Summary
recognizing that absent a showing of irreparable harm, an appellate court lacks jurisdiction to issue a writ of certiorari and the proceeding is to be dismissed, rather than denied (citing Mahon , 293 So. 3d at 1096 )
Summary of this case from Williams v. WilliamsOpinion
Case No. 5D21-421
04-09-2021
Lawrence H. GOLUB, Petitioner, v. Barbara Ann GOLUB, Respondent.
H. K. Fletcher, Jr., of Fletcher Law Firm, P.A., Oviedo, for Petitioner. Samuel A. Walker, of CPLS, P.A., Orlando, for Respondent.
H. K. Fletcher, Jr., of Fletcher Law Firm, P.A., Oviedo, for Petitioner.
Samuel A. Walker, of CPLS, P.A., Orlando, for Respondent.
LAMBERT, J.
The task that we address today arises from an order entered by the circuit court granting Respondent's, Barbara Ann Golub ("Wife"), motion to bifurcate her dissolution of marriage proceedings against Petitioner, Lawrence H. Golub ("Husband"). Significantly to Husband here, the order provides, in pertinent part, that at a future hearing, the court intends to enter a partial final judgment dissolving the parties’ marriage, but with a reservation of jurisdiction to resolve all other pending matters.
Husband has petitioned this court for both a writ of prohibition and for a writ of certiorari. Specifically, he first asks us to grant certiorari relief and "rescind the order granting the motion to bifurcate." Second, Husband requests that we preclude the circuit court from entering the aforementioned, anticipated final judgment dissolving the marriage and to thereafter prohibit the case from proceeding to trial. Husband contends that Wife has recently been adjudicated totally incapacitated under section 744.331, Florida Statutes (2020), and argues that, under these circumstances, section 61.052(1)(b), Florida Statutes (2020), does not allow a court to enter a final judgment of dissolution of marriage when a party has not been incapacitated for a period of at least three years. For the following reasons, we dismiss Husband's petition for certiorari relief and deny his petition for writ of prohibition.
Husband initially petitioned solely for a writ of certiorari but later amended his petition to seek a writ of prohibition also.
BACKGROUND
The parties were married in 1971. Wife filed her initial petition for dissolution in September 2015 alleging, among other things, that the parties’ marriage was irretrievably broken and that neither party was mentally incompetent. Wife requested that the court equitably distribute the parties’ marital assets, award her alimony to be secured by life insurance, grant her exclusive use and possession of the marital home, and order Husband to provide her with health insurance.
Husband answered the petition denying that the marriage was irretrievably broken, but admitting Wife's allegation that neither party was mentally incompetent. Husband later amended his answer to allege that he was "unable to admit or deny" whether neither party was mentally incompetent.
In April 2017, by stipulation of the parties, Husband withdrew any allegations raised in the pleadings concerning Wife's mental health, and he admitted that her competency was no longer at issue. Shortly thereafter, the circuit court set the case for trial in November 2017.
Less than three months before the dissolution of marriage trial, Husband filed a separate petition to have Wife declared totally incapacitated. Following an evidentiary hearing in that proceeding, the circuit court entered a final judgment in June 2018 dismissing Husband's petition, finding that he had failed to establish by clear and convincing evidence that Wife was totally or partially incapacitated. Husband appealed, and this court affirmed the final judgment of dismissal without opinion. Golub v. Golub , 277 So. 3d 1042 (Fla. 5th DCA 2019).
For reasons that are somewhat unclear in the record, in October 2018, the circuit court held an evidentiary hearing in the dissolution of marriage case for the purpose of determining whether the parties’ marriage was irretrievably broken. After the hearing, the court entered an order finding Wife's testimony to be credible and that the marriage was irretrievably broken. The order specifically found that Wife was certain the marriage is irretrievably broken and that she no longer wanted to be married to Husband. The court also found that the parties "have had more than an adequate amount of time to reconcile their marriage" and that no further time for reconciliation efforts would be granted. For reasons that again are not clear in the record, no final judgment dissolving the marriage was entered, and the case languished.
On April 1, 2020, Husband filed a new petition to have Wife declared incapacitated and to have a plenary guardian appointed for her. While this petition was pending, Wife separately moved in the dissolution of marriage litigation to bifurcate the issue of the dissolution of the marriage from all other matters in that case.
The circuit court then held an evidentiary hearing on Husband's second petition to have Wife determined incapacitated. On October 13, 2020, the court entered its final order adjudicating Wife to be totally incapacitated, but denying the appointment of a plenary guardian. The court found there to be reasonable alternatives to the appointment of a guardian as several years earlier, Wife had executed a Durable Power of Attorney for Healthcare and a Healthcare Power of Attorney. It determined that the first successor Attorney-In-Fact named in those documents was a suitable choice to act on behalf of Wife and to exercise the many rights delegated by Wife in the documents to her attorney-in-fact.
The same circuit judge has presided over both incapacity proceedings as well as the dissolution of marriage litigation.
Husband has appealed this final order. His appeal is currently pending before this court in Case No. 5D20-2199.
The circuit court next held a hearing on Wife's previously-filed motion to bifurcate. In granting the motion, the court found it to be "clearly necessary" for the best interest of Wife to bifurcate the proceedings so as to "provide her with finality with the dissolution of marriage." It further found that "continued protracted litigation has had and will continue to have detrimental effects on [Wife's] physical and mental health and well-being."
HUSBAND'S PETITION
As previously indicated, Husband's petition asks that this court grant him relief by vacating the bifurcation order and to prohibit the circuit court from entering a final judgment that dissolves the marriage while reserving jurisdiction to rule on all other matters. Husband also requests that, due to Wife's present mental incapacity, we prohibit the circuit court from holding trial for a period of up to three years.
While the writ of certiorari and writ of prohibition being sought by Husband have separate requirements that must be established prior to issuance, Husband's request for relief under each primarily relies upon the language of section 61.052, Florida Statutes (2020). Pertinent here, section 61.052(1) states:
This statute was first enacted in 1971 and is commonly referred to as Florida's "No-Fault Divorce" Statute.
(1) No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be pleaded generally:
(a) The marriage is irretrievably broken.
(b) Mental incapacity of one of the parties. However, no dissolution shall be allowed unless the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least 3 years. Notice of the proceeding for dissolution shall be served upon one of the nearest blood relatives or guardian of the incapacitated person, and the relative or guardian shall be entitled to appear and to be heard upon the issues. If the incapacitated party has a general guardian other than the party bringing the proceeding, the petition and summons shall be served upon the incapacitated party and the guardian; and the guardian shall defend and protect the interests of the incapacitated party. If the incapacitated party has no guardian other than the party bringing the proceeding, the court shall appoint a guardian ad litem to defend and protect the interests of the incapacitated party. However, in all dissolutions of marriage granted on the basis of incapacity, the court may require the petitioner to pay alimony pursuant to the provisions of s. 61.08.
Husband argues that the plain language of section 61.052(1)(b) provides that if the pleadings in the case show, as they do here, that there is mental incapacity of one of the parties, then no final judgment of dissolution of marriage is allowed unless the incapacitated person has been adjudicated incapacitated for a preceding period of at least three years. Husband argues that under Goldberg v. Goldberg , 643 So. 2d 656 (Fla. 4th DCA 1994), upon Wife's recent adjudication of mental incapacity, the dissolution of marriage proceedings must be abated, irrespective of Wife being competent when she filed her petition or that she seeks to dissolve the marriage based on it being irretrievably broken.
An abatement suspends an action until the defect which caused the need for the abatement has been cured. See generally , 1 Fla. Jur. 2d Actions § 90 (2020).
In Goldberg , the husband petitioned for the dissolution of marriage alleging both that the marriage was irretrievably broken and that his wife was incapacitated by a stroke. Id. at 657. The wife, through her son under a durable power of attorney, asserted as an affirmative defense that she was mentally incapacitated within the meaning of section 61.052(1)(b), Florida Statutes, and suggested, among other things, that the husband was prohibited from maintaining the action for dissolution of marriage. Id. The trial court eventually abated the dissolution of marriage proceedings for three years based on section 61.052(1)(b). Id.
The husband then petitioned for certiorari relief arguing that abatement was error because he was seeking the dissolution based on the marriage being irretrievably broken, not on his wife's mental incapacity. Id. The Fourth District denied relief. Id. at 658. The court first found no issue with the wife's mental incapacity being raised as an affirmative defense in response to the petition for dissolution of marriage, explaining that the statute permitted the allegation of incapacity to appear in either the petition or the response. Id. The court then reasoned that when the mental incapacity of one of the parties appears in the pleadings, even if the dissolution of the marriage is being sought because the marriage is irretrievably broken, then the dissolution cannot be granted without first complying with the three-year abatement requirements of section 61.052(1)(b). Id.
In the present case, Husband argued in opposition to bifurcation that his pleadings had sufficiently raised Wife's now-adjudicated mental incapacity, thus Goldberg mandated the abatement. The circuit court disagreed. It distinguished Goldberg , noting that there, it was the competent spouse seeking a divorce from his incapacitated wife while here, Wife, as the incapacitated spouse, was the party seeking the dissolution of marriage. The court interpreted the intent of section 61.052(1)(b) as providing protection for the incapacitated spouse from a dissolution of the marriage, which it found was unnecessary here because Wife, as the incapacitated person, was the party seeking the dissolution. The circuit court also reasoned that Wife's present incapacity should not preclude dissolution of the marriage because she was competent in 2015 when she petitioned to dissolve the marriage for being irretrievably broken and in 2018 when, based on Wife's testimony, the court entered an order specifically finding the marriage to be irretrievably broken.
While we have spent time outlining the somewhat unique procedural history of the case, the dispositive issues before us seem fairly narrow. First, is Husband presently entitled to relief from the order of bifurcation? Second, is the circuit court without authority to presently enter a final judgment that dissolves the marriage but reserves jurisdiction to resolve all other issues and thereafter hold a trial at any time within the three years of Wife being adjudicated incapacitated?
CERTIORARI
We begin first by recognizing that an order granting bifurcation of trial court proceedings, as entered here, is not one of the enumerated nonfinal orders immediately appealable under Florida Rule of Appellate Procedure 9.130. That, however, does not end our analysis because, in limited circumstances, district courts of appeal have certiorari jurisdiction to review otherwise nonappealable, nonfinal orders. Fla. R. App. P. 9.030(b)(2). Nevertheless, certiorari is still considered an "extraordinary remedy" and is not to be used to summarily circumvent the intent of rule 9.130. See Jaye v. Royal Saxon, Inc. , 720 So. 2d 214, 214–15 (Fla. 1998) (citing Martin-Johnson, Inc. v. Savage , 509 So. 2d 1097, 1098 (Fla. 1987) ).
To obtain a writ of certiorari, a petitioner must show that the nonfinal order entered is "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Williams v. Oken , 62 So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc. , 889 So. 2d 812, 822 (Fla. 2004) ). The second and third prongs are sometimes collectively referred to as the "irreparable harm" element, and they are jurisdictional. Fla. Dep't of Agric. & Consumer Servs. v. Mahon , 293 So. 3d 1091, 1095 (Fla. 5th DCA 2020) (citing Deutsche Bank Nat'l Tr. Co. v. Prevratil , 120 So. 3d 573, 575 (Fla. 2d DCA 2013) ).
Although we question whether Husband has shown that the instant bifurcation order, in which the circuit court found bifurcation to be in Wife's best interest, was a departure from the essential requirements of the law, see Claughton v. Claughton , 393 So. 2d 1061, 1062 (Fla. 1980) (holding that "[a]lthough we approve the granting of this final dissolution with a reservation of jurisdiction to subsequently determine property, custody, and support issues, we believe trial judges should avoid this split procedure" and that this "split procedure should be used only when it is clearly necessary for the best interests of the parties or their children"), we find it unnecessary to address this first prong because, as indicated, in order to obtain certiorari relief, irreparable harm resulting from the order must initially be established. Absent a showing of irreparable harm, we lack jurisdiction to issue the writ and the petition must be dismissed. See Mahon , 293 So. 3d at 1096 ; see also Bared & Co. v. McGuire , 670 So. 2d 153, 157 (Fla. 4th DCA 1996) (explaining that dismissal, rather than denial, is the proper disposition for writ of certiorari when an appellate court determines that there has been an insufficient showing of irreparable harm).
We conclude that Husband's petition for writ of certiorari should be dismissed. Simply put, Husband has not shown how the bifurcation order itself has caused him to be irreparably harmed; nor, for that matter, has Husband sufficiently alleged how he has been harmed by the order.
PROHIBITION
As previously alluded to, Husband also seeks a writ of prohibition to preclude the circuit court from entering a final judgment dissolving the marriage and to thereafter hold trial to resolve all other issues within the three-year period after Wife was adjudicated incapacitated.
Prohibition, like certiorari, is also considered an "extraordinary writ." English v. McCrary , 348 So. 2d 293, 296 (Fla. 1977). It may be granted only when it is shown that a lower court is without jurisdiction or is attempting to act in excess of its jurisdiction. Id. A writ of prohibition is intended to be "very narrow in scope and operation and must be employed with caution and utilized only in emergency cases to prevent an impending injury where there is no other appropriate and adequate legal remedy." Mandico v. Taos Constr., Inc. , 605 So. 2d 850, 854 (Fla. 1992).
We have no difficulty in first finding that Husband has not shown how the circuit court is without jurisdiction in the proceeding below. A petition for dissolution of marriage is brought under Chapter 61 of the Florida Statutes and is considered to be a proceeding in equity. See Rosen v. Rosen , 696 So. 2d 697, 700 (Fla. 1997). Circuit courts have "exclusive original jurisdiction ... [i]n all cases in equity." § 26.012(2)(c), Fla. Stat. (2015) ; see also English , 348 So. 2d at 297 ("In this state, circuit courts are superior courts of general jurisdiction, and nothing is intended to be outside their jurisdiction except that which clearly and specially appears so to be.").
We next consider whether, under the circumstances of the case, the circuit court's entry of a final judgment that dissolves the marriage but reserves jurisdiction to address all other matters is an act in excess of its jurisdiction.
On this issue, we find the case of Magaziner v. Magaziner , 434 So. 2d 10 (Fla. 3d DCA 1983), instructive. That case addressed the effect of a final judgment of dissolution of marriage entered in violation of section 61.19, Florida Statutes (1979). Id. at 11. This statute provided:
No final judgment of dissolution of marriage may be entered until at least 20 days have elapsed from the date of filing the original petition for dissolution of marriage but the court, on a showing that injustice would result from this delay, may enter a final judgment of dissolution of marriage at an earlier date.
Id. (quoting § 61.19, Fla. Stat. (1979) ). In Magaziner , there was no dispute that this statute had been violated as the final judgment of dissolution was entered before the twenty days had run and there had been no record showing that injustice would result from the statutory twenty-day delay. Id. The Third District Court of Appeal affirmed the trial court's order denying the appellant's motion to set aside the final judgment as void. Id. Pertinent here, the court concluded that where there is no question that the trial court had jurisdiction and the parties had the opportunity to be fully heard, the trial court's error in failing to follow the waiting period of section 61.19, Florida Statutes, "was merely error in the exercise of properly obtained jurisdiction." Id.
In the present case, the circuit court's entry of a final judgment dissolving the marriage would be, at worst, an erroneous exercise of its otherwise lawful jurisdiction. Prohibition does not lie to correct such an error. See id. ; State ex rel. Schwarz v. Heffernan , 142 Fla. 137, 194 So. 313, 314 (1940) (recognizing that a writ of prohibition "does not lie to prevent the commission of errors on the part of a court that is proceeding within the scope of its jurisdiction").
We likewise conclude that Husband is not entitled to a writ of prohibition to preclude entry of the final judgment because prohibition is inappropriate if a party has the right to remedy the wrong by direct appeal. See Sparkman v. McClure , 498 So. 2d 892, 895 (Fla. 1986) ("Moreover, a defendant cannot resort to a writ of prohibition where he has an adequate remedy via appeal."); City of Ocala v. Gard , 988 So. 2d 1281, 1283 (Fla. 5th DCA 2008) ("Prohibition is also inappropriate if the parties have the right to remedy the wrong by direct appeal."). In this case, any alleged error by the circuit court entering a final judgment that dissolves the parties’ marriage but reserves jurisdiction to determine all other issues is directly appealable under Florida Rule of Appellate Procedure 9.110(k). See Bland v. Bland , 971 So. 2d 210, 212 (Fla. 5th DCA 2007) ("The case law indicates that an order that dissolves a marriage and reserves jurisdiction to determine all other issues is a partial final judgment for purposes of Rule 9.110(k)." (citing Galbut v. Garfinkl , 340 So. 2d 470, 473–74 (Fla. 1976) (additional citations omitted))). Thus, Husband's petition for writ of prohibition fails here because he has the immediate right to appeal any error committed by the circuit court in entering a final judgment dissolving marriage but reserving jurisdiction to determine all other issues. See Glazer v. Glazer , 394 So. 2d 140, 141 (Fla. 4th DCA 1981) ("We will not hesitate to reverse a judgment dissolving a marriage and reserving jurisdiction to determine property matters if the case has been improperly bifurcated over the objection of one of the parties.").
Lastly, applying these same principles, we conclude that Husband has not shown entitlement to a writ of prohibition to preclude trial within three years of Wife being adjudicated mentally incapacitated. Error, if any, in holding such a trial would simply be an error in the circuit court's exercise of its properly-obtained jurisdiction, for which there would be a prompt and adequate remedy on appeal from a final judgment rendered following the trial. See English , 348 So. 2d at 298 ("Abuse of discretion by the inferior tribunal acting within its jurisdiction is not a matter to be determined by prohibition.").
For these reasons, Husband's amended petition seeking a writ of certiorari is dismissed, and it is denied as to the issuance of a writ of prohibition.
To be clear, we take no present position on the merits of the bifurcation order or to the circuit court subsequently entering its suggested final judgment solely dissolving the marriage and thereafter holding trial to address the remaining issues.
AMENDED PETITION FOR WRIT OF CERTIORARI DISMISSED; AMENDED PETITION FOR WRIT OF PROHIBITION DENIED.
WALLIS and HARRIS, JJ., concur.