Hall v. Maal, Case No. 1D08-4776 (Fla. App. 10/20/2009)

Decision Date20 October 2009
Docket NumberCase No. 1D08-4776.
PartiesKIMBERLY M. HALL, Mother, Appellant/Cross-Appellee, v. ROBERTO R. MAAL, Father, Appellee/Cross-Appellant.
CourtCourt of Appeal of Florida (US)


Appellant, Kimberly Hall, appeals a final judgment of paternity which encompassed an earlier determination that the parties were not legally married. Hall argues that, although the parties did not obtain a marriage license, the trial court erroneously denied her claim that a valid marital relationship did exist. On cross-appeal, Appellee/Cross-Appellant Dr. Roberto Maal seeks reimbursement for overpayment of child support. For the reasons that follow, we reverse the trial court's finding that the parties' marriage was invalid and remand for further proceedings. We affirm the trial court's determination that Dr. Maal is ineligible for reimbursement of child support.


Hall and Dr. Maal participated in a religious marriage ceremony on March 2, 2002. Before the ceremony, the couple took part in premarital counseling with the presiding minister, but neither party obtained a marriage license. Although Dr. Maal assured Hall that he would obtain the license, he never did so. In the days leading up to the ceremony, the minister repeatedly asked Dr. Maal the whereabouts of the license, to which Dr. Maal replied that he had left the license at home. After the ceremony, the minister's repeated calls to Dr. Maal went unreturned. One year later, on March 11, 2003, the parties did apply for and obtain a marriage license; however, the marriage was never solemnized before a notary or clergy.

In the years following the 2002 ceremony, two children were born of the relationship, and Dr. Maal referred to Hall as his wife and Hall referred to Dr. Maal as her husband. The mortgage on the parties' home referred to them as "Roberto Maal and Kimberly Maal, husband and wife." Hall was also referred to as Mrs. Maal at her place of business, although her name was never legally changed. The parties did not file a joint tax return at any time.

On April 18, 2006, Hall filed a Petition for Dissolution of Marriage. Dr. Maal responded by filing an answer and counter-petition to establish paternity, wherein he denied the existence of a valid marital relationship. Hall then filed a "Motion Requesting Judicial Determination of a Valid Marital Relationship." The court held a hearing on the motion, finding that a valid marital relationship did not exist.

In October 2006, upon agreement of both parties, the trial court entered a temporary child support order directing Dr. Maal to provide Hall with $5,000 per month in child support. Approximately one year later, the child support was modified to $2,528 per month plus an additional $1,000 per month for services for the parties' special needs child. On September 2, 2008, a final judgment of paternity was entered. Hall now appeals, arguing that the trial court incorrectly ruled that the lack of a marriage license was fatal to the existence of a valid marital relationship.


The procedures for contracting a valid marriage in Florida are regulated by Chapter 741, Florida Statutes. Section 741.211, Florida Statutes, states that "[n]o common-law marriage entered into after January 1, 1968, shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter" (Emphasis added.) Thus, a marriage must substantially comply with the statutory licensing and solemnization requirements. See § 741.211, Fla. Stat. (2002).

In order to obtain a marriage license, applicants must file an application, application fees, and a signed and notarized written affidavit. §§ 741.01-.04, Fla. Stat. (2002). Next, the marriage must be solemnized within 60 days of issuance of the marriage license. § 741.041, Fla. Stat. (2002). Finally, the official who solemnized the marriage must certify that fact on the license, specify the date and place of the marriage, and return the completed license to the issuing county court judge or clerk of the circuit court within 10 days of solemnizing the marriage. Id.; § 741.08, Fla. Stat. (2002).

While Chapter 741 does not provide a definition of "solemnization," it does provide that

[b]efore any of the persons named in s. 741.07 shall solemnize any marriage, he or she shall require of the parties a marriage license issued according to the requirements of s. 741.01, and within 10 days after solemnizing the marriage he or she shall make a certificate thereof on the license, and shall transmit the same to the office of the county court judge or clerk of the circuit court from which it issued.

§ 741.05, Fla. Stat. (2002). Under Chapter 741, Florida Statutes, the Legislature regulates solemnized marriages by imposing licensing fees along with providing a fee reduction for couples who undergo premarital counseling. It further provides assistance to domestic violence victims and batterer's intervention programs. See generally Ch. 741, Fla. Stat. (2002). The Legislature does not, however, expressly state anywhere in Chapter 741 that marriages conducted without a license are invalid or prohibited. In contrast, same-sex and incestuous marriages are prohibited. §§ 741.21, 741.212, Fla. Stat. (2002).

As noted above, common-law marriages are void. § 741.211, Fla. Stat. (2002). A common-law marriage is defined as "[a] marriage that takes legal effect, without license or ceremony, when a couple live together as husband and wife, intend to be married, and hold themselves out to others as a married couple." Lowe v. Broward County, 766 So. 2d 1199, 1210-1211 (Fla. 4th DCA 2000) (citing Black's Law Dictionary, 986 (7th ed. 1999)). Under the facts of this case, the parties' relationship was not a common-law marriage; rather, in light of the wedding ceremony, it was an unlicensed marriage.

It is clear that the Legislature has prohibited and invalidated same-sex and incestuous marriages, but it has not invalidated unlicensed marriages. The absence of an express invalidation of unlicensed marriages may be considered an expression of legislative intent under the canon of statutory construction known as expressio unius est exclusio alterius. Preweitt Mgmt. Corp. v. Nikolits, 795 So. 2d 1001, 1005 (Fla. 4th DCA 2001). This rule "requires that when a law expressly describes a particular situation where something should apply, an inference must be drawn that what is not included by the specific reference was intended to be omitted or excluded." Id. Where the Legislature has not expressly prohibited or invalidated unlicensed marriages, we decline to read such prohibition or invalidation into Florida law. See, e.g., State v. Rife, 789 So. 2d 288,293-94 (Fla. 2001) (holding that legislature did not expressly prohibit downward-departure sentences in cases involving a minor's consent to sexual activity, thus, courts have authority to impose such sentences). It would be a violation of the separation of powers under Article II, Section 3 of the Florida Constitution for this court to read such an express prohibition into a statute where it does not exist. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).

The Legislature has provided an exception for validating marriages that do not meet the exact statutory criteria set out in Chapter 741: "[N]othing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter." § 741.211, Fla. Stat. (2002). We note that the Legislature is quite capable of writing a strict statute that allows no exception for unlicensed marriages. The Legislature has done just that regarding unlicensed drivers, unlicensed lawyers, unlicensed doctors, and various other activities too numerous to mention. See, e.g., §§ 322.03, 454.23, 458.327, Fla. Stat. In many of these situations, the unlicensed person may incur criminal liability; however, these situations provide no defense for "good faith" assertions made in "substantial compliance" with the relevant statutes.

A review of the law in other jurisdictions demonstrates that in order to invalidate unlicensed marriages, such an invalidation is expressly stated in the laws of the state. See, e.g., In re Silverman's Estate, 227 A.2d 519 (N.J. Super. A.D. 1967) (citing N.J. Stat. Ann. § 37:1-10 and noting that the legislature expressly set out to abolish common-law marriages and to invalidate marriages that occur without a license by stating unequivocally that no marriage "shall be valid unless the contracting parties have obtained a marriage license."); Dire v. Dire-Blodgett, 102 P.3d 1096, 1097-98 (Idaho 2004) (holding that a marriage license is required for a valid marriage where the law expressly states that "[c]onsent alone will not constitute marriage; it must be followed by the issuance of a license and a solemnization as authorized and provided by law."); Carabetta v. Carabetta, 438 A.2d 109 (Conn. 1980) (holding that a marriage that had been solemnized by a religious ceremony without a license was not void where Connecticut Statutes state that "[n]o persons shall be joined in marriage until both have joined in an application for a license for such marriage. . . ." but also provided for only a fine for those who married without obtaining a license and also that certain other marriages were void); but see Harlow v. Reliance Nat., 91 S.W.3d 243 (Tenn. 2002) (holding that a party was not a surviving spouse and thus was not entitled to death benefits under workers' compensation law because a marriage license was not...

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