Potter v. Potter

• Decision Date: 15 March 2021
• Docket Number: No. 1D20-603,1D20-603
• Citation: 317 So.3d 255
• Court: Florida District Court of Appeals
• Parties: Thomas Mitchell POTTER IV, Husband, Appellant/Cross-Appellee, v. Malee POTTER, Wife, and TCB Veterinary Services, Inc., d/b/a Allied Veterinary Emergency Hospital, a Florida For Profit Corporation, Appellees/Cross-Appellants.

317 So.3d 255

Thomas Mitchell POTTER IV, Husband, Appellant/Cross-Appellee,

v.Malee POTTER, Wife, and TCB Veterinary Services, Inc., d/b/a Allied Veterinary Emergency Hospital, a Florida For Profit Corporation, Appellees/Cross-Appellants.

No. 1D20-603

District Court of Appeal of Florida, First District.

March 15, 2021

Michael L. Duncan of Duncan Trial & Mediation, Jacksonville, and Ethan Andrew Way of Way Law Firm, PA, Tallahassee, for Appellant/Cross-Appellee.

D. Christine Thurman and Sarah R. Mathews of Thurman Law Firm, PLLC, Tallahassee; and Diane G. DeWolf of Akerman LLP, Tallahassee; and Ryan D. O'Connor of Akerman LLP, Orlando, for Appellees/Cross-Appellants.

B.L. Thomas, J.

In this dissolution case, Appellant asserts the trial court incorrectly determined the total length of the parties’ marriage under section 61.08(4), Florida Statutes. We reject this argument for three reasons: 1) binding caselaw precludes approving the argument; 2) the statute fails to abrogate this caselaw; and 3) the statute itself requires an equitable analysis that here favors the former wife. We decline to address any other issues raised on appeal or on cross-appeal and affirm the order below.

The parties married in Alabama, divorced after nine years, quickly reunited, moved to Florida, and remarried less than a year later. Appellee raised their three children, worked to support Appellant while he attended veterinary school, and then worked at Appellant's Tallahassee veterinary practice, which ultimately proved very successful. Their marriage ended in 2018 after Appellant's excessive spending on vacations, gifts, and use of funds for women outside the marriage for many years.

Appellant argues that the prior decisions of the supreme court and this Court approving the consideration of multiple marriages between the same parties to be one marriage^* were abrogated by legislation enacted in 2010. Section 61.08(4), Florida Statutes (2018), provides that "[t]he length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage." (emphasis added). Appellant asserts that the phrase "the marriage" can only refer to the second marriage between the same parties. At oral argument, he acknowledged that under his interpretation, a couple might be married for decades, divorce for a month, remarry for a short period and divorce again, and the court could only consider the brief second marriage for alimony determination.

We held in Thomas that the trial court erred by considering only the second marriage for alimony determinations:

In the unique circumstances of this case, it is unrealistic to view the wife's request for alimony in the context of a three-year marriage. The parties to this proceeding spent thirty-three years together, interrupted by a four to six month hiatus. The record establishes unequivocally that the husband's present prosperity is attributable in large measure to the wife's efforts in the family business the parties built together. Therefore, we conclude the trial court abused its discretion in making an alimony determination without considering the prior thirty-year marriage of the parties.

571 So. 2d at 503.

The supreme court agreed with this Court that a remarriage must include all years the parties were married and cited Thomas :

In passing, we note that the trial court declined to award Kimi Cox permanent alimony "[d]ue [in part] to the short duration of the marriage." During the parties’ first marriage, James Cox served on active duty with the military for almost nine years. Additionally, James Cox served on active duty throughout the parties’ second marriage which lasted less than two years. In view of the short interval between the two marriages, we believe that it would be inequitable to treat the Coxes’ marriage as lasting less than two years. See Thomas v. Thomas , 571 So. 2d 499 (Fla. 1st DCA 1990).

Cox , 659 So. 2d at 1055 n.5 (alteration in original).

We note that the supreme court held in Cox that the executed provisions of a prior marital settlement agreement are not affected by reconciliation or remarriage, but a reconciliation or marriage abrogates the executory provisions of a prior marital settlement agreement. Id. at 1054. This rationale and logic support our decision here. The supreme court explicitly recognized that public-policy considerations favor abrogation "since the policy of courts is to encourage and strengthen the bond of marriage, it is the presumed intent of the parties at the time of the reconciliation to resume the marital relationship in all respects ...." Id. (emphasis added) (quoting Brazina v. Brazina , 233 N.J.Super. 145, 558 A.2d 69, 72 (Ct. Ch. Div. 1989) ). Those same public-policy considerations clearly support the trial court's decision here to consider the parties’ two marriages as one.

Second, while we acknowledge that the statute could be read as Appellant argues, and thus considered ambiguous, we reject his interpretation and instead apply the well-established rule of statutory construction that the Legislature is presumed to be cognizant of relevant judicial decisions when enacting statutes. In fact, the Legislature will be presumed to adopt those relevant prior judicial decisions unless the contrary is expressed:

Although absence of an expression of intent to overrule this Court's precedent is not dispositive in all cases, we presume that the Legislature would not effect so important a measure as the overruling of Pan–Am or the reassertion of sovereign immunity to contract actions without expressing a clear intention to do so. Cf. Knowles v. Beverly Enterprises–Florida, Inc. , 898 So. 2d 1, 9 (Fla. 2004) (recognizing that the courts must presume that the Legislature will not effect so important a measure as the repeal of a law without expressing an intention to do so).¹⁰ Furthermore, "the legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version." Jones , 793 So. 2d at 917 (emphasis supplied) (quoting City of Hollywood v. Lombardi , 770 So. 2d 1196, 1202 (Fla. 2000) ).

Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC , 986 So. 2d 1260, 1269–70 (Fla. 2008) (footnote omitted).

We will not assume the Legislature intended to abrogate prior judicial constructions in the absence of legislative intent:

"Florida's well-settled rule of statutory construction [is] that the legislature is presumed to know the existing law when a statute is enacted, including ‘judicial decisions on the subject concerning which it subsequently enacts a statute.’ " Wood v. Fraser , 677 So. 2d 15, 18 (Fla. 2d DCA 1996) (quoting Collins Inv. Co. v. Metropolitan Dade County , 164 So. 2d 806, 809 (Fla. 1964) ).

Seagrave v. State , 802 So. 2d 281, 290 (Fla. 2001) (alteration in original); see also Winn-Dixie Stores, Inc. v. Reddick , 954 So. 2d 723, 728 (Fla. 1st DCA 2007) (quoting Seagrave ).

Here, the Legislature provided no indication that it intended to abrogate the supreme court's precedent or our precedent that required trial courts to acknowledge parties’ multiple marriages as one marriage for durational analysis under section 61.08(4), Florida Statutes. Thus, where the Legislature declines to abrogate supreme court precedent, and we lack the authority to disobey supreme court precedent, we must reject Appellant's argument. This is particularly true where the statute here was enacted in 2010, fifteen years after the decision in Cox and twenty years after our decision in Thomas .

Another rule of statutory construction, which states that courts may not insert words into a statute that the Legislature declined to enact, compels our reading of section 61.08(4), Florida Statutes. Nothing in the statute addresses remarriages or explicitly limits the trial court from combining two marriages between the same parties for alimony determinations. See Surf Works, L.L.C. v. City of Jacksonville Beach , 230 So. 3d 925, 930 (Fla. 1st DCA 2017) (courts should not insert words or phrases into ordinances to express intentions that do not appear unless it was clear the omission was an accident).

Finally, our third reason for rejecting Appellant's argument is the statute itself. The Legislature has authorized trial courts to consider "[a]ny other factor necessary to do equity and justice between the parties." See § 61.08(2)(j), Fla. Stat. (2018). Courts have recognized that "[t]he nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court." Green v. Green , 126 So. 3d 1112, 1114 (Fla. 4th DCA 2012) (quoting Lule v. Lule , 60 So. 3d 567, 569 (Fla. 4th DCA 2011) ). And the trial court "possesses broad discretionary authority to do equity between the parties ...." Canakaris v. Canakaris , 382 So. 2d 1197, 1202 (Fla. 1980) (emphasis added).

Here, the trial court's ruling that the parties’ marriages were, in fact, one marriage for alimony analysis was equitable. Appellee worked during the first marriage and raised the children so Appellant could attend veterinary school. During the second phase of the marriage, Appellee continued to support Appellant when their standard of living dramatically improved. The parties were only apart for a short time before they reconciled. Their marriage finally disintegrated following Appellant's marital misconduct. Thus, the trial court did not abuse its discretion when it combined the length of both marriages under section 61.08(4), Florida Statutes. See Canakaris , 382 So. 2d at 1202.

AFFIRMED.

M.K. Thomas, J., concurs; Rowe, J., concurs in part, dissents in part with opinion.

Rowe, J., concurring in part, and dissenting in part.

I concur in the majority's affirmance of all the issues in this appeal and cross-appeal except for its conclusion that the trial court could consider the length of the Potters’ previous marriage when calculating the duration of their marriage in its alimony determination.

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