Webb v. Hillsborough County Hosp. Authority, 87-691

• Citation: 13 Fla. L. Weekly 448,521 So.2d 199
• Decision Date: 12 February 1988
• Docket Number: No. 87-691,87-691
• Parties: 13 Fla. L. Weekly 448, 13 Fla. L. Weekly 478 Robert WEBB and Carol Webb, Appellants, v. The HILLSBOROUGH COUNTY HOSPITAL AUTHORITY, Operating Tampa General Hospital, Hillsborough County, Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 199

521 So.2d 199

13 Fla. L. Weekly 448, 13 Fla. L. Weekly 478

Robert WEBB and Carol Webb, Appellants, v. The HILLSBOROUGH COUNTY HOSPITAL AUTHORITY, Operating Tampa General Hospital, Hillsborough County, Florida, Appellee.

No. 87-691.

District Court of Appeal of Florida,

Second District.

Feb. 12, 1988.

Francis J. Carroll, Jr., Chobee Ebbets of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellants.

Michelle G. Castillo of Marvin Solomon, P.A., Tampa, for appellee.

LEHAN, Judge.

A husband appeals from a final judgment which, under the common law doctrine of necessaries, held him responsible for a hospital bill representing necessary services rendered to his wife. The husband cites Shands Teaching Hospital & Clinics, Inc. v. Smith, 497 So.2d 644 (Fla.1986), in which the Florida Supreme Court, deciding that constitutional equal protection of the law was not in issue in that case, held that the common law imposes no responsibility upon a wife for necessaries provided to her husband. The husband in this case contends that, there having been no agreement by him to be responsible for necessaries provided to his wife, he is not responsible therefor because to hold him so responsible would, in light of the Shands holding, violate his right to equal protection of the law under the Florida and federal constitutions. ¹

We agree with the husband that equal protection requires that husbands and wives not be treated differently with respect to the responsibility of one spouse for necessaries provided to the other spouse. But we disagree that a husband may not be responsible for necessaries provided to his wife. The reason is that in this equal protection case we conclude that a wife may be responsible for necessaries provided to her husband. Yet since we also conclude that one spouse may not be responsible for necessaries provided to the other spouse unless the other spouse is unable to pay therefor, and since the record does not show whether or not the wife in this case had that ability, we remand for further proceedings. We now explain our reasoning.

We are constrained to apply the United States Supreme Court's rationale in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). Orr held that a statute authorizing alimony to be paid by husbands but not by wives violates the equal protection clause of the United States Constitution. That rationale was that

the "old notio[n]" that "generally it is the man's primary responsibility to provide a home and its essentials," can no longer justify a statute that discriminates on the basis of gender. "No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas."

440 U.S. at 279-80, 99 S.Ct. at 1112, 59 L.Ed.2d at 319, quoting Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1378, 43 L.Ed.2d 688 at 695 (1975).

We apply that rationale notwithstanding our recognition of what the Wisconsin Supreme Court has referred to as the "verifiable fact that wives are still far from equal with their husbands in economic resources." Marshfield Clinic v. Discher, 105 Wis.2d 506, 314 N.W.2d 326, 331 (1982). The United States Supreme Court has set the requisite pattern for change in this regard to be implemented through constitutional interpretation. ²

That a statute caused the unequal protection described in Orr and that the common law does so in this case is a distinction without a material difference. In either case it is the law which does so. See Jersey Shore Medical Center-Fitkin Hospital v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003, 1007 (1980).

See also Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980) (statute providing work-related death benefits to widow without requiring proof of her dependency on husband but requiring proof from a widower of his dependency on wife violates equal protection); Califano v. Westcott 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) (social security law providing aid to families with dependent children when husband becomes unemployed, but not when wife becomes unemployed, violates right to equal protection); Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (social security provision allowing survivor's benefits to widower only if he was receiving at least half of his support from his wife violates right to equal protection); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1977) (law prohibiting beer sales to males under 21 and females under 18 violates right to equal protection); Stanton (law setting age of majority of women at 18 and men at 21 violates right to equal protection); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (social security law providing that survivors' benefits based on deceased husband's earnings are payable to wife and children but benefits based on deceased wife's earnings are payable only to children violates right to equal protection); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (requirement that a wife must show that her husband is actually dependent to claim him as a dependent for purposes of armed forces benefits without a reciprocal requirement on the husband violates right to equal protection); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (statute giving preference to men as administrators of estates violates right to equal protection). But see Marshfield Clinic (no violation of equal protection from a husband being primarily liable for necessaries provided to both the husband and his wife and a wife being only secondarily liable in the event the husband is unable to pay).

Accordingly, we hold that for a husband to be responsible for necessaries provided to his wife while his wife is not responsible for necessaries provided to her husband would violate the equal protection clause of the United States Constitution. This was the conclusion of the Virginia Supreme Court in Schilling v. Bedford County Memorial Hospital, Inc., 225 Va. 539, 303 S.E.2d 905 (1983), which on equal protection grounds held that a husband was not responsible for his wife's hospital bill because at common law wives do not have a reciprocal responsibility. Schilling, by holding the husband not responsible, in effect abolished Virginia's common law doctrine of necessaries and said that whether or not both spouses should be responsible for necessaries provided to each was best left to the legislature. Id. 303 S.E.2d at 908. In Jersey Shore the New Jersey Supreme Court also reached the conclusion on equal protection grounds that husbands and wives may not be treated differently with respect to the responsibility of one for necessaries provided to the other. However, in that case a husband was held responsible for his wife's hospital bill because the New Jersey court changed the common law so that a wife has a reciprocal responsibility in that regard. See also Justice Abrahamson's dissent in Marshfield Clinic, 314 N.W.2d at 332-39.

Having held that husbands and wives cannot constitutionally be treated differently in the context of this case, the issue for us remains how they are both to be treated. The choice of the two changes of law is for both husband and wife to be responsible for necessaries provided to each, as in Jersey Shore, or for neither to be responsible for necessaries provided to the other, as in Schilling.

We make that choice by further holding that, as a general rule, both husband and wife are responsible for necessaries provided to each. This was the result reached not only in Jersey Shore but also in a different procedural context by this court in Manatee Convalescent Center, Inc. v. McDonald, 392 So.2d 1356 (Fla. 2d DCA 1980), and by the Third District Court of Appeal in Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla. 3d DCA 1981). Manatee, which Parkway followed, cited Jersey Shore as principal authority. 392 So.2d at 1358.

Manatee and Parkway changed the common law with respect to necessaries so that both husband and wife would be responsible for necessaries provided to each. While Manatee and Parkway were disapproved by the Florida Supreme Court in Shands, the bases for such disapprovals were, explicitly or implicitly, that (a) the matter of changing the common law regarding the liability of one spouse for necessaries provided to the other spouse was best left to the legislature and (b) that, while equal protection issues are for the courts to decide, equal protection is not in issue in cases like Manatee and Parkway in which hospitals claim that wives are responsible for necessaries provided to their husbands because hospitals do not have standing to raise equal protection as between husbands and wives. 497 So.2d at 646. Thus, the issue in the case now before us was not in issue in Shands. As the Florida Supreme Court said, "The issue of whether it is a denial of equal protection to hold a husband liable for a wife's necessaries when a wife is not liable for a husband's necessaries is not before us." Id. at 646 n. 1.

The underlying rationale of Manatee and Parkway was essentially the same as the United States Supreme Court's equal protection rationale quoted above which we are applying here and which was applied in Jersey Shore, 417 A.2d at 1009. As Manatee said, "Changing times demand reexamination of seemingly unchangeable legal dogma. Equality under law and even handed treatment of the sexes in the modern market place must also carry the burden of responsibility which goes with the benefits." 392 So.2d at 1358. In fact, Schilling, an equal protection case, cited Manatee as having made a choice different from that made in Schilling. 303 S.E.2d at 908 n. 3. ³

Thus, Manatee and Parkway were decided essentially on the basis of a rationale involving equal protection which the Florida Supreme Court in Shands said was...