Golub v. Golub
| Decision Date | 09 April 2021 |
| Docket Number | Case No. 5D21-421 |
| Parties | Lawrence H. GOLUB, Petitioner, v. Barbara Ann GOLUB, Respondent. |
| Court | Florida District Court of Appeals |
H. K. Fletcher, Jr., of Fletcher Law Firm, P.A., Oviedo, for Petitioner.
Samuel A. Walker, of CPLS, P.A., Orlando, for Respondent.
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.1 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.
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 court2 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.3
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).4 Pertinent here, section 61.052(1) states:
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.5
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...
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