# Petition — Estabrook v. Wise

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0531%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 971

## Text

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, the

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0531%3A1. Public record. Not legal advice.