Ryan v. Ryan

• Decision Date: 30 March 1973
• Docket Number: No. 42427,42427
• Citation: 277 So.2d 266
• Court: Florida Supreme Court
• Parties: William R. RYAN, Petitioner, v. Rose E. RYAN, Respondent.

Page 266

277 So.2d 266

William R. RYAN, Petitioner, v. Rose E. RYAN, Respondent.

No. 42427.

Supreme Court of Florida.

March 30, 1973.

Robert W. Shaughnessy, Perrine, for petitioner.

Ward, Ward, Straessley, Hiss & Heath, Miami, for respondent.

Robert L. Shevin, Atty. Gen., and Barry Scott Richard, Deputy Atty. Gen., as intervenors.

DEKLE, Justice.

We have for consideration three certified questions of law submitted by the Circuit Court of the Eleventh Judicial Circuit concerning the constitutionality of Florida's new dissolution of marrige law, Fla.Stat. Ch. 61, F.S.A., F.A.R. 4.6, subd. a, 32 F.S.A. ¹

The three questions certified to us are as follows:

'1. Whether Florida Statutes Chapter 61 which abolished former grounds for divorce and provided as sole ground for divorce that:

(1) the marriage is irretrievably broken, and/or

(2) insanity or mental incompetence

is constitutional in that it does not Impair the Obligation of the Marriage contract nor Adversely affect property rights of the parties?

'2. Whether Florida Statute Chapter 61 which provides for the granting of a dissolution of marriage upon the court's finding that the marriage is irretrievably broken is unconstitutional in that it is Vague, uncertain and indefinite?

'3. Whether Florida Statute Chapter 61 is unconstitutional because it Applies retroactively to marriages entered into prior to July 1, 1971?' (emphasis added)

These questions seek our constitutional interpretation of the new 'no-fault' divorce law. The first question has two parts: Does the new dissolution law 'impair the obligation of the marriage contract' in violation of Fla.Const. art. I, § 10, F.S.A.; does it 'adversely affect property rights of the parties.' We shall examine and decide these related issues together.

PROPERTY RIGHTS

Fla.Const. § 10 of the Declaration of Rights (Art. I) states that: 'No . . . law impairing the obligation of contracts shall be passed.' The respective parties argue at length with regard to whether or not marriage is a contract thus protected, citing various cases on the point.

This Court said as early as Ponder v. Graham, 4 Fla. 23, in 1851, that marriage is a contract. We have consistently since that time referred to 'marriage contracts' for over 120 years of Florida Jurisprudence. As recently as Belcher v. Belcher The query arises then whether dower or curtesy is a 'property right' of a spouse thus protected. the inchoate right of dower is statutory and not a matter of contract, even though such right does indeed grow out of the marriage by virtue of the parties having 'contracted' for that marriage. See also 52 Am.Jur.2d, Marriage, § 5.

271 So.2d 7 (Fla.1972), we referred to the obligation of the husband to support his wife during continuation of the marriage contract, thus still holding our view of marriage to be a 'contract' rather than a mere 'relationship' as suggested in Gleason v. Gleason, 26 N.Y.2d 28, 308 N.Y.S.2d 347, 256 N.E.2d 513 (N.Y.Ct.App.1970), and in an 1888 U.S. Supreme Court case cited by appellee, Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654. In that U.S. Supreme Court holding, however, and in others ² it is pointed out that the contracts which were designed to be protected under the constitutional provision are those contracts providing certain, definite and fixed private rights of property which are vested in the contract.

Dower is not a vested right. ³ We have said that because of its defeasible nature dower is not to be given consideration in divorce or dissolution of marriage proceedings. Bowler v. Bowler, 159 Fla. 447, 31 So.2d 751 (1947).

Dower is, as stated, statutory in nature. Fla.Stat. § 731.34, F.S.A. It is an expectancy, not a present estate (thus 'inchoate'). ⁴ This Court, in Neal v. McMullian, 98 Fla. 549, 124 So. 29--30 (1929), plainly held:

'During the life of the husband the right is A mere expectancy or possibility. In that condition of things, the law making power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that give it may increase, diminish, or otherwise alter it, or wholly take it away. It is upon the same footing with the expectancy of heirs, apparent or presumptive, before the death of the ancestor. Until that event occurs the law of descent and distribution may be molded according to the will of the Legislature.

'In fact, whether or not the inchoate right of dower will ever merge into title and control of the property depends upon many contingencies, all of which are enumerated in the above quoted statute.' (predecessor to Fla.Stat. § 731.34) (emphasis added)

Thus there is no argument with the statement in the later case of Gore v. General Properties Corp., 149 Fla. 690, 6 So.2d 837, 839 (1942), that 'an inchoate right of dower does not constitute an estate, title, or interest in land.' ⁵ See also, Williams v. Ricou, 143 Fla. 360, 196 So. 667, 670 (1940), where this Court held that a wife simply has no right to claim dower so long as her husband is still living. The same would apparently apply likewise to a husband's curtesy.

We note in this connection that our Fourth District in Dal Brun v. City of West Palm Beach, 227 So.2d 347 (Fla.App.4th 1969), has also held that a wife's inchoate right of dower is cut off and extinguished Next we inquire: Is Potential allimony such a 'property right' under the contract of marriage as to be 'impaired' contrary to Fla.Const. § 10 Decl. of Rights? Under the foregoing analysis of dower we must hold likewise that this contingent interest does not fall within the constitutional prohibition. The same result is true as to equitable interests claimed in the property of a spouse by virtue of contributions of services or other considerations within the marrige, other than interests which have already vested. (Actual transfers and independent interests not inherent in the marriage stand independently.) Such a potential equitable interest as alimony is not yet vested but arises upon subsequent judicial determination (or settlement). True, an ultimate award of such an interest upon a termination of the marriage contract (or a legal separation) stems from the marriage. Without it, such an interest would not have arisen. But these potential interests are not those property rights contemplated by the constitutional prohibition. ⁶

upon condemnation of the property under the right of eminent domain.

VAGUE and INDEFINITE CHALLENGE

The next question of law concerns that part of F.S., Section 61.052, F.S.A., reading:

'(1) No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be apleaded generally:

(a) The marriage is irretrievably broken. . . .'

The quoted language read in context with the remainder of the statute expresses the purpose and intent of the Legislature with sufficient clarity to render it invulnerable to attack that it is unconstitutionally vague and indefinite.

The word 'irretrievably' is defined: 'impossible to recoup, repair or overcome.' Webster's Third International Dictionary (1966), page 1196.

When compared with the fourth statutory ground for divorce, 'extreme cruelty,' in the former statute (§ 61.041(4), F.S. 1969, F.S.A.), the new language for dissolution of marriage, 'irretrievably broken,' appears to us to be no more susceptible to the charge of vagueness than were the words, 'extreme cruelty.' 'Extreme cruelty' in the former divorce law was held in case after case to envision a great variety of faults and wrongdoings that were deemed sufficient for the granting of divorce, but the phrase was never invalidated for vagueness or overbreadth. For example, in Diem v. Diem, 141 Fla. 260, 193 So. 65, 66, this Court held the phrase, 'extreme cruelty,' as a ground for divorce to be 'relative.' The Court added:

'What constitutes it may be determined by the degree of one's culture, his emotions, nervous reaction or moral sense.'

The principles set forth in State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla.1966); Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947); Franklin v. State, 257 So.2d 21 (Fla.1971); and State v. Barquet, 262 So.2d 431 (Fla.1972), declaring certain statutes unconstitutionally vague and indefinite, have no application here. Those cases related to statutes denouncing criminal offenses. Moreover, in those cases the vagueness complained of in the statutes under attack was quite different from the instant clear statutory issue of whether a marriage has reached terminal stage in point of fact. The holdings in such cases as City of St.

Petersburg v. Calbeck, 114 So.2d 316, at 319--320 (Fla.App.2d 1959); McArthur v. State, 191 So.2d 429 (Fla.1966); Smith v. State, 237 So.2d 139 (Fla.1970); and Smith v. State, 239 So.2d 250 (Fla.1970), which apply a test of 'reasonable certainty' appear more in line with a consideration of the present statute which meets such a test.

It is the duty of a court to recognize a reasonable construction of a statute which supports its constitutionality. ⁷ The Legislature does not have to give a detailed and carefully outlined plan of each and every step to be followed in each and every circumstance which could arise. We said in Smith v. State, 237 So.2d 139 (Fla.1970), quoting from People v. Smith, 36 Cal.App.2d Supp. 748, 92 P.2d 1039, 1042 (1939):

"To make a statute sufficiently certain to comply with constitutional requirements it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited. . . ."

Under the principles enunciated above, the statute meets the challenge of constitutional vagueness.

PLEADINGS

It is sufficient in the petition simply to allege as an ultimate fact that the marriage is 'irretrievably broken'; however, the chancellor must determine from the particular facts of each case whether a marriage is 'irretrievably broken,' subject, of course, to appellate review. Just as 'extreme cruelty' was held in...