Petition — Estabrook v. Wise

Supreme Court, U. Ss.

tf FILED

IN THE | FEB 28 j078

Supreme Court of the United States roms 1. cx

OCTOBER TERM, 1977

No. 647-1208

LOUISE ORR ESTABROOK,

Petitioner,

versus

WATSON W. WISE and

PHILLIPS PETROLEUM COMPANY,

a Corporation,

Respondents.

Petition for Writ of Certiorari

to the Supreme Court of Florida

and

the District Court of Appeal,

First District of Florida

Wilmer H. Mitchell and

Lawrence W. Oberhausen of

MITCHELL & OBERHAUSEN, P.A.

130 East Government Street

Pensacola, Florida 32501

Attorneys for Petitioner

i

TABLE OF CONTENTS

Page

Tables:

Constitution and Statutes ..... ii

BOD occ res divccececegesseose ii

Pe ee eee iv

Opinions and Decisions Below ....... 1

PE inccode aadesoneee éeee8 2

POORER PRUOREOS 06s cccccccccnecs 3

Constitutional Provision Involved .. 4

Statement of the Case ...... ....... 4

How the Federal Question Was

| RR Se ES ee er ll

The Federal Question is

Substantial and Important...... 16

SS DO IE | Sik ew ive peccccsecs 23

SE cdc cunae oe coast ctapeaeds 1A-80A

POUOE WE BOUWRGS. oi dec bocce asks dca 26

Note: In this Petition, the reference

to an Arabic numeral followed by

the letter "A" refers to the

page at which a particular

document appears in the Appendix

to this Petition.

ii iii

TABLE OF CONSTITUTIONAL AND Mills v. Duryee, 7 Cranch 481,

STATUTORY PROVISIONS 3 L.Ed. 4 13) 19

Page Morris v. Jones, 67 S.Ct. 451,

Article IV, §1, Constitution 329 U.S. 545, 91 L.Ed. 488, reh.

of the United States 4,17,20 den. 67 S.Ct. 858, 330 U.S. 854,

91 L.Ed. 1296 (1947) 18

28USC § 1257 (3) 3

Article V, $3(b)(3) etter v. Newton, 245 So.2d -

rticle V, . 1LI7T)

of the State of Florida 2 ¥

Pink v. A.A.A. Highway Express,

314 U.S. , 1-2 3

TABLE OF CASES L.Ed. 152 (1939) 22

_ Blakeley v. Herring. 374 S.W. Porter v. Wilson, 419 F.2d

CCA Tex. 1964) 17 254 (9 Cir. 1969), cert. den.

397 U.S. 1020, 90 S.Ct. 1260

Chambers v. Mississippi, 410 (1970) 19

U.S. 284, 93 S.Ct. TEE: (1973) 14 !

Riley v. The New York Trust

Cheever v. Cheever, 9 Wall. 108, o., 315 U.S. 343, 62 S.Ct. 608,

IJ L.Ed. 604 (1869) 20 36 L.Ed. 885 (1942) reh. den.

315 U.S. 829, 62 S.Ct. 903 19

Davis v. Davis, 305 U.S. 32, 59

S.Ct. 3, 83 L.Ed. 26 (1939) 18 Roche v. McDonald, 275 U.S. 449,

4Z8°S.Ct. 142, 72 L.Ed. 365

Grannis v. Ordean, 234 U.S. 385, (1928) 18

34 5.Ct. 779 (1914) 15

Great Northern Ry. Co SIE HO ee Oi 739693 14

: ™ - o We

Sunburst Oil & Ref. Co., 287 Bets : )

U.S. 358, 53 §.Ct. 145 (1932) 15 Sully v. American National

Bank, 178 U.S. 289, 20 S.Ct. “i

Johnson v. Muelberger, 340 nana

U.S. 581, 71 S.Ct. 474, 95 Th on v.

1-2 : Th son, 500

L.Ed. 552 (1951) 22 ' ow od 7 203 UCCh Tex. 1973) 17

Tilt v. Kelsey, 207 U.S. 43,

278 $.Ct. 07) 11,18

iv IN THE

SUPREME COURT OF THE UNITED STATES

Titus v. Wallick, 306 U.S.

282, 59 S.Ct. 557, 83 L.Ed.

653 (1939) 19

Venator v. Venator, 512 S.W. No

Zd 451 (1 DCA Mo. 1974) 17 :

Wallack v. Wallack, 88 S.E.

(Ga. 1955) 12

LOUISE ORR ESTABROOK

Whitfield v. State of Ohio, 297 ’

s. , 56 5.Ct. 532 (1936) 15 piarctta« yee

Williams v. State of North penne

Carolina, 32 o. :

S.Ct. 1092, 89 L.Ed. 1577 (1945), WATSON W. WISE and

=. den. 325 U.S. 895, 65 . PHILLIPS PETROLEUM COMPANY,

.Ct. 1560 21 a Corporation,

Respondents.

TABLE OF OTHER AUTHORITIES

Florida Appellate Rule

4.5c(6) 2 Petition for Writ of Certiorari

to the Supreme Court of Florida

and

the District Court of Appeal,

First District of Florida

OPINIONS AND DECISIONS BELOW

The Final Summary Judgment from the

trial court, the Circuit Court of Santa

Rosa County, Florida, was not reported,

but it is set forth in the Appendix, in-

; fra, pp. 44A to 45A. The decision on the

Appeal from that judgment is reported

under the style Estabrook v. Wise, et al,

348 So.2d 355 (1 DCA Fla. 1977) and set

2

out in the Appendix at 49A to 53A. The

Order of the Supreme Court of Florida

denying Petitioner's Petition for

Certiorari is not yet reported. The

decision is styled Estabrook v. Wise

(Case No. 52, 380, decided November 30,

are? and is set out in the Appendix at

JURISDICTION

The grounds on which the jurisdiction

of this Court is invoked are as follows:

The District Court of Appeal, First

District of Florida filed and entered

its decision July 11, 1977 adverse to the

Petitioner's Appeal of the Summary Final

Judgment by the trial court and denied

the Petition for Rehearing by its Order

filed and entered August 5 1977 (59A).

This decision denied Petitioner's appeal

of right to the highest court of the

State of Florida having jurisdiction of

such appeal.

Petitioner sought a Writ of Certior-

ari from the Supreme Court of Florida to

the First District Court of Appeal which

is a discretionary writ permitted under

Article 5, Section 3(b)(3) of the Consti-

tution of Florida, and Florida Appellate

Rule 4.5C.(6), limited to a consideration

of whether the decision of the District

Court of Appeal conflicted with prior

decisions of the Supreme Court of Florida

or District Courts of Appeal of Florida.

The Supreme Court of Florida denied the

Petition for Certiorari by its Order

3

entered and filed on November 30, 1977.

(644A) There is no provision under the

Florida Rules for a Petition for Re-

hearing on such an Order. Thus Petitioner

has exhausted all avenues of appellate

review permitted in Florida.

The statutory provision of the United

States conferring jurisdiction on this

Court to entertain this Petition for

Writ of Certiorari is 28 USC, Section 1257

(3) which provides this Court with author-

ity under certain circumstances to review

a final judgment or decree of the highest

court of a state in which a decision could

be had where the judgment turns upon a

substantial federal question.

QUESTION PRESENTED

Stated generally the question pre-

sented is whether the courts of Florida

failed to give full faith and credit to

the laws of Texas and a judgment of a

Texas court.

More specifically the question pre-

sented is whether, in spite of the full

faith and credit provisions of the United

States Constitution, the courts of Florida

can refuse to permit a Texas resident to

enforce rights in Florida realty obtained

under the marriage laws of Texas, pre-

served by an agreement in a Texas divorce,

and recognized in a Texas divorce judgment,

on the ground that the Texas divorce

proceeding is res judicata and a bar to a

subsequent suit in Florida to enforce

such rights.

4

CONSTITUTIONAL PROVISION INVOLVED

The provision of the United States

Constitution involved in the case is

the first sentence of Article IV,

Section 1:

“Full faith and credit shall

be given in each State to the

public acts, records, and ju-

dicial proceedings of every

other State."

STATEMENT OF THE CASE

The Petitioner, Louise Orr Estabrook,

sued her former husband, Watson W. Wise,

in the Circuit Court of Santa Rosa County,

Florida to establish resulting or con-

structive trusts in mineral interests in

various counties in the State of Florida

including Santa Rosa County. The Pet-

itioner and her former aia for all

relevant times, have been residents of the

State of Texas, a community property state.

Phillips Petroleum Company was joined

as a Defendant to set aside, reform or

cancel a lease from Defendant Wise to

Phillips dated December 8, 1970, relating

to one of the mineral interests.

The premise of Petitioner's suit was

that the mineral interests were acquired

in her former husband's sole name with

community funds during marriage, and that

a trust arose in her favor either at the

time of acquisition in the 1940's (a re-

sulting trust) or that the Defendant con-

cealed the interest (a constructive trust)

at the time the Texas divorce commenced

SLM OG PL

OE

we

5

in 1964 and beyond its conclusion in 1965.

Phillips was sued under allegations

that it was not an innocent purchaser in

that it knew of the Plaintiff's interests

and participated in the concealment of

such interests when it took its 1970

lease.

Plaintiff's laint is set out at

1A through 11A and the Amendment to

Complaint (emphasizing fraud on the

Plaintiff and the Texas Court perpetrated

by Mr. Wise in the Texas divorce pro-

ceeding) is set out at 27A - 33A.

Mr. Wise (15A - 19A; 21A - 24A) and

Phillips (11A - 15A; 26A - 27A) filed

Answers and Amendments to Answers denying

that the property was acquired with

community funds and asserting seven affirn-

ative defenses each. Some defenses were

withdrawn, some were replaced and ten were

still before the trial court when it

ruled on the motions for summary judg-

ment. For an explanation of each de-

fense and the adjustments to the plead-

ing see 70A - 714A.

For the purposes of this Petition,

only Mr. Wise's Affirmative Defense

er 6 need be considered. In that

defense he pleaded the prior Texas divorce

judgment as a bar (21A - 24A) and that was

the specific holding of the court (49A -

53A).

6

The case was before the trial court,

the Circuit Court of Santa Rosa County,

Florida, on Defendants' general Motions

for Summary Judgment (42A - 444A).

On December 19, 1975, the trial court

entered a Summary Final Judgment for the

Defendents, Wise and Phillips, (44A -

45A). In this judgment the trial court

found that there was no genuine issue of

fact and that the Defendants were entitl-

ed to final judgment as a matter of law.

No specific grounds for the judgment were

stated.

Petitioner moved for rehearing, (45 A

- 47A), asserting factual and legal

grounds in opposition to the summary

judgment and noting that the judgment made

no specific findings and did not specify

upon which of the ten defenses it was

based. The Motion for Rehearing also

requested that the judgment be reopened

to clarify the grounds for the decision.

On December 31, 1975, the trial court

denied the Motion for Rehearing without

permitting further oral argument still

without stating a specific ground for the

Final Summary Judgment (47A - 484A).

The Plaintiff timely filed an

appeal to the intermediate appellate

court, the District Court of Appeal,

First District of Florida, thereby

prosecuting her appeal of right to

the highest appellate court of

Florida.

The First District Court of Appeal

of Florida handed down its decision July

11, 1977 denying the appeal of Petitioner,

(49A - 53A). This opinion clearly stated

7

that Petitioner was barred from proceeding

in Florida because of the prior Texas

divorce which was found to be res judicata.

In the Court's words, "We hold that the :

doctrine of res adjudicata (sic) controls.

Watson W. Wise and the Petitioner were

married in 1930. They were then and re-

mained thereafter residents of the State of

Texas. For many years Mr. Wise had been

involved in various aspects of the oil

business. The mineral interests involved

in the suit were acquired in the years 1945

and 1946 in several Fiorida counties. Title

was taken in the sole name of Watson W. Wise.

In 1964 the Petitioner instituted a

divorce action against Watson W. Wise in

the Court of Domestic Relations of Smith

County, Texas (Case No. 64-480). In

that proceeding the wife sought a temporary

restraining order against Mr. Wise and on

July 6, 1964 Mr. Wise was restrained

" ..from secreting, removing or destroying...

any records of the parties relating to

property and assets of the parties (37A -

41A). Further, the Texas Court found,

that the temporary restraining order was

necessary because,

" .. Defendant would probably do

irrevocable injury and damage

to the interests of the Plaintiff

in such property and records of

Plaintiff and Defendant, and will

probably secrete, destroy and re-

move same from the jurisdiction

of this Court or beyond the reach

of the Plaintiff ...

8

It is further ordered ... that

said Defendant, Watson W. Wise,

shall file with the Clerk... a

complete inventory and app-

raisement, under oath, of all

property in his possession or

under his control, wherever

located and claimed by the Def-

endant, whether he considers the

same as part of the community

estate, or otherwise..."' (40A).

Mr. Wise on August 6, 1964 filed his

sworn "complete inventory" pursuant to the

above order, but that inventory failed to

include any of the property sued for by

Mrs. Estabrook in her instant Florida

action. The affidavit portion of that in-

ventory (35A - 37A) and admissions in the

record (34A - 35A) established that none

of the property sued for was included in

the inventory in spite of the court

order so requiring.

On May 18, 1965, the Petitioner and

her former husband entered into an agree-

ment in the Texas proceeding covering the

settlement of various property rights and

the preservation of rights with reference

to undisclosed property. This agreement

was recorded in Official Record Book 644 at

Page 538 of the Official Records of the

Court of Domestic Relations of Smith County,

Texas (9A - 11A). The pertinent part of the

agreement provided,

. and no issue regarding conm-

munity property or accounting

a

¢

of community funds is to be sub-

mitted to the Court and all such

issues are to be withdrawn from

the pleadings. The Judgment to

be entered shall state that the

Court is making no adjudication of

property rights between the parties.

In this connection, if it should

hereafter appear that either party

desires to claim that some comm-

unity property has not been di-

vided, he or she shall be free to

do so and shall be entitled to

pursue his or her rights and re-

medies thereto. (9A, emphasis

added).

On May 25, 1965 a valid Final Judgment

of Divorce was entered by the Court of

Domestic Relations of Smith County, ae:

(23A - 24A).. The Judgment recognized+ the

terms of the agreement of the parties in

this language:

"The Court finds that all issues

as to the existence or dispostion

of community pouperty rights or

other property r gate, have, by

the amended pleadings filed here-

in, been withdrawn and eliminated

from this cause; and the Court is

not called upon to adjudicate any

1 ‘The Florida First District opinion

stated, "The final judgment of divorce

was entered by the Texas court on May 25,

1965, incorporating the terms of the .

property settlement between the parties.

(51A)

10

property right issues or any prop-

erty or money accounting issues

between said arties as no such

issues remain in this cause.”

, emphasis adde

In 1970 Mr. Wise leased a valuable

Florida interest to Phillips. Phillips

conceded during the pre-trial conference

that it was not an innocent purchaser with-

out notice of Petitioner's potential in-

terest. (See paragraph 3 of the pre-trial

order, 80A).

Mrs. Estabrook testified that at the

time of the divorce in 1965, she had no

knowledge that these interests were retained.

Neither Phillips nor her former husband

revealed these interests to her at any time,

and she learned from third parties in March

of 1972 that these interests existed in her

husband's name and that she had a potential

interest since they had not been included

in the divorce inventory or settlement.

Mrs. Estabrook promptly loyed counsel who

contacted Phillips in April of 1972 and

filed a suit in Texas on September 1,

1972. That suit was appealed when the

Defendants successfully challenged the jur-

isdiction of the Texas court to make a de-

termination of Florida mineral interests

and accordingly Mrs. Estabrook instituted

the instant Florida proceedings in January

of 1974. Ultimately, the Texas suit was

dismissed while pending on appeal by agree-

ment of the parties who preferred to proceed

in Florida where the jurisdiction of the

court was not in question, and where Phillips

was a proper party defendant.

ll

Although the agr2ement between the

parties in the Texas divorce specifically

reserved their rights to pursue rights in

any after-discovered property, and although

the Texas decree recognized the agreement

of the parties and removed adjudication

of property rights from the Texas divorce,

and although uncontested Texas statutory

and case law permits parties to a Texas

divorce action to preserve rights and

pursue them subsequent to the divorce

(74A - 75A), the Florida courts refused to

permit this Petitioner to have any remedy,

much less a trial in Florida, barring her

on the ground that the prior Texas divorce

was res judicata to her present action.

HOW THE FEDERAL QUESTION WAS RAISED

When the court of - — =

ly upon the effect of a ju nt o

pant lig faith and credit is basic to

that ruling. That is almost self evident.

Tilt v. Kelsey, 207 U.S. 43, 28 S.Ct. l,

(1907) stands for the proposition that if

the pleadings present an issue which re-

quires one state to rule on a judicial act

of another, the full faith and credit issue

is adequately raised whether the issue is

constitutionally labelled or not. In that

case this Court said:

"They ‘specially set up and

claimed’ a right under those

proceedings, though it was

not in terms stated to be a

right claimed under the Con-

stitution. This, in the case

of a judgment of the court

of another state, has been

held to be a sufficient

12

compliance with the statute."

(at 207 U.S. 51; 28 S.Ct. 3;

citing cases.) .

This pleading also raised an issue to

be determined under the laws of Texas in-

cluding the Texas law that a divorce does

not bar a subsequent action for unadjud-

icated try Wallack v. Wallack, 88

S.E.2d 154 (Ga., 1955) is directly on

point.

The Florida appellate court acknow-

ledged the Texas law giving rights to

Mrs. Estabrook and directly ruled upon the

effect of the Texas divorce decree. That

was the first time a Florida court specified

a ground for its holding, and in immediate

response Mrs. Estabrook filed her petition

for rehearing (53A - 58A) reasserting her

rights under Texas law and the Texas divorce

and arguing that the Florida courts were

required to give "full faith and credit" to

the judgment of a sister state (58A). This

labelled the issue which was already un-

avoidably before the court.

It should be remembered that the

Defendant Wise in his Affirmative

Defense No. 6, first asserted the prior

Texas divorce decree as a bar. Mrs. Estabrook,

pursuant to the notice pleading provisions

of the Florida Rules of Civil Procedure,

simply filed her general denial of this

Affirmative Defense (25A). Under such a

denial she would have been entitled to prove

any defense or avoidance of the affirmative

defense at a trial on the merits should that

stage have been reached. Her denial nec-

essarily put in issue the full faith and

credit to be given the Texas judgment.

a ne!

13

The trial judge granted Summary Final

Judgment without specifying which of the

ten grounds of defense he relied upon.

No specification was made in spite of the

Petitioner's timely motion to have the

grounds stated.

In her Florida appeal, the Petitioner

assigned as error the entry of the Final

Summary Judgment, 48A, an pes ebgee: assign-

ment of error considering the non-specific

nature of that judgment.

In her brief on aeeee* Mrs. Estabrook

again set forth and relied upon the

settlement agreement reached with her former

husband and the Texas Final Judgment of

Divorce (65A - 66A). Mrs. Estabrook also

set out in her brief her reliance upon

the general community property law of

Texas to support her claim. (69A - 70A).

In her Reply Brief to the First

District Court of Appeal, Mrs. Estabrook

responded to a claim that the Texas decree

barred her action by correctly arguing

that the Texas decree should not be given

greater impact in Florida than it would

receive in Texas. She also cited Texas

statutes and cases permitting a divorced

person to litigate property rights sub-

sequent to the divorce suit. (73A - 79A)

Thus Petitioner asserted in her plead-

ings initially and reiterated on her appeal

her rights under the law of Texas, nec-

pol placing the issue of full faith

and credit to be given the Texas law and

the a of the Texas court before the

trial and appellate courts of Florida.

14

The opinion of the First District

Court of Appeal was the first specific

ruling by a Florida court on an identified

ground of defense, and that opinion held

directly that the action was barred by

res judicata because of the prior Texas

divorce. That decision unavoidably

determined the faith and credit to be

given the Texas judgment.

Mrs. Estabrook's timely Petition for

Rehearing directed to that opinion specif-

ically contested the applicability of the

doctrine of res judicata because "... it

attempts to accord the Texas divorce decree

more weight than it would be given in the

State of Texas." and because "... Texas

law provides that the parties to a divorce

proceeding may litigate their rights to

community property subsequent to their

divorce.'' Petitioner also cited a case

from the Second District of Florida

which "... recognized the doctrine of res

adjudicata as appropriate to the judgment

of a sister state and that such judgments

were entitled to full faith and credit.",

a reference to the familiar provision of

the United States Constitution. (See

Petition for Rehearing 53A - A.)

The raising of a constitutional issue

does not have to be done in any particular

form of words, but the only requirement is

that the issue be brought to the attention

of the state court with fair precision in

due time, and if the record as a whole

shows this was done expressly or by clear

intendment, the claim is adequately raised.

Street v. New York, 394 U.S. 576, 89 $.Ce.

1354 (1969); cf. Chambers v. Mississippi,

410 U.S. 284, 93 5.Ct. 1038 (T1973).

15

There is ample authority from this

Court for the position that the issue is

timely raised if raised and considered on

appeal. Whitfield v. State of Ohio, 297

U.S. 431, 56 5.Ct. 532 (1936); Sully v.

American National Bank, 178 U.S. .

-Ut. ‘

There is even authority for raising the

issue on a petition for rehearing on appeal

where that is the first stage when the

question reasonably could have been specif-

ically raised, and where the state court

considered the matter. Great Northern

Ry Co. v. Sunburst Oil & Ref. Co., Z87 U.S.

, 53 S.Ct. 145, (1932): Grannis v. Ordean,

234 U.S. 385, 34 S.Ct. 779 (ISIS). Peti-

tioner's petition for rehearing to the

District Court of Appeal was ‘'considered"

but denied.

Upon denial of the Petition for Re-

hearing, Petitioner, under limited Florida

constitutional authorization for certior-

ari to the Supreme Court, petitioned that

court for such a writ (60A - 63A): Peti-

tioner was required to show that the deci-

sion of the First District of Appeal con-

flicted with prior decisions of Florida

appellate courts or the Florida Supreme

Court. Petitioner therefore argued that

the decision conflicts with other Florida

cases, including "... Newton v. Newton, 245

So.2d 45 (Fla. f97i) which recognized that

divorce decrees of sister states are en-

titled to full faith and credit under the

United States Constitution Section l,

Article IV." (624A)

16

The issue of Petitioner's consti-

tutional rights to the protection of her

interests arising under Texas law and the

Texas decree was made at every stage of the

case. The issue framed by the assertion of

the Texas decree as a defense inherently

involved a determination of the faith and

credit to be given that decree whether

so labelled or not. The specific point

was timely urged at the first feasible

stage of the proceedings, when the Florida

appellate court specified which of the

several defenses its decision was based

upon. Thus the federal question was

raised and preserved.

THE FEDERAL QUESTION

IS SUBSTANTIAL AND IMPORTANT

This writ should be granted since the

Florida courts have decided a federal ques-

tion of substance in a way not in accord

with the applicable decisions of this court.

The decision that the Texas divorce decree

is res judicata in Florida denies Petitioner

her constitutional right to have the Texas

divorce decree and her rights under the

laws of Texas given full faith and credit

in Florida.

The First District Court of Appeal of

Florida, in its opinion, recognized that

Petitioner had continuing rights under

Texas law saying:

"The Texas court has jurisdiction

pursuant to the agreement of the

17

parties which was incorporated in its

1965 divorce decree for the parties

to further ‘pursue his or her rights

or remedies thereto.' " (52A)

This part of the opinion is in complete

accord with Petitioner's position on Texas

law that a divorce decree which does not

purport to dispose of all community prop-

erty interests does not prevent a party

from later claiming a commmity property

interest in some asset not specifically

disposed of by the parties or by the

divorce decree. (See, among those cases

cited to mor gg 699 Cota Tee 964)

Herring, 374 S.W. ex. .

son v. Th son, 500 S.W. 2d 203

(CCK Tex. i973)

Nonetheless, the Florida courts held

that the Texas divorce decree was res judi-

cata and prohibits Mrs. Estabrook from

seeking to establish her community property

interests in the Florida property which is

the subject of this litigation. The deci-

sions of the Florida courts conflict with

prior decisions of this court protecting

the constitutional rights of citizens to

have full faith and credit given to decrees

and laws of sister states.

Article IV, Section I of the Constitu-

tion affords full faith and credit to di-

vorce decrees. Venator v. Venator, 512 S.

W. 2d 451 (1 DCA Mo. 1974). Im Fact a sig-

nificant ete of the cases decided by

this Court in application of the full faith

and credit clause involve divorce decrees,

and many cases cited hereafter fall in that

catagory.

The Constitution requires that a state

give not some but full faith and credit to

18

decrees of other states. Davis v. Davis,

305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26 (1939).

The full faith and credit to which a

judgment is entitled is the credit in the

state from which it was taken, not the

credit that under other circumstances and

conditions it might have had. (See Morris

v. Jones, 67 S.Ct. 451, 329 U.S. 545, SI L.

Ed., 488, reh. den. 67 S.Ct. 858, 330 U.S.

854, 91 L.Ed. 1296.). This rule applies

even though the foreign judgment offends

the public policy of the local sovereign

and even though the claim would not be en-

forceable in the forum. Roche v. McDonald,

11928) 449, 48 S.Ct. 142, 7Z L.Ed. 365

One of the clearest statements of the

duty of a state court to give full faith

and credit to the judgment of a sister

state was set forth in Tilt v. Kelsey,

supra:

“When therefore we come to consider

what faith and credit must be given

to these judicial proceedings of New

Jersey (the foreign decree), we must

first ascertain what effect that state

attached to them. The statute enacted

to carry into effect the constitutional

provision provided that they should

have, in any court within the United

States, such faith and credit ‘as they

have by law or usage in the courts of

the state from which they are taken. '

... They can have no greater or less

or other effect in other courts than

in those of their own state." (207

U.S. at 57, 28 S.Ct. at 6.)

The limited role of the forum state in

giving full faith and credit to a foreign

19

decree was described by Justice Story in

Mills v. Duryee, 7 Cranch 481, 3 L.Ed. 411

CI8TI3) :

"It remains only there to inquire in

every case what is the effect of a

judgment in the state where it is

rendered." (7 Cranch at 484, 3 L.Ed.

at 413.)

Furthermore, the decision under review

raises a federal question of substantial

public importance as this court has pre-

viously held in Titus v. Wallick, 306 U.S.

282, 59 S.Ct. 557, 83 L.Ed. 653 (1939) .

Also this substautial federal question is

reviewable by this court on certiorari. In

Riley v. The New York Trust Co., 315 U.S.

343, 62 S.Ct. " .Ed. (1942),

reh. den. 315 U.S. 829, 62 S.Ct., 903,

this court stated:

“By the Constitutional provision for

full faith and credit, the local doc-

trines of res judicata, speakin

generally, become a part of national

jurisprudence, and therefore federal

questions cognizable here." (315 U.S.

at 349, 62 S.Ct. at 612.)

Furthermore, the only remedy for an

erroneous denial of full faith and credit

is by petition for certiorari to this

court. (See Porter v. Wilson, 419 F.2d

254 (9 Cir. 1969), cert. den. 397 U.S.

1020 90 S.Ct. 1260 (1970).)

Thus Petitioner asserts that a sub-

stantial federal eyo of public in-

portance is raised by this Petition which

is the sole basis for relief from the

erroneous decisions of the Florida courts.

20

The decision by the Florida courts

sought to be reviewed, refusing to give the

Texas decree the same force and effect it

would have in that state, violates not only

petitioner's constitutional guarantees under

Article IV, Section 1 of the Constitution,

but also conflicts with our federal system

of jurisprudence. The Texas court in the

divorce action had personal jurisdiction of

the parties. The Florida courts in this

proceeding had both jurisdiction of the par-

ties and in rem jurisdiction over the real

property in which Mrs. Estabrook sought to

establish a community property interest.

Petitioner did not slate that the Texas di-

vorce decree automatically affected the

title to Florida real property or esta-

blished interests superior to that of a bona

fide purchaser without notice of her claim

but rather sought to establish a resulting

trust in that property arising out of her

communnity property rights. Texas has a

legitimate interest in establishing and

protecting the property rights of its domi-

ciliaries arising out of their marital

status, and Florida has a constitutional

obligation to respect and protect those

rights.

This court in Cheever vy. Wilscn, 9

Wall. 108, 19 L.Ed. 604 (1869) considered

the effect of an Indiana judgment where

that court had personal jurisdiction of

the parties in a divorce suit, but where

the decree established property rights of

the parties to property located in the

District of Columbia. In that proceeding

the court concluded:

"The decree rendered in Ttndiana, so

far as it related to the real property

in question, could have no extra-

territorial effect; but, if valid, it

21

bound personally those who were par-

ties in the case, and could have been

enforced in the situs rei, by the

proper proceedings conducted there

for that purpose." (Citations omitted)

(9 Wall. at 121, 19 L.Ed. at 607).

That rule applies in this action and

Mr. Wise is personally bound by the Texas

divorce decree and his agreement entered

therein preserving Mrs. Estabrook's right

to establish a community property interest

in this Florida real estate. Florida was

obligated to protect her rights, and having

refused to do so, this Court is her only

resort.

The implications of the challenged

Florida decision, if allowed to stand, are

of broad and substantial importance. Since

it is domicile which empowers a court to

dissolve a marriage (Williams v. State of

North Carolina, 325 U.S. 226, 65 5.Ct.

; Ed. 1577, reh. den. 325 U.S.

895, 65 S.Ct. 1560), domiciliaries of com-

minity property states, such as Texas, must

sue for divorce in that state. However, if

they are unaware of assets located in

Florida and therefore do not dispose of

them in the divorce, Florida will refuse

to protect those rights although (1) they

agreed in writing to split their causes of

action for divorce and settlement of some

property rights; (2) they specifically

preserved the right to pursue after-dis-

covered property; (3) they removed adjudi-

cation of all property rights from the

divorce; (4) the judgment incorporated

the terms of their agreement; (5) the com-

munity property laws of their domicile per-

mitted all these acts; (6) they had no

knowledge of the existence of these inter-

ests; and even though (7) one spouse

22

fraudulently concealed the disputed

interests from the other and the court.

The Florida court's refusal to en-

force rights created by and judgments

rendered by sister states defeats the pur-

pose of the full faith and credit clause

and system of federal jurisprudence which

is to meld independent states into a

nation in which all citizen's rights

arising under state laws and judicial pro-

ceedings will be respected and enforced in

sister states. Johnson v. Muelberger, 340

U.S. 581, 71 S.Ct. 474, 95 L.Ed. ay

(1951); Pink v. A.A.A. Highway Express,

314 U.S. 201, 62 S.Ct. sof Be Ld 152

(1939).

This Court should issue its Writ of

Certiorari to protect the valuable prop-

erty rights of Petitioner and all other

similarly situated residents of community

property states who, in reality, have no

other way of obtaining relief from the

erroneous Florida holding.

Respectfully submitted,

er

ws W. Oberhausen

Attorneys for Petitioner

MITCHELL & OBERHAUSEN, P. A.

130 East Government Street

Pensacola, Florida 32501

904/434-3571

- 6 NP ew ey 0 wee

ee

23

APPENDIX

Omissions of irrelevant material are

indicated in this Appendix by three

asterisks, "* * *"", and a bracketed

insert follows each omission explaining

the omission.

The case style of the case is set out

fully in the Complaint and omitted there-

after except as to orders and decisions

which are shown verbatin.

Certificates of Service are omitted,

but the date of service are shown paren-

thetically.

INDEX TO APPENDIX:

1. Complaint 1A - 11A

Exhibit "A" thereto - agreement between

Watson Wise and Louise Orr Wise dated

May 18, 1965 9A - LIA

2. Answer and Affirmative llA - 15A

Defenses of Defendant,

Phillips Petroleum Company

3. Answer and Affirmative 15A - 19A

Defenses of Defendant,

Watson W. Wise

4. Plaintiff's Reply to . 20A - 21A

Affirmative Defenses

5. Amendment to Answer, 21A - 22A

Wise, Sixth and Seventh

Affirmative Defenses; Texas judgment

24

6. Final Judgment, Texas

divorce

7. Reply to Additional

Affirmative Defenses

8. Amendment of Defendant

Phillips Petroleum Company,

Substituted Third and Fourth

Affirmative Defenses

9. Amendment to Complaint

and Reply to Additional

Affirmative Defenses

10. Resubmission of Request

For Admissions to Watson W.

Wise

ll. Affidavit re: Inventory

in Texas divorce

12. Temporary Restraining

Order, Texas divorce

13. Answer to Resubmission

of Request for Admissions

14. Motion for Summary

Judgment, Wise

15. Motion for Summary

Judgment, Phillips

16. Final Summary Judgment

17. Motion for Rehearing,

trial court

18. Order denying motion

for rehearing, trial court

23A

25A

26A

27A

34A

35A

37A

41A

42A

43A

44A

45A

47A

24A

27A

33A

35A

37A

41A

42A

43A

44A

45A

47A

48A

PUY FO A ne -

25

19. Assignments of Error

20. Decision and Opinion

of District Court of Appeal -

First District

21. Petition for Rehearing to

First District, Extracts

including Texas authorities

22. Order Denying Petition

for rehearing

23. Petition for Writ of

Certiorari to Supreme Court

of Florida, Extracts

24. Denial of Certiorari,

Supreme Court of Florida

25. Brief of Mrs. Estabrook

to First District, Extracts

26. Reply Brief of Mrs.

Estabrook to First District,

Extracts

27. Extract from trial

court's pretrial order

48A

49A - 53A

53A - 58A

59A

60A - 63A

64A

65A - 71A

71A - 79A

79A - 80A

26

PROOF OF SERVICE

All parties required to served

with the above Petition and Appendix have

been served. Three copies were personally

delivered to W. Spencer Mitchem, Beggs &

Lane, 700 Brent Building, Pensacola,

Florida 32501, Attorney for Watson W. Wise,

February 27, 1978 and three copies were

mailed by regular U.S. mail, postage pre-

paid to William F. McGowan, Jr., Carlton,

Fields, Ward, Emmanuel, Smith & Cutler,

Post Office Box 3239, Tampa, Florida 33601,

mailed February 27, 1978. Forty copies

were hand delivered to the Clerk of this

Court and filed before midnight February 28

1978.

The undersigned is a member of the

bar of this Court and has entered his

appearance in the cause.

mer H. te

Of Counsel for Petitioner

ee

<a

1A

IN THE CIRCUIT COURT

IN AND FOR SANTA ROSA COUNTY, FLORIDA

LOUISE ORR ESTABROOK,

Plaintiff, : COMPLAINT

: Case No.

e 74-C-53

WATSON W. WISE and :

PHILLIPS PETROLEUM COMPANY,

a Corporation,

Defendants.

Comes now the Plaintiff, LOUISE ORR

ESTABROOK, by her undersigned attorneys,

and makes this her Complaint against the

Defendants, WATSON W. WISE and PHILLIPS

PETROLEUM COMPANY, a corporation, and says:

COUNT I

(Against Watson W. Wise)

1. That the Plaintiff and Defendant,

Watson W. Wise, are both natural persons

over the age of Twenty-one (21, years and

residents of Tyler, Smith County, Texas.

Phillips Petroleum Company, sometimes

referred to hereafter as "Phillips", is

a corporation chartered under the laws

of Oklahoma, qualified to do business in

the State of Florida which maintains an

office in Santa Rosa County, Florida.

2A

2. This 4s a suit to impose a re-

sulting trust in favor of the Plaintiff in

mineral rights and other interests in cer-

tain Florida'real property presently in

the name of the Defendant, Watson W. Wise,

a portion of which has purportedly been

leased to Phillips Petroleum Company.

In addition or in the alternative, the

Plaintiff seeks to have her title to one-

half (1/2) interest in the mineral and

other rights confirmed, to have such

title conveyed to her, to set aside the

purported lease to Phillips, or in the

alternative to have her declared a one-

half (1/2) owner of the lessor's rights

under the Phillips lease, and in the

alternative for damages against the

Defendants and for general relief. The

amount in controversy exceeds the minimm

jurisdictional requirements of this Court.

3. The Florida properties in question

are in several counties of Florida as

outlined below, and a major portion of

said properties lies in Santa Rosa County,

Florida.

4. On May 21, 1930, Louise Orr

Estabrook and Watson W. Wise were duly and

legally married in Fort Worth, Texas. They

lived together thereafter as husband and

wife until the summer of 1964, when they

separated. On July 6, 1964, the Plaintiff,

then known as "Louise Orr Wise", filed her

petition for divorce in the Court of

Domestic Relations, Smith County, Texas,

being Case No. 64-480. Valid personal ser-

vice was obtained upon Watson W. Wise in

such action and he was represented by

counsel therein.

——

3A

5. During the course of their

marriage, Louise Orr Estabrook and Watson

W. Wise had accumulated a substantial

amount of community property, the State of

Texas being at all times relevent hereto

a community property state. During the

pendency of the said suit the identity and

division of community assets was a matter

of some dispute between the parties, and

on August 6, 1964, pursuant to an order of

the Court of Domestic Relations of Smith

County, Texas, Watson W. Wise filed in said

cause a sworn inventory and partial

appraisal, sworn to be a “complete in-

ventory" of all property that Watson W.

Wise owned at that time, whether of a com-

munity nature or claimed as the separate

property of Watson W. Wise. None of the

mineral rights or other interests sued for

in this cause were listed in said inventory.

6. That during the course of the sub-

ject divorce proceedings, Plaintiff and

Defendant, Watson W. Wise, from time to

time divided various items of community

property and finally entered into an agree-

ment in writing, dated May 18, 1965, a

copy of which is attached hereto as Exhibit

"A" and made a part hereof for all purposes,

whereby they and their attorneys repre-

sented to one another that all of the com-

munity property known to them had been

disclosed and divided; that any issue con-

cerning a division of the community pro-

perty was to be withdrawn from the con-

sideration of the Court and providing

additionally as follows:

"In this connection, if it should

aA

hereafter appear that either

party desires to claim that

some community property has not

been divided, he or she shall be

free to do so and shall be en-

titled to pursue his or her rights

and remedies thereto."

The Plaintiff and Watson W. Wise were

divorced by a Judgment entered in the said

cause May 25, 1965.

7. That on or about March 2, 1972,

Plaintiff was contacted by certain persons

in the oil and gas industry seeking to

lease various eral interests in the

properties hereinafter described for oil

and gas development who advised Plaintiff

that mineral and other interests in said

property had been acquired by the De-

fendant, Watson W. Wise, in Florida durin

the years 1944 to 1946 and in the State o

Alabama during the same period, all of

which interests were acquired while

Plaintiff was duly and legally married to

the Defendant.

8. The existence of the subject

interests was never mentioned or dis-

closed during the aforementioned divorce

proceeding, nor were they listed and

described in the sworn inventory filed by

the Defendant in said divorce proceeding

and that it was only upon being contacted

with reference to leasing the same that

Plaintiff discovered that such interests

had been acquired during her marriage to

Defendant, Watson W. Wise.

er te Ee ae a ee

RO eR RS REET ae GP aEP nares cnet

5A

9. Specifically, Plaintiff alleges

that all of the interests in lands in

various counties in the State of Florida

described in this paragraph were —

with the community funds of Plaintiff,

Louise Orr Estabrook and Defendant, Watson

W. Wise, during their marriage and that

each conveyance of the properties named

only the Defendant, Watson W. Wise, as

the sole grantee. The interests are un-

divided mineral rights, mineral deeds or

warranty deeds in the following described

real property:

In the following parcel descriptions, N =

North, S = South, E = East and W = West.

PARCEL 1

In Santa Rosa County, Florida,

to-wit:

TOWNSHIP 4 NORTH, RANGE 29 WEST

Section ll: W 1/2 SE 1/4

* * *

[Omitted are lengthy legal descriptions

of property in Santa Rosa, Walton,

Okaloosa and Holmes counties in Florida]

10. That said purchases made during

the marriage were presumptively from the

community funds of Plaintiff and her

former husband, Watson W. Wise.

11. That although the State of

Florida has not adopted the community

6A

property system and the subject pro-

perty hereinabove referred to is not

community in character under the laws

of the State of Florida, nevertheless the

properties were acquired by the Defendant,

Watson W. Wise, and taken in his name as

the sole grantee with the use of community

funds, one-half (1/2) of which belonged to

the Plaintiff, and that under the law of

Florida a resulting trust arose at the time

of the acquisition of such title and De-

fendant, Watson W. Wise, thereupon became

a resulting trustee for the ocmmunity es-

tate of Plaintiff and Defendant, with

Plaintiff being the beneficial owner of an

undivided one-half thereof.

12. That the aforementioned interests

in real property in the State of Florida

were never accounted for on the termination

of the marriage between Plaintiff and

Defendant, Watson W. Wise, and that al-

though Plaintiff has demanded a conveyance

of her interests in such property after

the discovery of the existence of the

same, the Defendant, Watson W. Wise, has

failed and refused to make such convey-

ances and in fact, Plaintiff has dis-

covered that Defendant is claiming the

same as his sole and separate property.

WHEREFORE, under Count I the

Plaintiff prays for relief against the

Defendant, Watson W. Wise by decree of

this court establishing that Defendant,

Watson W. Wise holds one-half (1/2) of

his interests in the above Florida lands

as a trustee under a resulting trust for

the benefit of the Plaintiff; that should

personal service be obtained on said

Defendant, he be ordered to convey to the

TR pee

7A

Plaintiff her said interests so estab-

lished or that the decree of this court

effect such conveyance; and in the al-

ternative, should some or all of said

interests have been conveyed away or lost

to the Plaintiff, that a judgment for

money damages be awarded Plaintiff against

the Defendant, Watson W. Wise, and also for

a judgment for damages for Plaintiff's

share of any rents, bonuses or royalties

received by Defendant, Watson W. Wise,

which rightfully were the property of the

Plaintiff, and the Plaintiff prays for such

other and general relief as may be necess-

ary in the premises and for such interest

and costs of court as may be due her, and

for a jury trial of all issues so triable.

COUNT II

(Against Phillips Petroleum Company)

13. Plaintiff realleges the matters

and things contained in Count I.

14. On or about December 8, 1970,

the Defendant, Watson W. Wise, joined by

his present wife, Emma F. Wise, executed

and delivered a lease of mineral interests

to Phillips Petroleum Company, covering

the following described tracts of land in

Santa Rosa County, Florida:

TOWNSHIP 2 NORTH, RANGE 28 WEST

Section 16: SE 17% NE 1/74

* -_ *

[Lengthy legal description omitted]

8A

_ Said lease is recorded in Official Records

Book 221 at page 14 of the public records

of Santa Rosa County, Florida.

15. At the time of the execution of

said lease the Defendant, Phillips Petrol-

eum ore gd had actual or legal owledge

or should have known, of the rights of the

Plaintiff in said interests leased. None-

theless, the said lease was made solely

for the benefit of Defendant, Watson W.

Wise, and in his name.

16. The Plaintiff has the right

either to have the lease declared void, or

to be declared the beneficial owner of one-

half (1/2) interest in the lease, or for

damages against the Defendants for any pay-

nents made or to be made, and any other

damages incurred by Plaintiff as a result

of said lease.

WHEREFORE, Plaintiff prays for a

judgment and decree of this court cancell-

ing and declaring void the said Phillips

lease, or ol / the Plaintiff to be the

owner of one-half (1/2) interest in said

lease, and requiring appropriate convey-

ances from Defendants to Plaintiff of her

said interests, or that such conveyances

be made by the decree of this court, or for

damages, including interest and costs

against the Defendants, and for a jury

trial of all issues so triable.

HOLSBERRY, EMMANUEL, SHEPPARD

MITCHELL & CONDON

34 West Government Street

Post Office Box 1271

Pensacola, Florida 32596

Attorneys for Plaintiff

9A

NO. 64-480

LOUISE ORR WISE ) Book 644 Page 538

)In The Court of Domestic

Vv. ) Relations In And For

) Smith County, Texas

WATSON W. WISE )

This AGREEMENT made and entered into

by and between WATSON W. WISE and LOUISE

ORR WISE this the 18th day of May, A.D.,

1965;

WITNESS ETH:

It is hereby represented by Watson W.

Wise to Louise Orr Wise and her attorney,

W.F. Weeks, that all community property of

every kind and character, heretofore ex-

isting to the marriage of the said Watson

W. Wise and Louise Orr Wise, known to Wat-

son W. Wise has been partitioned by writ-

ten agreements heretofore executed, and no

issue regarding community property or ac-

counting of community funds is to be sub-

mitted to the Court and all such issues

are to be withdrawn from the pleadings.

The Judgment to be entered shall state

that the Court is making no adjudication

of property rights between the parties. In

this connection, if it should hereafter

pear that either party desires to claim

t some community property has not been

divided, he or she shall be entitled to

pursue his or her rights and remedies

thereto. Louise Orr Wise, Plaintiff, and

Watson W. Wise, Defendant, the parties

hereto, now assert that they have no

actual knowledge at this time of any com-

munity property existing to said marriage

which now remains undivided.

Exhibit "A"

10A

W.F. Weeks, Attorney for Plaintiff,

and Jack W. Flock, Attorney for Defendant,

assert that they have no actual knowledge

at this time of any community property

existing to the marriage of the said Watson

W. Wise and Louise Orr Wise which now re-

mains undivided.

s/ Louise Orr Wise

s/ Watson W. Wise

s/ W.F. Weeks

s/ Jack W. Flock

STATE OF TEXAS )

COUNTY OF SMITH )

BEFORE ME, the undersigned authority

on this day personally appeared LOUISE ORR

WISE, wife of WATSON W. WISE, know to me to

be the person whose name is subscribed to

the foregoing instrument, and having been

examined by me privly and apart from her

husband, and having it full explained to

her, she, LOUISE ORR WISE, acknowledged such

instrument to be her act and deed, and she

declared that she had willingly signed it

for the purposes and consideration therein

EXHIBIT "A"

1L1A

expressed, and that she did not wish to

retract it.

GIVEN UNDER MY HAND AND SEAL OF

OFFICE, this 18 day of May, 1965.

s/ Edgar A. Turman

otary Public in and

for Smith County, Texas

STATE OF TEXAS )

COUNTY OF SMITH )

BEFORE ME, the undersigned authority,

on this day personally appeared WATSON W.

WISE, known to me to be the person whose

name is subscribed to the foregoing in-

strument, and acknowledged to me that he

executed it for the purposes and consider-

ation therein expressed.

GIVEN UNDER MY HAND AND SEAL OF

OFFICE, this 18 day of May, 1965.

s/ Edgar A. Turman

Notary Public in and

for Smith County, Texas

IN THE CIRCUIT COURT IN AND FOR

SANTA ROSA COUNTY, STATE OF FLORIDA

***

[Case style omitted]

MOTION TO STRIKE, ANSWER, AND AFFIRMATIVE

DEFENSES OF DEFENDANT,

PHILLIPS PETROLEUM COMPANY

** *

[Motion to Strike omitted]

12A

ANSWER

For its answer to the portion of the

complaint directed against it (Count II),

Defendant, Phillips Petroleum Company,

says as follows:

1. Admits the allegation of paragraph

l of the complaint insofar as that para-

raph states that the Plaintiff and De-

endant, Watson W. Wise, are both natural

persons over the age of 21 years, that

defendant, Phillips Petroleum Company, is

a corporation chartered under the laws of

the State of Oklahoma and is qualified to

do business in the State of Florida. De-

fendant denies that it maintains an office

in Santa Rosa County, Florida, and states

that it is without knowledge sufficient

to form a belief as to the truth of the

remaining allegations of paragraph 1.

2. Admits that a portion of the min-

eral rights has been leased to defendant,

but defendant denies that a resulting

trust can be imposed on a portion of the

minerals so leased or that facts have

been alleged to allow these to be set

aside. Otherwise denied.

3. Admits each and every allegation

of paragraph 3.

4. Defendant is without knowledge of

the allegations of paragraph 4, except

that defendant admits that Plaintiff and

Watson W. Wise were married in 1939 and

were subsequently separated and divorced.

13A

5. Defendant is without knowledge or

information sufficient to form a belief as

to the truth of the allegations of para-

graph 5.

6. Defendant is without knowledge or

information sufficient to form a belief as

to the trust of the allegations of paragraph

6, except defendant admits a final divorce

was granted to the parties in 1965.

7. Defendant is without knowledge or

information sufficient to form a belief as

to the truth of the allegations of para-

graph 7.

8. Defendant is without knowledge or

information sufficient to form a belief as

to the truth of the allegations of para-

graph 8.

9. Admits that each conveyance of the

minerals named only Watson W. Wise as the

sole grantee. Defendant denies that the

mineral interest which it has leased was

obtained with “community funds." Defendant

is without knowledge as to all other factual

allegations of paragraph 9.

10. Defendant denies the allegations of

paragraph 10.

11. Admits that the subject property is

not community property under Florida law,

and defendant denies all remaining allega-

tions of paragraph 11.

12. Defendant is without knowledge or

information sufficient to form a belief as

14A

to the truth of the allegations of para-

graph 12.

13. See paragraphs numbered 1-12.

14. Admits each and every allegation of

paragraph 14.

15. Denies each and every allegation of

paragraph 15 of the complaint, except that

defendant admits that its lease was made

with the record title owner, Watson W.

Wise.

16. Denies each and every allegation of

paragraph 16.

*k*x**

[Affirmative Defenses 1, 2 and 5 were with-

drawn and 3 and 4 were withdrawn and replaced,

hence all are omitted. ]

SIXTH AFFIRMATIVE DEFENSE

Plaintiff is barred from recovering any

interest in the property described in the

complaint in that she bases her claim for

relief upon a community property agreement

made and entered into in the State of Texas

and upon the community property law of

Texas, which have no effect in Florida or

upon real property located in Florida.

SEVENTH AFFIRMATIVE DEFENSE

Plaintiff is barred from recovering

any interest in the minerals leased to

15A

defendant since the minerals leased were

not purchased in 1945 with the “community

funds" of Watson W. Wise and Louise Orr

Wise and were always the separate prop-

erty of Watson W. Wise under the community

property laws of the State of Texas.

s/ John Peter Kirtz, Jr.

ariton, Fields, Ward,

Emmanuel, Smith & Cutler

P. A.

Post Office Box 12426

Pensacola, Florida 32582

Attorneys for Phillips

Petroleum Company

(Served February 26, 1974)

IN THE CIRCUIT COURT OF

SANTA ROSA COUNTY, FLORIDA

k*k*k

[Case style omitted]

MOTION TO STRIKE, ANSWER, AND AFFIRMATIVE

DEFENSES OF DEFENDANT, WATSON W. WISE

kk

[Motion to Strike omitted]

ANSWER

Subject to his motion to strike, as

stated ve, defendant Watson W. Wise,

answers the portion of the complaint

directed against him (Count I), saying as

follows:

COUNT I

1. Defendant admits that he is a

natural person over the age of twenty-one

years, and a resident of Tyler, Smith

County, Texas.

16A

2. Defendant admits that a portion of

the mineral rights have been leased to

Phillips Petroleum any, but denies that

a resulting trust can be imposed on the

minerals described in the complaint or that

facts have been alleged to allow the leases

described to be set aside. All other alle-

gations of Paragraph 2 are denied.

3. Admitted.

4. Defendant admits that he was duly

and legally married to Louise Orr Estabrook

on May 21, 1930, and that she filed a peti-

tion for divorce against him on July 6, 1964,

in Smith County, Texas; all other allegations

of Paragraph 4 are denied.

5. Defendant admits that at the time of

his divorce from Louise Orr Estabrook, cer-

tain of the property held jointly by them

was divided between them, all other allega-

tions of Paragraph 5 are denied.

6. Defendant admits that at the time

of the termination of his marriage to Louise

Orr Estabrook, certain of the mage 4 held

jointly by them was divided between t ;

all — allegations of Paragraph 6 are

denied.

7. Defendant is without knowledge or

information sufficient to form a belief as

to the truth of the allegations of Para-

graph 7 of the complaint and therefore denies

the same.

8. Denied.

17A

9. Defendant admits that each conveyance

of the minerals named only this defendant,

Watson M. Wise, as the sole grantee. This

defendant denies that the mineral interests

which are described in the complaint were ob-

tained by him with "commmity funds". This

defendant is without knowledge as to the

—— allegations of Paragraph 9 and there-

fore denies the same.

10. Denied.

11. Defendant admits that the subject

poses is not community property under the

aw of the State of Florida; and denies all

remaining allegations of Paragraph 11.

12. Defendant admits that he has not at

any time conveyed the property described in

the complaint to Louise Orr Estabrook; denies

that the said property was at any time con-

munity property and further denies all

remaining allegations of Paragraph 12 of the

complaint.

COUNT II

13. See this defendant's answers to

Paragraphs 1 through 12 of the complaint.

14. Admitted.

15. Defendant is without knowledge as to

the allegations of Paragraph 15 and there-

fore denies the same.

16. Denied.

18A

FIRST AFFIRMATIVE DEFENSE

Defendant Wise alleges that the plaintiff

had knowledge of his ownership, as separate

property, of the property described in the con-

plaint during the years 1964, 1965 and prior

thereto, and that this action is barred by

applicable statutes of limitation, and that

each alleged cause of action, claim or lien

did not accrue within the time prescribed by

law for them prior to the commencement of this

action.

SECOND AFFIRMATIVE DEFENSE

Defendant alleges that each alleged

cause of action, claim or lien has lapsed

because the plaintiff has been guilty of

laches in that twenty-nine years have elapsed

since the mineral conveyances and nine years

since the divorce decree; during all of which

time the plaintiff had knowledge of the owner-

ship of che minerals described in the complaint

as the separate property of Watson W. Wise; and

that rights have now accrued to innocent,

intervening and bona fide purchasers who had no

actual or implied notice of any claim of the

plaintiff to said minerals and that this de-

fendant has further changed his position in

regard to said minerals so that it is, at this

time, inequitable and unjust for plaintiff to

assert any rights thereto.

kk *

(Withdrawn, hence omitted]

19A

FOURTH AFFIRMATIVE DEFENSE

Plaintiff is barred from recovering any

interest in the property described in the con-

plaint because the same was not purchased with

‘community funds" of Watson W. Wise and Louise

Orr Wise and was always the separate property

of Watson W. Wise under the community property

laws of the State of Texas.

FIFTH AFFIRMATIVE DEFENSE

Plaintiff is barred from recovering any

interest in the property described in the com-

plaint in that she bases her claim for relief

upon a community perry agreement made and

entered into in the State of Texas and upon

the community property law of Texas, which

have no effect in Florida or upon real

property located in Florida.

I hereby certify that a copy of the fore-

going was furnished by delivery to Wilmer

H. Mitchell, Esquire, of Holsberry,

Emmanuel , yweng «pre Mitchell & Condon,

Attorneys for Plaintiff, 34 West Govern-

ment Street, Pensacola, Florida, and apes

John Peter Kirtz, Jr., of Carlton, Fields,

Ward, Emmanuel, Smith & Cutler, Attorneys

20A

for Phillips Petroleum Company, 2 North

Palafox Street, Pensacola, Florida, this

4th day of March, 1974.

s/ W. Spencer Mitchem

Be sé, Lane Denle! Caines

& Davis

700 Brent Annex Building

Pensacola, Florida

Attorneys for Defendant,

Watson W. Wise

IN THE CIRCUIT COURT OF

SANTA ROSA COUNTY, FLORIDA

kk *

[Case style omitted]

REPLY TO AFFIRMATIVE DEFENSES

The Plaintiff files this her reply to

the affirmative defenses of the Defendants

as follows:

A. As to the affirmative defenses of

Defendant WATSON W. WISE, they are:

1. First affirmative defense denied.

. Second affirmative defense denied.

. Third affirmative defense denied.

. Fourth affirmative defense denied.

. Fifth affirmative defense denied.

A & Wher

B. As to the affirmative defenses of

Defendant PHILLIPS PETROLEUM COMPANY, they

are:

21A

First affirmative defense denied.

Second affirmative defense denied.

Third affirmative defense denied.

Fourth affirmative defense denied.

. Fifth affirmative defense denied.

Sixth affirmative defense denied.

Seventh affirmative defense denied.

(Served May 22, 1974)

NMAUL WHF

'g/ Wilmer H. Mitchell

HOLSBERRY, EMMANUEL,

SHEPPARD, MITCHELL &

CONDON

34 West Government St.

P. O. Crawer 1271

Pensacola, Florida

Attorneys for Plaintiff

IN THE CIRCUIT COURT OF

SANTA ROSA COUNTY, FLORIDA

k*k*

[Case style omitted]

AMENDMENT TO ANSWER

Comes now defendant, Watson W. Wise,

and amends his motion to strike, answer and

affirmative defenses, as filed herein on

March 4, 1974, to add the following affir-

mative defenses.

SIXTH AFFIRMATIVE DEFENSE

That this action is barred by virtue of

22A

the final decree of divorce entered in the

Court of Domestic Relations in and for

Smith County, Texas, in that certain case

bearing No. 64-480 in which Louise Orr

Wise, now Louise Orr Estabrook, was the

plaintiff and Watson W. Wise, defendant,

copy of which final judgment is attached

hereto, marked Exhibit "A" and by this

reference made a part hereof.

SEVENTH AFFIRMATIVE DEFENSE

That any interest of plaintiff

Louise Orr Estabrook in the property

which is the subject matter of this liti-

gation is limited to one-half of the value

of said property either (a) at the time

said property was purchased by defendant

Watson W. Wise; or (b) at the time of the

entry of the final decree of divorce between

the said Louise Orr Wise and Watson W. Wise

on May 25, 1965, plus interest on said amount

as provided by law.

(Served August 26, 1975)

s/ W. Spencer Mitchem

Beggs, Lane, Daniel, Gaines,

& Davis

Post Office Box 32950

Pensacola, Florida

Attorneys for said

defendant

23A

IN THE COURT OF DOMESTIC RELATIONS

SMITH COUNTY, TEXAS

LOUISE ORR WISE )

Vs.

WATSON W. WISE No. 64-480

JUDGMENT

On this May 25, 1965, the above-

entitled and numbered cause came on regularly

for trial. The Plaintiff appeared in person

and by her attorney, and the Defendant, having

filed an Answer herein, appeared through his

attorney of record. The parties announced

ready for trial and, no jury being demanded,

the cause was submitted to the Court.

The Court, after hearing the evidence

and considering the law of the case, finds

that the Plaintiff, Louise Orr Wise, is

entitled to an absolute divorce from the

Defendant, Watson W. Wise, and to have the

bonds of matrimony heretofore existing

between them dissolved.

The Court finds that ail issues as to

the existence or disposition of commmity

roperty rights, or other property rights,

ve, by the amended plead filed herein,

been withdrawn and eliminated from this

cause; and the Court is not called upon to

adjudicate any property right issues or any

property or money accounting issues between

said parties as no such issues remain in this

cause. The only issue remaining in this cause

24A

is the issue of whether the Plaintiff

should be granted an absolute divorce from

the Defendant.

The Court finds that the children of

Plaintiff and Defendant have attained their

seniority and are of adult age.

It is, therefore, ordered, adjudged

and agreed that Plaintiff, Louise Orr

Wise, is hereby granted an absolute divorce

from the Defendant, Watson W. Wise, on the

grounds of cruel and excessive treatment

of such a nature as to render their fur-

ther living together insupportable, and

the bonds of matrimony existing between

them are hereby, in all things, dissolved.

All costs of suit are hereby ae

against the Defendant, Watson W. Wise, for

which the officers of this Court may have

their execution.

s/ Craven Beard

udge

APPROVED :

s/ W. F. Weeks

Attorney for

Plaintiff

APPROVED as to form:

s/ Jack W. Flock

Attorney for

Defendant

Exhibit "A"

25A

IN THE CIRCUIT COURT

FOR SANTA ROSA COUNTY, FLORIDA

k*k*

[Case style omitted]

CASE NO. 74-C-53

REPLY TO ADDITIONAL

AFFIRMATIVE DEFENSES

The Plaintiff replies to the

affirmative defenses served by the

Defendant Watson W. Wise August 26, 1975,

and says:

1. The sixth affirmative defense is

denied.

2. The seventh affirmative defense

is denied.

(Served September 29, 1975)

s/ Wilmer H. Mitchell

ast Government St.

Pensacola, Florida 32501

Attorney for Plaintiff

26A

IN THE CIRCUIT COURT FOR

SANTA ROSA COUNTY, FLORIDA

kk * }

[Case style omitted]

MOTION OF DEFENDANT PHILLIPS PETROLEUM 4

COMPANY TO AMEND THIRD AND FOURTH

AFFIRMATIVE DEFENSES

kk *

[Motion to Amend was granted and is omitted]

THIRD AFFIRMATIVE DEFENSE

Plaintiff has been guilty of laches in

that twenty-nine (29) years have elapsed

since the divorce decree, during the passage

of which time numerous key witnesses have

died, many material socuments have been

destroyed or lost, and this defendant has

relied to its detriment upon the record

title of the codefendant, Watson W. Wise, in

purchasing the interests which are the sub-

ject of this action.

FOURTH AFFIRMATIVE DEFENSE

Plaintiff is estopped to deny the val-

idity of the oil, gas and mineral leasehold

interests covering the minerals described

in par. 14 of the Complaint because of her

rights to the subject property, because of

the negligence of the plaintiff and her

representatives in failing to ascertain at

the time of her divorce proceedings the

identity of all property interests of 3

defendant Watson W. Wise in which plaintiff

27A

might claim an interest, and because of

the intervening rights of defendant

Phillips Petroleum Company resulting from

defendant Phillips detrimental reliance

upon the record title of defendant Wise,

which detrimental reliance would not have

occured but for plaintiff's delay and

negligence.

CARLTON, FIELDS, WARD,

EMMANUEL, SMITH &

CUTLER, P. A.

P. 0. Box 3239

Tampa, Florida 33601

Attorneys for Phillips

Petroleum Co.

By s/ William S. McGowan,

Je.

(Served November 10, 1975)

IN THE CIRCUIT COURT IN AND FOR

SANTA ROSA COUNTY, FLORIDA

*k**?

[Case style omitted]

AMENDMENT TO COMPLAINT AND REPLY

TO ADDITIONAL AFFIRMATIVE DEFENSES

Comes now he Plaintiff, Louise Orr

Estabrook, by her undersigned attorneys

and amends her complaint as set forth

28A

below and replies to substitute affirmative

defenses 3 and 4 of Phillips Petroleum

Company and says:

The aempeanns of the Plaintiff is

amended so that the prayer for relief

under Count II thereof is amended to

read as follows:

“WHEREFORE, plaintiff prays for a judg-

ment and decree of this Court cancell .

declaring void and/or reforming the sai

Phillips lease as to the interest of the

Plaintiff in the property so leased, or

in the alternative adjudging the Plaintiff

to be the owner of one-half interest in

said lease; and further for a judgment

requiring appropriate conveyances from

the Defendants to the Plaintiff of her

said interest, or that such conveyances

be made by decree of this Court, and for

a judgment for such damages as may be

due the Plaintiff from the Defendants,

and for an order of this Court requiring

all monies held or which may be held for

the rightful owner of the interests in

this suit by the Defendants or their

representatives or agents to be paid

forthwith to the Plaintiff with interest

as allowed by law, or in the alternative

for a judgment for damages for such monies

and interest."

Plaintiff further amends her com-

plaint to add Count III as follows:

29A

COUNT III

(Against Watson W. Wise and

Phillips Petroleum Company )

17. The Plaintiff realleges the

matters and things contained in Counts I

and II except insofar as said allegations

may conflict with the allegations of this

Count, in which event the allegations of

a in the alternative to Counts I

an :

18. This is a suit to ose a con-

structive trust in favor of the Plaintiff

and to set aside, cancel or reform a

lease to Phillips of the mineral rights

and other interests in certain Florida

real property described above presently in

the name of the Defendants or either of

them. The amount in controversy exceeds

the minimm jurisdictional requirements

of this Court.

19. During the pendency of the Texas

divorce between the Plaintiff and the

Defendant, Watson W. Wise, the said

Defendant did intentionally, willfully

and fraudently conceal from the Plaintiff

and her attorney the fact that he had title

in his own name to the interests in Florida

minerals and realty described above and

that such properties were community proper-

ty of the Plaintiff and Watson W. Wise.

Said fraudulent concealment was perpe-

trated by Watson W. Wise upon the Plaintiff

throughout the said divorce and said de-

fendant falsely swore to a "complete"

inventory of all property in his name

whether of a community nature or claimed

30A

as separate property. The inventory

is further described in paragraph 5 of

this complaint, and said inventory failed

to include any of the mineral rights or

other interests sued for in this cause.

After filing the said inventory and at all

relevant times thereafter, said Watson W.

Wise knowingly concealed and willfully

failed to disclose to the Plaintiff the

interests sued for in this cause although

he knew or had reason to know: (a) that

Plaintiff had a valid interest now dis-

closed or divided in the Texas divorce;

and (b) that same should have been divided

therein.

20. That Defendant, Watson W. Wise,

willfully concealed and failed to disclose

to the Plaintiff the said interests sued for

in this cause at the time Plaintiff and

Watson W. Wise were engaged in their divorce

action and at the time the final decree of

divorce was entered, when said Defendant,

Watson W. Wise, knew or should have known

that the disclosure of such interests

would have caused the Plaintiff to be

accorded her fair rights in such interests.

21. That Defendant, Watson W. Wise,

continued willfully and fraudulently to

conceal the interests sued for in this

cause from the Plaintiff after their

divorce and even after Phillips Petroleum

Company began negotiating with Watson W.

Wise to lease a portion of said interests

from him. At no time did the Defendant

Wise apprise the Plaintiff of the exis-

tence of the aforesaid interests or of the

—*

= ry

31A

fact that Phillips sought to lease a por-

tion thareof although Defendant Wise well

knew that his sworn "complete" inventory

filed pursuant to court order in the Texas

divorce had not included the interest

Phillips sought to lease nor had it in-

cluded the other interests sued for herein.

In fact, the Defendant Wise on December 8,

1970, attempted to lease an entire interest

in his name to Phillips without in any way

advising the Plaintiff of the facts afore-

said.

22. That at all relevant times before,

during and after the negotiation and exe-

cution of the lease of December 8, 1970,

between the Defendant, Watson W. Wise, and

the Defendant, Phillips Petroleum Company,

the latter Defendant had actual and legal

knowledge of the rights or potential rights

of the Plaintiff in the said interests

leased, and further Phillips Petroleum

Company knew that Watson W. Wise had not

revealed these Florida assets to the

Plaintiff in the divorce proceeding or

at any time thereafter. In spite of its

pee, and ability to inquire of the

Plaintiff, Phillips Petroleum Company

made no inquiry of the Plaintiff as to her

actual or potential interests and, in fact,

participated in the concealment of these

assets from the Plaintiff so as to further

its own interests by acquiring a lease from

Watson W. Wise. Specifically, Phillips

Petroleum Company was aware that the sworn

inventory filed by the Defendant, Watson

W. Wise, in the aforesaid divorce pro-

ceeding failed to disclose the Florida

324

interests sued for herein although such

inventory was filed pursuant to order of

court and although such inventory was

required to list all properties whether i

thought to be owned by the community or

separately by the Defendant, Watson W. 4

Wise.

23. Because of the acts of the De-

fendant, Watson W. Wise, aforesaid, and

particularly those alleged which occurred

in the years 1964, 1965 and 1970, a con-

structive trust in favor of the Plaintiff

arose and was imposed upon the properties

sued for herein.

24. The Defendant, Phillips Petroleum

Company, prior to December 8, 1970, became

aware of the facts of concealment and fraud

alleged above perpetrated by the Defendant

Watson W. Wise, and thereafter participated

in said concealment and fraud to further

its interests and to the detriment of the

Plaintiff, so that the Plaintiff's rights

are superior to any rights of Phillips

Petroleum Company in the mineral rights

leased to Phillips by Watson W. Wise.

25. The Plaintiff had no knowledge that

the assets involved in this suit were in

the name of the Defendant, Watson W. Wise,

at the time of and during the pendency of

her divorce from Watson W. Wise, and there-

after until 1972 when she became aware of

said interests and promptly sought to en-

force her claim thereto. ‘2

WHEREFORE, the Plaintiff prays for a y

judgment and decree of this Court imposing ;

33A

a constructive trust upon all the interests

sued for in this cause and cancelling, de-

claring void and/or reforming the aforesaid

lease of Phillips Petroleum Company of

December 8, 1970, so as to render said lease

void and inoperative as to the rightful

interest of the Plaintiff in the property

covered by said lease; and further Plaintiff

prays for an order requiring appropriate

conveyances from the Defendants to the Plain-

tiff of her said interests, or that such con-

veyances be made by order of this Court; and

further Plaintiff prays for damages against

said Defendants for all such monies as may

be due her from the Defendants under the

allegations of this count including interest

and costs.

ANSWER TO NEW AFFIRMATIVE DEFENSES

OF PHILLIPS PETROLEUM COMPANY

The Plaintiff answers the substituted

affirmative defenses of Phillips Petroleum

Company numbers 3 and 4 as follows:

Affirmative defense number 3 is denied.

Affirmative defense number 4 is denied.

The Plaintiff prays that said affirma-

tive defenses be dismissed.

et Wilmer H. Mitchell

130 East Government Street

Pensacola, Florida 32501

(Served December 4, 1975)

I i i

34A 35A

IN THE CIRCUIT COURT OF attached hereto as Exhibit "C". [Exhibit "C"

SANTA ROSA COUNTY, FLORIDA is omitted since it is shown as Exhibit "A"

| to the Complaint. ]}

k*k* if

[Case style omitted] 7. That during negotiation for and at

4 the time of execution of the said agreement,

RESUBMISSION OF REQUEST FOR Exhibit "C", you were represented by coun-

ADMISSIONS TO WATSON W. WISE sel.

The Plaintiff resubmits Request for 8. That the settlement agreement be-

Admissions 3, 4, 5, 6, 7, 8, and 9 pre- tween you and your former wife, Exhibit "C",

viously submitted August 1, 1974, appar- has never been altered, amended, cancelled

ently without attached exhibits, and or rescinded.

requires the Defendant, Watson W. Wise to

admit the truth of the following within 9. That you and the Plaintiff were

thirty (30) days after the service of divorced by a judgment entered in the

this resubmission: above described divorce case May 25, 1965,

and that a true and correct copy of the

3, That the attached Exhibit "A" is - said final judgment of divorce is attached

a true and complete copy of the sworn in- hereto as Exhibit "D".

ventory and appraisal made by you and

filed in the above described divorce (Served December 23, 1974)

action August 6, 1964, pursuant to an order

of the Court of Domestic Relations of Smith s/ Wilmer H. Mitchell

County, Texas dated July 6, 1964. HOLSBERRY, EMMANUEL,

SHEPPARD, MITCHELL &

4. That a true and complete copy of CONDON

the said order of July 6, 1964, is attached 34 West Government Street

hereto as Exhibit "B". Pensacola, Florida 32506

ATTORNEYS FOR PLAINTIFF

5. That your said inventory and ap-

praisal listed none of the assets sued for AFFIDAVIT

in the case at bar, although you had title

to such interests at the time you swore to THE STATE OF TEXAS )

the completeness of the inventory.

i? COUNTY OF SMITH )

6. That you agreed to and executed

the agreement dated May 18, 1965, referred ay BEFORE ME, the undersigned authority

to in paragraph 6 of the Complaint and in and for said County and State, on this

36A

day personally appeared WATSON W. WISE,

who being by me duly sworn on his oath

says:

That affiant is the Defendant in

Cause No. 64-480, Louise Orr Wise vs.

Watson W. Wise, in the Court of Domestic

Relations of Smith County, Texas.

That, insofar as Defendant knows and

believes, the hereto attachment and papers

contained within this file is a complete

inventory and partial appraisement of all

property in his possession or under his

control, a part of which property is owned

by the Plaintiff and the Defendant as their

community property and the remainin part

of such property is owned by the Sallendene

and his sister as their separate property,

and that in instances in which values are

placed on certain of the properties, such

values are correct in the good faith opin-

ion of the Defendant.

s/ Watson W. Wise

SWORN TO AND SUBSCRIBED before me, the

undersigned authority, by the said WATSON

W. WISE, on this the 6th day of August,

1964, to certify which witness my hand

and seal of office.

s/ Vera Birdwell

FILED

Exhibit "A"

ee ee

f

Pel)

37A

August 6, 1974

Philip L. Dibert, Clerk

Court of Domestic Relations

Smith Co., Tex.

***

The lengthy inventory attached to this

Setidaet’ rr omitted. It did not include

any of the Florida interests which are the

subject of the instant suit. ]

Exhibit "A"

IN THE COURT OF DOMESTIC RELATIONS

SMITH COUNTY, TEXAS

LOUISE ORR WISE ) FILED July 6, 1964

Philip L. Dibert

Clerk, Court of

Domestic Reiations,

Smith Co., Tex.

No. 64-480

TEMPORARY RESTRAINING ORDER

On this the 6th day of July, A. D.,

1964, came on to be heard the application

and Petition of Plaintiff, LOUISE ORR WISE

for: (1) an inventory and appraisement of

the community and other property of the

parties in the hands or under the control

of Defendant, WATSON W. WISE: (2) temporary

alimony during the pendency of this cause;

Exhibit "B"

)

vs.

WATSON W. WISE i+)

38A

and (3) for an injunction and restraining

order against the said Defendant, enjoining

and restraining Defendant from certain acts;

and it appearing to the Court from the facts

stated in Plaintiff's verified Petition that

the following temporary restraining order

respecting the property and records and par-

ties hereto is necessary and equitable and

that the Plaintiff is entitled to a tem-

porary restraining order and that immediate

and irrevocable and irreparable injuries,

loss, or damage will result to the Plain-

tiff before notice can be served and hearing

had hereon by reason of the fact that it is

made to appear by the pleadings by the

Plaintiff filed herein that the community

property and records of the parties is in

danger of being secreted, destroyed, or

removed beyond the jurisdiction of this

Court, or beyond the reach of Plaintiff,

by Defendant:

IT IS ACCORDINGLY ORDERED, ADJUDGED

AND DECREED by the Court that the clerk

of this court issue a temporary restraining

order operative immediately until and

— the hearing below ordered, re-

straining Defendant, WATSON W. WISE, from

(1) interfering in any manner with Plain-

tiff's exclusive possession and use of the

home at 2001 S. Chilton Street, Tyler,

Texas; and (2) from secreting, removing or

destroying any of the following: Any bank

statement, checks or deposit slips ori-

ginating during the marriage now in his

possession or under his control; any copies

Exhibit "B"

39A

of income tax returns (State or Federal);

work sheets or other instruments supporting

same originating since the marriage,

whether in his possession or the possession

of his accountant, agent or other employee;

any stocks, bonds or other securities in

the possession of Defendant, or under his

control or claimed by him; any cash, notes

or other evidence of indebtedness owned or

claimed by him; and the Court being of the

opinion that it is ong 4 for the pres-

ervation of Plaintiff's rights that De-

fendant be required to make an inventory

and appraisement of said community and

other property mentioned in Plaintiff's

verified petition; and it further appearing

to the Court that unless the temporary re-

straining order set forth hereinabove be

granted and issued, Defendant would prob-

ably do irrevocable injury and damage to

the interests of Plaintiff in such proper-

ty and records of Plaintiff and Defendant,

and will probably secrete, destroy, or

remove same from the jurisdiction of this

Court or beyond the reach of Plaintiff;

IT IS THEREFORE, THE FURTHER ORDER

OF THIS COURT that the Clerk of this

Court issue an order commanding said De-

fendant to appear before the judge of

this Court sitting in the Courtroom of

and for the Court of Domestic Relations

in the County Courthouse of Smith County,

in Tyler, Texas on the 13th day of July,

1964 at 2:00 o'clock P.M., to show cause,

if any he has, why the injunction in the

Exhibit "B"

40A

terms of said temporary restraining order

shall not be granted upon such petition,

effective until final decree herein and

further, ordering Defendant to obey the

temporary restraining order herein granted

until the further order of this Court.

IT IS THE FURTHER ORDER of this Court

that the above mentioned show cause order

shall quote this FIAT and shall be accon-

panied by a true and correct and certified

copy of the above and foregoing Plaintiff's

Original Petition.

It appearing to the Court that this is

a divorce proceeding and suit and as autho-

rized by law, no bond shall be required of

the Plaintiff, and Defendant shall be bound

hereby from the moment of actual notice to

him, whether served with process or not.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED by this Court that the said De-

fendant, WATSON W. WISE, shall file with

the Clerk of this Court, in this cause

within 30 days from the date this Order is

served upon him, a complete inventory and

appraisement, under oath, of all property

in his possession or under his control,

wherever located, and claimed by defendant,

whether he considers same as part of the

community estate, or otherwise, and that

the value placed on same be according to

Defendant's good faith opinion.

IT IS FURTHER ORDERED that the Ap-

plication of Plaintiff for temporary

alimony during the pendency of this suit

Exhibit "B"

41A

as contained in her said verified petition,

be heard by and before this Court at the

same time and place hereinabove fixed for

hearing her Application for temporary in-

junction hereinabove set out.

Done this the 6th day of July, A.D.,

1964, at 3:35 o'clock P.M. in Tyler, Smith

County, Texas.

s/ Craven Beard

udge

Exhibit "B"

IN THE CIRCUIT COURT OF

SANTA ROSA COUNTY, FLORIDA

kk *

[Case style omitted]

ANSWER TO RESUBMISSION OF

REQUEST FOR ADMISSIONS

Defendant Watson W. Wise answers plain-

tiff's resubmission of request for admissions

as follows:

(3) Defendant admits that he executed

the instrument shown in the request as

Exhibit "A"; defendant is unable to say

whether or not said Exhibit "A" is complete

or contains all of the property contained in

the document filed on August 6, 1964 and

further states that said affidavit and the

property listed therein was not compiled by

this defendant.

43A

42A

pi and moves the Court to enter a summary

equente’ 06 42 ee ee gee . judgment in his favor in this matter on

ah andi of Sire Te = 77 the grounds that the pleadings, depositions,

7 Me . interrogatories and exhibits admitted in

this cause show that there is no issue of

f | ee admits that a portion material fact and that said defendant is

re) e interest here in question was titled entitled to summary judgment as a matter

in his name in July of 1964, a further por- fl sid

otoe - titled in his name as trustee and re

all of said property was held for the bene-

fit = the plaintiff and his sister, and, Boswed CoE. te

to the extent that he had ownership thereof,

it was his individual, separate property. s/ W. Spencer Mitchen

om... remy admits the execution of

t "C" but denies the remaining por-

tion of said request. wi sain uaek tee” Wein

(7) Admitted. k*k*

(8) Defendant is without knowledge as [Case style omitted]

to the allegations of this paragraph and EFENDANT ’

therefore can neither admit nor deny. . Se gua ae :

(9) Admitted. ee. +. gay pong ste COMPANY,

moves for entry of a summary judgment in its

(Served January 23, 1975) favor and ageiagt the platestce. LOtEee oun

ESTABROOK, on e groun that the pleadings,

s/ W. Spencer Mitchem depositions, answers to interrogatories an

admissions on file, together with such affi-

davits as may have been heretofore filed,

show that there is no genuine issue as to

IN THE CIRCUIT COURT OF

UNTY any material fact and that this defendant is

ss oe » FLORIDA entitled to a judgment as a matter of law.

k** CARLTON, FIELDS, WARD,

[Case style omitted] eg — & CUTLER, PA

. O. Box 323

MOTION FOR SUMMARY JUDGMENT Tampa, Florida 33601

Comes now defendant, Watson W. Wise,

44A

Attorneys for Phillips

Petroleum Co.

s/ William F. McGowan, Jr.

(Served October 28, 1975)

IN THE CIRCUIT COURT IN AND FOR

SANTA ROSA COUNTY, FLORIDA

Case No. 74-C-53

LOUISE ORR ESTABROOK,

Plaintiff,

Vs.

WATSON W. WISE and PHILLIPS

PETROLEUM COMPANY, a corporation,

Ne ee Ne ee ee ee ee Oe

Defendants.

Filed & Recorded in

Orders & Judgments

Book 72, page 268

FINAL SUMMARY JUDGMENT

This cause is before the Court upon the

motion of the Defendant Watson W. Wise and

the Defendant Phillips Petroleum Company for

entry in their favor of a final summary judg-

ment. The Court has carefully reviewed the

file, the depositions, and the briefs in

this cause. It is the opinion of the Court

that there exists no genuine issue of fact

45A

and that the Defendants, as a matter of

law, are entitled to judgment. Therefore,

it is

ORDERED, CONSIDERED, and ADJUDGED that

the Plaintiff Louise Orr Estabrook take

nothing by her said suit, that final sun-

mary ju nt be and the same is hereby

entered in favor of the Defendants, Watson

W. Wise and Phillips Petroleum Company and

against the Plaintiff Louise Orr Estabrook,

and that said Defendants shall go hence with-

out day.

The Court reserves jurisdiction for the

sole purpose of assessing the Defendants'

costs of Court upon motion.

Conformed copies furnished to Wilmer

H. Mitchell, Esquire, W. Spencer Mitchen,

Esquire, and William F. McGowan, Jr., Esquire.

DONE and ORDERED in Chambers at Milton,

Florida, this 19th day of December, 1975.

s/ Woodrow M. Melvin

Circuit Judge

IN THE CIRCUIT COURT IN AND FOR

SANTA ROSA COUNTY, FLORIDA

xk **

[Case style omitted]

MOTION FOR RE-HEARING

The Plaintiff moves for re-hearing on

46A

the Summary Final Judgment entered

December 19, 1975, pursuant to Rule 1.530

of the Florida Rules of Civil Procedure.

As grounds for the motion the Plain-

tiff shows that the Court's finding that

there is no dispute of material facts is in

error because the record demonstrates there

are disputes of facts on every material

issue, and such facts as are undisputed

favor the Plaintiff; the Court's determina-

tion that the Defendants are entitled to

judgment as a matter of law is in error in

that there is no basis upon which the De-

fendants should have judgment as a matter

of law; the original exhibit P-X-1l to the

deposition of Louise Orr Estabrook (page 58)

was inadvertently not attached to the depo-

sition on file with the Court, and this

exhibit is of substantial ort in that

it shows the context in which the Defendant

Wise acquired the properties in suit; the

Court has not heard oral argument since

the filing of the briefs and memoranda of

the parties, and the case is of such in-

portance and the number and complexity of

legal issues are such that oral argument

should be permitted subsequent to the said

filing.

Further, the Court in its judgment

made no findings and did not seecily upon

which of the numerous defenses its ju nt

was based. In the interest of judicia

time the judgment should be re-opened to

clarify the grounds of the decision.

[Notice of Hearing omitted since this

Motion was denied without hearing]

47A

sf Wilmer H. Mitchell .

130 East Government Street

Pensacola, Florida 32501

Attorneys for Plaintiff

(Served on December 23, 1975)

IN THE CIRCUIT COURT IN AND FOR

SANTA ROSA COUNTY, FLORIDA

LOUISE ORR ESTABP.OOK, )

Plaintiff,

Case No.

74-C-53

Vs.

WATSON W. WISE and PHILLIPS

PETROLEUM COMPANY, a

corporation,

~ NA e e e

Defendants.

ORDER

This cause is before the Court upon

motion of the Plaintiff for rehearing ad-

dressed to the Order of this Court granting

summary judgment. Upon examination of such

petition, it appears to the Court that oral

argument thereon would not be helpful.

Therefore, it is

ORDERED, CONSIDERED, and ADJUDGED that

Plaintiff's motion for rehearing be and the

48A

same is hereby denied.

Conformed copies furnished to Wilmer

H. Mitchell, Esquire, John E. Venn, Jr.,

Esquire, and W. Spencer Mitchem, Esquire.

DONE and ORDERED in Chambers at Milton,

Florida, this 3lst day of December, 1975.

s/ Woodrow M. Melvin

[On Appeal to the First District Court of

Appeal of Florida]

IN THE CIRCUIT COURT IN AND FOR

SANTA ROSA COUNTY, FLORIDA

xk **

[Case style omitted]

ASSIGNMENTS OF ERROR

The Plaintiff/Appellant, Louise Orr

Estabrook, assigns as error the entry of the

Summary Final Judgment in favor of the De-

fendants of December 19, 1975, and the entry

of the Order denying the Plaintiff's motion

for rehearing entered December 31, 1975,

which Judgment and Order denied Plaintiff's

motion for partial summary judgment.

sf Wilmer H. Mitchell

130 East Government Street

Pensacola, Florida 32501

Attorneys for Plaintiff

(Served January 9, 1976)

49A

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

JANUARY TERM, A. D. 1977

NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING PETITION AND

DISPOSITION THEREOF IF FILED.

LOUISE ORR ESTABROOK,

Appellant,

Case No.

AA-444

vs.

WATSON W. WISE and PHILLIPS

PETROLEUM COMPANY, a

corporation,

Ne ee ee ee ee ee ee Se ee

Appellees.

Opinion filed July 11, 1977.

An Appeal from the Circuit Court for Santa

Rosa County. Woodrow M. Melvin, Judge.

Wilmer H. Mitchell of Mitchell & Oberhausen

for Appellant.

William F. McGowan, Jr., of Carlton, Fields,

Ward, Emmanuel, Smith & Cutler; and W.

Spencer Mitchem of Beggs & Lane for

Appellees.

RAWLS, Acting Chief Judge.

Discovery of oil in the Jay, Florida,

oil field area has resulted in a micro-

scopic scrutiny of the title to land in

that vicinity. So, we are here confronted

50A

with an appeal from a final summary judg-

ment in which the trial court found that

appellant-plaintiff Estabrook had no claim

of interest which she asserted in certain

Florida property.

Warren Wise were residents of Tyler, Texas,

and the purpose of her suit was to impose

a resulting trust in favor of herself in

to defendant-appellee Phillips Petroleum

Company. Further ot cget ions were that she

n Texas (a community

property state) in 1930 and remained mar-

ried in that state until 1964, when she

filed her petition for divorce. The gist

of her further allegations are that during

her marriage, Wise acquired the claimed

interest in Florida minerals with community

property funds, and that during their di-

vorce litigation in Texas, he willfully

failed to disclose his interest in same to

the Texas court. Wise, by his answer,

asserted the following affirmative defenses:

1) Mrs. Estabrook had knowledge of the

ownership of the separate property in

Florida, and, therefore, her action was

barred by the statute of limitations; 2)

laches; 3) the action is barred because the

subject property was not purchased with

community funds; 4) Mrs. Estabrook's claim

is founded upon a community property agree-

ment entered into in Texas and upon the

community property law of Texas which has

51A

no effect upon real property located in

Florida; and 5) this action is barred

because of the entry of the final decree of

divorce between Mrs. Estabrook and Wise.

The trial court did not recite any

specific ground in its final summary judg-

ment upon which to enter same. Our review

of this extensive record discloses several

valid grounds upon which to sustain same ;

however, we will confine our comments to

the latter ground based upon the Texas

divorce.

On May 18, 1965, Mrs. Estabrook (at

that time Mrs. Wise) and Mr. Wise entered

into a property settlement agreement which

stated, in part:

"...[A]nd no issue regarding conm-

munity property... is to be submitted

to the Court... if it should hereafter

appear that either party desires to

elnie that some community pro erty has

not been divided, he or she shall be

free to do so and shall be entitled

to pursue his or her rights and reme-

dies thereto."

The final judgment of divorce was

entered by the Texas court on May 25, 1965,

incorporating the terms of the property

settlement between the parties. In 1972,

Mrs. Estabrook filed suit in Texas claiming

an interest in the Florida property, which

suit was ultimately dismissed by agreement

of tne parties.

The Texas divorce decree was a final

---- aA

judgment of divorce incorporating a prop-

erty settlement agreement between the

parties. Florida is not a community

property state, and thus is not required

to recognize an encumbrance predicated upon

a foreign state's community property law.

The establishment of non-record title

interests arising out of marital claims

should be settled in the forum state.

Finston v. Finston, 27 So.2d 423 (Fla. 1948)

Dotter v. Dotter, 147 S9.2d 209 (Fla. 2nd

DCA 1962); Jones v. Jones, 140 So.2d 313

(Fla. lst DCA 1963). The Texas court had

jurisdiction pursuant to the agreement of

the parties which was incorporated in its

1965 divorce decree for the parties to fur-

ther “pursue his or her rights and remedies

thereto."" Mrs. Estabrook did pursue her

alleged rights in the Texas court; however,

she also sought a construction of that

court's decree in the Florida court and sub-

sequently abandoned her forum state. Any

initial relief, pursuant to the final decree

entered by the Texas court, should have

first been resolved by that jurisdiction.

As stated in Cooper v. Cooper, 69 So.

2d 881 (Fla. 1954):

"As already pointed out the inquiry

seems to have gone afield by developing

how the parties to the original marriage

had accumulated property and lost or

gained in its manipulation, evidently

on the theory that there should be a

judicial determination of the fairness

of the division when the personalty

was exchanged for realty. This was a

futile procedure because the divorce

cata

53A

case then pending had, meanwhile cul-

minated in a final decree and property

rights then and there became settled.

Finston v. Finston, 160 Fla. 135, 37

So.2d 423. We announced there the rule

‘that a final decree * * * settles all

property rights of the parties and bars

any action thereafter brought by either

party to determine the question of prop-

erty rights.' In that case the court

had before it the question of property

rights and held that the doctrine of

res judicata controlled. Here the prop-

erty rights were not introduced in the

litigation but they could and should

have been so the same rule applies here

as will be seen by an examination of

our opinion in Town of Boca Raton v.

Moore, 122 Fla. 350, 165 So. 279, cited

as authority for the rule stated in

Finston v. Finston, supra."

We hold that the doctrine of res adjudi-

controls. The judgment appealed is

AFFIRMED .

SMITH and ERVIN, JJ., CONCUR

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

kk *

[Case style omitted]

54A

PETITION FOR REHEARING

The Appellant files its Petition for

Rehearing directed to the opinion of this

Court filed July 11, 1977, and shows as

follows:

1. In concluding its opinion this

Court states, "We hold that the doctrine of

res adjudicata controls." Apparently the

Court thus ruled that the Plaintiff/

Appellant here was barred from bringing an

action against her former husband because

of their Texas divorce in 1965.

Such a holding by this Court is

erroneous in that it attempts to accord

the Texas divorce decree more weight than

it would be given in the State of Texas.

There is not any dispute that if the

Appellant and the Appellee, Wise, litigated

all their property rights, including the

Florida rights involved in this suit, in

the Texas divorce proceedings, and if that

decree finally determined those matters,

the instant case would be barred. How-

ever, Texas law provides that the parties

to a divorce at pages may litigate their

rights to community and other properties

subsequent to their divorce. In fact any

property not disposed of in the divorce

proceeding is presumed to be community

property absent a clear and convincing

showing to the contrary. Where a divorce

has been granted without an adjudication

of the property rights of the parties, the

wife may subsequently maintain an action

55A

to sue for the protection of her com-

munity property interest. Furthermore,

the wife cannot be presumed to have full

knowledge of all of the property to which

she may have a claim, and an inventory by

commissioners appointed in the suit for

divorce is not conclusive on the wife.

(See 20 Tex. Jur. 2d "Divorce and Separa-

tion" Section 265, copy attached.)

A Texas decree of divorce does not

purport to make a partition of the com-

munity property between the husband and

wife unless such partition is particularly

set forth therein. Furthermore, any over-

looked’ property interests are subject to

review absent a “residuary clause" in the

decree of the court. A Texas divorce

decree does not preclude a subsequent suit

by either poetry for such partition. (See

Texas Family Law "Divorce, Suits and

Separation" Section 5:72 and Section 5:138,

copies attached.)

Texas cases recognize that it is per-

fectly proper for a Texas divorce court to

withhold disposition of some or all prop-

erty rights in a divorce action, and the

parties thereafter have a right to litigate

questions of community property in later

proceedings dealing with property not so

divided. See Blakely v. Herring, 374 SW 2d

677 (CCA Tex. 1964), recognizing that a

party to a divorce in which his right to

certain property is not partitioned may

have the property adjudicated in a subse-

ee proceeding. Busby v. Busby, 457 SW

d 551 (Tex. 1990) S a case in which the

56A

Supreme Court of Texas specifically found

that where community property rights were

not partitioned at the time of a divorce

proceeding, the judgment entered in a

divorce suit did not preclude the former

wife seeking partition of the undivided

community property in a subsequent suit.

See also Thompson v. Thompson, 500 SW 2d

203 (CCA Tex. 3

In the Texas divorce between Mr. Wise

and Mrs. Estabrook the Final Ju nt

entered by the Texas court specifically pro-

vided (pursuant to an agreement and clear

understanding of the parties):

"that all issues as to the existence

or disposition of community property

rights, or other property rights,

have, by amended pleadings filed

herein been withdrawn and eliminated

from this cause."

The reason the judgment recognized

that the court did not deal with the prop-

erty of the parties was because of an agree-

ment between the Appellant and her former

husband, dated May 18, 1965 which provided:

"...and no issue regarding community

property or accounting of community

funds is to be submitted to the Court

and all such issues are to be with-

drawn from the pleadings. The Judg-

ment to be entered shall state that

the Court is making no adjudication

of property rights between the

parties. In this connection, if it

S7A

should hereafter appear that either

party desires to claim that some com-~

munity property has not been divided,

e or she shall be free to do so and

shall be entitled to pursue his or

her rights and remedies thereto.”

Cemphasis added)

Thus, it is seen that the Texas

divorce decree did not litigate the prop-

erty rights of these parties and they

specifically withdrew those rights from

the Court and preserved to themselves the

rights to pursue any other remedies with

colenanes to property not divided. Under

the law of Texas and the authorities cited

above, the parties would have that right

and no subsequent action would be barred

by res adjudicata. There was no decision

by the Texas court which would bar the

Appellant from suing in Texas, and this

Court is in error if it attempts to give

the Texas decree greater effect in Florida

than it would have in Texas. Accordingly,

the Texas decree is not res adjudicata as

stated by this Court in its opinion of

July 11, 1977.

k**

[Irrelevant portions omitted]

3. Since this case was briefed and

argued the Second District has decided

the case of Strickland v. Strickland, 344

So.2d 931 (2 DCA Fla. 1977) in apparent

conflict with the present decision of this

court. In the Strickland case the ex-wife

brought an action for partition of Hendry

County property asserting an undivided

one-half interest therein. The defendant

responded with a counterclaim pleading a

58A

prior Florida support proceeding and a

1973 Georgia divorce decree. He claimed

that the issues raised were thus barred

by res adjudicata.

The Second District disagreed because

the Georgia decree specifically indicated

that it was not making a determination as

to the real estate and there was no ad-

judication as to property rights of the

parties in the subsequent Florida support

case. The Second District recognized the

doctrine of res adjudicata as appropriate

to the ju ent of a sister state and that

such judgments were entitled to full faith

and credit. (emphasis added)

***

For the above reasons the Petition

for Rehearing should be granted and the

Summary Judgment reversed.

Respectfully submitted,

es Wilmer H. Mitchell

130 East Government Street

Pensacola, Florida 32501

Attorney for Appellant

(Served July 25, 1977)

=

59A

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

JULY TERM, A. D. 1977

LOUISE ORR ESTABROOK,

Appellant,

Case No.

AA-444

vs.

WATSON W. WISE and

PHILLIPS PETROLEUM

COMPANY, a corporation,

Appellees.

a ae ae ee Se ee ee ee Se Se”

Petition for Rehearing and Response

thereto having been considered,

IT IS ORDERED that the petition is

hereby denied.

By Order of the Court dated this 8th

day of August, A. D. 1977. Acting Chief

Judge John S. Rawls, Judge Robert P. Smith,

Jr., Judge Richard W. Ervin, III.

A True Copy

ATTEST:

RAYMOND E. RHODES, CLERK

s/ Raymond E. Rhodes

District Court of Appeal, First District

Tallahassee, Florida

60A

IN THE SUPREME COURT OF FLORIDA

LOUISE ORR ESTABROOK, )

)

Petitioner, )

)

v. )

)

WATSON W. WISE and )

PHILLIPS PETROLEUM )

COMPANY, )

)

Respondents. )

)

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL - FIRST DISTRICT

TO THE SUPREME COURT OF THE STATE

OF FLORIDA:

Petitioner, Louise Orr Estabrook,

presents this her petition for a writ of

certiorari and states:

1. Petitioner seeks to have reviewed

a decision of the District Court of

Appeal, First District, filed July 11,

1977, Petitioner's Petition for Rehearing

having been denied August 8, 1977.

2. This petition is presented under

and pursuant to Article 5, Section 3(b)

(3) of the Constitution of Florida, and

Florida Appellate Rule 4.5c.(6).

**kk

A. (1) The First District's opinion

conflicts with Strickland v. Strickland,

61A

344 So.2d 931 (2 DCA Fla. 1977). In the

Strickland case the ex-wife brought an

action for partition of Hendry County

property asserting an undivided one-half

interest therein. The defendant responded

with a plea that a prior Florida support

proceeding and a 1973 Georgia divorce de-

cree barred the suit by res judicata.

The Second District disagreed be-

cause the Georgia decree specifically in-

dicated that it was not making a determi-

nation as to the real estate and there

was no adjudication as to property rights

of the parties in the subsequent Florida

support case. The Second District recog-

nized the doctrine of res adjudicata as

appropriate to the judgment of a sister

state and that such judgments were en-

titled to full faith and credit. The

court then correctly pointed out the key

to whether the foreign decree will be

applied as a bar stating: (emphasis

added)

“However, this is confined to those

issues, the subject matter and par-

ties properly before the court in

the prior proceeding. See Matthews

v. Matthews, 133 So.2d 91 (Fla. 2d

DCA 1961). Neither the Florida real

property involved in these pro-

ceedings, the status of its title,

the rights or claims of the parties

with respect thereto, nor the facts

and circumstances bearing on such

were involved or determined in the

Georgia proceedings."

***

62A

C. The express terms of the foreign

divorce decree and the separation agree-

ment of the parties preclude the prior

suit from being res judicata.

(1) The decision on review had to be

premised on conclusions that neither the

Texas decree nor the separation agreement

is valid and enforceable. The First

District's holding directly conflicts with

the decision of the Florida Supreme Court

in Aldrich v. Aldrich, 163 So.2d 176 (Fla.

1964) holding (I) that a final and un-

appealed decree of an equity court, even

if not authorized by statute and beyond

the court's inherent power, nevertheless

is valid on its face and enforceable

, o a party to that proceeding; and

(2) a party to a separation agreement is

bound by its terms even if it contains

provisions which an equity court could

not order if the issue were litigated.

(2) The Texas divorce decree spe-

cifically noted that no issues of prop-

erty rights were submitted to the Court.

That decree is presumed valid on its

face and the trial court is not at

liberty to ignore the binding order of

that foreign court. Thus this decision

conflicts with this court's decision in

Newton v. Newton, 245 So.2d 45 (Fla. 1971),

which recognized that divorce decrees of

sister states are entitled to full faith

and credit under the United States Con-

stitution §1, Article IV. (emphasis added)

(3) The decision under review also

conflicts with Donner v. Donner 302 So.

2d 452 (3 DCA Fla. 1974) a case involving

an agreement to make a will set forth in

63A

a written separation agreement entered in

the State of New York March 2, 1959, which

was incorporated in an April 1959 Alabama

divorce decree. The husband neglected to

make his will in accordance with the

agreement and his ex-wife sued his estate

in Florida.

Although the agreement did not

comply with the Florida statute regulating

contracts to make a will, the Florida

court enforced the separation agreement

and held that it is entitled to full faith

and credit in Florida, stating: (emphasis

added)

"Where a court of competent jurid-

diction enters a valid divorce decree

and therein specifically approves a

separation agreement and incorporates

it in the decree, the agreement may

be said to be valid and enforceable,

and collateral attack upon it will

not be allowed, even if the agree-

is not merged into the decree."

(citing cases) "This is also true

when the decree is rendered by a

sister state and full faith and cre-

dit applies." (emphasis adde

So.2d at 457)

***

s/ Wilmer H. Mitchell

s/ Lawrence W. Oberhausen

(Filed September 6, 1977)

64A

SUPREME COURT OF FLORIDA

Wednesday, November 30, 1977

LOUISE ORR ESTABROOK, )

)

Petitioner, )

) Case No. 52,380

vs. )

) DISTRICT COURT

WATSON W. WISE and ) OF APPEAL

PHILLIPS PETROLEUM )

COMPANY , FIRST DISTRICT

Respondents. ) AA-444

This cause having heretofore been sub-

mitted to the Court on Petition for Writ of

Certiorari, jurisdictional briefs and por-

tions of the record deemed necessary to

reflect 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.

OVERTON, C.J., SUNDBERG, HATCHETT, KARL,

JJ. and DREW, RET. J., concur

A True Copy

TEST:

Sid J. White

Clerk Supreme Court

s/ D. Causseaux

65A

“Extracts from Appellant Brief to District

Court of Appeal of Florida,First District"

k**¥*

On May 18, 1965, the Plaintiff and

Watson W. Wise entered into an agreement

which was recorded in Official Records

Book at page 538 of the Official Records

of the Court of Domestic Relations of

Smith County, Texas. Said agreement

provided,

"... and no issue regarding commu-

nity property or accounting of com-

munity funds is to be submitted to

the Court and all such issues are to

be withdrawn from the pleadings. The

judgment to be entered shall state

that the Court is making no adjudi-

cation of property rights between

the parties. In this connection, if

it should hereafter appear that ei-

ther party desires to claim that

some communit roperty has not been

divided, he or she shail be free to

do so and shall be entitled to pur-

sue his or her Eights and Famedies

thereto. Louise Orr Wise, Plaintiff,

and Watson W. Wise, Defendant, the

parties hereto now assert that they

have no actual knowledge at this

time of any community property

existing to said marriage which now

remains undivided." (emphasis added)

[R259, All]

The attorneys for the parties affirmed the

same knowledge [R259; All]

66A

On May 25, 1965, the final judgment

of divcrce was entered and said judgment

incorporated the terms of the agreement

using this language,

"The Court finds that all issues as

to the existence or disposition of

community property rights or other

property rights, have, by the

amended pleadings filed hicein. been

withdrawn and eliminated from this

cause; and the Court is not called

upon to adjudicate any property

right issues or any property or money

accounting issues between said par-

ties as no such issues remain in this

cause." [R262; A23]

** *

Defendants asserted at trial that the

Texas community property law cannot be

applied by this Court so as to affect the

interests of parties in Florida real es-

tate which is the subject of this litiga-

tion. This, however, is not the case.

Florida courts have recognized that

the interest of one spouse in property

acquired by the other during arriage is

determined by the law of the domicile of

the parties when the property was

acquired. In Quintana v. Ordono, 195 So.

2d 577 (3 DCA # 67), cert. dis-

charged 202 So.2d 178 (Fla. 1967), the

Third District considered this exact ques-

tion which arose with regard to Florida

assets which were acquired by one spouse

while married and domiciled in Cuba, a

community property country. The Florida

67A

Court stated:

"Under Florida law, if a portion of

the consideration belongs to the wife

and title is taken in the husband's

name alone, a resulting trust arises

in her favor by implication of law to

the extent that consideration fur-

nished by her is used. A resulting

trust is generally found to exist in

transaction affecting community prop-

erty in non-community property states

where a husband buys property in his

own name..." (at 580)

The Quintana case involved personalty

rather than realty but the principles are

the same. In Quintana, the Florida court

cited with favor a Mississippi case which

did involve realty, Stone v. Sample, 216

Miss. 287, 62 So.2d 307, 63 So. 55

(Miss. 1953), a case in which the material

facts are virtually identical to those in

this case.

In Stone v. Sample, the husband pur-

cahsed certain mineral rights in the State

of Mississippi (a non-community property

state) while he was a married man and a

resident citizen of the State of Texas.

The conveyances were made to the husband

alone. The Mississippi taxing authorities

attempted to impose a tax upon the husband

as the sole owner of the property, and the

husband and wife resisted, asserting that

they were joint owners in accordance with

the community property law of Texas which

governed their interests in the Missis-

sippi real estate. In ruling that the

property was, in fact, subject to a

68A

resulting trust in the wife, the Missis-

sippi Court, facing the exact issue which

is before this Court, stated:

"The Commission invokes the rule

that real property is controlled by

the law of its situs. That, of

course, is true. This is not an

effort to transport the Texas com-

munity law into this state. The

title of Mrs. Sample to a half inter-

est in the property in Mississippi

does not result from application of

the community law of Texas to the

real property in Mississippi. The

trusteeship comes about as a result

of using her money in the purchase of

the property regardless, as above

stated, how or where she acquired

title to the money. The same result

would have come about had she ac-

quired such title in a noncommunity

property state. There is no pro-

hibition against a nonresident of

Mississippi asserting a resulting

trust in lands in this state."

(at 309)

In other words, the Mississippi

court reasoned that the wife's interest

under the community property law of Texas

arose in the assets which were used to

purchase the land in Mississippi. The

law of Texas controlled the wife's

interest in those funds and, therefore,

the Mississippi Court recognized her

interest in Mississippi real estate

which was purchased with those joint

assets. The Mississippi court's analysis

69A

is exactly applicable to the facts in this

case. Florida has relied upon that analy-

sis and adopted it in Quintana v. Ordono,

supra, expressly recognizing to that ex-

tent the impact of foreign community prop-

erty law on Florida property.

The important thing is not the nature

of the asset, but whose funds were used to

make the purchase. If a wife's funds from

any state are used to purchase Florida

assets of any kind, a resulting trust

arises which is enforceable in equity.

The fact that her ownership of the funds

was a result of the community property law

of her domicile is of no consequence. Inm-

portant exceptions are appropriate to pro-

tect bona fide purchasers or third parties

entitled to rely on record title to real

property, but no innocent third party is

involved in this case.

This is in accord with the recognized

rule stated in Principles of Community

Property, supra, at page 224:

"§92 -- Property removed to or

acquired in state other

than domicile.

Where the spouses without changing

their domicile send or remove prop-

erty to another state, it is recog-

nized in the latter state that it

retains the same nature it had when

sent or removed from the domicile of

the spouses. Thus, property which

is separate property in the noncom-

munity property domicile of the

spouses is recognized as separate

property if sent or removed to a

70A

community property state, and con-

versely community property of the

spouses in a community property domi-

cile of spouses remains the property

of both although removed to a com-

munity property state and although

the title appears in the name of one

of the spouses only. Even if the

form of the property is changed after

its removal, by conversion to some

other type of property, the nature of

the ownership rights is not affected

thereby... (emphasis supplied)

***

The Defendants denied that the prop-

erty was acquired with community funds and

filed a variety of affirmative defenses

which will be reviewed in detail at the

conclusion. Reviewing the defenses: #1

Mr. Wise alleged that the Plaintiff had

knowledge of these interests and was

barred by the statute of limitations

(R19, Al9]; #2 Plaintiff ‘is barred by

laches and rights accruing to an innocent

purchaser (R19, Al9]; #4 purchase was not

made with community assets [R20, A20]

(Phillips also asserts this defense as

its #7); #5 the claim is barred because

it is based upon the community property

law of Texas which has no effect in

Florida [R20, A20] (Phillips also asserts

this defense as its #6); #6 Plaintiff is

barred by the 1965 Texas divorce [R29,

A21]; #7 Plaintiff is limited to the

amount of her recovery to one-half the

value of the property at the time of pur-

chase or divorce [R95, A21].

71A

Note that Mr. Wise withdrew his af-

firmative defense #3 and Phillips with-

drew its defenses #1, #2 and #5. ,

Phillips affirmative defenses #3 and

#4 originally alleged that Phillips was an

innocent purchaser protected by laches and

estoppel, respectively [R16, Al6]. Sig-

nificantly, Phillips withdrew these de-

fenses conceding that it was not a bona

fide purchaser without notice and substi-

tuted #3 laches because of delay, lost

evidence and Phillips’ detrimental reli-

ance on the record title [R103, A25] and

#4 estoppel because of delay, Plaintiff's

negligence in failing to ascertain her

rights and Phillips’ detrimental reliance

upon the record title [R103, A25].

s/ Wilmer H. Mitchell

(Served March 16, 1976)

“Extracts from Reply Brief of Appellant

to the First District Court of Appeal

of Florida"

k**k

Il. THIS SUIT IS NOT BARRED BY THE

TEXAS DIVORCE

Appellees have asserted that the final

divorce decree in Texas bars this lawsuit.

In arguing this point, Appellees misstate

the facts, ignore the effect of the Texas

decree and argue totally inapplicable

72A

propositions of law.

A. Facts.

The following facts are undisputed:

(1) At the time of the divorce, the

parties stipulated that, aside from their

agreed distribution of property rights,

no other property rights were to be deter-

mined by the divorce proceeding and were

not to be submitted to the court;

(2) The final judgment entered by the

Texas court provided:

"That all issues as to the existence

of disposition of community property

rights, or other property rights,

have, by amended pleadings filed

herein been withdrawn and eliminated

from this cause.";

(3) The Texas trial court in the

divorce proceeding required Defendant

Wise to file a sworn inventory of all

assets, basing that order upon its ruling

that, in the absence of such an order,

that Defendant would most likely hide

assets from the Appellant; and

(4)The sworn inventory filed by

Appellee Wise failed to disclose the

Florida property interests here in ques-

tion.

xk

(2) Appellant's authority.

73A

Appellant has set forth in some de-

tail the foregoing matters distinguishing

Appellees’ cases and demonstrating the

willingness of Florida courts to review

judgments obtained by misrepresentation.

Nevertheless, it is not necessary to reach

that point in this proceeding because the

Texas court never made any determination

of the property rights of the parties,

and this court should not give the Texas

decree a greater impact than it would

have in the state of rendition.

Texas law provides that parties to

a divorce proceeding may litigate their

rights to community property subsequent

to that divorce. In fact, any property

not disposed of in the divorce proceeding

is presumed to be community property

absent a clear and convincing showing to

the contrary. Specifically, where di-

vorce has been granted without an adjudi-

cation of the property rights of the par-

ties, the wife may subsequently maintain

an action to sue for the protection of

her community property interests.

Furthermore, the wife cannot be presumed

to have full knowledge of all of the

property to which she may have a clain,

and an inventory by commissioners

appointed in the suit for divorce is not

conclusive on the wife. (In this regard,

see 20 Tex. Jur. 2d “Divorce and

Separation" §265, a copy of which is

attached hereto for the Court's

reference. )

A Texas decree of divorce does not

purport to make a partition of the com-

74A

munity property between the husband and

wife unless such partition is particularly

set forth therein. Furthermore, any over-

looked property interests are subject to

review absent a "residuary clause” in the

decree of the court. A Texas divorce

decree does not preclude a suit by either

party for such partition and the court's

sole authority in such a suit is to divide

equally such community property between

the parties. (See Texas Family Law,

"Divorce Suits and Separation," §5:72 and

§5:138, copies of which are attached here-

to for the Court's reference.)

The following are only a few of

numerous Texas cases recognizing the

propriety of Texas courts withholding dis-

position of all property rights in a

divorce action and the subsequent right of

the parties to litigate questions of com-

munity property in later proceedings

dealing with property not so divided. In

Blakely v. Herring, 374 S.W. 2d 677 (CCA

ex. 64) the Texas court expressly

recognized that a party to a divorce de-

cree in which the parties' rights to

certain property is not partitioned may

have those property rights adjudicated

in a subsequent vette: + In Busby v.

Busby, 457 S.W. 2d 551 (Tex. 19 , the

Supreme Court of Texas specifically

found that, where community property

rights were not partitioned at the time

of a divorce proceeding, the judgment

entered in a divorce suit did not pre-

clude the former wife seeking partition

of the undivided community property in a

subsequent suit. Numerous additional

75A

cases could be cited on this point as the

law is absolutely clear and settled in

Texas that, when a Texas divorce decree

does not dispose of all community prop-

erty rights, a party may bring a subsequent

action = a those ee soe

additionally Thompson v. Thompson, S.W.

2d 203 (CCA Tex. ro7%) .)

Therefore, there is ample Florida and

Texas precedent for a proceeding such as

this and the judgment of the Texas court

is not res judicata on Appellant's inter-

est in the subject property. No question

of these interests was decided by the

Texas court which would bind Appellant in

greater effect in Florida.

*k*x**

§5:72 TEXAS FAMILY LAW

§5:72 Property not divided

A court decreeing divorce or annul-

ment should divide the estate of the par-

ties. The courts have pointed out the

necessity for the inclusion of all of the

assets when attorneys prepare for a di-

vorce hearing. If all property owned by

the community is disposed of by agreement

and judgment, a subsequent suit cannot be

broughb’. However, in a property settle-

ment .greement not containing a clause

whereby each party conveyed to the other

property or property rights not specified

in the agreement, and certain property

interests were not covered by the agree-

ment and were not discovered until after

rendition of the divorce decree, the

76A |

agreement and the decree do not consti-

tute an adjudication or disposition of

the community property interest owned in

said properties, and each spouse is en-

titled to an interest in said properties.

The divorce decree is res judicata as to

all property interests settled therein.

It has been held not to be an abuse

of discretion to refuse to reopen a case

five months after the entry of a divorce

decree to permit evidence to be introduced

as to property not disposed of by the

decree, where the decree does not purport

to dispose of any claim that the party

might have in the property.

If the divorce decree fails to dis-

pose of all property rights of the par-

ties, the parties remain owners of the

property as tenants in common, either

spouse may sue to recover an interest as

a tenant in common in any community prop-

erty on hand at the time of dissolution of

the marriage. The former spouses are ten-

ants in common of community property so

omitted, and partition must be sought in

a new action in the district court. Ei-

ther party may subsequently demand parti-

tion of the property which has not been

previously divided. This rule applies to

disability and retirement benefits not

divided on divorce.

There is no assumption that items

of property not specifically mentioned

in a divorce decree were awarded to ei-

ther party. A failure to deliver prop-

erty not specifically mentioned cannot

constitute a violation of the decree and

77A

thus cannot be punished by contempt.

The power of the divorce court to

divide property "as may be just and

right" is limited to a suit for divorce.

Such power cannot be exercised in a sub-

sequent suit for the division of undis-

closed community property,

In a suit for division of community

property after divorce, the parties are

treaved as if they had never been married.

Where the only issue is a suit is

the proper disposition of the community

property, the suit may not, as against

a former spouse's plea of privilege, be

maintained in the county in which the

plaintiff resides, the defendant being a

resident of another county.

Since, in the absence of partition

of property, divorced parties are tenants

in common in the community property, the

possession of one being the possession

of both, the right of the community

estate to claim the benefit of the wife's

adverse possession of land conveyed to

the husband under a tax deed is not

destroyed by a divorce.

kk *

§5:138. Property of the parties

The community estate is a statutory

estate, dependent on the existence of the

marriage of which it is an incident, and

the community estate as such is termi-

nated on dissolution of the marriage by

death, divorce, or annulment Divorced

parties become tenants in common in the

78A

former community, in the absence of a

judicial partition.

If a decree of divorce does not pur-

port to make a partition of the community

property between the i:usband and wife, it

does not preclude a suit by either party

for such partition, but so long as the

divorce decree stands, a spouse may not

be awarded more than a half interest in

such property. A partition may not be

had if the divorce is invalid. .

The status of the property as com-

munity is not restored by the remarriage

of the parties. Each spouse thereafter

deals with such property as one of the

owners and not as agent or representative

of the community or of the other spouse.

The fact that the husband transferred

the property to the possession of others

will not bar the wife's right to sue for

the protection of her community interest

where the rights of other persons do not

intervene.

The failure of the wife in her

pleadings in the suit for divorce to

describe all the property comprising the

community estate does not conclude or

restrict her from later seeking her share

of the property. It has been said that the

wife cannot be presumed to have full

knowledge of all the property to which

she may have a claim. And neither is an

inventory by commissioners appointed in

ny suit for divorce conclusive on the

wife.

79A

A party may also bring a separate

suit to recover payment due from the

other, under the divorce decree.

An action brought after divorce, for

a division of community property that was

not disposed of in the decree, is not an

action for divorce, and the issuance of

an injunction in such a proceeding with-

out requiring the filing of a bond is

error. Furthermore, bond is required in

the case of injunctions against third

persons.

(Served June 7, 1976)

IN THE CIRCUIT COURT IN AND FOR

SANTA ROSA COUNTY, FLORIDA

LOUISE ORR ESTABROOK,

Plaintiff,

Case No.

74-C-53

vs.

WATSON W. WISE and

PHILLIPS PETROLEUM COMPANY,

a corporation,

Defendants.

le ee a ee ee a a

ORDER

The parties having appeared before

the Court November 10, 1975, for a pre-

trial conference,...

kk *

80A

3. The Defendant Phillips Petroleum

Company conceded by its counsel present at

the hearing that its third and fourth af-

firmative defenses, based upon allegations

that Phillips was a bona fide purchaser

without notice, cannot stand in light of

the testimony developed on discovery as

to the knowledge of Phillips of the poten-

tial rights of the Plaintiff at the time

it made the lease with Defendant Watson

W. Wise.

xk * *

DONE AND ORDERED in Milton, Florida,

this 3rd day of December, 1975.

s/ Woodrow M. Melvin