Can two women who were married in Massachusetts but now are residents of Florida divorce in Florida? That is the question that my Tampa client and her wife were looking to have answered in the affirmative. The trial judge determined that she did not have the power to dissolve a marriage that the State of Florida did not recognize.
When we appealed, we asked a panel of judges to skip the normal appellate process and go straight to the Florida Supreme Court. Our argument was that this case involves issues of such public importance, and that determining whether married couples of the same sex can divorce affects the administration of justice throughout the state. Our request for the expedited process was denied.
And then we got word yesterday. The judges of the Second District Court of Appeals decided en banc (with the input of all of the judges of the Court, excluding a judge who had recused himself) that this case should go straight to the Florida Supreme Court.
Below are portions of the brand new ruling:
Appellant…seeks review of a circuit court order dismissing her amended petition for dissolution of marriage, and Appellee…has filed a notice of cross-appeal of that order. Appellant and Appellee are same-sex partners who married in Massachusetts in 2010 and subsequently relocated to Florida. The couple separated in October 2013, and Appellant filed for divorce in Florida in January 2014. The parties voluntarily entered into a collaborative marital settlement agreement in March 2014, and Appellant filed an amended petition for dissolution seeking to have the agreement incorporated into a final judgment of dissolution. Citing Florida law that expressly provides that same-sex marriages will not be recognized in Florida [citation omitted], the circuit court dismissed the petition for lack of “jurisdiction to dissolve that which does not exist under law.”
Appellee filed a response agreeing that the appeal required immediate resolution and a cross-suggestion to certify the case pursuant to rule 9.125. Appellee asserted that petitions for dissolution of same-sex marriages are being unevenly adjudicated around the State of Florida. On June 26, 2014, a panel of this court entered an order denying the suggestion and cross-suggestion to pass the case through the supreme court for immediate resolution.
In the meantime, the Broward County Circuit Court issued an order granting a motion for declaratory judgment in a same-sex divorce case and ruling that Florida’s same-sex marriage bans are unconstitutional. [citation omitted]. The circuit court stayed execution of that judgment pending the outcome of the likely appeals of two other Florida circuit court cases involving similar issues. [citation omitted].
On August 14, 2014, this court on its own motion determined that the question of whether to pass the case back through to the supreme court for immediate resolution should be considered en banc. [citation omitted]. We conclude that certification is appropriate on our own motion pursuant to rule 9.125(a). We therefore certify 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 issue presented to the circuit court was not solely an analysis of whether the Full Faith and Credit Clause of the United States Constitution requires giving recognition to the parties’ out-of-state marriage for the purposes of dissolution. The issue was whether Florida’s ban on same-sex marriage and the prohibition on recognizing such marriages unconstitutionally limits various constitutional guaranties including full faith and credit, access to courts, equal protection, and the right to travel. This issue was extensively briefed and argued by the parties before the trial court, and the court rejected the argument and dismissed the petition for dissolution by relying on Florida’s ban on same-sex marriage and the constitutional and statutory prohibitions on giving recognition to such marriages. Furthermore, at least three other Florida courts have recently issued conflicting decisions concluding that Florida’s ban on same-sex marriage is unconstitutional, and appeals have been docketed in two of those cases.
As for the issue of immediacy, this is not simply a question of delay versus expeditious resolution of a solitary dissolution case. In typical dissolution cases the legal and factual issues have been resolved in the trial court, the marriages have been dissolved, custody and child support issues have been addressed, the marital assets and debts have been distributed, and alimony has been awarded. Generally appellate review in such cases will not involve questions of constitutional magnitude. In this case, the parties were not granted access to the courts and have not even begun the adjudication process including dissolution of the marriage or approval of their settlement agreement. Further, if the trial court’s ruling were to be upheld by this court, the parties’ only options to achieve dissolution would be to seek review by the Florida Supreme Court or to begin the lengthy process of establishing residency in a state that will exercise jurisdiction over a same-sex marriage. Others similarly situated would face the same challenge of establishing residence elsewhere. Should the district courts disagree, couples in different districts will receive disparate treatment until the issue is settled by the Florida Supreme Court. In any event, because of the constitutional implications the issue will likely be addressed by the Florida Supreme Court regardless of any decision we might make.
Resolution of the constitutional questions will no doubt impact far more individuals than the two involved here. And there can be little doubt that until the constitutional questions are final resolved by the Florida Supreme Court or the United States Supreme Court, there will be a great impact on the proper administration of justice. Similarly, in light of those questions, it seems clear that this is a matter of great public importance.
This case is now the first court challenge to Florida’s Defense of Marriage Act and constitutional amendment banning recognition of marriage between people of the same sex to be certified to the Florida Supreme Court. I have the belief that the day when there will be marriage equality and divorce equality is coming right around the corner.