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Florida Courts Can Grant Divorces to Married Same-Sex Couples

Posted on: April 27th, 2015 by Art Leonard No Comments

The Florida 2nd District Court of Appeal ruled on April 24 in Brandon-Thomas v. Brandon-Thomas, 2015 Fla. App. LEXIS 6051, 2015 WL 1874457, that a same-sex couple that married in Massachusetts but resides in Florida could seek a divorce in a Florida court.  The unanimous three-judge panel found that the state had no rational basis for treating such a marriage differently from other out-of-state marriages.  The ruling reverses a 2013 decision by Lee County Circuit Judge John E. Duryea, Jr., who dismissed the divorce petition filed by Danielle Brandon Thomas.

Danielle and Krista Brandon Thomas married in Massachusetts in 2012 and subsequently relocated to Florida.  They have a child, for whom Krista is the birth mother.  According to the Per Curiam opinion issued by the Court of Appeal, “the marriage soured” after they relocated to Florida and Danielle filed a divorce petition in October 2013.  In her petition, Danielle asked the court to “determine parental responsibility and child support issues, as well as equitable distribution.”

Why would Krista oppose the divorce petition?  In her motion to dismiss the petition, she “alleged that she was both the birth mother and genetic mother of the child and that Danielle therefore had no standing to request shared parental responsibility or child support.”   It seems that Krista hoped by defeating the divorce petition to avoid a court ruling that Danielle was entitled to exercise parental rights to the child, or a court ruling requiring a division of assets.

The trial court based its dismissal on Florida’s Defense of Marriage Act and a state constitutional amendment that forbids recognition of same-sex marriages.  At the time the trial court ruled, those provisions had yet to be declared unconstitutional.  But after the U.S. Supreme Court’s June 2013 decision striking down part of the federal Defense of Marriage Act, several lawsuits were filed by same-sex couples in Florida seeking both the right to marry and the right to recognition of out-of-state marriages.  Florida Attorney General Pam Bondi has energetically opposed these lawsuits and appealed adverse rulings.  However, on December 19, 2014, the U.S. Supreme Court rejected her petition to stay a federal trial court ruling finding the Florida laws unconstitutional under the 14th Amendment, and same-sex couples began marrying in Florida early on January 6, 2015.

Surprisingly, the Per Curiam opinion by the court doesn’t mention any of this marriage litigation and doesn’t purport to base its ruling on the federal decisions, although they are mentioned in a concurring opinion by Judge Edward C. LaRose.  Instead of issuing a ruling that, of course, Florida courts can decide divorce cases for married same-sex couples because same-sex marriage is now legal in Florida, the court ruled as if the status of those Florida laws relied upon by Krista has not changed.

Instead, the court based its decision on the Full Faith and Credit Clause of the U.S. Constitution, which provides: “Full Faith and Credit shall be given in each State to the public acts, Records, and judicial Proceedings of every other State.”   After noting that Florida courts have not treated “sexual orientation” as a “suspect classification,” the court said that “the right of a same-sex couple to seek a dissolution of marriage in Florida, when they were validly married in another state but now live in Florida, is not a fundamental right for federal constitutional purposes.  Thus, Florida bears the burden of presenting only a rational basis for its classification.”

The court found that neither Krista, in opposing the divorce petition, nor the state, which intervened to advance its view that Florida courts may not recognize out-of-state marriages, even for the purpose of dissolving them, had failed to present such a “rational basis” for the Florida laws forbidding recognition of same-sex marriages.

“Krista refers to ‘a societal inducement for opposite-sex couples to marry, thus decreasing the percentage of children accidentally conceived outside of a stable, long-term relationship,’” commented the court.  “But this argument seems to ignore the biological fact that same-sex couples do not contribute to the problem of children ‘accidentally conceived’ outside of a stable, long-term relationship because, as a matter of pure biology, same-sex couples simply cannot ‘accidentally conceive’ children.”  This comment seems ironic, since prior to the recent surge of marriage equality decisions, several courts, including New York’s highest, had relied on the biological impossibility of same-sex couples accidentally conceiving children as a justification for the state providing marriage for different-sex couples but not same-sex couples.  Now the tables are turned!

Attorney General Bondi argued that “Florida’s refusal to recognize same-sex marriage furthers Florida’s long-standing history of defining marriage as being between a man and a woman.”  The court pointed out that refusing to give divorces to married same-sex couples living in Florida “seemingly contravenes Florida’s public policy.”

“If the policy is to prevent, eliminate, discourage, or otherwise preclude same-sex marriage in Florida, permitting the courts to dissolve same-sex marriages that have been previously entered into in other states would arguably further that policy by reducing the number of same-sex married couples in Florida,” the court wrote, stating that the Attorney General had failed to identify a “public purpose” that is served by denying divorces to such couples.

The court was disturbed by the practical impact of the trial court’s order dismissing the case, which is to deprive Danielle and the child of a judicial forum for determining what custody and visitation and child-support arrangements should be.  “The fact that a child is involved implicates Florida’s strong public policy to protect children by determining custody matters in accordance with the best interests of the child,” the court concluded.

In his concurring opinion, Judge Darryl C. Casanueva emphasized an alternative theory for finding jurisdiction: a right of access to the courts to determine the legal rights and responsibilities of parties upon the break-up of a marriage.  Same-sex couples married out-of-state are similarly situated with different-sex couples married out of state and equally in need of access to Florida courts to dissolve their marriages.  The judge pointed out that the U.S. Supreme Court had found a due process violation in the past when a state imposed significant fee barriers to couples seeking access to the courts for divorces, making them practically unavailable for poor people.  Thus, the right of access for a divorce is encompassed within the liberty protected by the Due Process Clause of the 14th Amendment.

Furthermore, he argued, this case wasn’t about same-sex marriage.  “A divorce proceeding does not involve recognition of a marriage as an ongoing relationship,” he wrote.  “Indeed, accepting that a valid marriage exists plays no role except as a condition precedent to granting a divorce.  After the condition is met, the laws regarding divorce apply.  Laws regarding marriage play no role.”

Judge Edward C. LaRose also concurred, emphasizing that the state’s statutory marriage recognition ban would have “minimal application to a case involving a divorce of a same-sex couple validly married in another state.”  While mentioning the federal marriage equality developments in Florida, Judge LaRose did not rely on them to reach his conclusion.  But in noting the practical impact of the trial court’s order, he pointed out that 37 states and the District of Columbia now have same-sex marriage.  “Although divorce does not inevitably follow marriage,” he wrote, “we should anticipate that many married same-sex couples, unfortunately, will need to dissolve their unions.  It is hard to fathom that the legislators who passed [Florida’s recognition ban] envisioned a scenario where assets remain unmarketable for lack of an equitable distribution.  Nor could they have reasonably anticipated a system that disregards the best interests of a child raised and nurtured in a same-sex home.  There can be no question but that Florida has a compelling interest in protecting children subject to its jurisdiction.”

Surprisingly, the court never mentioned the federal Defense of Marriage Act (DOMA) in its opinion.  Although the Supreme Court declared part of DOMA unconstitutional in 2013, it left untouched Section 2, which provides that states are not required to give “full faith and credit” to same-sex marriages contracted in other states.  Thus, in DOMA Congress gave Florida permission to withhold recognition from same-sex marriages such as that of Danielle and Krista.  Although many commentators have suggested that Section 2 of DOMA is unconstitutional, most of the litigation about marriage recognition over the past two years has virtually ignored it, as did the Florida court in this case.

The second question certified for review by the Supreme Court when it decides the pending marriage equality cases, Obergefell v. Kashich, was whether states are constitutionally required to recognize same-sex marriages from other states.   In Thomas v. Thomas, the Florida 2nd District Court of Appeal has answered this question in the affirmative.

Attorneys Luis E. Insignares and Brian J. Kruger of Fort Myers represent Danielle and Michael E. Chionopoulos of Fort Myers represents Krista.  The case will be returned to the Lee County Circuit Court for a hearing on Danielle’s divorce petition.

Florida Appeals Court Calls for Florida Supreme Court to Decide Marriage Equality Question

Posted on: August 27th, 2014 by Art Leonard No Comments

In a highly unusual move, most of the judges on the Florida Second District Court of Appeal have agreed to certify to the state’s Supreme Court the question whether a Florida trial court has jurisdiction over a divorce proceeding of a same-sex couple who were married in another state.  A panel of the court had rejected a request by the parties to refer the case to the Supreme Court on June 26, but the parties then asked for the entire court (the “en banc” court in legal jargon) to consider their request.  Thirteen judges participated, voting 10-3 in favor of certifying the case, in a ruling issued on August 27 in Shaw v. Shaw, Case No. 2D14-2384.

Mariama M. Changamire Shaw and Keiba Lynn Shaw were married in Massachusetts in 2010 and thereafter moved to Florida.  Their marriage broke down.  They separated in 2013, and Mariama filed a divorce action in Hillsborough County.  The women negotiated a voluntary settlement agreement and were looking to have the court incorporate their agreement into a final judgment dissolving their marriage, but the Hillsborough circuit court, on its own motion, decided that it did not have jurisdiction over the case.

The circuit court relied on Florida’s Marriage Amendment, which prohibits recognition of same-sex marriages, and a similar statutory prohibition, and took the position that it could not dissolve a marriage that it was prohibited from recognizing.  The court said that it did not have “jurisdiction to dissolve that which does not exist under law.”  The state’s Attorney General, Pam Bondi, had been notified about this case, but her office did not participate.

Mariama filed an appeal from the ruling, and Keiba filed a cross appeal, both asking for the same thing: that the 2nd District Court of Appeal reverse the jurisdictional ruling and direct the circuit court to decide their divorce case.  However, seeking to avoid delay and noting the pendency of marriage equality cases, including divorce cases, in other Florida counties, they suggested that the court of appeal pass the case up to the Supreme Court for a quicker resolution that would have statewide effect.

The ten-judge majority, in a group opinion  not attributed to any of the individual judges, noted the four prior Florida circuit court marriage equality decisions, including one from another county involving a divorce, some of which have already been appealed to the 3rd District Court of Appeal, and considered that the issues raised by this case have statewide importance.  This conclusion was reinforced in a motion filed by the Family Law Section of the Florida Bar and the Florida Chapter of the American Academy of Matrimonial Lawyers, seeking to participate in the case as amicus curiae because of the importance of this case beyond the immediate parties.  The majority of the 2nd District court concluded that “the order on appeal requires immediate resolution by the Florida Supreme Court because the issues pending are of great public importance and will have a great effect on the proper administration of justice throughout the state.”

The majority, contrary to the dissent, stated that the case did not merely raise the issue whether the Full Faith and Credit Clause of the U.S. Constitution requires Florida courts to recognize same-sex out of state marriages of Florida residents for purposes of divorce.  Taking note of the range of trial court decisions around the state that are pending on review, the court said that the issue is “whether Florida’s ban on same-sex marriage and the prohibition on recognizing such marriages unconstitutionally limits various constitutional guarantees including full faith and credit, access to courts, equal protection, and the right to travel.”  Although the circuit court’s decision did not give any sort of thorough analysis to these questions, relying solely on the state constitutional and statutory prohibition on recognizing such marriages as conclusive on the jurisdictional question, the majority observed that the broader constitutional questions had been briefed and argued by the parties and, in light of the contrary decisions by several other circuit courts holding the ban unconstitutional under the 14th Amendment of the U.S. Constitution, there was an urgent question of constitutional magnitude for the state’s highest court.

“Resolution of the constitutional questions will no doubt impact far more individuals than the two involved here,” wrote the court.  “And there can be little doubt that until the constitutional questions are finally resolved by the Florida Supreme Court or the United States Supreme Court, there will be a great impact on the proper administration of justice in Florida.  Similarly, in light of those questions, it seems clear that this a matter of great public importance.”

Judge Chris Altenbernd penned the dissent for himself and two other judges, rejecting the notion that this was a matter that should be passed directly to the state’s supreme court.  “Although this case is of importance to these parties,” he wrote, “I cannot agree that this case is a proper subject for a pass through.”  He pointed out that the circuit court’s order “contains no discussion of any constitutional argument and no express constitutional ruling.  Most important, it has no discussion of the constitutionality of these provisions under the Full Faith and Credit Clause of the U.S. Constitution.”  Both parties had appealed the order, which means, he wrote, “Apparently, no party intends to argue that the circuit court correctly dismissed this dissolution proceeding.  The Attorney General has made no appearance in this case, and we do not know whether the Attorney General will argue that Florida law constitutionally prohibits these Florida residents from obtaining a divorce.”

In short, Altenbernd contended, this was an appropriate case for the district court of appeal to hear arguments and render a ruling.  As far as he was concerned, the “dispositive issue in this case is whether Florida, under the Full Faith and Credit Clause of the U.S. Constitution, must give credit to these lawful out-of-state marriages for the purpose of dissolution.  Presumably, this issue is comparable to the question of whether, after January 1, 1968, Florida was required to give such credit to lawful, out-of-state common law marriages.”  He pointed out that when that question arose, it was decided consistently by several of the state’s district courts of appeal without any need to refer the question directly to the Supreme Court.

“Given that same-sex marriages are a recent development in other states,” he continued, “I am not convinced that Florida’s courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution.  I cannot certify that this order will have ‘a great effect on the proper administration of justice throughout the state’ requiring immediate review in the supreme court.”  He stated his confidence that the court of appeal could “ably consider this appeal and reach a proper resolution,” and pointed out that such a decision would have statewide effect “unless another district court disagrees with us” and might never require the attention of the Supreme Court.

Nowhere mentioned in this decision is the federal Defense of Marriage Act (DOMA), which provides in Section 2 that no state is required to give full faith and credit to same-sex marriages performed in other states.  This is the section of DOMA that was not addressed by the U.S. Supreme Court last year in U.S. v. Windsor, although there is serious debate whether Congress had authority to enact this exception to the full faith and credit requirement stated in the Constitution.  So far, DOMA Section 2 has generally not been mentioned or given any weight in the many federal district court rulings over the past year in marriage recognition cases.  The courts have, with one exception from Tennessee, ruled in those cases that failing to recognize such marriages violates the Equal Protection Clause of the 14th Amendment.

Judge Altenbernd suggested that the court could adopt an interpretation of the state’s Marriage Amendment under which Florida courts could entertain divorce petitions, on the theory that dissolving same-sex marriages is not inconsistent with refusing to recognize them.  Such a ruling, based solely on an interpretation of the Florida Constitution, would not present any federal question and would not be reviewable by the U.S. Supreme Court.  It would finally resolve the problem of “wedlock” for married same-sex couples living in Florida.

However, such a ruling would leave unresolved the question pending before the 3rd District Court of Appeal in several other cases: whether same-sex couples have a constitutional right to marry in Florida.  That question requires deciding whether the Florida Marriage Amendment violates the federal Constitution.

If the Florida courts were to decide that the divorce jurisdiction issue cannot be decided without analyzing the 14th Amendment or other federal constitutional provisions, their decisions would be subject to appeal to the U.S. Supreme Court and probably stayed pending appeal.  Thus, it is possible that a Florida Supreme Court decision in this divorce case would not finally settle the question.

Mariama is represented in this case by Brett R. Rahall and Ellen E. Ware of Tampa.  Keiba is represented by Deborah L. Thomson, Lara G. Davis and Adam B. Cordover, all of Tampa.