,

or through an instrumentality of the court, such as a com-

missioner.

In the present, case, the petitioner asserts claims to

parcels of real estate which are, at the present time, titled

in the name of Charles Simon and others. The effect of

the Florida divorce decree is to extinguish, forever, the

petitioner's claims. The Florida judgment is projected into

Pennsylvania, and by its force seeks to determine directly

the title to the Pennsylvania real estate.

In Sharp v. Sharp, 166 Pac. 175 (Okla. 1916) (citing

Fall v. Easton, supra), the parties were divorced in Ore-

9

gon. In the divorce proceedings, the wife, Jennie Sharp,

claimed an interest in a parcel of Oklahoma real estate

which was titled in the name of the husband, Landis

Sharp.

The decree of the Oregon court stated:

“That plaintiff, Landis Sharp is the owner of [the

Oklah. ma real estate], free from all right, title, inter-

est, estate and claim forever of defendant, Jennie

Sharp;”

Landis Sharp later brought suit in ejectment in Oklahoma

seeking recovery of the real estate in question. He intro-

duced the records of the Oregon proceedings and on that

basis alone the trial court found in his favor. However,

the Supreme Court of Oklahoma reversed.

The husband claimed the decree of the Cregon court

was res judicata and the Oklahoma court said:

“This argument has some force, but nevertheless

it seems that the decree of the Oregon court does in

fact, not through any act required of the person,

Jennie Sharp, but through the force of the decree it-

self, determine the validity of the asserted rights of

Jennie Sharp in and to the real estate, and thus, not

indirectly but directly, affects the title or status of

lands in Oklahoma. Otherwise of what force is the

decree when introduced in the instant case. Jennie

Sharp is asserting an equitable title to the Orchard

Park property. To meet this assertion Landis Sharp

introduces the record of the Oregon decree, claiming

that it bars Jennie Sharp’s asserted rights. Its effect,

so taken, is to establish Landis Sharp’s title, yet this

is the very thing which the Supreme Court of the

United States in Hart v. Sansom, supra said a court of

equity could not do.

‘But in such a case, as in the ordinary exer-

cise of its jurisdiction, a court of equity acts in per-

10

sonam, by compelling a deed to be executed or can-

celed by or in behalf of the party. It has no inherent

power, by the mere force of its decree, to annul a

deed, or to establish a title.

“We conclude, therefore, that the effect of the

Oregon decree, in so far as it related to the real estate,

was to establish the title to lands in Oklahoma, and

thus far it was beyond the jurisdiction of that court

coram non judice, and void.” 166 Pac. at 178. (Em-

phasis added )

For additional decisions similar to Sharp, see, e.g.,

Barker v. Barker, 331 P.2d 628 (Calif. 1958); McRary v.

McRary, 47 S.E. 2d 27 (N.C. 1948).

Petitioner contends the Sharp analysis is correct. A

decree which purports to recognize title in one party,

although an actual transfer of title is not accomplished

because that party already holds record title, is a decree

which directly affects title to real estate and is beyond the

power of the issuing court.

The Florida courts are now giving to their divorce

decree an effect not sanctioned by the foregoing decision.

A decision by this Court to grant certiorari will be of sub-

stantial assistance to the state and federal courts in their

efforts to correctly interpret a leading decision of this

Court and put at rest the determination of a substantial

constitutional question. It will effect, not only Sally Lee

Simon, but property owners and claimants throughout the

United States.

(b) The absence of consideration in the conveyance in

itself denies any title to Charles Simon under Penn-

sylvania law.

Assuming arguendo that the transfer of the property

from Sally Simon to Charles Simon was valid and not

based on a fraudulent transfer of the property by Sally

Simon’s forged signature, Pennsylvania law cogently dic-

1]

tates the transfer of Sally Simon’s property to her husband

created a rebuttable presumption of a trust in her favor.

In a leading Pennsylvania case, Shapiro v. Shapiro, 424

Pa. 120 (1966), the Supreme Court, in its rigorous analysis

of the issue, commented at page 128-129 as follows:

“Our case law on this subject is well settled. As

stated in Darlington’s Appeal, 86 Pa. 512, 528 (1878)

—a landmark decision—: ‘A transaction between per-

sons so situated [as wife and husband] is watched

with extreme jealousy and solicitude, and if there be

found the slightest trace of undue influence or unfair

advantage, redress will be given to the injured party.’

The Court went on to state that: ‘Owing to the near

connection between the parties ... , the transaction

in itself is considered so suspicious as to cast the bur-

den of proof upon the person who seeks to support it,

to show that he has taken no advantage of his influ-

ence or knowledge, and that the arrangement is fair

and conscientious.’ (at p. 518). Moreover, where a

husband obtains his wife’s property without adequate

consideration, a rebuttable presumption arises that a

trust is created in her favor, and, if the husband

claims a benefit arising from the transaction, he must

show affirmatively that he acted in good faith and

took no undue advantage of his wife: DeBarnard v.

DeBernard, 384 Pa. 194, 196-197, 120 A.2d 176

(1956).” (Emphasis supplied )

It is patent from a review of the proceedings in Penn-

sylvania, which the Florida decree seeks to enjoin Sally

Simon from pursuing, that Sally Simon’s right, title and

interest to various parcels of real estate holdings in Phila-

delphia were taken without any compensation of any kind

whatsoever to her. In view of the above cited Pennsylvania

case authority, the enforcement of the Florida decree for

this reason alone is unconscionable and will not be en-

12

titled to “Full Faith and Credit” pursuant to Article IV,

Section 1, of the Constitution.

C. Judgments in foreign states not on the merits or where

an issue is withdrawn by the first court, cannot act as

res judicata to claims in Pennsylvania.

It is particularly appropriate and important to note

the following pertinent part of the Opinion of trial Judge

Harding issued on October 16, 1973: (A8)

“In the dissolution proceeding the husband,

(Plaintiff here), sought to have property rights of the

parties to the Pennsylvania property litigated and

made a part of the final judgment of dissolution of

marriage. These efforts were resisted by the wife, ( De-

fendant here), and the court, by order refusing to

permit the amendment to pleading for not being

timely filed, permitted and directed the matter to pro-

ceed without an adjudication thereof in the final judg-

ment. Both parties, here and there, were well aware

that failure to adjudicate these property rights in a

final judgment dissolving a marriage might bring into

effect an adjudication thereof by operation of law.

“In said dissolution action, the undersigned hav-

ing rendered said judgment, the Pennsylvania prop-

erty for the purposes of the dissolution was conceded

to be in the name of the husband. (Plaintiff here). It

was also known to the court that there was, as al-

leged in the Plaintiff's complaint in the instant cause,

pending the actions in the Pennsylvania courts rela-

tive to the interests of the parties therein.

“The court, in the dissolution action, did not have

the property rights of the parties to the property in

Pennsylvania before it as an issue to be determined

by final judgment. Therefore, the final judgment did

not adjudicate those property rights except as they

may be adjudicated by operation of law.” (emphasis

added )

13

Under these circumstances, several interrelated prin-

ciples operate to make the claim of res judicata inapplic

able to Pennsylvania cases, notwithstanding the result that

apparently would obtain if these were cases that involved

Florida real estate.

The following two sections from the RESTATEMENT OF

JUDGMENTS would appear applicable to the present situa-

tion:

Ҥ49. Judgment for Defendant Not on the Merits.

Where a valid and final personal judgment not

on the merits is rendered in favor of the defendant,

the plaintiff is not thereby precluded from thereafter

maintaining an action on the original cause of action

and the judgment is conclusive only as to what is

actually decided.

Ҥ67. Where First Court Makes Erroneous

Ruling that Recovery Can Be Had

Only in a Different Action.

Where in an action the court holds that the plain-

tiff cannot enforce a particular claim in that action

on the ground that he can enforce it only in a separate

action, the judgment does not preclude the plaintiff

from enforcing the claim in another action, although

in the second action it appears that the holding of the

court in the first action was erroneous.”

Substantial judicial support for these principles exists

in Pennsylvania. See, e.g., Killion v. Wright, 34 Pa. 91

(1859); Steelman v. Sites’ Executors, 35 Pa. 216 (1859);

Healey v. Bowman, 271 Pa. 293 (1921); Fogel Refrigera-

tor Co. v. Oteri, 398 Pa. 82 (1960) (“Courts should not be

astute to close their doors upon the merits”); Haefele v.

Davis, 399 Pa. 504 (1960); Reading Co. v. Spink, 263 Pa.

445 (1919), and Parks v. Pennsylvania Clay Co., 60 Pa.

Super. 567 (1915).

It is clear from the Opinion of Judge Harding that he

“directed the matter to proceed without an adjudication

14

[of the claims to the Pennsylvania real estate] in the final

judgment.” It would be unconscionable for the plaintiff to

now be barred from raising her substantial claims by rea-

son of the failure of the Florida trial judge to consider

those claims especially where petitioner's request to amend

her answer was denied. (See footnote at page 6.)It is

submitted the application of section 67, RESTATEMENT OF

JUDGMENTS, supra, is designed to prevent such a manifest

injustice.

D. The doctrine applied by the Florida Court by operation

of law is repugnant to Pennsylvania policy.

The RESTATEMENT, SECOND, Conflict of Laws, §103

states:

“A judgment rendered in one State of the United

States need not be recognized or enforced in a sister

State if such recognition or enforcement is not re-

quired by the national policy of full faith and credit

because it would involve an improper interference

with important interests of the sister State.”

One recognized area where foreign judgments are not en-

titled to full faith and credit involves judgments affecting

title to realty outside the state where the judgment is ren-

dered. In Re: Reynold’s Will, 85 N.W. 2d 553 (N.D. 1957).

In the present case, there are two important and dis-

tinct policy issues involved. First, there is a difference

between the laws of Florida and Pennsylvania concerning

the requirements that property claims be adjudicated at

the time of divorce. Florida law generally requires that

property claims between spouses be determined at the time

of a divorce. Pennsylvania law, on the other hand, is dia-

metrically opposite. In Pennsylvania divorce proceedings,

property claims between spouses may not be litigated;

rather, such claims must be brought separately, without

regard to the pendency of divorce proceedings, and they

will proceed withoui regard to the divorce proceedings.

15

Florida courts have adopted the concept that all claims

between spouses be litigated at one time. It is apparent

Pennsylvania courts have no such policy.

The second policy consideration is based on the obvi-

ous fact that if Charles Simon’s contention is sustained,

Sally Simon will be deprived of substantial property rights

without ever having had those rights considered, on the

merits, by any court. Such a result would clearly consti-

tute a deprivation of her property without due process of

law. And, in this connection it is no answer to state she

had her chance to raise these issues in Florida and by

failing to do that has now forfeited her claims, especially

where it appears the trial judge denied she might litigate

the issues in question and subsequently refused an amend-

ment for the issues to be framed.

It is the function of the United States Supreme Court

to determine whether judgments are consistent with the

Federal Constitution. Under the Due Process provisions

of the Fourteenth Amendment, no citizen may arbitrarily

be deprived of his property. Sally Simon’s right, interest,

and title to the property in Pennsylvania would be extin-

guished by the decree of the Florida court, which existence

is solely a result of Florida operation of law. Moreover, the

Florida decree is a violation of petitioner’s constitutional

guarantee pursuant to the Fourteenth Amendment, since

her property rights are being directly affected by a decree

which was by operation of law and not on the merits.

A case which may be considered with respect to the

case sub judice, is Hanson v. Denckla, 357 U.S. 257, 78

S.Ct. 1228, 2 L.Ed. 2d 1283 (1958). The Supreme Court

said:

“Founded on physical power, McDonald v. Mabee,

243 U.S. 90, 91 37 S.Ct. 343, 61 L.Ed. 608, in rem

jurisdiction of a state court is limited by extent of its

power and by the coordinate authority of sister States.

16

The basis of the jurisdiction is the presence of the

subject property within the territorial jurisdiction of

the forum state .. .”

“The Florida court held that the presence of the

subject property was not essential to its jurisdiction.

Authority over the probate and construction of its

domiciliary’s will, under which the assets might pass,

was thought sufficient to confer the requisite juris-

diction. But jurisdiction cannot be predicated upon

the contingent role of this Florida will.”

The Supreme Court in Hanson determined the issue of

in rem jurisdiction as follows:

“The fact that the owner is or was domiciled

within the forum State is not a sufficient affiliation

with the property upon which to base jurisdiction

in rem.”

Also pertinent is the rationale of Fall v. Eastin, supra,

where the Court held that one of the reasons the Nebraska

court properly refused to give effect to the Washington

decree was that, under Nebraska law (as in Pennsylvania),

property rights cannot be determined in a divorce pro-

ceeding. See the language, quoted supra, at pages 9, 10.

17

CONCLUSION

For the foregoing reasons, it is urged that this Petition

for a Writ of Certiorari should be granted.

Respectfully submitted,

MICHAEL H. EGNAL

Attorney for Petitioner

Of Counsel:

EGNAL & EGNAL, P.A.

1315 Walnut St. Bldg.

Philadelphia, Pa. 19107

Daniel Neal Heller

HELLER & KAPLAN

1205 Ainsely Bldg.

Miami, Fla. 33132

APPENDIX

Al

(Caption Omitted in Printing)

FINAL JUDGMENT DISSOLVING MARRIAGE

This action was heard before the Court. It was orig-

inally instituted by the Wife, as Plaintiff, on December 27,

1968, by the filing of a Complaint for divorce, alimony,

custody of the minor children of the parties and the right

to exclusive possession of the home of the parties, owned

by them as tenants by the entireties. Her action was based

upon an allegation of cruelty and temper. The Husband

filed his Answer to the Complaint on January 14, 1969.

Shortly thereafter the parties reconciled and resumed co-

habitation for almost a year, until December 5, 1969, when

the Wife, through new counsel, activated the proceedings.

On April 14, 1970, the Husband, pursuant to au-

thority granted by the Court, filed a Counter-claim against

the Wife alleging her adultery, crueity and temper. That

Counter-claim sought divorce and custody of the minor

children and the sale of the home which was owned by

the parties as a tenancy by the entireties. The Husband

also pleaded condonation and reconciliation as affirmative

defenses.

On May i, 1970 the Wife filed her Answer to the

Counter-claim. Thereafter on September 21, 1970 the

Wife’s Complaint for divorce, alitmony and custody of the

children was dismissed with prejudice, and that dismissal

with prejudice was reiterated by Order dated October 9,

1970, but leave was granted to the Wife to file a supple-

mental complaint, alleging facts occurring subsequent to

the reconciliation of the parties.

On October 12, 1970 the Wife filed an Amended and

Supplemental Complaint, through new counsel, in which

she sought a divorce, alimony, custody of the two minor

children of the marriage and adjudication of her claim of

property rights in various real properties and shopping

centers in and around the City of Philadelphia, Pa. The

Husband filed his Answer to that Amended And Supple-

mental Complaint in November, 1970.

A2

On November 22, 1971, the Husband’s Counter-claim

was amended by adding to the prayer for relief a prayer

that the Court determine the rights and interests of the

parties in and to their real and personal property and that

a partition of the real property located in Bay Harbor

Island, Dade County, Florida, owned by them as a tenancy

by the entireties, and the personal property contained

therein, be adjudged.

On November 29, 1971, being 8 days before the date

set for trial of the cause, the Wife, through new counsel,

obtained an Order dismissing her Amended and Supple-

mental Complaint, and every count thereof, at her instance.

That Order specifically preserved for adjudication the

issues raised by Husband's counter-claim. In substitution

of that dismissed Amended and Supplemental Complaint,

the Wife then filed a Second Amended Complaint for Sep-

arate Maintenance, seeking permanent alimony without

divorce, custody of the children and allowance for their

support. Husband filed his Answer thereto. The action

then proceeded to trial (with new counsel for the Wife),

upon the Husband’s dissolution of marriage) custody of

the children, adjudication of the rights and interests of

the parties in and to their real and personal property and

partition of the Bay Harbor Island home and the personal

property contained therein, and the Wife’s prayer for sep-

arate maintenance and custody of the children. The action

was tried on December 7, 1971 and continued on February

3 and 4, 1972. The Court heard and considered the testi-

mony of the parties and their witnesses, and the exhibits

received in evidence, and due consideration having been

had, makes the following FINDINGS OF FACT:

1. This Court has jurisdiction of the subject matter

and of the parties hereto.

2. Both the Husband and Wife are permanent bona

fide residents of the State of Florida, domiciled therein, and

have resided in the State of Florida for more than 6 months

before the filing of the pleadings herein.

A3

3. The marriage of the Husband, Charles Simon, and

the Wife, Sally Simon, is irretrievably broken.

4. There are two minor children of the parties of

whom Marla Simon, who is 15 years of age, resides with

the Husband and Sheryl Simon, who is 4 years of age,

resides with the Wife. The best interests of the children

warrant the present continuation of the status quo with

Marla remaining in the care, custody and control of the

Husband and Sheryl remaining in the care, custody and

control of the Wife, but with reasonable and liberal visita-

tion afforded both parties to and with both children.

5. The parties own jointly, as tenants by the entireties,

a home located in Bay Harbor Island, Dade County, Flor-

ida, the legal description of which is: Lot 34 and East %

of Lot 35 in Block 23 of BAy HARBOR ISLAND, according to

the Plat thereof as recorded in Plat Book 46 at Page 5

of the Public Records of Dade County, Florida, which is

valued in excess of $200,000.00 subject to a mortgage hav-

ing an approximate balance of $35,000.00. The furniture,

furnishings and fixtures and equipment of that home are

similarly owned by the parties as tenants by the entireties.

In addition to his interest in that residence, and its con-

tents, the Husband is the owner of a number of proper-

ties consisting of improved and unimproved real estate in

Philadelphia, Pa., as designated and legally described in

Plaintiff's Exhibit 1* filed in evidence, which was stipu-

lated to have a net value in excess of $1,000,000.00. The

Husband’s income tax returns indicate actual income

therefrom in excess of $20,000.00 after deducting depre-

ciation. The testimony further showed that the properties

are producing a gross “throw-off” of about $120,000.00 per

year. Husband has been using the major portion of this

sum to provide for himself and his family for the past

10 years.

6. The home of the parties is excessively large »nd

costly to maintain for the occupancy of the Wife and the

A4

4 year old child alone. It was originally purchased and

used by the parties for occupancy of their family of eight,

as it consisted at that time. The said property is indivisible

and is not subject to physical partition without prejudice

to the parties. Upon entry of this Final Judgment of Dis-

solution of Marriage their interest in that property will

become that of equal tenants in common therein and the

Husband entitled to partition thereof as prayed for in his

counter-claim.

Whereupon, it is ORDERED, ADJ UDGED and DECREED as

follows:

1. The marriage of the parties hereto, to wit: Charles

Simon and Sally Simon, is dissolve a vinculo because it is

irretrievably broken.

2. (a) The custody of the minor child, Marla Simon,

is awarded to the Husband, Charles Simon. The Wife, Sally

Simon, shall have the right of reasonable visitation with

Marla including the right to have Marla visit with the

Wife, over weekends and holidays.

(b) The custody of the minor child, Sheryl Simon, is

awarded to the Wife, Sally Simon. The Husband, Charles

Simon, shall have the right of reasonable visitation with

Sheryl Simon including the right to have Sheryl visit with

the Husband, over weekends and holidays.

(c) Visitation by either parent with the child at or

away from the home of the other parent, or by the child

to the other parent for weekends or holidays shall be

liberal and encouraged by both parents.

3. The Husband, Charles Simon, shall pay $1,250.00,

per month to the Wife, Sally Simon, as alimony, com-

mencing April 1, 1972 and on the first day of each and

every month thereafter.

4. The Husband, Charles Simon, shall pay $325.00,

per month as child support for Sheryl Simon, the minor

child of the parties, commencing April 1, 1972 and on the

AS

Ist day of each and every month thereafter. In addition

thereto the Husband shall pay the reasonable cost of her

education.

5. (a) That the home of the parties and the furni-

ture, furnishings and fixtures and equipment contained

therein, located at 10330 W. Broadview Drive, Bay Harbor

Island, Dade County, Florida, which is legally described as:

Lot 34 and East ¥% of Lot 35 in Block 23 of Bay Har-

BOR ISLAND, according to the Plat thereof recorded in

Plat Book 46 at Page 5 of the Public Records of Dade

County, Florida.

shall be sold '; the parties as soon as possible after April

1, 1972, and the net proceeds of the sale shall be divided

equally between the parties except that any balance re-

maining due on the mortgage encumbering that property

shall be paid by the Husband.

(b) If the parties do not succeed in effecting such

voluntary sale by October 1, 1972, then upon motion and

affidavit of either party showing that said sale has not

been made within the time limited, a supplemental judg-

ment shall be entered herein directing the Clerk of the

Court to sell the said property at public sale on a specified

day, not less than 10 nor more than 30 days thereafter, to

the highest bidder in cash, except as hereinafter set forth,

at the South Door of the Courthouse in Dade County,

Florida, in accordance with §45.031, Florida Statutes.

(c) The Husband, Charles Simon, shall advance all

subsequent costs of this action and shall be reimbursed

for them by the Clerk if he is not the purchaser of the

property at the sale. If the Husband is the purchaser, the

Clerk shall credit the Husband’s bid with 50% of the costs

advanced by him or thereafter accruing and with 50% of

the total amount of his bid, except that any balance due

on a mortgage encumbering said property shall be paid

by the Husband or charged against his share of the pro-

A6

ceeds of the sale. If the Wife is the Purchaser, the Clerk

shall credit the Wife’s bid with 50% of the amount of

her bid.

(d) On filing a Certificate of Title the Clerk shall

distribute the proceeds of the sale, so far as they are suffi-

cient, by paying:

(1) All costs advanced by the Husband in connec-

tion with the sale;

(2) Documentary stamps affixed to the Certificate;

(3) 50% of the net proceeds of the sale shall be paid

to the Wife, without charging her share for the

balance due on any mortgage encumbering the

property;

(4) The remaining 50% of the net proceeds of the

sale, minus such amount as is due for payment

of any outstanding mortgage encumberance on

the property, shall be paid to the Husband;

(5) The balance due on such mortgage as may en-

cumber the property shall be paid and satisfied.

It is the intent of this paragraph that the Husband

shall be charged with the obligation to pay off any balance

due under the mortgage encumbering the property, with

all costs of the sale to be borne equally by the parties and

that the net proceeds of the sale, after satisfying the mort-

gage indebtedness by the Husband, shall be divided equally

between the parties.

(e) On filing the Certificate of Title the purchaser at

the sale shall be let into possession of the property.

(f) Jurisdiction of this action is retained to enter

such further Orders or supplemental judgments as are

proper or necessary to effectuate the partition of said

property, including, without limitation, supplemental judg-

ment of partition and Writs of Assistance.

6. Attorneys, Stephen Butter, Esq., 420 Lincoln Road,

Miami Beach, Florida, 33139, William John Mason, Esq.,

ne ee, -

A7

450 Seybold Building, Miami, Florida, 33132 and S. Blair

Ross of 1497 N.W. 7th Street, Miami, Florida, 33125, are

given notice hereby that any application that they may see

fit to make with respect to claim by them, or any of them

for counsel fees in this cause shall be submitted to this

Court in writing on or before April 15, 1972. The original

of such application shall be submitted by mailing the same

to Honorable Major B. Harding, Circuit Court Judge, 200

Duval County Courthouse, Jacksonville, Florida, and mail-

ing a copy of such application to the Husband’s attorney,

Jack D. Burris, Esq., 420 Lincoln Road, Miami Beach,

Florida, 33139. The Husband shall have 10 days after re-

ceipt of such application to file a written response thereto.

Jurisdiction of this action is retained to enter such further

Orders or supplemental judgments as are proper or neces-

sary to adjudicate the claims for attorneys’ fees, if any, so

filed by said attorneys, and the pending claim, heretofore

submitted and pending herein by Richard L. Lapidus, Esq.

7. The Wife’s Second Amended Complaint for Sepa-

rate Maintenance be and it is hereby dismissed.

8. This Court retains jurisdiction of this cause for the

purpose of making such further Orders with respect to the

care, custody and support of the minor children of the

parties as, from time to time, will seem proper in equity

and good conscience.

DONE AND ORDERED in Chambers at the Court House,

at Jacksonville, Duval County, Florida, this 20th day of

March, 1972.

/s/ Major B. Harding

Circuit Judge

A8&

(Caption Omitted in Printing)

ORDER ON MOTION TO DISMISS

The Plaintiff seeks to enjoin the Defendant from pro-

ceeding in certain actions in the courts of Pennsylvania

relative to the property rights of the parties in certain

property allegedly owned by the Plaintiff in the State of

Pennsylvania. The parties were at one time married and

their marriage was dissolved in the Circuit Court in and

for the Eleventh Judicial Circuit, in and for Dade County,

Florida, case number 68-19724.

In the dissolution proceeding the husband, (Plaintiff

here), sought to have property rights of the parties to the

Pennsylvania property litigated and made a part of the

final judgment of dissolution of marriage. These efforts

were resisted by the wife, (Defendant here), and the court,

by order refusing to permit the amendment to pleading for

not being timely filed, permitted and directed the matter to

proceed without an adjudication thereof in the final judg-

ment. Both parties, here and there, were well aware that

failure to adjudicate these property rights in a final judg-

ment dissolving a marriage might bring into effect an

adjudication thereof by operation of law.

In said dissolution action, the undersigned having

rendered said judgment, the Pennsylvania property for

the purposes of the dissolution was conceded to be in the

name of the husband, (Plaintiff here). It was also known

to the court that there was, as alleged in the Plaintiff's

complaint in the instant cause, pending the actions in the

Pennsylvania courts relative to the interests of the parties

therein.

The court, in the dissolution action, did not have the

property rights of the parties to the property in Pennsyl-

vania before it as an issue to be determined by final judg-

ment. Therefore, the final judgment did not adjudicate

those property rights except as they may be adjudicated

by operation of law. The court, upon the evidence, did

AQ

consider the husband assets in determining in alimony and

child support to be paid by the husband.

Inasmuch as the ownership or property rights of the

parties was the subject of actions pending in the Pennsyl-

vania courts at the time of the final judgment of dissolu-

tion of marriage hereinabove referred to, this court does

not deem it appropriate to determine whether said judg-

ment divested the Pennsylvania court of its jurisdiction

or otherwise acted as a bar to further proceedings there.

This court does have jurisdiction over the parties to

determine whether an injunction should lie against the

Defendant for, maliciously, for the purpose of vexing and

harrassing the Plaintiff, prosecuting the actions in the

courts of Pennsylvania and to and for that purpose, the

court finds the Plaintiff's complaint states a cause of action.

Therefore, it is

ORDERED:

1. The Defendant's motion to dismiss the Plaintiff's

complaint is denied.

2. Consistent with the findings hereinabove set forth,

the court, on its own motion, strikes the following from

the Plaintiff's complaint:

a. That portion of paragraph 5 which reads:

“A true copy of Plaintiff's Exhibit 1 filed in evidence,

containing the legal description of the properties in

Philadelphia, Pennsylvania, which were found and

determined in said Final Judgment to be owned by

Plaintiff, Charles Simon, (Plaintiff's Exhibit 1 was

incorporated into the Final Judgment by reference)

is attached hereto and marked Exhibit C.”

b. Paragraph 6.

c. That portion of paragraph 8 which reads:

“which were adjudicated and concluded in the Final

Judgment Dissolving Marriage entered on March 20,

1972, in the Circuit Court of Dade County, Florida.”

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d. Paragraph 10.

e. Paragraph 12.

3. The Defendant shall have 15 days from the date

hereof to file her answer to the Plaintiff's complaint as

amended.

4. The parties shall file the original of all pleadings

with the Clerk of the Court and send copies thereof to the

undersigned.

DONE AND ORDERED in Chambers at Jacksonville,

Duval County, Florida, this 16th day of October, A.D., 1973.

/s/ Major B. Harding

Judge

Copies: Jack D. Burris, Esquire

Attorney for the Plaintiff

420 Lincoln Road

Miami Beach, Florida 33139

Frank, Strelkow & Gay, Esquires

All

IN THE

DISTRICT COURT OF APPEAL

OF FLORIDA

Turrp DISTRICT

January Term, A.D. 1974 Case No. 73-1360

CHARLES SIMON, Appellant

US.

SALLY SIMON, Appellee

Opinion filed April 2, 1974.

An Interlocutory Appeal from the Circuit Court for Dade

County, General Jurisdiction Division, Major B. Hard-

ing, Judge.

Jack D. Burris, for appellant.

Frank, Strelkow & Gay and Richard N. Krinzman, for

appellee.

Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.

PER CURIAM.

Plaintiff-appellant takes this interlocutory appeal to

review an order by which the court on its own motion

struck certain portions from plaintiff's complaint. We

reverse.

On March 20, 1972 the chancellor entered a judgment

dissolving the marriage between the parties. Contained

therein was a specific finding of the court that the parties

owned jointly as tenants by the entireties, the marital

residence and, in addition, that the appellant, ex-husband,

owned a number of properties consisting of improved and

unimproved real estate in Philadelphia, Pa. which was

Al2

stipulated to have a net value in »xcess of $1,000,000 and

from which appellant’s actual income was in excess of

$20,000 after deducting depreciation, a major portion of

which appellant used to provide for his family. Thereupon,

the chancellor ordered that the marital residence be sold

and the proceeds from the sale thereof be divided equally

between the parties, and that appellant pay monthly alli-

mony to the appellee, ex-wife, and monthly child support.

No appeal was taken from this judgment. Subsequent

thereto, plaintiff-appellant filed a complaint in which he

sought an injunction to enjoin his ex-wife, the defendant-

appellee, from prosecuting seven separate actions involv-

ing his real property holdings in the Court of Common

Pleas of Philadelphia County, Pennsylvania. Appellant al-

leged therein that the chancellor in the dissolution judg-

ment made a finding of fact and an adjudication of prop-

erty rights whereby appellant was found and determined

to be the owner of the Philadelphia real property and as a

result thereof, all property rights between him and his

ex-wife finally have been determined and adjudicated:

therefore, defendant-appellee is precluded and barred from

claiming any special equities or other claim with respect

to his Philadelphia real estate. In response thereto, de-

fendant-appellee filed a motion to dismiss which was de-

nied. However, the court on its own motion struck from

the complaint portions of paragraphs 5 and 8 and para-

graphs 6, 10 and 12 in their entirety which alleged that

the final judgment of dissolution constituted a final ad-

judication of the property rights between the parties and

barred any further litigation thereof by the defendant.

Plaintiff appeals therefrom.

The rule is firmly established that as in the case sub

judice where the court has acquired jurisdiction to adjudi-

cate property rights, a final dissolution of marriage judg-

ment settles all property rights of the parties and bars any

action thereafter by either party to determine property

rights. Finston v. Finston, 160 Fla. 935, 37 So.2d 423

— eee

Al3

(1948); Smith v. Bollinger, Fla.App. 1962, 137 So.2d 881;

Jones v. Jones, Fla.App. 1962, 140 So.2d 318; McEachin v.

McEachin, Fla.App. 1963, 154 So.2d 894; Thompson

v. Thompson, Fla.App. 1969, 223 So.2d 95; Henderson v.

Henderson, Fla.App. 1969, 226 So.2d 699; Vandervoort

vy. Vandervoort, Fla.App. 1973, 277 So.2d 43. In addition,

property claims must be put into issue in the dissolution

of marriage action since the doctrine of res judicata is

applicable even where property rights are not put into

issue, if the issue could have been raised. Finston, supra;

Cooper v. Cooper, Fla. 1954, 69 So.2d 881.

After a close reading of the final judgment of disso-

lution, it is clear that the property rights of the parties

conclusively were determined and settled therein. It is

equally clear that the amount of alimony awarded the

defendant-appellee, ex-wife, was predicated upon the

court's finding that appellant owned the Philadelphia prop-

erties and the annual income he derived therefrom. Thus,

we reverse the order striking the portions of appellant's

complaint cited hereinabove and remand the cause for

further proceedings not inconsistent herewith.

It is so ordered.

Al4

(Caption Omitted in Printing)

SUMMARY FINAL JUDGMENT FOR PLAINTIFF

This cause came on to be heard on Motion of Plain-

tiff, CHARLES SIMON, for Summary Final Judgment in the

above case, upon the pleadings filed herein by Plaintiff and

Defendant, the Affidavit of Charles Simon attached to the

Motion, and Exhibits thereto and upon the Opinion and

Order of the District Court of Appeal of Florida, Third

District, which was rendered April 2, 1974, on an Inter-

locutory Appeal taken in this cause, and due consideration

having been had,

The Court finds:

1. That the District Court of Appeal of Florida, Third

District, has specifically ruled and adjudicated that all

property rights of the parties in this cause were conclu-

sively determined and settled in the Final Judgment Dis-

solving Marriage which was entered by this Court on

March 20, 1972. That opinion of the District Court of

Appeal specifically held that the Final Judgment Dissolv-

ing Marriage of the parties, aforesaid, was a bar to the

seven actions described in Plaintiff's complaint, instituted

by Defendant herein, against Plaintiff herein, in the Courts

of the State of Pennsylvania, in which she claimed special

equities and other property rights in the separate property

of the Plaintiff herein, located in that State. The District

Court of Appeal thereupon reversed the Order of this Court

striking portions of the complaint and reinstated the Plain-

tiff's allegation alleging a bar and res judicata and re-

manded this cause for further proceedings not inconsistent

with its order.

2. The affidavit filed in opposition to the Motion for

Summary Judgment is insufficient to be considered by the

Court.

3. The entry of this judgment is consistent with the

Mandate of the Third District Court of Appeal.

oN os Denese

Al5

4. There is no genuine issue as to any material fact in

this cause and Plaintiff is entitled to a judgment as a mat-

ter of law.

WHEREUPON, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff's Motion for Summary Final Judgment be

and it is hereby granted.

2. Defendant, SALLY SIMON, her agents and attorneys,

be and they are individually and severally permanently en-

joined from prosecuting against the Plaintiff, CHARLES

SIMON, any and all actions now pending in the Court of

Common Pleas, Philadelphia County, State of Pennsylva-

nia, or in any other Court of that state or in any other

state, c iming or attempting to claim or assert any special

equity or property interest in the real or personal property

of the Plaintiff, CHARLES SIMON, located in the State of

Pennsylvania, or elsewhere, where such claim is predicated

upon facts or circumstances which existed on or before

March 20, 1972, the date on which the Final Judgment

dissolving the marriage of the parties hereto was entered;

and it is further

3. ORDERED AND ADJuDGED that Defendant, SALLY

Simon, be and she is hereby ordered and directed forth-

with to cause, as to the Plaintiff, CHARLES SIMON, the

dismissal with prejudice of all actions now pending

against him in the Court of Common Pleas of Philadelphia

County, State of Pennsylvania, wherein she is Plaintiff

and wherein she claims or asserts any special equity or

property right in real or personal property, now or here-

tofore owned by Plaintiff, CHARLES Srmon, in the State of

Pennsylvania or elsewhere; and it is further

4. ORDERED AND ADJUDGED that the Defendant, SALLY

SIMON, shall file in this cause and serve upon Plaintiff's

counsel, proof of the dismissal of all actions herein re-

quired to be dismissed by her within 30 days from this

date.

Al6

DONE AND ORDERED at Jacksonville, Duval County,

Florida, this 24th day of October, A.D. 1974.

/s/ Major B. Harding

Circuit Judge

Copies: Jack D. Burris, Esquire

420 Lincoln Road

Miami Beach, Florida 33139

Daniel Neal Heller, Esquire

Suite 1205 Ainsley Building

14 N.E. 1st Avenue

Miami, Florida 33132

ATI me crenata nat OI tl ae a tN move

Al7

IN THE

DISTRICT COURT OF APPZAL

OF FLORIDA

THIRD DISTRICT

July Term, A.D. 1975 Case No. 74-1692

SALLY SIMON, Appellant

US.

CHARLES SIMON, Appellee

Opinion filed July 29, 1975.

An Appeal from the Circuit Court for Dade County,

Major B. Harding, Judge.

Heller & Kaplan, for appellant.

Jack D. Burris, for appellee.

Before PEARSON, HENDRY AND HAVERFIELD, JJ.

PER CURIAM.

The defendant, Sally Simon, appeals a summary final

judgment which enjoined her from proceeding with ac-

tions against her former husband, Charles Simon, in the

courts of the State of Pennsylvania. The trial judge cor-

rectly determined that under the facts before him upon

the pleadings and affidavits submitted and the law of the

case as established in Simon v. Simon, Fla.App. 1974, 293

So.2d 780, the plaintiff was entitled to the injunction

sought.

Affirmed.

Aeplewmby 11,1995

Al8

(Caption Omitted in Printing)

Counsel for appellant having filed in this cause peti-

tion for rehearing, and same having been considered by

the court which determined the cause, it is ordered that

said petition be and it is hereby denied.

A True Copy

ATTEST:

/8/

Clerk, District Court of

Appeal, Third District

cc: Heller & Kaplan

Jack D. Burris

/h

(The Mandate in the Above Styled Cause Has Today Been

Issued and Mailed to the Clerk of the Circuit Court

in and for Dade County, Florida )

ee ae

WV) anr<d 19,199¢

A19

(Caption Omitted in Printing)

This cause having heretofore been submitted to the

Court on Petition for Writ of Certiorari, jurisdictional

briefs and portions of the record deemed necessary to re-

flect jurisdiction under Florida Appellate Rule 4.5 c (6),

and it appearing to the Court that it is without jurisdiction,

it is ordered that the Petition for Writ of Certiorari be and

the same is hereby denied.

Roserts, Acting Chief Justice, Boyp, SUNDBERG and

HATCHETT, JJ., Concur

ADKINS, J., Dissents

A True Copy TC

TEST: cc: 4s.0n. William P. Carter, Clerk

/s/ Sid J. White Hon. Major B. Harding, Judge

Clerk Supreme Court Hon. Richard P. Drinker, Clerk

Lynn Richard Mattaway, Esq.

of HELLER & KAPLAN

Jack D. Burris, Esq.