Lopes v. Lopes

• Decision Date: 22 August 2003
• Docket Number: No. 5D02-793.,5D02-793.
• Citation: 852 So.2d 402
• Parties: Lucilia LOPES, Appellant, v. Luciano LOPES, Appellee.
• Court: Florida District Court of Appeals

852 So.2d 402

Lucilia LOPES, Appellant, v. Luciano LOPES, Appellee.

No. 5D02-793.

District Court of Appeal of Florida, Fifth District.

August 22, 2003.

John Dwyer Meehan, Orlando, for Appellant.

Gary Shader, of Law Office of Gary Shader, Maitland, for Appellee.

HARRIS, Senior Judge.

Lucilia Lopes sued for divorce after what she assumed was a fifteen-year marriage. The trial judge, however, based on appellee's affirmative defense and counterclaim, found that the marriage was void because the appellant had a legal husband at the time of the purported marriage. The court annulled the marriage. It was appellee's position that appellant's first marriage, which he contends he learned of only two to three years before the divorce was filed, was not properly terminated by the purported Dominican Republic divorce because the parties to the divorce were not residents there at the time of the divorce. The first husband was in the Dominican Republic for less than three hours and the appellant apparently appeared there only by power of attorney.

At trial (and on appeal), appellant all but conceded the invalidity of the Dominican divorce. Instead of relying on the validity of the divorce and her subsequent remarriage in Connecticut (the marriage herein annulled), she urged that it would be inequitable to annul the marriage in which the parties obtained a marriage license, went through a marriage ceremony, lived together as man and wife, bought property together, shared various bank accounts, and held themselves out as man and wife. In other words, she urged the court to find an equitable common law marriage. But common law marriages, even equitable ones, are not recognized in Florida. The issues belong to the parties; the facts to the trial court. The trial court, based on the pleadings and evidence before it, determined that the Dominican divorce was void under Florida law—the only law urged by the parties. The issues raised by the dissent, based on the dissent's independent research, simply were not raised by Appellant either below or before this court. It is now too little, too late.

A better issue for appellant, had it been pleaded, would have been that since Connecticut does not permit a husband to challenge the validity of a divorce to which he was not a party, the Connecticut marriage was effectively valid and thus entitled to full faith and credit. But the wife did not urge that the marriage was valid in Connecticut and she did not plead or establish the law of Connecticut. Further, and of equal importance, the wife did not urge the validity of the Dominican divorce and she did not plead or establish the law of the Dominican Republic. The effect of all this is that it is presumed that the law of Connecticut and the law of the Dominican Republic are the same as the law of Florida. See Columbian Nat. Life Ins. Co. v. Lanigan, 154 Fla. 760, 19 So.2d 67 (1944).

With this presumption, the position the trial court found itself in was that there was a jurisdictional requirement in the Dominican Republic for a valid divorce which was not met. Further, without a showing that the marriage was valid in Connecticut or that Connecticut would not permit a second husband to challenge even a void divorce, our court was free to decide the issue under Florida law.

The law of Florida is that a marriage is not valid if one of the parties has a legal spouse at the time of the marriage. See Jones v. Jones, 119 Fla. 824, 161 So. 836 (1935) (The marriage of a man and woman, where one of them has a husband or wife by a prior marriage, who is then living and undivorced, is generally held to be absolutely void, and not merely voidable, and, being a nullity, no judicial decree is necessary to avoid same.) Even though it may not be necessary to get a judicial determination that no marriage exists, our supreme court has said that it is in the best interest of society to do so and that it matters not whether the determination is made by annulment or divorce, the effect is an adjudication of the nullity of the supposed marriage. Burger v. Burger, 166 So.2d 433 (Fla.1964).

Logically, it would not seem to matter why a previous marriage was still intact— whether the parties' attempted divorce was invalid or whether the parties never attempted a divorce at all. In either event, one continues to have a living and undivorced spouse which prevents such person from entering a new, valid marriage. It was not suggested below that the husband lacked standing to challenge the validity of the Dominican divorce because he was not a party to it. This may be the (unpleaded) Connecticut law but it is not now the law of Florida. Indeed, it would be peculiar if one seeking an annulment based on the ground that his or her spouse was married at the time of the second marriage, thus rendering the second marriage absolutely void, could not assert the invalidity of a purported divorce. Otherwise, the State through its courts would be breathing life into a nonexistent entity. If the Dominican divorce was void, it was not void only as to the parties to it; it was nonexistent as to the world. In any event, appellee was not challenging the validity of the Dominican divorce, at least not directly. He was challenging the validity of his marriage, a marriage to which he was a party, and merely relied on the fact that appellant's divorce was void as evidence to support his position. Whether the husband could have challenged the Dominican divorce in Connecticut is immaterial. Here, the wife chose Florida as the forum for her action.

In any event, since 1851, the right of third persons to challenge the validity of a marriage has been recognized in Florida. The court in Ponder v. Graham, 4 Fla. 23, 27 (Fla.1851), stated:

But where any civil disability, as prior marriage, exists, the marriage is void absolutely, and no civil rights can be acquired under it; and it may be inquired of in any court where rights are asserted under it, though the parties be dead.

Where any civil disability exists, the judgment of the court is but declaratory; it does not make it void; for though a marriage de facto, it had no legal existence. It is competent for a party to set up the nullity of his first marriage, in bar of a sentence praying the nullity of the second marriage. Shelford, 332. Either of the parties to the marriage, or the parent or guardian of either of the parties, or any other person interested, may apply to the court, and they have a right to a declaratory sentence, and it is upon the ground that the public, as well as the parties in interest, have a right to know the real character of these domestic relations. Shelford, 334. It is, therefore, upon principle and authority, competent for executor, representing as he does the interest of distributees and creditors of this estate, to impeach the validity of this marriage.

The same logic applies now.

Even if appellee's standing to challenge the Dominican divorce could have been asserted by appellant, as previously mentioned it was not. Although estoppel was urged by the wife as a basis for ignoring the invalidity of the marriage, it was based only on her position that appellee knew of the divorce prior to their marriage and relied on them in entering the marriage, a position contrary to the husband's testimony. The judge was free to believe the husband's testimony. The court rightly rejected this claim of estoppel.

Based on the record and the pleadings and proof before the trial court, we affirm.

ORFINGER, J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J., dissenting.

I respectfully dissent.

The appellant, Lucilia Lopes ["Lucilia"], was previously married to Mario Coelho. In 1972, her former husband obtained a divorce from her in the Dominican Republic, at a time when both Lucilia and her former husband (who are Portugese) were living in Connecticut. The divorce was obtained on grounds of "mutual consent." Coelho testified he traveled to the Dominican Republic specifically for the purpose of obtaining a divorce and was there for less than one day. Lucilia apparently appeared in the proceeding through counsel and consented to the divorce.

Lucilia married the appellee herein, Luciano Lopes ["Luciano"], in 1985. They lived together as husband and wife for approximately fifteen years, until November 2000, when Lucilia filed for divorce. Lucilia sought alimony, an equitable distribution of marital property, and attorney's fees. In "Husband's Response to Wife's Petition for Dissolution of Marriage and Other Relief and Husband's Counterpetition for Dissolution of Marriage," Luciano sought alimony, equitable distribution, payment of his health insurance premiums, and attorney's fees. Six months later he filed an amended petition seeking a special equity in the marital home and in a bank account. One month later, in July 2001, he filed a second amendment, in which he raised for the first time that his marriage to Lucilia was "not legal" because Lucilia's Dominican divorce from her first husband was not valid. He contended that Lucilia was still married to Coelho at the time of their marriage, which rendered the marriage void ab initio. He separately asked the court for a declaratory judgment regarding the validity of his marriage to Lucilia and requested the partition of property held as tenants by the entireties.

Following an evidentiary hearing, the trial court granted Luciano an annulment on the basis that Florida would not give comity to a divorce obtained in the Dominican Republic, where neither Lucilia nor her former husband were residents of that country for a period of 180 days, as required by Florida law, before the divorce was issued. The trial court further refused to find that husband was estopped to contest the validity of his marriage to Lucilia, because "a party who obtains an inappropriate and invalid divorce cannot avail itself with the use of estoppel." The final order found the marriage...