Williams v. Spears

• Decision Date: 07 October 1998
• Docket Number: No. 98-926,98-926
• Parties: 23 Fla. L. Weekly D2276 Karen Brown WILLIAMS, Monty Williams and F.H. Dicks, IV, Petitioners, v. Betty Lynn Brown SPEARS, Respondent.
• Court: Florida District Court of Appeals

Page 1236

719 So.2d 1236

23 Fla. L. Weekly D2276

Karen Brown WILLIAMS, Monty Williams and F.H. Dicks, IV, Petitioners, v. Betty Lynn Brown SPEARS, Respondent.

No. 98-926.

District Court of Appeal of Florida,

First District.

Oct. 7, 1998.

Rehearing Denied Nov. 5, 1998.

Douglas W. Abruzzo, Gainesville, for Petitioners.

Cynthia Stump Swanson, Gainesville, for Respondent.

KAHN, Judge.

Petitioners ask this court to exercise its common law certiorari jurisdiction and declare that section 752.01(1)(b), Florida Statutes (1997), is unconstitutional as applied to them. We find that on the undisputed facts of this case, the statute in question cannot be constitutionally applied. Therefore, we grant the writ.

Petitioners (hereinafter "the parents") are the divorced natural parents (Karen Brown Williams and F.H. Dicks IV) and the stepfather (Monty Williams) of a minor child. Respondent, Betty Spears, is the child's maternal grandmother. Spears filed a petition in the circuit court for Alachua County seeking court-ordered grandparent visitation pursuant to section 752.01(1)(b), Florida Statutes (1997). In their answer to the petition, the parents contended that they have a fundamental right to privacy and self determination pursuant to article I, section 23, of the Florida Constitution. ¹ Specifically, they argue that because Mr. Dicks has shared parental responsibility, his rights are the same as are the rights of the custodial mother. The parents flatly oppose court-ordered visitation.

The parents moved for summary judgment on the basis that the application of the grandparent visitation statute, section 752.01(1)(b), in the circumstances of this case would violate their Florida constitutional right to privacy. The mother filed an affidavit stating that she and her divorced husband "are generally in agreement regarding the overwhelming majority of issues related to raising [the minor child]." The natural father made an identical statement in his affidavit.

The trial court denied the motion for summary judgment. ² The parents then filed a joint motion to dismiss alleging that section 752.01(b) is unconstitutional as applied in this case and, because the statutory provision authorizing Spears' cause of action is unconstitutional, no cause of action exists over which the trial court has jurisdiction. The circuit judge denied this motion without directly addressing the constitutional argument.

The initial inquiry involves whether this court should exercise its limited common law certiorari jurisdiction. The parents argue that by refusing to rule on the constitutionality of the statute as applied to the undisputed facts of this case, the circuit court will, of necessity, conduct an inquiry that will invade the protected privacy interests of their family. They contend that by exploring questions of parental decision-making, and considering the best interests of the child, the circuit court will be engaging in precisely the type of invasion of privacy prohibited by article I, section 23 of the Florida Constitution. Accordingly, the parents argue that certiorari is appropriate because "deprivation (of the right to privacy) for even one day constitutes irreparable harm to a citizen."

"Common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders." Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla.1987). Nevertheless, a non-final order for which no appeal is provided by the Florida Rules of Appellate Procedure is reviewable by petition for certiorari in limited circumstances. To qualify for review, such a non-final order must not only depart from the essential requirements of law, it must also "cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal." Id. at 1099; accord Brooks v. Owens, 97 So.2d 693 (Fla.1957); Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (Fla.1942). Here, the parents allege that their constitutional right to privacy is abridged by the very continuance of these proceedings if, in fact, that statute is unconstitutional as applied to them. We agree.

In Joseph v. State, petitioner sought certiorari review of a trial court order that prohibited petitioner from wearing at trial any clothing depicting or making reference to his religious beliefs. 642 So.2d 613 (Fla. 4th DCA 1994). The court offered the following analysis of the harm that would accrue to petitioner were he to give up his free-exercise rights during the trial:

Certiorari does lie, since the nature of the potential harm is irreparable. If wrongfully deprived of the right to wear his religious clothing in court, petitioner would suffer a harm which could not be remedied on appeal. Once the right were denied him, it would be lost forever. Petitioner would not be able to have the right adequately restored in an appeal from his conviction and sentence, if imposed.

Id. at 613-14 n. 1. Other Florida cases also suggest that certiorari is an appropriate remedy where constitutional rights are deprived or delayed during the pendency of a legal proceeding. See Clear Channel Communications, Inc. v. Murray, 636 So.2d 818 (Fla. 1st DCA 1994); Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988), disapproved on other grounds, Doe v. State, 634 So.2d 613 (Fla.1994).

With regard to a non-parent, visitation rights are statutory and a court has no inherent authority to award visitation. See Meeks v. Garner, 598 So.2d 261 (Fla. 1st DCA 1992). Accordingly, if the statute under which Spears seeks visitation with her granddaughter is unconstitutional as applied to the parents in this case, the court has no authority to proceed with this litigation, which would include, at the least, an inquiry into the parents' decision-making process concerning their child. Therefore, we conclude that if the statute is unconstitutional as applied, the parents will have suffered irreparable injury by going through this proceeding and having the question of constitutionality answered only on a plenary appeal or not at all, if the court does not order visitation. The damage sought to be avoided by the parents would have already been done, that being an inquiry into their private decision-making process concerning the best interests of their child.

On the merits, this case presents an issue of first impression. The challenged statute, with the relevant section italicized, reads as follows:

752.01 Action by grandparent for right of visitation; when petition shall be granted.--

(1) The court shall, upon petition filed by a grandparent of a minor child, award reasonable rights of visitation to the grandparent with respect to the child when it is in the best interest of the minor child if:

(a) One or both parents of the child are deceased;

(b) The marriage of the parents of the child has been dissolved;

(c) A parent of the child has deserted the child;

(d) The minor child was born out of wedlock and not later determined to be a child born within wedlock as provided in s. 742.091; or

(e) The minor is living with both natural parents who are still married to each other whether or not there is a broken relationship between either or both parents of the minor child and the grandparents, and either or both parents have used their parental authority to prohibit a relationship between the minor child and the grandparents.

(emphasis added). No Florida court has ever addressed the constitutional viability of section 752.01(1)(b). ³

The Florida Supreme Court has concluded that section 752.01(1)(e) is facially unconstitutional because it implicates the right of privacy of an "intact" family. See Beagle v. Beagle, 678 So.2d 1271 (Fla.1996). The courts are divided on the constitutionality of section 752.01(1)(a) concerning a situation where one or both parents of the child are deceased.

In Sketo v. Brown, this court upheld the prior version of section 752.01, Florida Statutes (1987). 559 So.2d 381 (Fla. 1st DCA 1990). The statute in Sketo allowed court-ordered grandparent visitation when it is in the best interests of the minor child "if, among other things, '[o]ne or both parents of the child are deceased.' " 559 So.2d at 382. Sketo upheld the facial validity of the statute without analysis, simply stating:

The state has a sufficiently compelling interest in the welfare of children that it can provide for the continuation of relations between children and their grandparents under reasonable terms and conditions so long as that is in the children's interest. Since that is all the challenged statute purports to do, it is not facially unconstitutional.

559 So.2d at 382.

When this court considered the Beagle case, Judge Webster wrote a concurring opinion expressing the view that Sketo had been incorrectly decided. See Beagle v. Beagle, 654 So.2d 1260, 1263-67 (Fla. 1st DCA 1995) (Webster, J., concurring). Judge Webster argued that, even pre-dating the adoption of article I, section 23, "the courts of this state had recognized the fundamental nature of the right of parents to raise their children unfettered by governmental interference, except for the most compelling of reasons." 654 So.2d at 1264. When the supreme court decided the Beagle case, and held the statute unconstitutional, it did not expressly overrule Sketo. Nevertheless, in evaluating the constitutionality of the statute, the supreme court stated:

The challenged paragraph does not require the State to demonstrate a harm to the child prior to the award of grandparental visitation rights. Based upon the privacy provision in the Florida Constitution, we hold that the State may not intrude upon the parents' fundamental right to raise their children except in cases where the child is threatened with harm.

678 So.2d at 1276. This court, however, has recently taken the view that Sketo is still viable and has certified to the...