Both of these are radical attempts to eliminate / reduce certain types of spousal support.

In essence, if enacted, the new bills would:

• Eliminate permanent alimony.
• Eliminate ability to award a combination of forms of alimony in appropriate circumstances.
• Caps alimony at 20% of payor’s net income averaged over last three years of marriage.
• Eliminates “standard of living” as a factor in determining alimony.
• Eliminates income from non-marital assets as source of payment for alimony.
• Caps length of durational alimony to one half the length of the marriage.
• Long term marriage (20 years)  term cannot exceed 60% of length of marriage.
• Alimony terminates at payor attaining full retirement age
• Obligor’s new spouse’s income would be be considered in modification action.

While there is a good argument that alimony reform, such as the implementation of “alimony guidelines”, is needed the changes suggested by these bills are RADICAL and UNFAIR.  It would deprive the Court of their ability to take into account the recipient’s financial realities as to the necessities of life as opposed to an arbitrary percentage of the Obligor’s income.   There is no real rationale behind many of these changes which lock a Court into positions that may not fit the individual circumstances of a particular family’s reality. 

If you have an opinion one way or another, please share it with your Florida Legislator.

Khan v. Khan, 37 FLW D120 (Fla. 4th DCA 2012).  Trial court reversed for striking notice of hearing for temporary relief based on allegation Wife waived alimony and fees in a MSA she signed previously in a divorce that was dismissed.  Against public policy to waive temporary alimony and fees.

Alimony:

Bryne v. Bryne,  37 FLW D190 (Fla. 3rd DCA 2012).  Judgment of alimony reversed when trial court failed to consider parties pre-dissolution liabilities, Husband’s income producing retirement account ad Wife’s loss of $10,000 in wages just before the trial.

Appeals:

Messier v. Martin-Messier, 37 FLW D1 (Fla. 3rd DCA 2011).  Motion for rehearing did not toll time to file appeal of an order denying 1.540 motion.  Motion for rehearing directed at non-final order does not toll time for appeal.

Attorneys’ Fees:

Leon v. Velazquez, 37 FLW D177 (Fla. 3rd DCA 2012).  Order awarding temporary fees reversed and remanded when order lacked findings of fact as the Husband’s ability and Wife’s need.

Luke v. Luke, 37 FLW D69 (Fla. 1st DCA 2012).  Order of fees reversed for failure to include findings as to reasonableness of rate and hours.

Equitable Distribution:

Robertson v. Robertson, 37 FLW D197 (Fla. 5th DCA 2012).  Trial court’s judgment finding no active appreciation in pre-marital website reversed when Wife sought continuance because out of state expert was unavailable and trial court refused to let expert provide rebuttal testimony by phone  Trial court should have found a way to accommodate the Wife.

Bryne v. Bryne,  37 FLW D190 (Fla. 3rd DCA 2012).  Final judgment awarding house with negative equity to Wife and other assets to Husband reversed as it was not an equal distribution.  Trial Court assumed incorrectly negative value would vanish if foreclosed upon.  Absent contractual agreement, debtors liable for deficiency not satisfied in foreclosure sale.

Imputation of Income:

Middleton v. Middleton, 37 FLW D105 (Fla. 5th DCA 2012).  Trial court reversed for failing to impute income to the Wife because the Husband’s expert could not place Wife in a job.  Trial Court should have considered Wife’s work history, occupational qualifications and prevailing earnings in the community.

Misc:

Mollinea v. Diaz, 37 FLW D151 (Fl. 1st DCA 2012).  Order denying credits because issue previously decided was reversed when order denying previous issue had been vacated.

Modification:

Koslowski v. Koslowski,  37 FLW D66 (Fla. 1st DCA 2011).  Trial court affirmed for increasing and extending child support that is incompetent and suffers seizure disorder for respite care.

Knight v. Nabinger, 37 FLW D61 (Fla. 1st DCA 2011).   Trial court erred in offsetting child support for adoption subsidy.  Former Wife received for adopted child when there was no off set in original final judgment.

Galligar v. Galligar, 37 FLW D58 (Fla. 1st DCA 2011).  Trial court reversed when it only modified Former Husband’s alimony obligation down to $3,500 per month.  While Court may consider net worth, past earnings and capital assets, Court cannot require Former Husband to incur indebtedness and deplete assets to pay alimony.

Parenting:

TMH v. DMT, 37 FLW D4 (Fla. 5th DCA 2011).  Trial court reversed for ruling lesbian women who donated ova to lesbian partner and raised child together was deprived of parental rights pursuant to section 742.14, Florida Statutes.  5th DCA found statute unconstitutional and certifies conflict.

Paternity:

DOR v. Iglesias, 37 FLW D160 (Fla. 4th DCA 2012).  Order dismissing paternity suit filed by alleged biological father against intact married couple remanded for determination, in light of fact that the child’s legitimacy remain will remain intact, whether it would be in best interest of child to allow DOR to pursue paternity action.  Order dismissing contained no findings of fact and was not an evidentiary hearing.

DOR v. GAT, 37 FLW D28 (Fla. 2nd DCA 2011).  Trial court reversed for entering order disestablishing paternity because Mother did not produce child for DNA testing.  Remanded to determine if failure to submit to testing was willful.

Procedure:

Ross v. Ross, 37 FLW D131 (Fla. 4th DCA 2012).  Trial Court reversed for continuing to preside over case after granting motion for recusal.

In Re: Rules of Family Law Pro, 37 FLE S36 (Fla. 2012).  Rules clarify parties are not to file financial documents with things such as notice of compliance with mandatory disclosure.

Relocation:

Schell v. Schell, 37 FLW D200 (Fla 5th DCA 2012).  Trial court’s order allowing relocation affirmed when there was no transcript and no errors on face of the judgment.

On January 26, 2012 it was announced at the Florida Bar’s mid-year meeting that the November “Case Law Update” by Eddie Stephens (chaired by R.T. White) was the most successful program of the year for the Family Law Section’s CLE committee.

The program attracted over 200 attendees and has had the most after-market sales this year.

The CLE committee of the Family Law Section asked Mr. Stephens to present again October 24, 2012 with the help of program chairs R.T. White & Amanda Colon.  Continuing Legal Education Programming is the primary funding source for the Family Law Section.

This course is available for streaming from the Florida Bar.2.5 CLE hours.  2.0 Board Certification CLE credits.

Click here to order to order directly from the publisher.  (Edition will be available on Amazon, Barnes and Noble,  and all majot outlets in a few weeks).

If you prefer reading on your Kindle, the same materials are available in that format and can be ordered from Amazon.

If you would like the Squibs from just the past year (2011), you can download those for free here.

I dedicated the new Kindle edition  to Chloe & Jade, our 2 dogs who recently passed.  In their memory I will be donating 100% of ALL proceeds from all book/kindle sales to Big Dog Ranch Rescue & Safe Harbor Animal Sanctuary and Hospital!

Case No. 5D10-236

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

JULY TERM 2011
Opinion filed January 6, 2012

        Appeal from the Circuit Court for St. Johns County, John M. Alexander, Judge.

William S. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant/Cross-Appellee.

Alan C. Jensen, Jacksonville Beach, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellee/Cross-Appellant.

PALMER, J.

In this dissolution of marriage proceeding, Sharon Middleton (wife) appeals the trial court’s final dissolution order, and James Middleton (husband) cross-appeals. We find merit in one issue raised in the husband’s cross-appeal and, accordingly, affirm in part and reverse in part.

The husband maintains that the trial court applied the wrong standard in deciding whether to impute income to the wife. We agree.

In Durand v. Durand, 16 So. 3d 982, 985 (Fla. 4th DCA 2009), the Fourth District explained that the “spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available.” In determining the amount of income to impute, “the court must consider the spouse’s recent work history, his or her occupational qualifications, and the prevailing earnings in the community for that class of available jobs.” Andrews v. Andrews,867 So. 2d 476, 478 (Fla. 5th DCA 2004).

Here, the evidence of record demonstrated that the wife is 50 years old, the parties’ two children are grown, the wife worked as a nurse at the beginning of the parties’ marriage but left the field to raise the children, her nursing license is still current, and she has a master’s degree in “research and writing curriculum.” Both parties’ vocational experts agreed that the perfect job for the wife would be as a health educator, earning a full-time salary of about $40,000.00 per year or a part-time salary of $18.00 per hour. However, the wife’s expert, John Roberts, testified that it would be difficult for the wife to find work as a health educator making full-time wages or $18.00 per hour. He did state that he could find her “a lot of jobs” making $9.00 per hour. The husband’s expert, Claire Hibbard, identified current open job positions with several companies and opined that the wife would be employable within the labor market in a variety of entry-level nursing positions, earning a salary ranging from $37,440.00 to $45,000.00, annually. Hibbard stated that, when speaking to prospective employers, she outlined the wife’s last date of work, her education, her work history, and her physical restrictions.

On the issue of imputation of income, the trial court wrote in the final dissolution judgment:

The Wife, in her early 50′s, can be employed as a utilization case review manager and can earn $37,440 per year to start. She has no disability rating; she does not want to go back to work.
. . . .
She does not intend to work and it’s not clear to the Court if a utilization review case review manager position is even available for her to take at this time. Clearly, she does not want to work again outside the home despite her advanced degrees. For this reason, the Court cannot input [sic] this income, at this time.

In the supplemental dissolution judgment, the court further wrote:

In regard to imputation of income, it is uncertain if the employer’s [sic] listed by Claire Hibbard would even hire the Wife at her age. If Hibbard could place the Wife in a job, the Court would impute. The Court was only presented general job listings, not any evidence these employers would hire the Wife. The Final Judgment presumes she must work again but cannot impute a specific amount since she has not “turned down” any specific employment.

The trial court erred, as a matter of law, in concluding that it could not impute income to the wife because the husband’s expert could not “place the wife in a job” and there was no evidence that the wife had “turned down” specific employment. Instead, the trial court should have considered the wife’s work history, her occupational qualifications, and the prevailing earnings in the community for that class of available jobs. Accordingly, this matter is remanded for reconsideration of the issue of imputing income to the wife based on the evidence presented during trial, and, if necessary, a recalculation of the permanent alimony award. See Zarycki-Weig v. Weigm 25 So. 3d 573 (Fla. 4th DCA 2009) (holding that trial court’s imputation of income to wife was adequately supported by evidence that wife had earned the same amount before voluntarily quitting, and that, despite medical complaints, husband had observed wife partaking of physically demanding activities around yard and house, and wife admitted to working outside home at various times during marriage); Riley v. Riley, 14 So. 3d 1284 (Fla. 2d DCA 2009) (holding that trial court was required to impute at least a part-time income of minimum wage to wife; although wife had stayed home to raise parties’ children during most of marriage, children were grown, wife had worked part-time during marriage, and wife testified that she could do part-time work).

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, J., and BLACKWELL, A. L., Associate Judge, concur.

Panel l to r, Eddie Stephens Esq., Sheila Furr, PhD, Michael O’Hara, Psy.D. and Lisa McDermott, Perez, PhD, LMHC — at Palm Beach County Bar Association

Case No. 5D09-3559

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

JULY TERM 2011
Opinion filed December 23, 2011

        Appeal from the Circuit Court for Brevard County, Charles Crawford, Judge.

Robert A. Segal, Melbourne, for Appellant.

Robert J. Wheelock, Michael B. Jones, Eric Lee Bensen and Cynthia M. Winter, of The Wheelock Law Firm, LLC, Orlando, for Appellee.

SAWAYA, J.

The issue we must resolve is whether two women involved in a lesbian relationship for several years share parental rights and responsibilities to a child born out of that relationship. The two women are Appellant, the biological mother, and Appellee, the birth mother. This is a case of first impression in Florida.

Page 2

I. Factual and Procedural Background        The facts are not in dispute. Appellant and Appellee were involved in a committed relationship from 1995 until 2006. They lived together and owned real property as joint tenants, evidenced by a deed in the record. Additionally, both women deposited their income into a joint bank account and used those funds to pay their bills.

The couple decided to have a baby that they would raise together as equal parental partners. They sought reproductive medical assistance, where they learned Appellee was infertile. Appellant and Appellee, using funds from their joint bank account, paid a reproductive doctor to withdraw ova from Appellant, have them fertilized, and implant the fertilized ova into Appellee. The two women told the reproductive doctor that they intended to raise the child as a couple, and they went for counseling with a mental health professional to prepare themselves for parenthood. The in vitro fertilization procedure that was utilized proved successful, and a child was conceived.

The child was born in Brevard County on January 4, 2004. The couple gave the child a hyphenation of their last names. Although the birth certificate lists only Appellee as the mother and does not indicate a father, a maternity test revealed that there is a 99.99% certainty that Appellant is the biological mother of the child. Appellant and Appellee sent out birth announcements with both of their names declaring, “We Proudly Announce the Birth of Our Beautiful Daughter.” Both women participated at their child’s baptism, and they both took an active role in the child’s early education.

The women separated in May 2006, and the child lived with Appellee. Initially, Appellant made regular child support payments, which Appellee accepted. Appellant ended the support payments when she and Appellee agreed to divide the child’s time evenly between them. They continued to divide the costs of education. The child treated both women as parents and did not distinguish between one being the biological or the birth parent.

The parties’ relationship further deteriorated, and the affection each once had for the other eventually turned to animus. Appellee severed Appellant’s contact with the child on December 22, 2007, when Appellee quit her job and moved with the child to an undisclosed location. Eventually, Appellant located them in Queensland, Australia, and there served Appellee with the underlying lawsuit.¹

Appellee filed a Verified Motion for Summary Judgment, which alleged that the facts were not in dispute and that she was entitled to summary judgment as a matter of law. Appellant accepted Appellee’s facts for the purpose of summary judgment. The trial judge held a hearing on the motion and issued the final summary judgment in favor of Appellee. In ruling as he did, the trial judge stated that he felt constrained by the state of the law and expressed his hope that this court would reverse the ruling:

THE COURT: First, let me say, I find that [Appellee's] actions to be — this is my phraseology — morally reprehensible. I do not agree with her actions relevant to the best interest of the child. However, that is not the standard. There is no distinction in law or recognition of rights of the biological mother verses a birth mother. If a contract is not binding in this situation, then intent is not relevant under these circumstances.
. . . .
Same-sex partners do not meet the definition of commissioning couple. There really is no protection for [Appellant] under Florida law because she could not have adopted this child to prevent this current set of circumstances. I do not agree with the current state of the law, but I must uphold it. I believe the law is not caught up with science nor the state of same-sex marriages. I do think that is on the horizon.

The trial court then stated to Appellant, “If you appeal this, I hope I’m wrong.” Appellant has appealed. In order to determine whether the trial judge was wrong in entering summary judgment in favor of Appellee, as Appellant argues, we must apply the de novo standard of review. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Krol v. City of Orlando, 778 So. 2d 490, 491 (Fla. 5th DCA 2001).

Appellee advances several arguments in support of the summary judgment in her favor. She argues that section 742.14, Florida Statutes, denies an ovum donor any parental rights to the child. Appellee next argues that she and Appellant could not legally qualify to adopt a child and, therefore, the Legislature forbids gay or lesbian couples from sharing parental rights to a child. Appellee further argues that an implied consent form executed at the reproductive doctor’s office included a written waiver that relinquished Appellant’s parental rights to the child. Finally, Appellee asserts that since she and Appellant have separated, she has sole parental rights as the birth mother.

Appellant observes that this is a case of first impression in Florida and argues that the existing law does not contemplate the situation of a dispute between a biological mother and a birth mother and that there is nothing in the provisions of chapter 742 that applies to deny her parental rights to her child. Alternatively, Appellant challenges the constitutionality of chapter 742, including the provisions of section 742.14. Appellant also argues that the implied consent form did not include a binding waiver of her parental rights.

Our analysis reveals that there is nothing in chapter 742, and specifically section 742.14, that addresses the situation where the child has both a biological mother and a birth mother who were engaged in a committed relationship for many years and who decided to have a child to love and raise together as equal parental partners. This is a unique case, and the appellate courts in Florida have never before considered a case quite like it. Based on the facts and circumstances of this case, we can discern no legally valid reason to deprive either woman of parental rights to this child. The women were in a committed relationship for many years and both decided and agreed to have a child born out of that relationship to love and raise as their own and to share parental rights and responsibilities in rearing that child. Specifically, when it was discovered that Appellee was infertile, both women agreed to have ova removed from Appellant, to have them artificially inseminated with the sperm of a donor, and to have the ova inserted into Appellee’s womb, in order to conceive a child that they would raise together as parental partners. After the child was born, both women were parents to the child and equally cared for the child for several years.

II. Application and Interpretation of Section 742.14 by the Trial Court and the Dissent.

The trial court held that Appellant is a “donor” of her ova and that the provisions of section 742.14 apply to deny Appellant parental rights to her child. Section 742.14 provides that:

Donation of eggs, sperm, or preembryos
The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s. 63.212, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. Only reasonable compensation directly related to the donation of eggs, sperm, and preembryos shall be permitted.

The terms “donor” and “donation” are not defined in chapter 742, and when the Legislature does not define terms in a statute, the courts generally look to the plain and ordinary meaning of the terms. Greenfield v. Daniels, 51 So. 3d 421 (Fla. 2010). “Further, it is a well-settled rule of statutory construction that in the absence of a statutory definition, courts can resort to definitions of the same term found in case law.” Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000); LaMorte v. State, 984 So. 2d 548, 552 (Fla. 2d DCA 2008).

In K.M. v. E.G., 117 P.3d 673 (Cal. 2005), which is one of two cases we have found with facts similar to the instant case, the court held that a lesbian woman who provided her ova to her lesbian partner was not a donor of her ova. The court reasoned that there was no “true egg donation” because “K.M. did not intend to simply donate her ova to E.G., but rather provided her ova to her lesbian partner with whom she was living so that E.G. could give birth to a child that would be raised in their joint home.” Id. at 679. The following excerpt from K.M. accurately states the issue, the holding of the court, and how the court utilized the pertinent terminology:

In the present case, we must decide whether a woman who provided ova to her lesbian partner so that the partner could bear children by means of in vitro fertilization is a parent of those children. For the reasons that follow, we conclude that Family Code section 7613, subdivision (b), which provides that a man is not a father if he provides semen to a physician to inseminate a woman who is not his wife, does not apply when a woman provides her ova to impregnate her partner in a lesbian relationship in order to produce children who will be raised in their joint home. Accordingly, when partners in a lesbian relationship decide to produce children in this manner, both the woman who provides her ova and her partner who bears the children are the children’s parents.
. . . .
The circumstances of the present case are not identical to those in Johnson, but they are similar in a crucial respect; both the couple in Johnson and the couple in the present case intended to produce a child that would be raised in their own home. In Johnson, it was clear that the married couple did not intend to “donate” their semen and ova to the surrogate mother, but rather permitted their semen and ova to be used to impregnate the surrogate mother in order to produce a child to be raised by them. In the present case, K.M. contends that she did not intend to donate her ova, but rather provided her ova so that E.G. could give birth to a child to be raised jointly by K.M. and E.G. E.G. hotly contests this, asserting that K.M. donated her ova to E.G., agreeing that E.G. would be the sole parent. It is undisputed, however, that the couple lived together and that they both intended to bring the child into their joint home. Thus, even accepting as true E.G.’s version of the facts (which the superior court did), the present case, like Johnson, does not present a “true ‘egg donation’” situation. (Johnson v. Calvert, supra, 5 Cal. 4th 84, 93, fn. 10, 19 Cal. Rptr.2d 494, 851 P.2d 776.) K.M. did not intend to simply donate her ova to E.G., but rather provided her ova to her lesbian partner with whom she was living so that E.G. could give birth to a child that would be raised in their joint home. Even if we assume that the provisions of section 7613(b) apply to women who donate ova, the statute does not apply under the circumstances of the present case. An examination of the history of 7613(b) supports our conclusion.

117 P.3d at 675, 679 (emphasis added). Based on the uncontradicted facts, Appellant would not be a donor under this definition because she did not intend to give her ova away. Rather, she always intended to be a mother to the child born from her ova and was a mother to the child for several years after its birth.

The dissent contends, however, that what the Legislature really meant by donation was any transfer or provision of ova or sperm to another and that intent is not an issue. The dissent interprets the “donor” and “donation” requirement by utilizing the exceptions in the statute. The dissent does this by proclaiming that commissioning couples, defined as a man and a woman, are permitted to retain their parental rights under the statute and that lesbian couples are not. According to the dissent, it does not matter if the individual providing the ova to her lesbian partner does so for the sole purpose of conceiving her own child; if the ova is provided or, in the vernacular of the dissent, “transferred,” the transferor loses her parental rights under the statute. The dissent essentially attempts to substitute the terms “transferor” or “provider” and “transfer” or “provide” for the statutory terms “donor” and “donation.” This interpretation not only eliminates Appellant’s right to procreate and parent a child of her own by transferring her ova to her lesbian partner through the use of assisted reproductive technology, it eliminates that right for all lesbian couples. This interpretation of the statute is also applied to eliminate the right of the Appellant to parent her child after she had done so for several years after the child was born. This is the interpretation given the statute by the trial court, and this is how the trial court applied the statute in the instant case.

This interpretation and application of the statute violates Appellant’s constitutional rights to equal protection and privacy. Therefore, based on the trial ourt’s interpretation of the statute, we must reverse the judgment under review.

A. Section 742.14 as Interpreted and Applied by the Trial Court Renders the Statute Unconstitutional Because It Violates Appellant’s Constitutionally Protected Rights.

It is well established that the rights to procreate and to parent one’s child are fundamental rights under both the Florida Constitution² and the United States Constitution.³ Statutes that interfere with a fundamental right are presumptively unconstitutional and subjected to strict scrutiny, meaning that the proponent of the statute is required to demonstrate that the statute furthers a compelling government interest through the least intrusive means. N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 625 n.16 (Fla. 2003); Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544 (Fla. 1985). Even if an intermediate level of scrutiny is applied, the burden is on the proponent of the statute to show it does not violate the constitution. N. Fla. Women’s Health, 866 So. 2d at 625-26.

Interpretation and application of this statute by the trial court to deny Appellant parental rights to her child cannot withstand strict scrutiny and violates Appellant’s constitutional rights to equal protection and privacy under the United States⁴ and Florida⁵ Constitutions. See Lawrence v. Texas, 539 U.S. 558, 574 (2003) (stating that constitutional protections are provided to individuals making personal decisions relating to such matters as procreation and child-rearing because the Constitution demands respect for the autonomy of the person making these decisions and that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do”); Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (stating that the Constitution “provides heightened protection against government interference with certain fundamental rights and liberty interests,” which include the right “to have children”); Carey v. Population Servs., Int’l, 431 U.S. 678, 686 (1977) (“[W]here a decision as fundamental as . . . whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.”); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974) (“[T]here is a right ‘to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’” (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972))); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Beagle v. Beagle, 678 So. 2d 1271, 1276 (Fla. 1996); Grissom v. Dade County, 293 So. 2d 59, 62 (Fla. 1974); Latera v. Isle at Mission Bay Homeowners Ass’n, Inc., 655 So. 2d 144, 145 (Fla. 4th DCA) (citing Skinner and recognizing that procreation is a right that has been designated by the United States Supreme Court as a fundamental right guaranteed by the Constitution), review denied, 666 So. 2d 144 (Fla. 1995). Here, Appellee clearly failed to meet her burden of showing that section 742.14 withstands strict scrutiny and does not violate the constitution.

We totally reject the argument made in the dissent that Appellant never had any parental rights and that the strict scrutiny test is, therefore, inapplicable. The very statute the trial court applied to deprive Appellant of her parental rights recognizes her parental rights to her child. Section 742.14 specifically states, in pertinent part, that “the donor of any egg . . . shall relinquish all maternal or paternal rights and obligations with respect to . . . the resulting children.” One cannot relinquish a right that one never had. Hence, if Appellant is a donor and the statute applies as the trial court held, then the statute itself recognizes Appellant’s parental rights to her child and then proceeds to declare those rights to be “relinquished.”⁶

Rather than discuss what rights the Appellant relinquished under the statute, the dissent simply argues in support of the trial court’s ruling that the statute applies, relying on what it perceives to be a common law rule that the birth mother is the legal mother and on statutes concerned with vital statistics and adoptions contained in chapters 63 and 382, Florida Statutes. The argument that permeates the dissent is that the birth mother, as the legal mother under this purported common law rule, has all of the parental rights to the child and the biological mother has none.

As to chapter 382, and specifically section 382.013, Florida Statutes, cited in the dissent, it is clear that these provisions were written to facilitate the issuance of birth certificates and the keeping of vital statistics for public health. As to chapter 63, those provisions were enacted to provide procedures for the adoption of children in this state. We do not believe that these provisions were enacted to address a situation where a woman gave live birth to a child with whom she shared no genetic relationship. Moreover, chapters 63 and 382 do not establish parentage or parental rights. Chapter 742, entitled “Determination of Parentage,” is the statutory vehicle by which paternity is established for children born out of wedlock, see section 742.10(1), Florida Statutes, and it is the provisions of section 742.14 that have been applied by the trial court and argued by Appellee to deny Appellant parental rights to her child.

The dissent derives its purported common law rule from two cases from other jurisdictions.

⁷ In re Adoption of Sebastian, 879 N.Y.S.2d 677, 679 (N.Y. Sur. Ct. 2009), simply discusses the common law of parentage, which involved the marriage of a man to a woman, and states that in the context of that relationship, the woman of a child born out of wedlock is the legal parent. As we note in our subsequent discussion of that case, two lesbian women had a child in the same manner as Appellant and Appellee: one had ova removed from her body to implant in her partner so a child could be conceived by in vitro fertilization. The court held that each woman shared parental rights to the child. We do not believe that the court intended to establish a common law rule that states that the birth mother is presumed to be the sole legal mother to the exclusion of the biological mother.

The second case is In re C.K.G., 173 S.W.3d 714 (Tenn. 2005). This case does nothing more than cite a law review article as the authority for the proposition that a common law rule limiting maternal rights to gestational mothers may exist in Tennessee. However, the court clearly noted that “[w]e are not faced with a controversy between a birth ‘mother’ and a genetic ‘mother’ where the genetic and gestational roles have been separated and distributed among two women.” Id. at 730. Hence, the court was careful to point out that this common law rule does not apply in instances similar to the instant case where two women are involved in the procreative process, one as the birth mother and one as the biological mother. The court held that maternal parentage should be decided on a number of factors, including the intent of the parties and the genetics of the mother and child. See id. at 727-29. The common law does not come from law students and professors who write law review articles, and we hardly think it comes from a decision rendered by a Tennessee court that does nothing more than cite a law review article as the source.

Section 2.01, Florida Statutes, cited in the dissent, simply adopts the common law of England down to the 4th day of July, 1776, provided it is not inconsistent with the Constitution and laws of the United States and Florida. The dissent does not cite to any decision from any Florida or English court adopting the purported common law rule and this statute certainly cannot create it on its own. The decision in Gossett v. Ullendorff, 154 So. 177 (Fla. 1934), does not hold as the dissent contends that the common law rules discussed in cases from other jurisdictions are adopted as the law in Florida by virtue of this statute. Moreover, that case certainly does not establish or adopt the dissent’s purported common law rule, and we note that the dissent does not say that it does. It is not for us to say whether such a common law rule exists; rather, it should be up to the proponent of it to establish its existence. Furthermore, we do not agree with the dissent’s assertion that we accept this purported common law rule simply because we do not suggest that Appellee as the birth mother may be divested of her rights to parent the child. Appellant is not attempting to divest Appellee of her parental rights and that is not an issue in this case.

Assuming that this common law rule exists, we do not believe that a rule established during a time so far removed in history when the science of in vitro fertilization was a remote thought in the minds of the scientists of the times has much currency today. Yet the dissent uses this purported ancient rule as its basis for arguing that Appellant never had any parental rights to begin with and that even if section 742.14 is inapplicable, she has no parental rights in the end. We reject that argument.

The citation of two decisions from other jurisdictions that adopt what the dissent purports to be a common law rule that the Florida courts have not adopted fails to answer the question of what rights Appellant had that are relinquished by application of section 742.14. The United States Supreme Court has recognized “‘the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’” Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (quoting Eisenstadt, 405 U.S. at 453) (emphasis in original). As the Court explained in Stanley v. Illinois, 405 U.S. 645, 651 (1972):

The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), ‘basic civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and ‘rights far more precious than property rights,’ May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953).

Pursuant to the trial court’s application of section 742.14, the “essential” right of Appellant to “bear or beget a child” are statutorily relinquished. Cf. J.R. v. Utah, 261 F. Supp. 2d 1268, 1288 (D. Utah 2002) (stating, “[The] extraordinary process of human childbirth implicates the fundamental procreative rights of the birth mother as well as those of the mother and father whose best efforts at procreation have furnished the embryo”; holding unconstitutional an irrebuttable presumption that the gestational mother is the legal mother of a child to the exclusion of the intended genetic mother because it infringed the genetic mother’s rights to procreate and parent her child).

In addition, pursuant to the trial court’s application of section 742.14, Appellant’s right to form a parental relationship with her child and to continue to participate in raising the child as a parent as she had done for several years after the child was born are statutorily relinquished. “[A] parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26 (1981) (quoting Stanley, 405 U.S. at 651); see also Lehr v. Robertson, 463 U.S. 248, 256 (1983) (“The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection . . . .”). We do not believe that Appellant relinquished any of her parental rights. Moreover, the dissent’s claim that Appellant is not entitled to parental rights in light of her genetic connection to, and relationship with, the child is untenable.

Here, it is undisputed that Appellant formed and maintained a parental relationship for several years after the child was born, and she did so as an equal parental partner with Appellee who, for all that time, never suggested that Appellant had relinquished her parental rights to her child. We believe that Appellant has constitutionally protected rights as a genetic parent who has established a parental relationship with her genetic offspring that transcend the provisions of section 742.14. Lehr, 463 U.S. at 261 (“When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’ his interest in personal contact with his child acquires substantial protection under the due process clause.” (quoting Caban v. Mohammed, 441 U.S. 380, 392 (1979))); see also In re Adoption of Baby E.A.W, 658 So. 2d 961, 967 (Fla. 1995)(stating that substantial constitutional protections apply “when an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in raising his child” and further stating that “[w]e recognize the sanctity of the biological connection, and we look carefully at anything that would sever the biological parent-child link.”); In re Adoption of Doe, 543 So. 2d 741, 748 (Fla. 1989) (“It is clear from Lehr that the biological relationship offers the parent the opportunity to assume parental responsibilities. Parental rights based on the biological relationship are inchoate, it isc the assumption of the parental responsibilities which is of constitutional significance.”); Nevitt v. Bonomo, 53 So. 3d 1078 (Fla. 1st DCA 2010); L.J. v. A.S., 25 So. 3d 1284 (Fla. 2d DCA 2010); G.F.C. v. S.G., 686 So. 2d 1382 (Fla. 5th DCA 1997); Wooley v. City of Baton Rouge, 211 F.3d 913, 923-24 (5th Cir. 2000) (applying Lehr to conclude that a biological mother had constitutionally protected parental rights because she had established a parental relationship with her child).

⁸

We also note that “the usual understanding of ‘family’ [for purposes of Due Process protection] implies biological relationships, and most decisions treating the relation between parent and child have stressed this element.”Smith v. Organization of Foster Families For Equality & Reform, 431 U.S. 816, 843 (1977) (citation omitted). Moreover, the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in “promot[ing] a way of life” through the instruction of children, Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15 (1972), as well as from the fact of blood relationship.  Id. at 843-44 (quoting Caban v. Mohammed, 441 U.S. 380, 397 (1979) (Stewart, J., dissenting)); cf. Lehr, 463 U.S. at 262 (“The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.”).

We conclude that Appellant is entitled to constitutionally protected parental rights to the child and that the statutory relinquishment of those rights under section 742.14 is prohibited by the Federal and Florida Constitutions. We also conclude that the dissent’s contention that this case simply turns on the conclusion that Florida’s statutory scheme and a purported common law rule render Appellee the legal mother of the child is clearly erroneous and misses the point. “‘To say that the test of equal protection [or due process] should be the “legal” rather than the biological relationship is to avoid the issue. For the Equal Protection [and Due Process] Clause[s] necessarily limit[] the authority of a State to draw such “legal” lines as it chooses.’” Stanley, 405 U.S. at 652 (quoting Glona v. Am. Guar. & Liab. Ins. Co., 391 U.S. 73, 75-76 (1968)).

The dissent asserts that section 742.14 provides a reasonable approach to deciding who is, and who is not, entitled to parental rights given the multitude of claims to such rights made possible by assisted reproductive technology.

⁹ Furthermore, the dissent argues that such complicated questions of social policy are best decided by the Legislature without interference from the courts. However, the Legislature’s undeniably important role in shaping this state’s policy on the use of assisted reproductive technology does not relieve the courts from the solemn duty to ensure the protection of constitutional rights.

The dissent’s assertion that Appellant’s right to procreate is not implicated in the instant case merely because her child was conceived by in vitro fertilization is a non sequitur. To suggest that procreative rights do not encompass the use of medical technology ignores the fact that the right not to procreate through the use of contraception and the right to terminate a pregnancy necessarily require access to medical technology and assistance. Moreover, the distinction the dissent draws between this case and abortion cases involving the use of one’s own body, such as in Carey, is unpersuasive. Appellant’s decision to undergo the ova transfer procedure for the purpose of conceiving a child with Appellee did involve Appellant’s use of her own body.

Furthermore, the dissent’s claim that this decision has created a constitutional right to “use a surrogate’s body for nine months to house and nurture one’s genetic child” is difficult to understand, as is the dissent’s suggestion that this opinion would entitle an ova donor to prevent the recipient from obtaining an abortion. It is well established that a woman has a right to terminate her pregnancy without the consent of the genetic father, for example. See Casey, 505 U.S. at 897 (“In keeping with our rejection of the common-law understanding of a woman’s role within the family, the Court held in [Planned Parenthood v. Danforth, 428 U.S. 52 (1976)], that the Constitution does not permit a State to require a married woman to obtain her husband’s consent before undergoing an abortion.”). In addition, the dissent’s argument that this decision opens the door to constitutional protection for bigamy, polygamy, and adult incestuous relationships is simply wrong. This kind of “slippery slope” argument has been made and found to be unpersuasive by the Supreme Court. See Lawrence, 539 U.S. at 589 (Scalia, J., dissenting) (“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.”).

The dissent also attempts to skirt the constitutional infirmities of the statute by claiming that the constitutional issues were not adequately addressed in the trial court or in this court.¹⁰ We completely reject that argument. Appellant specifically pled in her complaint that section 742.14 is unconstitutional, and it was adequately argued in the trial court and in this court. The dissent’s subjective opinion of what is inadequate simply does not comport with the record in this case and the arguments made by the parties both in the trial court and in this court. We hardly think that counting the number of pages in a brief is a viable standard by which to judge whether an issue has been adequately raised in an appellate court. What was inadequately presented, because it was not presented at all, was any attempt on the part of Appellee to meet her burden of showing that section 742.14 withstands strict scrutiny and is constitutional. Moreover, the record clearly reveals that both in her motion and during the hearing before the trial court, Appellee specifically argued that summary judgment in her favor was appropriate on the constitutional issues and that the facts were not in dispute. The facts are uncontroverted that Appellant contributed her ova to be implanted in the womb of Appellee so both women could have a child to raise as equal parental partners; they did so for several years after the child was born; and Appellant established a parental bond with the child during those years. The trial court held as a matter of law that section 742.14 applies to relinquish Appellant’s her parental rights because she and Appellee do not fit within the statutory definition of a commissioning couple. It is true that Appellant and Appellee do not fit that statutory definition and a remand to the trial court for further proceedings is not going to change that fact or the uncontradicted facts of this case. We also note that the child was taken from Appellant in December 2007 and almost four years have elapsed since Appellant has had contact with her child. We do not believe that it is necessary to remand this case, as the dissent argues, for further proceedings and more appeals when it is clear that application of the statute unconstitutionally deprives Appellant of her parental rights to her child.

We conclude that section 742.14, as interpreted and applied by the trial court and as interpreted by the dissent, is unconstitutional because it deprives Appellant of her constitutional rights to equal protection and privacy.

B. Section 63.042(3) does not Support the Trial Court’s Ruling that Section 742.14 Deprives Appellant of her Parental Rights

Appellee argues that the Legislature disapproves of children being conceived in the manner utilized by her and Appellant and that this disapproval is evident in the provisions of section 63.042(3), Florida Statutes, which prohibits gay or lesbian couples from adopting children in Florida. This statute was a basis for the trial court’s ruling. However, we do not discern any legislative intent that the prohibitions of that statute apply to deprive either woman of parental rights to a child conceived through the reproductive process employed here, and we can find no prohibition to lesbian women utilizing that process to conceive a child. Moreover, we note that the Third District Court, in Florida Department of Children & Families v. X.X.G., 45 So. 3d 79, 92 (Fla. 3d DCA 2010), has recently held that “subsection 63.042(3), Florida Statutes, violates the equal protection provision found in article I, section 2, of the Florida Constitution.” (Footnote omitted).

III. The Informed Consent Form did not Waive Appellant’s Parental Rights

We likewise reject Appellee’s argument that Appellant waived her parental rights when she executed the informed consent document in the reproductive doctor’s office. At the reproductive clinic, Appellant signed a preprinted form that provides in pertinent part:

I, the undersigned, forever hereinafter relinquish any claim to, or jurisdiction over the offspring that might result from this donation and waive any and all rights to future consent, notice, or consultation regarding such donation. I agree that the recipient may regard the donated eggs as her own and any offspring resulting there from as her own children. I understand that the recipient of the eggs, her partner, their successors, offsprings and assigns have agreed to release me from liability for any mental or physical disabilities of the children born as a result of the Donor Oocyte Program and from any legal or financial responsibilities from an established pregnancy or medical costs related to that pregnancy or delivery.

There are significant factors that inform our conclusion that, as Appellant argues, the purported waiver provisions were not intended by either Appellant or Appellee to apply to the conception and birth of their child.

First, the purported waiver provisions clearly state that they only apply to a “donor” who has “relinquished any claim to, or jurisdiction over the offspring that might result from this donation” and who “understands that the recipient may regard the donated eggs as her own and any offspring resulting therefrom as her own children.” Appellant is not a donor because she did not relinquish any claim to the child or understand that it was solely Appellee’s child. As previously discussed, both women agreed to raise any child born with the ova supplied by Appellant as equal parental partners and both women complied with that agreement for several years after the child was born. In the last quoted sentence the form states that the recipient’s partner has “agreed to release me from liability” and it is clear that Appellant was the partner and that she did not agree to release herself from anything. We believe it very revealing that Appellee never attempted to assert this waiver claim until she decided to take the child to Australia and deprive Appellant of any further contact with the child.

Second, Appellant submitted at the summary judgment hearing an affidavit from the doctor who operated the reproductive center that Appellant and Appellee attended and who had personal knowledge of the services provided to both women. The testimony of the doctor reveals that the waiver provisions were simply part of a standard form he has all patients sign and that those provisions were inapplicable to Appellant and Appellee. In the affidavit, the doctor stated that the two women presented themselves as a couple seeking reproductive therapy, represented that they intended to raise a child together, and acted consistently with their desire to raise a child together. He further explained that the sole purpose of the form was to “inform [Appellant] of the procedures that would be undertaken, the goals of the procedures and the risks related thereto,” and that the form was not tailored to characterize the relationship of either Appellant or Appellee beyond that purpose. Finally, the doctor explained that the quoted provision “is used in situations where the donor is anonymous.”

Third, courts in other jurisdictions have held that similar waiver provisions are inapplicable in cases with very similar facts. For example, in K.M. v. E.G., 117 P.3d 673 (Cal. 2005), two women involved in a lesbian relationship decided to have a child. Ova were removed from one woman so her partner could conceive a child by means of in vitro fertilization. The court held that “when partners in a lesbian relationship decide to produce children in this manner, both the woman who provides her ova and her partner who bears the children are the children’s parents.” Id. at 675. The court examined various statutory provisions and determined that this particular situation was not addressed because the California Legislature had not contemplated a child being conceived in this manner. The court further held that a form containing waiver provisions, which are almost identical to those contained in the form signed by Appellant at the reproductive clinic, did not waive the biological mother’s parental rights to the child. The court held, “A woman who supplies ova to be used to impregnate her lesbian partner, with the understanding that the resulting child will be raised in their joint home, cannot waive her responsibility to support that child. Nor can such a purported waiver effectively cause that woman to relinquish her parental rights.” Id. at 682.

Similarly, in In re Adoption of Sebastian, 879 N.Y.S.2d 677 (N.Y. Sur. Ct. 2009), which we have previously discussed, two lesbian women were involved in a committed relationship and had actually been married in another country. They decided to have a child by in vitro fertilization. Ova removed from one woman were fertilized and implanted in the other. The procedure proved successful, and a child was born. The court held that the biological mother shared parental rights with the birth mother and that the biological mother did not waive her parental rights by signing a standard ovum donor waiver form at the reproductive clinic.

We conclude based on the particular facts and circumstances of this case that the form Appellant signed did not waive her parental rights to the child. We understand the importance of such waiver forms in the use of assisted reproductive technology and our decision does not extend any farther than the very unusual facts of this case.

IV. A Choice Between Two Mothers is Not Necessary

Finally, Appellee suggests that because she and Appellant have separated, a choice must be made. She posits that, as the birth mother, she should have exclusive parental rights to the child and that Appellant, as the biological mother, should have no rights at all. If we were to accept Appellee’s argument that a choice must be made between the two, perhaps a Solomonic approach to resolving this dispute would be preferable, but we are neither possessed of the wisdom of Solomon nor are we able to apply his particular methodology under the law as we know it today. Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either Appellant or Appellee an exception that places those rights in one to the exclusion of the other. It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between Appellant and Appellee. Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.

V. Conclusion        We conclude that both Appellant and Appellee have parental rights to the child. Accordingly, we reverse the final summary judgment and remand this case to the tria lcourt to determine, based on the best interests of the child, such issues as custody, visitation, and child support. We certify to the Florida Supreme Court the following question as a matter of great public importance:

Does application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal parental partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?

REVERSED and REMANDED.

MONACO, J., concurs and concurs specially, with opinion, in which SAWAYA, J., concurs.

LAWSON, J., dissents, with opinion.

Page 29

MONACO, J., concurring.

While I fully appreciate the scholarly analysis declaimed in the dissent, I am convinced of the correctness of the position set forth in the majority opinion of Judge Sawaya, and I therefore concur in that opinion. I write in concurrence for two reasons.

First, it is clear to me that section 742.14, Florida Statutes (2009), simply does not apply to the fact situation presented to us by this case. That statute, which obviously seeks to protect a “commissioning couple” seeking to use the benefits of the medical advances made in the science associated with fertility, from possible interference with the resultant child or children by a disinterested donor, does not contemplate the factual situation before us.¹¹Indeed, as Justice Jackson observed in the Steel Seizure Case a half century ago in a somewhat different context, trying to figure out how the legislature would have reacted to the facts of that case at the time the relevant statute was adopted is “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring). I agree with the majority that this legislation, which was adopted in 1993, was not designed to resolve the problem of how to treat children born by in vitro fertilization to a same-sex couple.

Put simply, the appellant certainly did not intend to be a “donor,” as referenced in the statute, the appellee certainly did not act as if the appellant was a “donor,” and in my view I do not think that she was, in fact, a donor as that term was used by the legislature. In this respect I believe that the use of the term by the dissent is far too restrictive and does not comport with either contemporary understanding and usage, or the unique facts of this case and the specific relationship between the parties.

All of the testimony in the trial court indicates that the appellant and appellee were in a committed same-sex relationship, and that they both wanted and agreed to conceive a child to be reared jointly by both of them. If there was a contract between them, and I suggest that there was, then the unquestioned intention of the parties was to jointly raise any child that was conceived by this process as parents. Each thereafter played a significant role in the fertilization and birth procedure, and each fully intended to be, and fully acted as, parents to the child in accordance with their agreement. But for the fact that the appellant and appellee are of the same sex, we would probably consider them to be a “commissioning couple” under the statute, and the outcome of this case would be easy. What is ironic is that the appellant, who provided the ovum that resulted in the birth of the child (her probability of parenthood was measured at greater than 99%)¹² , and who actually helped in the financial support and upbringing of this child in accordance with her agreement with the birth mother, should be excluded from contact with the child because she is not a “parent.” It seems to me that she is.

If the situation were reversed and the biological mother had run off with the child, would we exclude the birth mother from contact, even though she contributed very little to the genetic makeup of the child? I think that result would be equally as absurd. The fact is the birth mother under the present fact scenario is a parent as well.

All of this is simply to underscore the obvious. We have arrived at a judicial event horizon. We need legislation to guide us in dealing with the cases that will in the future come before the courts of this state as a result of the combination of the societal changes that we have all witnessed in the years since the relevant statutes were adopted and the still evolving science concerned with human fertility. I agree to this extent with how the dissent characterizes the problem facing us: this unexplored legal terrain “begs for legislation.” Our statutes and case law were constructed on the principle that a child is entitled only to one father and one mother. This case demonstrates that we might have to broaden our field of view in this regard. While this may be the first case of its kind in Florida, it will undoubtedly not be the last.

¹³

The second reason I write is to highlight the unfortunate absence of an important consideration that should inform our decision in cases such as this. Yes, I know, as did the able trial judge, that the best interests of the child is ordinarily not the test to be applied. Yet, I cannot help but think that it should be. In my view it would be wrong to deprive the child of the benefits – emotional, monetary and supportive – of the relationship to which that child should be entitled with both the appellant and the appellee. Both of the adult women in this case are parents to K.T.-H. in the real sense of the term. I think that we need to find a way to redirect our focus in cases of this kind so that best interests becomes part of the decisional matrix. Surely we have to make room for that factor in the crucible. Exploring the parental rights of one litigant or the other should not be the end of our deliberations. In the final analysis, we still ought to come to grips with what is best for the child. Here, having two parents is better than one.

SAWAYA, J., concurs.

LAWSON, J., dissenting.

I respectfully dissent because I do not believe that binding legal precedent and the statutes we must follow permit the result reached by the majority. In explaining my reasons for reaching this conclusion, I will first discuss legal principles about which the majority and I seem to agree. The majority dismisses the cases setting forth these principles as distinguishable, and I generally agree with that characterization as well. But, because these principles frame the legal issue in this case, I believe it important to a clear legal analysis to have them firmly in mind before proceeding further. Next, I will explain why I believe the majority misses the mark in its analysis of the controlling statute in this case, section 742.14, Florida Statutes (2008), both in terms of the law constraining our appellate review and in its construction of the statute itself. Finally, I will explain what I see as the flaws in the majority’s constitutional analysis and explain why we should not reach the constitutional issue which the majority ultimately relies upon to reach its desired result.

I. Facts and Legal Principles Framing the Issue in this Case

A. The Birth Mother is the Natural (and Legal) Mother of the Child.

At common law, the birth mother was presumed to be the sole legal mother of the child. In re Adoption of Sebastian, 2,5 Misc. 3d 567, 879 N.Y.S.2d 677, 679 (N.Y. Sur. 2009) (“At common law, parentage derived from two events, a child’s birth to its ‘mother,’ and the mother’s marriage to a man. Children born out-of-wedlock had only one legal parent, their birth mother.”) (footnote omitted); In re C.K.G., 17,3 S.W.3d 714 (Tenn. 2005) (“The common law presumed that the birth mother is the legal mother of the child.”) (citation omitted);

¹⁴ As such, this rule was adopted as Florida common law by virtue of section 2.10, Florida Statutes, cf. Gossett v. Ullendorf, 154 So. 177 (Fla. 1934) (recognizing that a “wife is not permitted to deny the parentage of children born during wedlock” because “maternity is never uncertain”), and remains the law of Florida until abandoned or altered. See, e.g., Choctawhatchee Elec. Co-op., Inc. v. Major Realty Co., 161 So. 2d 837, 839 (Fla. 1st DCA 1964) (“Common law principles continue to prevail in Florida unless modified by statute.”). Courts must observe the common law when it is plainly stated. Duval v. Thomas, 114 So. 2d 791, 795 (Fla. 1959).

Florida’s statutory scheme also recognizes the birth mother as the legal mother of the child to whom she gave birth. As both parties acknowledge, this is clear from chapter 382, Florida Statutes. That chapter requires that a certificate of live birth be filed with the state “for each live birth that occurs in this state” within “5 days after such live birth . . . .” § 382.013(1)(a), Fla. Stat. (2004). Section 382.013(1)(g) requires that the child’s birth mother be listed as the legal parent, regardless “of any plan to place a child for adoption after birth . . . .” The definition of “live birth” in section 382.002(9), Florida Statutes, also makes clear that Florida law recognizes the birth mother as the natural and legal mother of the child to whom she gave birth. Id. (“‘Live birth’ means the complete expulsion or extraction of a product of human conception from its mother, irrespective of the duration of pregnancy . . . .”) (emphasis added); see also § 63.032(12), Fla. Stat. (2008) (“‘[P]arent’ means a woman who gives birth to a child or . . . . the adoptive mother . . . .”).

Accordingly, under both common law and Florida’s statutory law, Appellee, D.M.T., is the natural and legal mother of the child. The majority appears to accept this conclusion insofar as it does not suggest that Appellee can be divested of her legal status as the mother of the child.¹⁵ However, neither Appellant nor the majority appear to fully appreciate the legal implications of this conclusion.

First, both Appellant and the majority use the term “biological mother” to describe Appellant. Yet, it is Appellee, not Appellant, who is the natural and legal mother of the child. The issue in this case is whether there is any legal basis on which Appellant can also claim parental rights. At best, it confuses this issue to call Appellant the “mother” from the outset — a term with clear legal implications that seems to presume the outcome of the case beginning with the second sentence of the majority’s opinion. I would also note that both the genetic and gestational roles in bringing this child into the world are “biological” processes. A fertilized egg

¹⁶ grew inside of Appellee’s uterus, nourished and protected by Appellee’s body for approximately nine months, in a biological process. Because both Appellant and Appellee have a “biological” connection with the child, it confuses matters to label Appellant’s role as biological.

Second, as the natural and legal mother of the child, D.M.T. enjoys protection under both the United States Constitution and the Florida Constitution against interference with her parental rights. See Troxel v. Granville, 530 U.S. 57, 65 (2000) (“The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”); Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 206 (Fla. 2007) (Lewis, C.J., concurring in result only) (“The interest of a parent in the upbringing of his or her children has been acknowledged by this Court as a fundamental liberty interest under the Florida right to privacy.”) (citing Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996)). Normally, when courts address an attempt to force a parent to allow visitation with his or her child, the first question to be addressed is whether the constitution will allow the courts to interfere with the parent’s fundamental rights. And, Appellee has consistently pled and argued her constitutional rights as the legal mother of the child in this case, in defense of Appellant’s causes of action. But, no such analysis appears in the arguments presented by Appellant, nor in the majority’s opinion.

Finally, given the common law starting point for analysis, if the majority is going to create a new common law rule to account for scientific advances not contemplated at the time the common law rule came into being, it should at least acknowledge that this is what it is doing, address the serious and complex policy implications of doing so, and set forth exactly what new common law rule will now govern cases in this arena.

B. Florida Law Does Not Support a Claim for Parental Rights as a “Psychological” or “De Facto” Parent.

Florida’s appellate courts have consistently held that parental rights cannot be extended or established based upon the emotional or psychological bond that develops over time when one treats a child as his or her own, even with the legal parents’ knowledge and consent. E.g., Wakeman v. Dixon, 921 So. 2d 669 (Fla. 1st DCA 2006) (rejecting former domestic partner’s claim of parental rights as a “de facto” or “psychological” parent as there is “no right to claim court-ordered visitation as a ‘psychological parent,’ and the court lacks the inherent authority to award it”); Lamaritata v. Lucas, 823 So. 2d 316, 319 (Fla. 2d DCA 2002) (noting several cases holding that nonparents are not entitled to visitation); Kazmierazak v. Query, 736 So. 2d 106 (Fla. 4th DCA 1999) (rejecting claim of visitation rights by “psychological parent,” and discussing in detail Florida statutes under which a non-parent may petition for custody or visitation); Music v. Rachford, 654 So 2d 1234 (Fla. 1st DCA 1995) (rejecting former lesbian partner’s claim for child visitation and shared parental responsibility based on status as “de facto” parent); Taylor v. Kennedy, 649 So. 2d 270 (Fla. 5th DCA 1994) (prohibiting trial court from acting on “psychological father’s” request for visitation with child who he had lived with for six years, and treated as his own child while living with child’s mother, as there is “no right to claim court-ordered visitation as a ‘psychological parent,’ and the court lacks the inherent authority to award it”) (citations omitted).

¹⁷

The majority neither suggests that we should recede from our own precedent on this issue, nor certifies conflict with the many cases from other district courts applying this precedent. Additionally, the majority does not indicate that it is in any way granting relief based upon Appellant’s claim that section 742.14, Florida Statutes, is unconstitutional in that it infringes on her “right to privacy” by denying her “the right to parent a child for whom she is a de facto parent.” Therefore, although the majority opinion emphasizes the facts demonstrating the emotional or psychological bond that Appellant developed with the child, it is important to note that these bonds do not form a basis for extending parental rights to Appellant under well-established Florida law, and do not form the basis for any constitutional challenge to section 742.14.

C. Florida Law Does Not Support a Claim for Parental Rights Based Upon a Legal Parent’s Agreement to Extend Those Rights to Another.

Florida’s appellate courts have also consistently held that “‘agreements granting visitation rights to a non-parent are unenforceable.’” Wakeman, 921 So. 2d at 673 (quoting Lamaritata, 823 So. 2d at 319); Taylor, 649 So. 2d at 271-72 (“Florida courts do not recognize a claim for specific performance of a contract for visitation in favor of a non-parent.”). Lamaritata is particularly instructive. In that case, the Second District applied this principle to a case in which the mother of a child contractually promised a sperm donor that she would grant visitation rights to the man if she conceived and bore a child from the sperm that he donated. The court flatly rejected the man’s claims for visitation or other parental rights based upon this agreement, holding that:

[A] sperm donor is a nonparent, a statutory stranger to the children. Even though the parties entered into . . . stipulations, purportedly to give visitation rights to this nonparent . . . that agreement is not enforceable.

Lamaritata, 823 So. 2d at 319 (citations omitted).

Again, the majority does not take issue with this well-settled law, does not suggest that our court should recede from Taylor, and does not certify conflict with any case applying this law. Therefore, although the majority opinion discusses the fact that Appellee agreed to share parental rights with Appellant, it is important to note that the majority does not rely upon this agreement as the basis for extending parental rights to Appellant.

D. Appellant’s Claim to Parental Rights is Based Upon Her Genetic Role, or Egg Donation to Appellee.

This brings us to a final, essential point of agreement that I share with the majority. That is, if Appellant does have a claim of parental rights to Appellee’s child, it must be by virtue of her genetic link to the child, i.e., by virtue of her egg donation.

II. Section 742.14, Florida Statutes.        A. Section 742.14, Florida Statutes, Clearly and Unambiguously Bars Appellant’s Parentage Claim Based Upon Her Egg Donation.

According to the majority, “there is nothing in chapter 742, and specifically section 742.14, that addresses” the issue we must resolve. This is the point on which I respectfully but most strongly disagree with the majority. The issue, again, is whether Appellant can claim parental rights based upon her genetic link to the child, brought about by her egg donation. Section 742.14, Florida Statutes (2008), provides that:

[T]he donor of any egg, sperm, or preembryo . . . shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.¹⁸ 

The statute offers only two exceptions, and Appellant concedes that she does not qualify for either.¹⁹ As such, Appellant effectively concedes that section 742.14, by its plain language, bars her claim. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (“[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”) (quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (1931)). In my view, the statute could not have been drafted any more clearly. That was the trial court’s conclusion as well.

However, the majority sidesteps section 742.14 by interpreting the word “donor” in a manner so as to not encompass Appellant. Citing to the California Supreme Court’s decision in K.M. v. E.G., 117 P.3d 673 (Cal. 2005), the majority concludes that Appellant is not a “donor . . . because she did not intend to give her ova away … [but] intended to be a mother to the child born from her ova . . . .” In my view, the term “donor” in this statute can only be reasonably read to mean one who uses assisted reproductive technology to provide his or her genetic material to another. Under this definition, the subjective intent of the “donor” is irrelevant. The majority’s construction of the term “donor” — as a person who provides genetic material to another with the intent of abandoning any claim of parental rights — cannot survive scrutiny for a number of reasons.

B. A Reversal Based upon the Majority’s Construction of the Term “Donor” Violates Principles of Appellate Review.

It is axiomatic that: “In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). Appellant in this case never argued to the trial court that she was not an egg “donor,” as that term is used in section 742.14, Florida Statutes, or that the term “donor” has the special meaning attributed to it by the majority. It is generally inappropriate to reverse a trial judge based upon an argument never presented to the judge. Id. In this case, the issue is further barred from consideration in that Appellant never made the argument on appeal either. Cf. Hall v. State, 823 So. 2d 757 (Fla. 2002) (recognizing an appellant’s failure to make an argument in an initial brief acts as a procedural bar to consideration of the issue on appeal). Rather, on appeal as before the trial court, Appellant accepted that she was a “donor,” as that term is used in section 742.14. For this reason alone, we should not reverse the final judgment before us based upon the majority’s definition of the term “donor.”

C. The Majority’s Construction of the Term “Donor” is Erroneous Because it is Inconsistent with the Universal Use of the Term in this Context.

In medical science, the procedure by which an egg is removed from one person, to be fertilized and transferred to another person is called “donation.” See Coleman, supra, at 502; Brenda Reddix-Smalls, Assessing the Market for Human Reproductive Tissue Availability: Why Can We Sell Our Eggs But Not Our Livers, 10 Vand. J. Ent. & Tech. L. 643, 651 n.22 (2008); Kenneth Baum, Golden Eggs: Towards the Rational Regulation of Oocyte Donation, 2001 B.Y.U. L. Rev. 107, 108 n.5 (“Traditionally, the word ‘donation’ refers to the altruistic act of voluntarily giving a good or service without requesting or receiving any valuable consideration in return. Here, by contrast, the assisted reproduction profession, and society at large, has misapplied that term to a situation in which the ‘donor’ expects and receives valuable consideration. It is a misnomer but one that has become entrenched in popular diction and one that I will adopt throughout this article.”). The woman from whom the egg is removed is called the “donor,” and the person to whom the fertilized egg is ultimately transferred is called the “recipient.” Id. These terms are used even when the donor is paid for the egg, and irrespective of why the donation is made. Id.; see also Nicole L. Parness, Forcing a Square into a Circle: Why are Courts Straining to Apply the Uniform Parentage Act to Gay Couples and Their Children? 27 Whittier L. Rev. 893, 895 (2006) (discussing case in which lesbian partner “only agreed to donate her eggs because she and [her partner] had agreed that they would raise the child together [with both as parents]“) (emphasis added); Ralph C. Brashier, Children and Inheritance in the Nontraditional Family 1996 Utah L. Rev. 93, 200 n.368 (1996) (discussing “lesbian couples, one of whom donates her egg to be gestated by her partner with the intent that both shall rear the child”) (emphasis added); Dana Shilling, Lawyer’s Desk Book, Aspen Publishers § 16.10 Adoption at pp. 16-47 (2011) (discussing “woman whose donated egg was fertilized and implanted in her same-sex partner (they were married in Holland) . . . [who] filed for adoption to safeguard her parental rights”) (emphasis added); William Bassett, California Community Property Law s. 2.22 n.12 (Domestic partnerships registration) (2011 ed.) (discussing California case and explaining that “[t]he donor did not intend simply to donate her eggs, but rather designated her donation so that her partner could give birth to a child who would be raised in their joint home.”) (emphasis added); cf. Katheryn D. Katz, The Legal Status of the Ex Utero Embryo: Implications for Adoption Law, 35 Cap. U. L. Rev. 303, 340 (2006) (“The term ‘human sperm donor’ is something of a misnomer, as in many cases the sperm contributor is the woman’s husband or partner.”). Not surprisingly, these same terms have been adopted and used in the same way in the legal community when addressing this topic. See, e.g., E.E. v. O.M.G.R.,20 A.3d 1171 (N.J. Super. Ct. Ch. Div. June 10, 2011); In re Adoption of Sebastian, 87,9 N.Y.S. 2d 677 (N.Y. Sur. Ct. 2009); In re C.K.G., 17,3 S.W.3d 714 (Tenn. 2005); McIntyre v. Crouch, 780 P. 2d 239 (Or. Ct. App. 1989).

The only authority cited by the majority in connection with its definition of the term “donor” is the California Supreme Court case of K.M. v. E.G., 117 P.3d 673 (Cal. 2005). The majority states that K.M. is a case with “facts similar to” our case, and says that the K.M. court “held that a lesbian woman who provided her ova to her lesbian partner was not a donor of her ova.” Contrary to the majority’s assertion, K.M. had nothing to do with defining the word “donor.” The court ultimately did rule that the egg donor in that case had parental rights based upon her genetic link to the child. But, it did so based upon its reading of California’s version of the Uniform Parentage Act (“UPA”), id. at 681 n.6 (“We simply follow the dictates of the UPA.”), which does not contain any language similar to section 742.14, Florida Statutes, barring an egg donor from claiming parental rights based upon her donation.

Significantly, the K.M. court used the terms donor, donate, and donation throughout the opinion to describe K.M.’s genetic contribution in that case. Id. at 675 (“‘[s]he donated her egg to respondent’ . . . K.M. ‘explicitly donated her ovum under a clear written agreement by which she relinquished any claim to offspring born of her donation’”) (quoting the lower court); id. at 676 (“E.G. then asked K.M. to donate her ova”); id. (“K.M. was the ova donor.”); id. (“she was the ova donor”); id. (she would not have donated her ova had she known E.G. intended to be the sole parent”); id. (“neither E.G. nor K.M. told anyone K.M. had donated the ova”); id. at 679 (“‘the donation of her ova . . . her ovum donation . . . . agreed in advance of the ovum donation . . . . donating genetic material’”) (quoting lower court); id. at 139 (“K.M. donated her ova to E.G.”). In fact, the K.M. court held that under California’s version of the UPA, an egg donor’s intent to parent any offspring resulting from her donation was irrelevant to her parentage claim. Id. at 682 (“whether there is evidence of a parent and child relationship under the UPA does not depend upon the intent of the parent”). The K.M. court rejected a parentage determination based upon the donor’s subjective intent, in part, because “the intent test would rest the determination of parentage upon a later judicial determination of intent made years after the birth of the child.” Id. In short, K.M. does not in any way support the majority’s interpretation of the word “donor” in this context.

In fact, I have not found any judicial opinion or scholarly writing which defines the term “donor,” in this context, in the novel way that the majority has in this case. Sometimes, when an author is discussing a person who provides genetic material with the intention of relinquishing his or her rights to the material (or any resulting child), the author will use a qualifying phrase such as “anonymous” donor, see, e.g., Erin Y. Hisano, Gestational Surrogacy Maternity Disputes: Refocusing on the Child, 15 Lewis & Clark L. Rev. 517, 519 (2011), “true” donor, see, e.g., Meghan Anderson, K.M. v. E.G.: Blurring the Lines of Parentage in the Modern Courts, 75 U. Cin. L. Rev. 275, 292 (2006), “third-party” donor, see, e.g., Kerry Lynn McIntosh, Brave New Eugenics: Regulating Assisted Reproductive Technologies in the Name of Better Babies, 2010 U. Ill. J.L. Tech. & Pol’y 257, 265 n.66 (2010), or “mere” donor, see, e.g., Charles P. Kindregan, Jr., Collaborative Reproduction and Rethinking Parentage, 21 J. Am. Acad. Matrim. Law, 43, 48 (2008). This is necessary because the term “donor” in this context universally encompasses anyone who provides genetic material for use by another.

In this case, as in all cases, we should not apply an extraordinary or novel definition to a word in a statute that has a readily apparent common usage in context. State v. Brake, 796 So. 2d 522, 528 (Fla. 2001) (“[W]here a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.”) (citing State v. Mitro, 700 So. 2d 643, 645 (Fla. 1997)). The majority fails to explain the source from which it has derived its novel definition. It certainly is not, as already discussed, from any argument presented below or on appeal. And, it does not appear to come from any authoritative writing in the medical, scientific or legal community regarding this subject. It is error, in my view, to apply a novel definition of our own creation to a word in a statute that has a universally recognized common meaning in connection with the subject addressed in the statute.

I also believe that if the Florida Legislature had wanted to consider such factors as a donor’s subjective intent, a private contract regarding parental rights, or even a person’s status as a “de facto” or psychological parent, it certainly could have done so, as other states and jurisdictions have. See, e.g., Del. Code Ann. tit. 13, § 8-703 (2010) (“A man who provides sperm for, or consents to, assisted reproduction by a woman . . . with intent to be the parent of her child, is a parent of the resulting child.”); N.J. Stat. Ann. § 9:17-44 (West 2010) (“Unless the donor of semen and the woman have entered into a written contract to the contrary, the donor of semen . . . is treated in law as if he were not the father of a child thereby conceived and shall have no rights or duties stemming from the conception of a child.”); D.C. Code § 16-909(a-1)(2) (2010) (“There shall be a presumption that a woman is the mother of a child if she and the child’s mother are or have been married, or in a domestic partnership, at the time of either conception or birth, or between conception or birth, and the child is born during the marriage or domestic partnership . . . .”). Where the legislature could have chosen to write a statute a different way, but did not do so, courts cannot disregard language the legislature chose to use, Regency Towers Owners Association v. Pettigrew, 436 So. 2d 266, 268 (Fla. 1st DCA 1983), or add additional terms, Atlantic Coast Line Railroad Company v. Boyd, 102 So. 2d 709, 712 (Fla. 1958).

D. The Majority’s Construction of the Term “Donor” is Erroneous Because it Renders the Statutory Exceptions Meaningless.

“It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.” Hechtman v. Nations Title Ins., 840 So. 2d 993, 996 (Fla. 2003). Further, “a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” State v. Goode, 830 So. 2d 817, 824 (Fla. 2002).

After broadly barring any egg or sperm donor from claiming parental rights to a child resulting from the donation, section 742.14 sets forth two narrow exceptions. The first allows a sperm donor to claim parental rights based upon his genetic connection to the resulting child if he “executed a preplanned adoption agreement under s. 63.212,” Florida Statutes. Clearly, a man who provides sperm pursuant to a preplanned adoption agreement had no subjective intent to relinquish control of his sperm or any child conceived from his sperm. So, applying the majority’s definition of “donor,” the bar of section 742.14 would never have applied to the man in the first place. It makes no sense to suggest that the legislature would have enacted this exemption if it had intended the word “donor” to have the meaning attributed to it by the majority, because the exemption will never apply to anyone. It is meaningless. Unnecessary. Surplusage. The same is true of the other statutory exception for a “commissioning couple.” Under the majority’s definition, the couple are not “donors” because they intend to parent any resulting child, and the exception that allows them to make a parentage claim is unnecessary surplusage. Because it is improper to construe a statute in a manner that renders part of the enactment meaningless, Hechtman, 840 So.2d at 996; Goode, 830 So. 2d at 824, the majority’s definition of the word “donor” is erroneous.

E. The Majority’s Construction of the Term “Donor” is Erroneous Because it Defeats the Clear Purpose of the Statute.

“[S]tatutory enactments are to be interpreted so as to accomplish rather than defeat their purpose.” Reeves v. State, 957 So. 2d 625, 629 (Fla. 2007) (quoting Lewis v. Mosley, 204 So. 2d 197, 201 (Fla. 1967)). In very plain terms, section 742.14 prohibits a person from providing an egg or sperm for use by another, and then claiming parental rights to any resulting children, with two narrow exceptions. It seems obvious to me, at least, that the reason this statute was enacted is to narrowly limit those circumstances in which a person who provides genetic material to another using assisted reproductive technology can claim parental rights in a resulting child. A likely secondary purpose is to provide certainty when it comes to parentage claims based upon the use of assisted reproductive technology. The majority’s construction of the term “donor” defeats both purposes.

First, the majority’s construction places no limit whatsoever on the ability of a provider of genetic material to attempt to assert parental rights. Again, a “donor,” according to the majority, appears to be a person who provides genetic material to another with a subjective intent to relinquish parental rights with respect to any child conceived using his or her genetic material. But, anyone could make an after-the-fact claim that he or she donated genetic material with the intent of parenting any resulting child. It is worth noting that the Appellant in this case signed an informed consent form which stated in plain terms that she would not be claiming parental rights as a result of her donation. The form was drafted broadly to cover situations in which the “donor” knew the planned recipient. The form itself repeatedly uses the term “donor” to describe Appellant’s role, and Appellant signed on the line labeled for the “Donor’s Signature.”

²⁰ There can be no question but that Appellant understood from this form that her role in the medical procedure was that of the “donor.” And, the form stated:

I, the undersigned, forever hereafter relinquish any claim to, or jurisdiction over the offspring that might result from this donation and waive any and all rights to future consent, notice, or consultation regarding such donation. I agree that the recipient may regard the donated egg as her own and any offspring resulting there from as her own children.

The majority is probably correct that this language did not reflect Appellant’s true subjective intentions in this case. However, perhaps recognizing that the form she signed forever relinquishing any claim of parental rights was unambiguous, Appellant contends on appeal (as she did below) that a factual dispute exists regarding her true intentions regarding the donation. Accordingly, Appellant argues that we should remand with directions that the trial court conduct an evidentiary hearing to resolve the dispute, not that we resolve the dispute in her favor.

Setting this issue aside, however, I cannot help but wonder whether the majority truly appreciates the uncertainty it has created with its holding for infertile women who have used assisted reproductive technology thinking that they would be protected as the sole legal mother of their children. The majority opinion can only be read as standing for the proposition that even where a donor has signed a form similar to the one signed by Appellant in connection with her donation, that person can still seek to establish a parentage claim at some future date based upon her subjective intent to do so. Although it seems clear on this record that both Appellant and Appellee understood Appellant’s subjective intent at the time of the donation, there is nothing in the majority’s analysis that would prohibit others from bringing a similar claim in which the issue of a donor’s subjective intention is hotly contested – as was the case in K.M. (the California case). In K.M., the donor testified that she intended to parent any resulting child and the recipient testified that she would never have accepted the donation under those conditions, but that she and the donor had agreed that only she (the recipient) would have parental rights. Disputes like this, creating uncertainty where the legislature seems to have intended to assure certainty, are likely in the future under the majority’s construction of the statute.

In short, if I am correct as to the purposes behind section 742.14, the majority’s construction is erroneous because it defeats the statute’s purposes. Reeves, 957 So. 2d at 629. If I am incorrect about the statute’s purposes, one is left to wonder why the legislature would have bothered enacting the statute at all. Under the majority’s analysis, a person can donate an egg or sperm and claim parental rights, if that is what he or she subjectively wants; or, can disclaim parental obligations based upon his or her donated egg or sperm, if that is what he or she subjectively wants. To me, that renders the entire statute something of an absurdity in that it accomplishes nothing.

Of course, Appellant never argued for this extraordinary reading of section 742.14. Rather, she accepted that the statute by its plain terms barred her claim of parental rights based upon her egg donation. That is why the only real issue, as framed by Appellant’s pleadings below, was her claim that this statute is unconstitutional – which I will address next.

III. Constitutional Issues.        As a fall-back position, the majority concludes that if Appellant is an egg “donor,” as that term is used in section 742.14, then the statute still cannot be applied to bar her parentage claim because it is unconstitutional. As a preliminary matter, it is not clear to me why Appellant and the majority believe that avoiding section 742.14 will automatically result in a legal finding that she is entitled to parental rights. Normally, if no statute applies to a subject, we would resort to common law to decide the legal question. As already discussed: “The common law presumes that the birth mother is the legal mother of the child. Unless the rule has been modified by statute, the presumption resolves disputes between the genetic mother and the gestational mother.” Coleman, supra, at 524 (footnotes omitted). Again, the majority does not suggest that it is modifying the common law rule, or what new rule of law it is announcing. Setting this issue aside, however, section 742.14 should not be declared unconstitutional because Appellant has demonstrated no basis to do so.

A. Appellant Has Neither Demonstrated Any Basis on Which to Declare Section 742.14 Unconstitutional Nor Preserved Any Constitutional Argument for Review.

“A statute is presumed constitutional . . . [and the] party challenging a statute has the burden of establishing its invalidity.” Peoples Bank of Indian River Cnty. v. State Dep’t of Banking and Fin., 395 So. 2d 521, 524 (Fla. 1981) (citations omitted). In her complaint, Appellant alleged that section 742.14 violated her rights under the Equal Protection Clauses of the United States and Florida Constitutions,

²¹ and that it infringed upon her right to privacy under the Florida Constitution.²² However, the record does not reflect that Appellant ever advanced any coherent legal theory, analysis or argument in support of these constitutional claims. As such, there is no basis to reverse the trial court’s order based upon a constitutional challenge to section 742.14. Id.; see also Newell v. State, 875 So. 2d 747, 748 (Fla. 2d DCA 2004) (reciting general rule that the party challenging a statute has the burden of establishing its invalidity, and rejecting without analysis constitutional challenge to statute where “conclusory argument demonstrate[d] no basis for reversal”); Perez v. State, 919 So. 2d 347, 359 (Fla. 2005) (holding that in order to preserve an issue for appeal, the issue “‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation’”) (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993), cert. denied, 519 U.S. 876 (2006)).

The majority dismisses this point, stating that Appellant “specifically pled in her complaint that section 742.14 is unconstitutional, and it was adequately argued in the trial court . . . .” (emphasis added). To be crystal clear, the record below contains absolutely no argument from Appellant in support of the three paragraphs in her complaint challenging the constitutionality of section 742.14. As for the complaint itself, Appellant alleged only an “as-applied” challenge to section 742.14 on privacy grounds.

See generally 16 Am. Jur. 2d Constitutional Law § 132 (updated August 2011) (“A court should not rule that a statute is unconstitutional as applied to a particular case until a complete record has been developed.”); Cantor v. Davis, 489 So. 2d 18 (Fla. 1986) (“Prudence dictates that issues such as the constitutionality of a statute’s application to specific facts should normally be considered at the trial level to assure that such issues are not later deemed waived.”).

Even on appeal, Appellant does not offer any recognizable constitutional analysis in support of her bald assertion that the statute is unconstitutional.²³ Appellant filed a twenty-four page initial brief (including the cover page, table of contents, table of citations, and signature page), and no reply brief. Of the eleven and one-half pages of argument, approximately four pages at least loosely relate to her constitutional claims. But, her argument — if you can call it that — consists of conclusory statements that: (1) as the biological mother she enjoys “the fundamental right to parent” her child and a “right to procreate”; (2) that this constitutes a facial challenge to the statutes presenting a “mixed question of fact and law” on which “the parties need to present evidence”; (3) that “the trial court had the duty to conduct an evidentiary hearing to determine if §742.14 was constitutionally and facially applicable”; (4) that we should remand for the trial court to consider the “detriment to the child” at an evidentiary hearing;²⁴ (5) that a ”‘serious procedural problem’ arises when the parties attempt to resolve the issue of the constitutionality of a statute on summary judgment,” quoting Department of Health & Rehabilitative Services v. Cox, 627 So. 2d 1210, 1212 (Fla. 2d DCA 1993), approved in part and quashed in part, 656 So. 2d 902 (Fla. 1995) (holding that the record from the trial court was insufficient to determine a constitutional challenge to section 63.042(3), Florida Statutes); (6) that “to the extent that Chapters 742 and 382 are interpreted as creating or denying parental rights, such issue cannot be resolved, as a matter of law, from the record”; and (7) that “summary judgment should be reversed and the case remanded for further proceedings.” In other words, Appellant never argued that we should declare the statute facially unconstitutional on appeal, but that we should remand so that she could present evidence and argument in support of the constitutional challenge raised in the complaint. As to these arguments, however, the record does not reflect that Appellant ever sought an evidentiary hearing on her constitutional contention or argued to the trial court that summary judgment should be denied because these claims required an evidentiary hearing.

Just as it is improper to reverse the trial court based upon a statutory construction never advanced by Appellant, it is improper to reverse based upon a constitutional argument that she never made. Tillman, 471 So. 2d at 35; see also 16 Am. Jur. 2d Constitutional Law § 132 (updated 2010) (“An appellant who fails to argue a constitutional contention in his or her brief, merely setting it forth in one sentence, is considered to have abandoned or waived such contention . . . . The burden of raising a constitutional question . . . [includes a requirement that] the grounds outlining the basis of unconstitutionality must be particularized. The mere reference to a statute’s constitutionality, with nothing more, does not meet the standard of persuasion required to mount an attack on constitutional grounds.”) (footnotes and citations omitted).

B. The Majority’s Constitutional Analysis is Questionable.

Attempting to demonstrate a conclusion using a premise that assumes the conclusion as true is called “circular reasoning” or circulus in probando.²⁵ It is the primary means by which the majority attempts to demonstrate section 742.14 to be unconstitutional when it argues that “there can be no doubt that Appellant is a parent of the child and her parental rights must be accorded the full measure of protection provided by the Federal and Florida Constitutions.”²⁶ Again, the legal question in this case is whether Appellant can claim parental rights as a result of her egg donation. But, the majority starts its constitutional analysis by assuming that Appellant is a parent, and then applies the strict scrutiny test applicable to enactments that interfere with the fundamental right of a parent. Basically, the majority’s analysis is that because Appellant is a parent, the state cannot interfere with her parental rights. If there is a viable or debatable constitutional argument here, this is not it. See, e.g., In re Marriage of J.B. and H.B., 326 S.W.3d 654, 675 n. 9 (Tex. App. 2010) (“In legal analysis, as in mathematics, it is fundamentally erroneous to assume the truth of the very thing to be proved.”) (citation omitted).

The majority also declares section 742.14 unconstitutional as violative of Appellant’s “fundamental” right “to procreate,” citing to Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (calling procreation “one of the basic civil rights of man”) and Grissom v. Dade County, 293 So. 2d 59, 62 (Fla. 1974) (which also cited Skinner for the proposition that “the right to legally have children and the right of marriage, although both statutorily created, have been held to be ‘basic civil rights of man’”). Of course, neither of these cases dealt with the use of assisted reproductive technology. In fact, neither case was decided based upon a theory of procreation as a fundamental right afforded heightened scrutiny under the Fourteenth Amendment.

The issue in Grissom, an adoption case, was whether statutes requiring prospective adoptive parents to bear the costs of publishing notice of the adoption proceedings could be constitutionally applied to indigent persons who could not afford to pay the costs (effectively barring them from bringing an adoption proceeding in court). Skinner dealt with an Oklahoma statute providing for sterilization of individuals convicted of certain crimes, but not others. The majority of the court held that the statute violated the Equal Protection Clause as applied to Skinner. Id. at 541 (“Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination.”). In so holding, Justice Douglas, writing for the court’s majority, explained that: “Marriage and procreation are fundamental to the very existence and survival of the race.” Id. In short, Grissom simply cited to the language in Skinner regarding a procreative right, and Skinner was addressing natural procreation (which involves both private, intimate, sexual contact between consenting adults and the control of one’s own body). This observation is significant to any analysis of later Supreme Court dicta in cases that actually address a constitutional right of privacy grounded in the Fourteenth Amendment’s Due Process Clause — which appears to be the basis of the majority’s holding in this case.

The threshold Fourteenth Amendment issue is whether the “fundamental right to procreate” is to be extended beyond natural procreation to now encompass a constitutional right to use assisted reproductive technologies (also discussed as “ARTs”); and, if so, whether that right extends to the use of that technology outside of one’s own body. This is an issue hotly debated among legal scholars, with absolutely no consensus having been reached. As explained in Andrew B. Coan, Assisted Reproductive Equality: An Institutional Analysis, 60 Case W. Res. L. Rev. 1143, 1146-47 (2010):

Most discussion of procreative liberty and ARTs has focused on substantive due process. In particular, the sharpest battle lines have been drawn over the question whether freedom to use ARTs qualifies as a fundamental liberty for purposes of due process analysis. There is ample ambiguity in the Supreme Court’s prior decisions to support significant debate. Most basically, the Court has never addressed the constitutionality of regulating ARTs. Indeed, it has squarely addressed the due process right to procreate— as opposed to the right not to procreate—only once, in the long since discredited Buck v. Bell. Nevertheless, there is substantial dicta in the Court’s due process decisions extolling “the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” And, of course, as noted earlier, Skinner v. Oklahoma memorably described procreation as “one of the basic civil rights of man fundamental to the very existence and survival of the race.”

These statements would supply plausible precedential cover for the Court to recognize a broad right to procreative liberty extending to all manner of ARTs. But as most commentators have recognized, the cases hardly compel such a result. Attention has therefore turned to the normative question: Should the right to procreative liberty be interpreted as encompassing the use of some or all ARTs? Answers to this question have varied widely.

Id. at 1146-47 (footnotes omitted; emphasis added);²⁷ see also McIntosh, supra, at 304 n. 388 (“Academic opinion is divided on the question of whether there is a constitutional right to procreate through ART”) (citations omitted); Molly O’Brien, An Intersection of Ethics and Law: The Frozen Embryo Dilemma and the Chilling Choice between Life and Death, 32 Whittier L. Rev. 171, 191 (2010) (“It is not clear whether the right to procreate extends to procreation via reproductive technologies.”) (footnote and citations omitted); Jennifer L. Rosato, The Children of ART (Assisted Reproductive Technology): Should the Law Protect Them from Harm?, 207 PLI/Crim 325, 340 (2006) (“There are a number of reasons to doubt whether the right to procreate extends far enough to encompass ART decisions.”).

For my analysis of this issue, I would begin with the Supreme Court opinions applying the “substantive due process” doctrine, which hold that the Due Process Clause prohibits states from infringing upon fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997). The Supreme Court has repeatedly held that this heightened protection should only be applied to rights which are “objectively ‘deeply rooted in this Nation’s history and tradition,’” id. at 720-21 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (plurality opinion)), and which are so “‘implicit in the concept of ordered liberty,’ [] that ‘neither liberty nor justice would exist if they were sacrificed[.]‘” id. at 721 (quoting Palko v. Connecticut, 302 U.S. 319 (1937)). It is hard to see how the use of assisted reproductive technology meets this test.

Second, I would point out that the privacy cases to which the majority cites either deal with the government’s attempt to intrude upon private intimate conduct, see, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (dealing with intimate and private human conduct, sexual behavior, in the most private of places, the home), or to regulate decisions regarding the use of one’s own body. See, e.g., Carey v. Population Servs., Int’l, 431 U.S. 678 (1977) (dealing with a women’s right to bear a child, or not, in her own body). This case has nothing to do with either of these fundamental privacy interests. In fact, section 742.14 in no way limits Appellant’s opportunity to use assisted reproductive technology to conceive and bear her own child, in her own body. Rather, the majority appears to be creating a constitutional right to use a surrogate’s body for nine months to house and nurture one’s genetic child, as a means of becoming a parent. It is an interesting notion, which raises even more interesting and complex questions. For example, what if the surrogate decides two months into the arrangement that she no longer wishes to bear a child? Does the genetic contributor then have a fundamental constitutional right to force the surrogate to carry the child to term? Or, is it the surrogate who enjoys this fundamental privacy right — to control her own body? The answer seems clear to me.

Third, I would point out that the majority’s strict scrutiny analysis founded upon a fundamental right of procreation still suffers from the logical fallacy that afflicts its pronouncement that section 742.14 interferes with Appellant’s fundamental rights as a parent. As explained in John Lawrence Hill, What Does it Mean to be a “Parent”? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. Rev. 353 (1991):

[O]nly a “parent” can exercise the right of procreation with respect to any particular child . . . . It follows that the application of the constitutional right of procreation depends upon an antecedent definitional conclusion regarding the meaning of parenthood.

Id. at 356 (footnotes omitted). In other words, simply saying that Appellant, or anyone else, has the right to procreate does not answer the question of who the law should favor when a parental rights dispute arises between individuals involved in an assisted reproductive technology arrangement. Each involved potential parent would be able to claim a fundamental right of procreation. And, we are dealing with technology that currently allows up to three women to reasonably claim rights as a mother (the intended mother, an egg donor, and a “surrogate” host); two men to reasonably claim rights as a father (the intended father and a sperm donor); and, “sixteen different reproductive combinations, in addition to traditional conception and childbirth.” Id. (“This total is the product of varying the source of the male gametes (whether by husband or third-party sperm donor), the source of the female gametes (whether by wife or third-party egg donor), the location of fertilization (whether in the wife, the laboratory, or the surrogate host), and the site of gestation (either in the wife or the surrogate).”); see also Ilana Hurwitz, Collaborative Reproduction: Finding the Child in the Maze of Legal Motherhood, 33 Conn. L. Rev. 127, 129 (2000) (“Collaborative reproduction presents the extraordinary possibility of up to three women claiming rights to legal motherhood. In a gestational surrogacy arrangement, with donor eggs, there may be three prospective maternal claimants: the intended mother, the gestational mother, and the genetic mother (the egg donor).”).

²⁸ The majority in no way addresses these concerns, but instead insists that we need not decide between the competing parentage claims in this case.

The problem with this pronouncement, when analyzed, is that it necessarily treats the most sweeping dicta from the Supreme Court’s substantive due process case law as binding precedent, with no recognition of the transformative implications of doing so. In Planned Parenthood v. Casey, 505 U.S. 833, 852 (1992), a Supreme Court plurality (of three justices) declared in flowing prose that:

[Matters] involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

At the end of the day, it is this principle that the majority must rely upon. Because, what the majority is really saying is that the Florida Legislature cannot dictate to a citizen that he or she live life constrained by the traditional notions of family implicit in Florida law. Section 742.14, consistent with the rest of Florida’s relevant statutory law, is drafted so that each child has only one legal mother and one legal father. Cf. Daniels v. Greenfield, 15 So. 3d 908, 911(Fla. 4th DCA 2009) (“‘Florida does not recognize dual fathership.’”)(quoting Achumba v. Neustein, 793 So. 2d 1013, (Fla. 5th DCA 2001)); G.F.C. v. S.G. & D.G., 686 So. 2d 1382, 1384 (Fla. 5th DCA 1997) (“[T]here is no such thing as dual fathership [under Florida law].”); 23 Fla. Prac., Florida Family Law § 6:5 (2011) (“a child cannot legally have two fathers or two mothers [under Florida law]“). And, Florida’s Constitution was amended in 2008 to add a provision reflecting the Florida electorate’s view of family as the traditional one. Fla. Const., Art. I, § 27 (“Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”).

What the Casey dicta says, however, is that each person must be left free to choose for themselves how to order his or her life, guided by his or her individual “concept of existence, of meaning, of the universe, and of the mystery of human life.” There are a number of citizens who would choose to order their lives around various non-traditional concepts of family, if allowed by law. I do not see how we can say, on the one hand, that the government cannot prohibit Appellant from ordering her life in a family unit consisting of two legally recognized mothers — as a fundamental substantive due process right guaranteed by the Fourteenth Amendment — unless we are also willing to invalidate laws prohibiting same-sex marriage, bigamy, polygamy, or adult incestuous relationships on the same basis. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (applying strict scrutiny based upon fundamental right to marry same-sex partner and invalidating provision in California constitution granting legal recognition only to marriage between a man and a woman as a violation of Due Process Clause of Fourteenth Amendment); but see, In re Marriage of J.B., 32,6 S.W. 3d at 676 (disagreeing with Perry and holding that claimed right to marry a person of the same sex did not involve a fundamental right protected under the substantive due process doctrine). To me, these issues appear facially indistinguishable.

Fourth, I would point the majority to the cautionary warning given by the Supreme Court regarding expanding the substantive due process doctrine by recognizing new “fundamental rights.” In Glucksberg, the Court cautioned that courts should be “‘reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended.’” Id. at 720 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)). The Court further explained:

By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court[.]

Id. (citations omitted). In my view, it is somewhat reckless to recognize the right of procreation through assisted reproductive technology without any real analysis, in a case where the issue was never raised below or briefed on appeal.²⁹

Fifth, I would point out that invalidating section 742.14 as a violation of Appellant’s fundamental right to procreate (using ARTs) does effectively place the use of assisted reproductive technology “outside of the arena of public debate and legislative action.” To me, the question of parentage in the context of the voluntary use of assisted representative technology is the kind of difficult and controversial policy question that begs for legislation. See, e.g., Sorenson v. Secretary of Treasury of U.S, 475 U.S. 851, 865 (1986) (“The ordering of competing social policies is a quintessentially legislative function.”); State v. Ashley, 701 So. 2d 338 (Fla. 1997) (“As we have said time and again, the making of social policy is a matter within the purview of the legislature — not this Court[.]“). Some states have addressed these difficult and controversial social policy questions by banning the use of assisted reproductive technology, and others have limited it, while many state legislatures have not addressed it at all. Mark Hansen, And Baby Makes Litigation, ABA Journal, March 201, at 53-55 (“The United States, unlike many countries, has no national policies governing assisted reproductive technology, including surrogacy. And state laws vary widely from one state to the next. Several states expressly prohibit it, declaring all such agreements void and unenforceable as a matter of public policy. A few even make it a crime to pay for surrogacy. Other states allow it but restrict its use to married couples or to cases in which at least one of the intended parents has a genetic link to the child. And a handful of states have been very open to the use of reproductive technology and have allowed it to flourish. But a majority of states . . . have no laws directly addressing surrogacy, leaving many such arrangements in legal limbo and raising a number of vexing social, legal and ethical issues involving parenthood.”). I do not see how any of the restrictions on the use of assisted reproductive technology, enacted by other states, could survive a constitutional challenge if procreation using assisted reproductive technology is recognized as a fundamental right.

Finally, I would note that the statute in question here is not directed just at men or women, heterosexuals or homosexuals, or any other narrow class. It places broad limits on the right of all citizens to make a parentage claim after donating genetic material to another. And, as previously noted, the statute does not bar Appellant (or any women, irrespective of sexual preference) from using assisted reproductive technology to conceive, bear and give birth to a child of her own, using her own body.

This appears, at least on its face, to be a rational way to address this difficult social policy issue, irrespective of whether it reflects a policy choice that the majority or I would prefer. cf. McIntyre, 780 P. 2d at 244 (rejecting argument that semen donation statute treating unmarried men and women differently violated state Equal Protection Clause because classifications were based on biological differences and were rationally related to purposes of the statute).

But, my main concern in attempting to address any constitutional claim of this importance and complexity on a completely undeveloped record is the nagging feeling that we may be missing something. I understand that the parties in this case probably do not have the resources to fund the kind of research and analysis that these issues warrant. But, there have to be organizations with enough of an interest in this important topic that, had they been notified, probably would have appeared without compensation, at least as amici on appeal. And, if the majority believes that there is a viable constitutional argument preserved for appellate review, the proper course of action in this case would be a remand with directions that the trial court address that constitutional question in the first instance. See 16 Am. Jur. 2d Constitutional Law § 132 (updated 2010) (explaining the need for parties “to fully brief and argue” a constitutional issue in the trial court “with thoughtful and complete arguments” so as to “furnish[] reviewing courts with an adequate record upon which to adjudge the constitutionality of the statute” and concluding that “[a] court should not rule that a statute is unconstitutional as applied to a particular case until a complete record has been developed.”); see also St. John v. Coisman, 799 So. 2d 1110, 1119-20 (Fla. 5th DCA 2001) (“Because the constitutional issue we address . . . was not raised in the trial court and has not been properly raised, briefed or argued in the proceedings before this court, I agree that the appropriate remedy is for this court to remand this case to the trial court to allow the parties the opportunity to do so . . . .”) (Sawaya, J., concurring in part, dissenting in part).

C. Limited Response to Equal Protection Analysis.

1. Any Equal Protection Challenge to the Statute Should Be Analyzed Under the Rational Basis Test, and Appellant Has Not Demonstrated Any Basis for Relief under that Standard.

“[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach Commc’ns., Inc., 508 U.S. 307, 313 (1993). The majority does not suggest that this case involves a “suspect class,” nor can it. See Lofton v. Sec. of Dep’t. of Children & Family Servs., 358 F.3d 804, 818 (11th Cir.), reh’g en banc denied, 377 F.3d 1275 (2004), and cert. denied, 543 U.S. 1081 (2005). And, I have already explained that this case does not implicate a fundamental constitutional right because the use of assisted reproductive technology is neither deeply rooted in our nation’s history and tradition nor so implicit in the concept of ordered liberty that neither liberty nor justice would exist if access to this technology were denied.³⁰ As such, “[t]he question is simply whether the challenged legislation is rationally related to a legitimate state interest.” Id. (citing Heller v. Doe, 509 U.S. 312, 320 (1993)). As further explained in Lofton:

Under this deferential standard, a legislative classification “is accorded a strong presumption of validity,” [Heller, 509 U.S.] at 319, 113 S.Ct. at 2642, and “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” id. at 320, 113 S.Ct. at 2642 (citation omitted). This holds true “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer, 517 U.S. at 632, 116 S.Ct. at 1627. Moreover, a state has “no obligation to produce evidence to sustain the rationality of a statutory classification.” Heller, 509 U.S. at 320, 113 S.Ct. at 2643. Rather, “the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record.” Id. at 320-21, 113 S.Ct. at 2643 (citation omitted).

Id. If we were to entertain a constitutional challenge to section 742.14 under the rational basis test, it would end here — because Appellant has made no effort to “negative” any basis which might support the statute. See alsoVance v. Bradley, 440 U.S. 93, 96-97 (1979) (where a statutory classification neither “burdens a suspect group [n]or a fundamental interest” the “Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.”) (footnotes omitted); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1577 (11th Cir.1989) (“social legislation is presumed valid if it is rationally related to a legitimate state interest.” (citation and internal quotation marks omitted)); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 825 F.2d 367, 370 (11th Cir.1987) (“[T]he equal protection clause allows governmental bodies wide latitude in enacting social and economic legislation; the federal courts do not sit as arbiters of the wisdom or utility of these laws.”).

2. Lehr and Related Cases.

The majority also attempts to make an equal protection argument grounded in Lehr v. Robertson, 463 U.S. 248 (1983), and other related cases which address the possibility of recognizing a protected liberty interest in a “natural father’s” biological connection to “his illegitimate child.” Those cases recognize a protected liberty interest only where the natural father has “come forward to participate in the rearing of his child.” Id. at 261. Noting that Appellant developed a relationship with the child in this case, the majority claims that “it would pose a substantial equal protection problem to deny a unwed genetic mother” the same constitutional protection that the Supreme Court has recognized for a similarly-situated natural father under Lehr. However, the question of whether the Lehr due process analysis should be extended to this situation really has nothing to do with equal protection. In other words, the protections of the Equal Protection Clause apply to legislative classifications, not Supreme Court cases.

The easy response to Lehr is that it is not an assisted reproductive technology case. Significantly, the Lehr majority noted that: “‘The mother carries and bears the child, and in this sense her parental relationship is clear.’” Id. at 260 (quoting Caban v. Mohammed, 441 U.S. 380, 397 (Stephens, J., dissenting)). Because Lehr deals with rights of a natural father, it’s analysis does not translate to Appellant, who is not a natural parent. This is clear from Michael H. v. Gerald D., 491 U.S. 110 (1991), in which the Court refused to extend Lehr even to a natural father where doing so would interfere with the “family unit accorded traditional respect in our society” and would require the state to recognize two legal fathers.

Michael H. involved an “adulterous” relationship between Michael H. and a married woman, Carol D., during a time when Carol was separated from her husband, Gerald D. A child, Victoria, was born out of the relationship, who Michael held out to others as his own and treated as his own. Michael, Carol and Victoria even lived together for a time, while Carol and Gerald remained separated. However, Carol later reconciled with Gerald, and began denying Michael access to Victoria. Michael sued for visitation rights, arguing that under the Lehr line of cases he had a recognized liberty interest as a natural father who had participated in the rearing of his child and had developed a relationship with her. Part of the evidence presented to the trial court was a psychologist’s recommendation that it would be in Victoria’s best interest to maintain the relationship with Michael. The Supreme Court rejected Michael’s argument. As explained in Justice Scalia’s plurality opinion, fundamental liberty interests are only recognized if they are “interest[s] traditionally protected by our society” that are “‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Id. at 122 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1334)).

Applying this well-settled law, the Court summarized the issue in Michael H. as “reduc[ed] to whether the relationship between persons in the situation of Michael and Victoria has been treated as a protected family unit under the historic practices of our society,” and readily determined that Michael could not assert a fundamental liberty interest despite his biological and psychological connection to Victoria. Id. at 124. In reaching this conclusion, the Court not only noted the state’s interest in protecting the “unitary family” accorded “traditional respect in our society,” but that: “California law, like nature itself, makes no provision for dual fatherhood.” Id. at 118 and 124 n.3; see also id. at 130-131 (“[W]hatever the merits of the guardian ad litem’s belief that such an arrangement can be of great psychological benefit to a child, the claim that a State must recognize multiple fatherhood has no support in the history or traditions of this country.”).

What differentiates Appellant from the men who would be afforded protection under the Lehr line of cases is not that she is a woman. Rather, as in Michael H, it is that Appellant (or, more accurately, the majority, as Appellant herself never made the argument) is attempting to state a claim that has no support in the traditions of this country.

D. My Overriding Concern with the Majority’s Approach to the Constitutional Issues in this Case.

More than a century ago, Justice Oliver Wendell Holmes discussed the difficulty judges face when addressing issues in an emotionally-charged case like the one before us today. He explained that:

Great cases, like hard cases, make bad law. For great cases are called great . . . because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

N. Sec. Co. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting). The facts before us distort judgment because we so readily sympathize with Appellant and the child in this case, and are naturally outraged by their treatment at the hands of Appellee. But, those natural feelings only serve to highlight the importance of our constitutional duty to look past the individuals in this case to the larger principles at stake. The larger principle at the heart of this case is the necessity for judicial restraint as a corollary to the power of judicial review.

Judicial review, in this context, refers to a court’s power to invalidate a legislative act as unconstitutional. See Black’s Law Dictionary 924 (9th ed. 2009) (defining judicial review as, inter alia, “[a] court’s power to review the actions of other branches or levels of government; esp., the courts’ power to invalidate legislative and executive actions as being unconstitutional” and “[t]he constitutional doctrine providing for this power”). Judicial review serves as an essential “check” or “balance” to bind the legislature to the rule of law — assuring that it neither exceeds its constitutional power through its acts nor violates the rights of the people secured by the Constitution.

Judicial restraint, in this context, refers to the principle that a court’s power of judicial review should only be used where the law demands it, and never as a means of simply substituting the values or judgment of the individual judges deciding a case for the values or judgment of the elected representatives of the people. See Black’s Law Dictionary 924 (9th ed. 2009) (defining judicial restraint as, inter alia, “[a] philosophy of judicial decision-making whereby judges avoid indulging their personal beliefs about the public good and instead try merely to interpret the law as legislated and according to precedent”). Judicial restraint serves as the essential self-imposed “check” against the judicial branch’s abuse of power; and, “‘[o]nly by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.’”Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 365 (1973) (quoting Carmichael v. S. Coal & Coke Co., 301 U.S. 495, 510 (1937)). My overriding concern with the majority’s resolution of this case, and the most basic reason why I cannot join in their decision, is my belief that the majority opinion violates several well-defined principles of judicial restraint.

First, I have already explained that we should not reach the constitutional questions ultimately decided by the majority because they were neither preserved for appellate review in the trial court nor adequately presented on appeal. Reaching these issues under these circumstances violates the “fundamental rule of judicial restraint” that a court not “decide questions of a constitutional nature unless absolutely necessary[.]“ Webster v. Reprod. Health Serv., 492 U.S. 490, 526 (1989) (O’Connor, J., concurring) (internal quotations and citations omitted); see also Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such [questions are] unavoidable”).

Second, the majority’s decision improperly discards “one of the first principles of constitutional adjudication – the basic presumption of the constitutional validity of a duly enacted state or federal law.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 60 (1973) (Stewart, J., concurring). The majority discards this presumption by declaring that this case implicates Appellant’s fundamental rights. However, that declaration is itself inconsistent with principles of judicial restraint in that the majority in no way ties its fundamental rights analysis to our nation’s history or “deeply rooted” traditions. After all, it is only by firmly linking a fundamental rights determination to the historical “traditions and [collective] conscience of our people” that the judges are able to avoid preempting legislative action based upon nothing more than our “personal and private notions” of what constitutes a fundamental right. Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J., concurring).

Third, as a related principle of judicial restraint, the United States Supreme Court has repeatedly cautioned that a substantive due process analysis “must begin with a careful description of the asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’” Reno v. Flores, 507 So. 2d 292, 302 (1993) (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)); see also Glucksberg, 521 U.S. at 721 (“[W]e have required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.”) (internal citations omitted) and at 722-26 (stating that the asserted liberty interest at issue in the case was framed more properly as the “right to commit suicide with another’s assistance” rather than the broadly-stated “liberty to choose how to die” or the “right to choose a humane, dignified death”). Contrary to this guiding principle, the majority frames the interest at stake in this case as broadly as possible, asserting that Florida’s ART legislation affects the previously recognized fundamental rights of procreation and parenthood. To use a prior analogy, this would be akin to analyzing a polygamist’s attack on section 826.01, Florida Statutes (making it a felony to marry another person when already married) as violating the recognized fundamental right to marry. By framing the issue as broadly as possible, the majority avoids the obvious: that neither procreation through assisted reproductive technology nor the recognition of two legal mothers to a single child implicate any interest that could even remotely be described as objectively deeply rooted in this nation’s history and tradition.

As explained not long ago by a former member of Florida’s Supreme Court: “Dating to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), the power assumed by the judicial branch of our government to declare acts of the Legislature unconstitutional has been acquiesced in by the legislative and executive branches on the representation that this judicial power will be used with restraint and only in the face of clear and compelling constitutional conflicts.” N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 670-71 (Fla. 2003) (Wells, dissenting). We should heed that reminder.

Conclusion        Because the trial court correctly applied the controlling case law and statutes, and because no other issue is preserved for appellate review, we should affirm the final judgment. Having said this, I fully agree with the majority that this case involves a question of great public importance that should be reviewed by the Florida Supreme Court. It is my hope that if the Supreme Court does accept review, it will at least be the beneficiary of a thorough briefing of the issues, so lacking in our review.
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Notes:

^1. Appellant included five counts for relief in her Second Amended Petition to Establish Parental Rights and for Declaratory and Related Relief. In count one, Appellant requested determination of parentage pursuant to chapter 742, Florida Statutes (2009), asking that the court declare her the biological mother of the child, grant her primary residential responsibility, and order the clerk to correct the birth certificate. In count two, she requested determination of parentage and an order granting shared parental responsibility and child support. In count three, Appellant requested declaratory relief that chapter 742, Florida Statutes, “Determination of Parentage,” applies equally to determination of maternity in addition to the stated intent of determination of paternity, or in the alternative, that chapter 742 be declared unconstitutional. In count four, she requested that chapter 382, Florida Statutes (2009), The Florida Vital Statistics Act, be declared unconstitutional because it infringed on her right to privacy by preventing recordation of her name on the birth certificate. In count five, she requested that the court declare unconstitutional section 742.14, Florida Statutes (2009), because it violated her equal protection and privacy rights.

^2.Beagle v. Beagle, 678 So. 2d 1271, 1276 (Fla. 1996) (holding that article I, section 23 of the Florida Constitution prohibits the state from “intrud[ing] upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm”); In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995) (“The United States Supreme Court has held that natural parents have a fundamental liberty interest in the care, custody, and management of their children.” (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)));Grissom v. Dade County, 293 So. 2d 59, 62 (Fla. 1974) (“The fundamental right to have children either through procreation or adoption is so basic as to be inseparable from the rights to ‘enjoy and defend life and liberty, (and) to pursue happiness . . . .’” (quoting Art. I, § 2, Fla. Const. (1968))).

^3.Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (calling procreation “one of the basic civil rights of man”); Troxel v. Granville, 530 U.S. 57, 65 (2000) (“The liberty interest . . . of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”).

^4.See Amend. XIV, § 1, U.S. Const.

^5.See Art. 1, §§ 2, 23, Fla. Const.

^6. The dissent attempts to buttress its argument that Appellant has no parental rights by citing Wakeman v. Dixon, 921 So. 2d 669 (Fla. 1st DCA), review denied, 931 So. 2d 902 (Fla. 2006). We believe that reliance on Wakeman is misplaced. Wakeman is clearly distinguishable from the instant case because there, one lesbian partner was the birth mother and the partner claiming parental rights was not the biological mother. The court in Wakeman held that the latter was not a “biological parent” and was not a “natural parent.” Here, Appellant, as the biological mother, would fall into both categories under the Wakeman rationale. The dissent’s reliance on Lamaritata v. Lucas, 823 So. 2d 316 (Fla. 2d DCA), review denied sub nom. D.A.L. v. L.A.L., 835 So. 2d 266 (Fla. 2002), is likewise misplaced. The court held that a sperm donor has no parental rights. The court further held that the man was a sperm donor, stating, “Sperm donor is not defined in the statute. The contract, however, calls Mr. Lucas ‘donor’ and indicates that sperm is the only donation required of him. Thus we easily conclude that Mr. Lucas qualifies as a sperm donor.” Id. at 318. Unlike the instant case, the court in Lamaritata concluded that the man was a donor because a contract said he was a donor. Contrary to the assertion in the dissent, we see nothing in Lamaritata that suggests that Mr. Lucas individually executed a consent form similar to the one executed solely by Appellant. The opinion clearly states that “‘D.A.L. (donor) and L.A.L. (recipient) entered into a contract,’” id. at 318 (quoting L.A.L. v. D.A.L., 714 So. 2d 595, 596 (Fla. 2d DCA 1998)); a contract is an agreement between two parties, the only agreement between Appellant and Appellee is that they would be equal parental partners to the child, and they both complied with that agreement for several years after the child was born.

^7. The dissent also cites a number of law review articles in a footnote as authority for this common law rule. One for example, is Malina Coleman, Gestation, Intent, and the Seed: Defining Motherhood in the Era of Assisted Human Reproduction, 17 Cardozo L. Rev. 497 (1996) (hereinafter “Defining Motherhood“). This article, like the others, cites no case law to support the proposition that such a common law rule exists. Interestingly, the article relies on a purported ancient Latin maxim that translates to “by gestation the mother is demonstrated.” Id. at 501. However, the author, Professor Coleman, points out that this maxim applied when the functions of genetic contribution and gestation were inextricably bound and the issue of motherhood was not disputable, and she concludes that “[r]eproductive technology has now made the maxim obsolete.” Id. at 502. In fact, Professor Coleman actually argues that when deciding the issue of motherhood in instances where one woman contributes the egg that is implanted in another woman, “intent should be the determinative factor” if rules are in place to prevent overreaching in surrogacy agreements. Id. at 497. We find it very interesting that the author later cites to section 742.15, Florida Statutes, which addresses surrogacy contracts, as such a rule, thus placing Florida squarely in the category of jurisdictions that should decide the issue of motherhood based on the intent of the parties rather than on a presumption of gestational parenthood. See id. at 529. We would also note that recent scholarship indicates that the Latin maxim relied on in this article as evidence of the purported common law rule actually originated in 1983. See Jennifer S. Hendricks, Essentially a Mother, 13 Wm. & Mary J. Women & L. 429, 473 n.249 (2007) (“Indeed, recent research has shown that the ‘ancient dictum’ . . . in fact originated in 1983. Cindy L. Baldassi, Mater est quam gestatio demonstrat: A Cautionary Tale (Univ. of British Columbia Faculty of Law Working Paper Series, 2006), available at http://ssrn.com/abstract=927147 (documenting the coining of the Latin phrase and its mistaken attribution to ancient law, and showing how ‘a maxim designed to elevate gestation to the definition of legal maternity [has been interpreted] as including or even privileging the genetic tie’).”). We do not believe that law review articles written by students and professors establish the common law.

^8. Although Lehr and the other cases cited, with the exception of Wooley, involved the rights of an unwed genetic father, it would pose a substantial equal protection problem to deny an unwed genetic mother the ability to assert parental rights after she established a parental relationship with her child while allowing an unwed genetic father to do so. Cf. Caban v. Mohammed, 441 U.S. 380, 392 (1979) (equal protection violation to allow a unwed biological mother to prevent the adoption of her child by withholding her consent while at the same time requiring an unwed biological father to prove that an adoption would not be in the best interest of his child in order to prevent the adoption); Stanley v. Illinois, 405 U.S. 645, 658 (1972) (equal protection violation to require that unwed mothers be shown to be unfit before their children could be taken by the state, but not requiring any showing of unfitness before an unwed father’s parental rights could be terminated); In re Adoption of Sebastian, 879 N.Y.S.2d 677, 688-89 (N.Y. Sur. Ct. 2009) (holding that it was a violation of gender based equal protection for the New York paternity statute to permit “the biological (‘putative’) father of a child born out of wedlock to establish parental status” while not providing the same statutory mechanism to women who are biological, but not gestational, mothers; stating that “there is no rational, much less compelling, reason to discriminate between male and female genetic parents who seek to use N.Y.’s statutory paternity laws to establish parental rights, as well as corresponding responsibilities, to their children”) (emphasis in original) (footnote omitted); Soos v. Superior Court, 897 P.2d 1356, 1361 (Ariz. Ct. App. 1994) (holding that a surrogacy statute violated equal protection because it allowed the genetic father to rebut the presumption that the gestational mother’s husband was the legal father but it did not allow the genetic mother to rebut the presumption that the gestational mother was the legal mother).

^9. The dissent suggests that section 742.14 is not discriminatory in a meaningful way and merely “places broad limits on the right of all citizens to make a parentage claim after donating genetic material to another.” However, the dissent does not explain why it is permissible to interpret section 742.14 to provide an exception that allows an unmarried male who donates his sperm to retain his parental rights when he is an intended parent, while not allowing an unmarried female who donates her ova to retain her parental rights when she is an intended parent. Cf. In re Adoption of Sebastian, 879 N.Y.S.2d 677, 688-89 (N.Y. Sur. Ct. 2009); Soos v. Superior Court, 897 P.2d 1356, 1361 (Ariz. Ct. App. 1994).

^10. The dissent does not raise a preservation issue because the constitutional issues were raised below, argued to the trial court, and argued in this appeal. The dissent claims that the issues were not adequately argued to the trial court or to this court and cites Cantor v. Davis, 489 So. 2d 18 (Fla. 1986), for the proposition that “the constitutionality of a statute’s application to specific facts should normally be considered at the trial level to assure that such issues are not later deemed waived.” Id. at 20. However, we do not believe thatCantor is very helpful to the dissent because the court did consider the constitutionality of a statute applied retroactively, explaining that once an appellate court has jurisdiction, it may at its discretion “consider any issue affecting the case.” Id.; see also Sullivan v. Sapp, 866 So. 2d 28, 34 (Fla. 2004) (“[W]e also recognize the well-settled principle that ‘once an appellate court has jurisdiction it may, if it finds it necessary to do so, consider any item that may affect the case.’”) (quoting Westerheide v. State, 831 So. 2d 93, 105 (Fla. 2002))); Dralus v. Dralus, 627 So. 2d 505, 507-08 (Fla. 2d DCA 1993) (quoting the rule from Cantor that once jurisdiction is acquired, an appellate court has the discretion to consider any issue affecting the case and holding that “in this case, it is not necessary to rely solely on our discretionary authority since the wife raised the general issue of attorney’s fees in her cross-appeal. Necessarily entwined in the issue of what percentage of fees the husband should pay is the reasonableness of the fees charged. The husband cannot be required to pay all or part of an unreasonable fee.”). In Westerheide, the court held that “to the extent that Westerheide’s due process claims raise facial challenges to the Ryce Act, we find them appropriate to consider in our review of this matter.” 831 So. 2d at 105.

^11. The statute does protect certain rights of a “father who has executed a preplanned adoption agreement under s. 63.212.” Since at the time this case was considered by the trial court, gay adoption was not recognized in Florida, no solace could have been found in that clause by this couple. It is interesting to contemplate how the case of Florida Department of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. 3d DCA 2010), might impact this statute.

^12. See § 742.12(4), Florida Statutes (2009), concerning the probability for determining fatherhood of a child, which states that “[A] statistical probability of paternity of 95 percent or more creates a rebuttable presumption . . . that the alleged father is the biological father of the child.”

^13. Other states have faced the same challenge. See, e.g., K.M v. E.G., 117 P.3d 673 (Cal. 2005); In re Adoption of Sebastian, 87,9 N.Y.S.2d 677 (N.Y. Sur. Ct. 2009).

^14. See also Nancy D. Polikoff, A Mother Should Not Have To Adopt Her Own Child: Parentage Laws for Children Of Lesbian Couples in the Twenty-First Century, 5 Stan. J. Civ. Rts. & Civ. Liberties 201, 208 (2009) (“For most of our history, not just in America but in the common law tradition from which we get our laws, a child’s legal parents were the mother who gave birth to that child and the man to whom she was married.”); Dorothy E. Roberts, The Genetic Tie, 62 U. Chi. L. Rev. 209, 253 (1995) (“The European-American tradition identifies a child’s mother through the biological act of giving birth.”); Elizabeth E. Swire Falker, The Disposition of Cryopreserved Embryos: Why Embryo Adoption is an Inapposite Model for Application to Third-Party Assisted Reproduction, 35 Wm. Mitchell L. Rev. 489, 501(2009) (“well established common law presumptions provide that a woman who gives birth to a child will be deemed the legal and natural mother of that child”); Malina Coleman, Gestation, Intent, and the Seed: Defining Motherhood in the Era of Assisted Human Reproduction, 17 Cardozo L. Rev. 497, 524 (1996) (“The common law presumes that the birth mother is the legal mother of the child.”).

^15. The majority does repeatedly posit that Florida’s legislature abrogated this rule by using the word “relinquish” in section 742.14. This argument is contrary to well-settled law. As explained in Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990):

The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.

Id. at 918 (citations omitted). Section 742.14 does not reference the common law rule that the birth mother is the legal mother, much less explicitly, clearly or unequivocally state that it is changing it. The majority is really arguing that by choosing the word “relinquish” to describe the legal effect of an egg donation, the legislature has impliedly recognized a different common law rule. First, I do not believe that the word “relinquish” implies any such thing. Relinquish means to give up. All that section 742.14 says is that when you give up your genetic material, you also give up any legal claims that you could have made before your donated it. Second, even if use of this word did in some oblique way imply a different common law rule, the law does not permit abrogation of a well-settled common law rule in this manner. Id. This is especially true here, where all statutes the legislature has adopted that directly address the topic also clearly and unequivocally recognize the birth mother as the sole legal mother of the child.

^16. The term “egg” in this context refers to the female reproductive cell, also called an “oocyte” or “ova.”

^17. We are bound by this prior panel decision from our court until it is “overruled either by this court, sitting en banc, or a higher court.” Sturdivant v. State, 35 Fla. L. Weekly D1993 (Fla. 1st DCA) (citations omitted), rev. granted, 47 So. 3d 1290 (Fla. 2010) (Table); see alsoIn re Rule 9.331, 41,6 So. 2d 1127 (Fla. 1982).

^18. As the majority notes, when Appellant donated an egg for fertilization and implantation into Appellee, she signed a consent form acknowledging that she would have no claim of parental rights as to any child born as a result of the donation.

^19. The statute provides exceptions for “a father who has executed a preplanned adoption agreement under s. 63.212,” and a “commissioning couple”. The statute defines a commissioning couple as “the intended mother and father” of the child. § 742.13(2), Fla. Stat. (2008).

^20. Cf. Lamaritata, 823 So. 2d at 318-19 (holding that a man referred to as “donor” in contract for sperm donation was a sperm donor, not a parent, and had no parental rights under section 742.14). The majority attempts to distinguish Lamaritata on grounds that “[u]nlike the instant case, the court in Lamaritata concluded that the man was a donor because a contract said he was a donor.” But, it is not clear to me that this “contract” was anything other than a donor form similar to the one signed by Appellant in this case, in which she “agree[d] that the recipient may regard the donated egg as her own and any offspring resulting there from as her own children.” And, the mother in Lamaritata had agreed (in writing, according to the opinion) that the man could retain a vestige of parental rights — visitation with his “biological” child. In my view, the primary difference between the two cases is that the Lamaritata court applied the plain language of section 742.14 and held that the man was not a parent, and the majority in this case does not.

^21. See U.S. Const. Amend. XIV, § 1 and Art. I, § 2, Fla. Const.

^22. See Art. 1, § 23, Fla. Const.

^23. As noted by the majority, Appellant made similar conclusory constitutional allegations with respect to other statutes, all of which suffer from the same defects.

^24. This is the one passing acknowledgement by Appellant that Appellee enjoys a fundamental constitutional right as a parent. Citing to Kazmierazak v. Query, 736 So. 2d 106 (Fla. 4th DCA 1999), Appellant argued that a third party can intrude upon a legal parent’s fundamental rights by seeking custody or visitation where the third party makes a showing of “detriment to the child.” Appellant alleged that Appellee has caused detriment to the child by removing her to Australia, and that she should be allowed to present evidence in support of this argument to overcome Appellee’s constitutional claim.

^25. Circular reasoning was recognized as a formal logical fallacy as early as 350 B.C., when Aristotle penned Prior Analytics.

^26. Ironically, the majority supports this conclusion by claiming that it is evident from the “undisputed facts” established below. The irony is that Appellant herself claims on appeal that disputed issues of fact exist as to these issues, including the issue of her intent when donating her genetic material, that should have precluded summary judgment. In addition, the majority appears to rest its constitutional analysis in part on its perception regarding the “bond” formed between Appellant and the child and its conclusion that it would be in the child’s best interest for Florida to extend parental rights to Appellant. Yet, there has been no fact-finding as to these issues, and no affidavits were submitted at the summary judgment stage regarding either issue.

^27. The quoted passage notes that the affirmative right to procreate has only been directly addressed by the United States Supreme Court in one case – Buck v. Bell, 274 U.S. 200 (1927). That case rejected procedural and substantive due process challenges to a mandatory sterilization statute directed at the “feeble-minded,” and did not apply heightened scrutiny based upon a right of natural procreation. Although this case is uniformly criticized by scholars, see, e.g., Jessica L. Waters, In Whose Best Interest? New Jersey Division of Youth And Family Servises v. V.M. and B.G. and the Next Wave of Court-Controlled Pregnancies, 34 Harv. J. L. & Gender 81, 91 (2011) (“Buck v. Bell is now considered a stain on the nation’s jurisprudence”), the case “has never been overturned, and [] is arguably still good law. In fact, it was cited favorably as recently as 2001.” Lisa Powell, Eugenics and Equality: Does the Constitution Allow Policies Designed to Discourage Reproduction Among Disfavored Groups?, 20 Yale L. & Pol’y Rev. 481, 502 (2002) (footnotes omitted).

^28. As science continues its advances, it is possible that genetic material from multiple males and multiple females could be combined to create a child. Since each genetic contributor would enjoy a fundamental procreative right, it would follow that each could claim a fundamental constitutional right to parent any resulting children under the majority’s circular proclamation that the right to procreate equates to a claim of parenthood with respect to children resulting from the genetic contribution. And, there are already those who term cloning as a form of procreation, and advocate for recognition of the right to use cloning technology as an extension of the “right to procreate.” See, e.g., Elizabeth Price Foley, The Constitutional Implications of Human Cloning, 42 Ariz. L. Rev. 647, 695 (2000) (“Because cloning is merely an asexual form of procreation, it is arguably as much a fundamental constitutional right as our right to procreate by either passion or the petri dish.”); John A. Robertson, Human Cloning and the Challenge of Regulation, 339 New Eng. J. Med. 119, 120 (1998) (“Whether described as ‘replication’ or as ‘reproduction,’ the resort to cloning is similar enough in purpose and effects to other reproduction and genetic-selection practices that it should be treated similarly.”); Pratheep Sevanthinathan, Heavy Regulation of Human Cloning as an Alternative to a Complete Ban, 10 Quinnipiac Health L.J. 219, 242 (2007) (“[I]n light of Skinner, Lifchez, and the abortion cases, there seems to be a constitutionally protected right to procreate and therefore there may be a right to reproductive cloning.”).

^29. Again, Appellant’s complaint below did not even allege a substantive due process violation under the Fourteenth Amendment to the United States Constitution. Instead, Appellant confined her privacy allegation to a claim under Article I, Section 23 of the Florida Constitution. However, because Article I, Section 23 is limited in its scope by Article I, Section 27 of the Florida Constitution, cf. State v. Geiss, 70 So. 2d 642, 646-47 (Fla. 5th DCA), rev. granted, 70 So. 2d 587 (Fla. Sept. 21, 2011), I doubt that the same arguments are even available to Appellant under the Florida Constitution’s express privacy guarantee as may be available under the privacy protections implied in the United States Constitution.

^30. The test for recognizing a right as fundamental is the same irrespective of whether a court is applying the Due Process Clause or the Equal Protection Clause. See Ronald D. Rotunda and John E. Nowak, 2 Treatise on Const. L. § 15.4(a) (4th ed.); see also id. at § 18.3(a)(v) (“A law that burdens the ability of all persons to exercise a fundamental right will be examined under substantive due process. A law that uses a classification that burdens or impairs the ability of only one class of persons who wished to exercise a fundamental constitutional right will be examined under equal protection.”).
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Agreements

Bedoya v. Bedoya, 36 FLW D2318 (Fla. 3^rd DCA 2011).  Final judgment reversed as it provided alimony from date of filing divorce instead of from date prenuptial agreement was signed as provided for in the agreement.

Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011).  Resolves conflict with Smith, 919 So. 2d 525 (Fla. 5^th DCA 2005).  Husband pre-dissolution made wife beneficiary of retirement.  In divorce, husband received retirement but there was no mention of death benefit.  Husband never changed beneficiary.  Husband dies.  3^rd DCA opinion saying Marital Settlement Agreement waived wife’s beneficiary interest quashed.  Absent the Marital Settlement Agreement providing who is to receive death benefits, court should not look further than named beneficiary on policy, in this case, the wife.

Adams v. Adams, 58 So. 3d 340 (Fla. 2^nd DCA 2011).  Trial Court reversed for requiring husband to pay wife one half of insurance proceeds from wife’s column on marital expenses prior to separation.  Parties entered into settlement that did not address proceeds.   A pure property settlement agreement is not modifiable.

Moree v. Moree, 59 So. 3d 205 (Fla. 2^nd DCA 2011).   Trial Court reversed for denying Husband’s motion to set aside agreement without evidentiary hearing when motion adequately alleged a claim of relief based upon mutual mistake.

Schlifstein v. Schlifstein, 52 So. 3d 841 (Fla. 2^nd DCA 2011).  Trial court reversed for requiring former husband to make $130,000 payment which was conditioned upon Husband selling or refinancing.  Court found former husband made less than a good faith effort.  Agreement was ambiguous and did not require former husband to make a good faith effort.

Ferguson v. Ferguson, 54 So. 3d 553 (Fla. 3^rd DCA 2011).  Court reversed for voiding portion of mediated agreement which required former husband to refinance or sell property because it was “impossible”.  Decline in the real estate market is not the sort of unanticipated circumstances that would trigger doctrine of impossibility.

Alimony:

Zambuto v. Zambuto, 36 Fla.L.Weekly D2758 (Fla. 2^nd DCA 2011).  Award of alimony reversed when Court failed to attribute an earning capacity to the Wife based upon the evidence.

Witt v. Witt, 36 FLW D2352 (Fla. 2^nd DCA 2011).  Final judgment denying alimony because wife was to receive equalizing payment and it was a short term marriage.  Court required to make findings of fact per 61.08.

Wu v. Xing, 36 FLW D2444 (Fla. 3^rd DCA 2011).  Trial court reversed for awarding permanent alimony without any findings of fact that would support such an award.

Draulans v. Draulans, 36 Fla. L. Weekly D2065, 2011 Fla. App. LEXIS 14675 (Fla. 2^nd DCA 2011).  Award of rehabilitative alimony reversed when judgment did not include termination date for alimony.

Sellers v. Sellers,  68 So. 3d 348 (Fla. 1^st DCA 2011).  Trial court reversed for awarding equity in home as permanent alimony instead of a periodic amount.  A decision to award permanent alimony must be based on assessment of the needs of one spouse and the ability of the other spouse to pay.

Bell v. Bell, 68 So. 3d 321; 2011 (Fla. 4^th DCA 2011), Rehearing denied by Bell v. Bell, 2011 Fla. App. LEXIS 15209 (Fla. 4^th DCA, Sept. 21, 2011).    Judge Stern reversed for failing to award “bridge the gap” alimony in ten year marriage without adequate findings of fact to explain his rationale.

Demont v. Demont, 67 So. 3d 1096 (Fla. 1^st DCA 2011).  Nominal alimony award affirmed when husband lacked ability.  Court correctly ruled wife was in need of permanent alimony and nominal award served to allow wife to seek income in event husband’s financial position improves or if parties’ respective financial positions change substantially.

Horton v. Horton, 62 So. 3d 689 (Fla. 2^nd DCA 2011).  Error for court to award rehab alimony for educational expenses but not living expenses when wife had need.  Remanded for court to reconsider in light rehabilitative plan was for only two (2) years.

Lule v. Lule, 60 So. 3d 567 (Fla. 4^th DCA 2011).  Judge Lewis reversed for awarding Husband’s interest in marital residence to Wife as lump sum alimony for “abandoning the marriage”.  Court made no findings of fact relating to alimony or equitable distribution.  In order to award lump sum alimony Court must make findings of special need for lump sum payment and unusual circumstances that would require non-modifiable award of support.

Mills v. Mills, 62 So. 3d 672 (Fla. 2^nd DCA 2011).  Court reversed for failing to include business income (gross receipts less ordinary business expenses) and in kind payments which reduced Husband’s living expenses in calculating income for purposes of determining alimony.

Fortune v. Fortune, 61 So. 3d 441 (Fla. 2^nd DCA 2011).  Error not to award Wife nominal alimony in 16 year marriage where Husband did not possess present ability.  When one spouse is entitled to permanent alimony, and the other does not have current ability to pay, the trial court should award nominal alimony which gives the court jurisdiction to reconsider the award should the parties’ financial circumstances change.

Grimm v. Grimm, 58 So. 3d 428 (Fla. 1^st DCA 2011).  Failure to award husband alimony reversed when Court failed to consider wife’s non-marital assets.

Liebrecht v. Liebrecht, 58 So. 3d 415 (Fla. 2^nd DCA 2011).  Trial Court reversed for failing to award nominal permanent alimony in marriage of 15 years 8 months (gray area) when parties agreed wife would be stay at home mother.

Brathwaite v. Brathwaite, 58 So. 3d 398 (Fla. 1^st DCA 2011).  Trial Court reversed for including mortgage payment in wife’s needs when house was going to be sold and husband was paying mortgage.

Kennedy v. Kennedy, 60 So. 3d 466 (Fla. 2^nd DCA 2011).  Denial of permanent alimony in “gray area” case reversed for lack of findings of fact.  Gray area marriage in itself not sufficient to deny permanent alimony.

Delate v. Iler, 50 So. 3d 1242 (Fla. 4^th DCA 2011).  Judge Oftedal’s award of permanent alimony affirmed when Husband did not have ability to support wife at her determined needs.  In event former husband’s circumstances change, former wife can seek a modification based upon 1) substantial, 2) unanticipated and 3) sufficient, material, permanent and involuntary.

Roth v. Cortina, 59 So. 3d 163 (Fla. 3^rd DCA 2011).  Post Judgment award of alimony that preceded property division reversed.  A Trial Court must first fashion equitable distribution, then make determination whether alimony should be awarded.

Janssens v. Janssens, 51 So. 3d 1183 (Fla 5^th DCA 2011).  Nominal alimony of $1 reversed because of debt allocated to Husband which caused him not to be able to pay alimony. Finding was not supported by record.  Case remanded.

Betancourt v. Betancourt, 50 So. 3d 768 (Fla 3nd DCA 2011).  Award of alimony reversed when it was based on Husband’s $3,500 per month rental income, but failed to deduct ordinary and necessary expenses to maintain property.

Appeals:

Rushetsky v. Rushetsky, 36 FLW D2568 (Fla. 4^th DCA 2011).  Failure to provide transcript or proper substitute requires affirmance except where there is a clear error on the face of the judgment.

Mcgrath v. Puckett, 36 FLW D2541 (Fla. 1^st DCA 2011).   Non final order denying relocation which was part of dissolution action was a non-appealable order because it did not dispose of a claim that is separate and distinct from divorce action.

Wright v. Wright, 36 FLW D2424 (Fla. 1^st DCA 2011).  Appeal of final judgment that reserved jurisdiction over integrally related issues dismissed as premature.  Traditional test for finality requires “no further action by the Court is necessary”.

Crowell v. Crowell, 36 FLW D2336 (Fla. 5^th DCA 2011).  Appeal of order awarding entitlement to fees but not amount dismissed as premature.  Until amount determined, order on entitlement was non-appealable final order.

Hunter v. Hunter, 36 FLW D2274 (Fla 2^nd DCA 2011).  Final judgment reversed because it was entered while an appeal of non-final order was pending.  Per 9.130(f) trial court was divested of jurisdiction to enter final judgment until appeal concluded.

Shinitzky v. Shinitzky, 36 Fla. L. Weekly D1820; 2011 Fla. App. LEXIS 12893 (Fla. 4^th DCA 2011).  Judge Lewis reversed for exceeding mandate and modifying a judgment that had been affirmed.  A modification seeks to change status quo and seeks a new benefit for one of the parties.  A clarification does not seek to change rights and obligations but to make the judgment more clear and precise.

Doran v. Doran, 57 So. 3d 933 (Fla. 1^st DCA 2011).  Appeal dismissed as premature when final judgment reserved jurisdiction to expend additional judicial labor in determining child support.

Furr v. Furr, 67 So. 3d 1181 (Fla. 1^st DCA 2011).  Trial Court affirmed when party failed to seek rehearing on failure to make findings of fact.  Appellate Court unable to determine statutorily required findings of fact without transcript.

Pennywell v. DOR, 62 So. 3d 19 (Fla. 1^st DCA 2011).  Appeal dismissed as untimely.  Second motion for rehearing is not authorized and does not toll time to file appeal.

Kinney v. Kinney, 49 So. 3d 343 (Fla 2^nd DCA 2011).  Appeal challenging final judgment of modification dismissed as judgment reserved to determine retroactive alimony arrearage.  Because additional judicial labor was contemplated, appeal was premature.

Williamson v. Cowan, 49 So. 3d 867 (Fla. 5^th DCA 2011).  Final judgment imputing income with no finding of facts and no transcript affirmed because lack of findings was not challenged in a motion for rehearing.

Attorneys’ Fees:

Jurasek v. Jurasek, 67 So. 3d 1210 (Fla. 3^rd DCA 2011).   Trial court’s denial of attorneys fees reversed when parties agreed to reserve jurisdiction on issue.

Tummings v. Francois, 36 Fla. L. Weekly D1737; 2011 Fla. App. LEXIS 12556 (Fla. 2^nd DCA 2011).  Trial Court reversed for denying fee request because each party received $90,000 in property division.  Trial court failed to consider disparate incomes.

Mincy v. Mincy,  66 So. 3d 1075 (Fla. 5^th DCA 2011).  Awarded costs of $5,000 for business valuation reversed when Wife abandoned valuation.  Other attorneys fees remanded as Court did not including finding they were reasonable.

Tilchin v. Tilchin, 65 So. 3d 1207 (Fla. 2^nd DCA 2011).  Order granting attorneys fees reversed and remanded for reconsideration when underlying final judgment has been reversed and remanded.  On remand trial court to determine issue of attorneys’ fees after it decides issues of alimony and equitable distribution on remand as it may impact parties’ financial conditions.

Foster v. Foster, 36 Fla. L. Weekly D1486; 2011 Fla. App. LEXIS 10653 (Fla. 5^th DCA 2011),   Rehearing denied 2011 Fla. App. LEXIS 14192 (Fla.  5^th DCA Aug. 10, 2011).  Award of attorneys’ fees reversed after trial court places parties in relatively same financial position.  One party should not have to substantially deplete his or her overall equitable distribution.

Jankowski v. Dey, 64 So. 3d 183 (Fla. 2^nd DCA 2011).  Trial court reversed for amending final order awarding fees to wife who then refused to pay her attorney and experts.  Law firm had no standing to challenge satisfaction.  Illustrates importance of making award of fees and costs payable directly to attorney where party has not paid for all of their fees yet.

Diaz v. Diaz, 66 So. 3d 983 (Fla. 3^rd DCA 2011).  Trial courts income deduction order reversed for including attorneys fees for collateral matters.  An income deduction order is appropriate vehicle to collect attorneys’ fees “incurred as a result of securing and/or collecting child support or alimony.”

Robinson v. Robinson, 36 Fla. L. Weekly D1337; 2011 Fla. App. LEXIS 962 (Fla. 4^th DCA 2011).  Judge Diana Lewis reversed for awarding legal fees in amount of $13,683.42 when total bill was $20,310.92 and $15,000 was already paid from joint account.  Matter remanded to determine why wife would need more than $5,310.92.

Morris v. Morris, 62 So. 3d 1215 (Fla. 5^th DCA 2011).  Trial court erred in not setting fee award off husband’s overpayment in alimony.

Thomas v. Thomas, 61 So. 3d 1282 (Fla. 5^th DCA 2011).  Trial court reversed for awarding spouse two (2) days wages as sanction for other spouse missing mediation.  Order on fees remanded.  Entitlement was appropriate, but court failed to include findings as to reasonableness of time and rate.

Kemp v. Kemp, 61 So. 3d 481 (Fla. 5^th DCA 2011).  Award of attorneys fees reversed.  When you are seeking award from other party, as opposed to your client, Court must make findings as to reasonableness of rate and time expended.

Santini v. Miller, 65 So. 3d 22 (Fla 4^th DCA 2011).   Order adjudicating charging lien on contingency fee (not family case) reversed because attorney had to withdraw due to being suspended from the practice of law before the occurrence of the contingency.  Ergo, no fruits produced by his labor.  Appellants awarded appellate attorneys fees sua sponte by Fourth DCA.

Grover v. Grover, 59 So. 3d 333 (Fla. 5^th DCA 2011).  Trial Court reversed for partially denying fees for multiple attorneys used by requesting party.  Question is not whether there is a need to hire more than one attorney.  Rather, did the attorneys engage in duplicative work.  Here, no evidence two attorneys did duplicative work.

Flores v. Flores, 36 Fla. L. Weekly D724; 2011 Fla. App. LEXIS 4769 (Fla. 4^th DCA 2011).  Trial Court reversed for not addressing wife’s request for fees or reserving jurisdiction on issue when matter was properly pled.

LaVere-Alvaro v. Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., 54 So. 3d 1056 (Fla. 2^nd DCA 2011).   Charging lien reversed because Court failed to determine whether attorney provided services that produced a positive judgment.

Ingram v. Ingram, 59 So. 3d 147 (Fla. 1^st DCA 2011).  Award of fees revered when order lacked specific findings regarding hourly rates and number of hours expended.

Higginbotham v. Higginbotham, 52 So. 3d 806 (Fla. 3^rd DCA 2011).  Court was not limited by prenuptial agreement to award the Wife $5,000 in temporary fees, however, award of $305,640 was excessive and reversed.

Glass v. Glass, 49 So. 3d 867 (Fla 4^th DCA 2011).  Contempt order awarding fees because there was no finding as to recipients needs.

Child Support:

Pomeroy v. Pomeroy, 36 FLW D2748 (Fla. 1^st DCA 2011).  Trial Court reversed for requiring parent to provide health insurance for child over the age of 18.

Capo v. Capo, 36 FLW D2465 (Fla. 3^rd DCA 2011).   Order on support reversed when it did not make findings of fact as to parties’ net incomes or otherwise explain how calculation was performed.

Burnett v. Burnett, 66 So. 3d 1102 (Fla. 5^th DCA 2011).  Trial court reversed for requiring support in an amount that exceeds husband’s imputed income.

Vanzant v. Vanzant, 36 Fla. L. Weekly D1797; 2011 Fla. App. LEXIS 12794 (Fla. 1^st DCA 2011).  Order of support reversed when Court confused gross income with net.

Tummings v. Francois, 36 Fla. L. Weekly D1737 ; 2011 Fla. App. LEXIS 12556 (Fla. 2^nd DCA 2011).    Trial Court reversed for dividing uncovered medical expenses by percentage of overnight visits.  Percentage must be based on ratio of income, not number of overnights.

Newberry v. Newberry, 67 So. 3d 1123 (Fla. 1^st DCA 2011).  Child support award reversed as it failed to include day care in calculations.

Finch v. DOR, 65 So. 3d 1150 (Fla. 3^rd DCA 2011).  Child support order reversed as findings were inconsistent to husband’s income.  Further retroactive support can only be based on current income when obligor fails to determine actual income during retroactive period.  Diaz v. Diaz, 36 Fla. L. Weekly D1392 (Fla. 3^rd DCA 2011).  Income deduction order garnishing 60% of net income remanded to ensure obligor had sufficient monies to live.  60% is not per se unreasonable, but requires careful analysis.

Nilsen v. Nilsen, 63 So. 3d 850 (Fla. 1^st DCA 2011).  Trial court erred in awarding temporary undifferentiated support (alimony and child support combined in one amount).  Court must apply child support guidelines, even to temporary support.

Russell v. McQueen, 62 So. 3d 683 (Fla. 4^th DCA 2011).  Child support award reversed because: 1) failed to include cost to father of child’s insurance; 2) court used incorrect figure to calculate interest; and 3) husband double charged for uncovered medical expenses, among others.

Palewsky v. DOR, 61 So. 3d 1227 (Fla. 3^rd DCA 2011).  Order of child support reversed when no guidelines filed.

Grillo v. Clay, 59 So. 3d 337 (Fla. 4^th DCA 2011).  Judge Burton reversed for modifying child support without evidentiary hearing.  Further, order conditioned timesharing on payment of support which renders order fundamentally defective.

Peters v. Blackshear, 53 So. 3d 1233 (Fla. 1^st DCA 2011).  Trial court reversed for requiring Father to maintain $400,000 in life insurance to insure monthly child support obligation of $750 when child emancipates in 2 years.  Amount of insurance bears no reasonable relationship to amount of child support.

Coristine v. Coristine, 53 So. 3d 1204 (Fla. 5^th DCA 2011).  Trial court affirmed for granting partition of home instead of exclusive use and possession until child emancipates.  As a general rule, Court should award primary parent exclusive use of residence until child emancipates unless there are special circumstances.  Special circumstances exist where parties incomes are inadequate to meet their debts, expenses and cost of maintaining residence.

Rowe v. Rodriguez-Schmidt, 51 So. 3d 1238 (Fla. 2^nd DCA 2011).   50/50 allocation of medical expenses reversed.  Must be pro rata based on income unless otherwise factored into child support.

Maslow v. Edwards, 59 So. 3d 299 (Fla. 5^th DCA 2011).  Revised opinion.  When husband receives veteran’s disability payments for child, amount received should be added to father’s income for purposes of calculating child support.

Brend v. Brend, 56 So. 3d 923 (Fla. 2^nd DCA 2011).  Trial Court reversed for calculating support on gross incomes.  Child support calculating based on net so Court must decide who gets child dependency to calculate correctly.

Lampert v. Lampert, 57 So. 3d 287 (Fla. 4^th DCA 2011).  Trial Court affirmed for approving magistrate’s report child support agreement was void as it was not in child’s best interest.  Trial Court reversed for granting exceptions as to child support credit.  Magistrate’s findings of fact or conclusions of law may not be rejected by Trial Court in the absence of clear error.

Domestic Violence:

Reese v. Marcus,  36 FLW D2454 (Fla. 5^th DCA 2011).  Domestic violence injunction affirmed when respondent alleged due process violations but failed to provide transcript.  Without transcript, appellate court unable to ascertain if trial court erred.

Hasey v. Metzger, 36 FLW D2394 (Fla. 4^th DCA 2011).  Summary denial of costs (not attorney’s fees) for respondent reversed after petitioner voluntarily dismissed domestic violence injunction.

G.C. v. R.S.,  36 Fla. L. Weekly D2060; 2011 Fla. App. LEXIS 14629 (Fla. 1^st DCA 2011).  Injunction against domestic violence reversed when based on Father’s single spank on child’s buttocks in response to disrespectful behavior.  Parents have right to discipline children in reasonable manner.  Corporal discipline of a child by a parent or legal guardian does not constitute abuse when it does not result in harm to the child.

Deale v. Deale,  68 So. 3d 432 (Fla. 5^th DCA 2011).  Denial of injunction for insufficient evidence affirmed.  Appellate Court cannot substitute its judgment for trial court.

McFarr v. McKee, 36 Fla. L. Weekly D1950; 2011 Fla. App. LEXIS 13902 (Fla. 5^th DCA 2011)  Denial of motion to dissolve injunction reversed when petitioner not afforded evidentiary hearing.  Section 784.046(10) allows court to modify/dissolve injunction from time to time on motion on interested party.

Niederkorn v. Trivino,  68 So. 3d 991 (Fla. 5^th DCA 2011).  Denial of dating violence injunction remanded when trial court did not afford a full evidentiary hearing.

Furry v. Von Arb Rickles, 68 So. 3d 389 (Fla. 1^st DCA 2011).  Domestic violence injunction reversed when Judge did not allow full evidentiary hearing on matter.

Jones v. Jackson, 67 So. 3d 1203 (Fla. 2^nd DDCA 2011).  Order if injunction against repeat violence reversed when harassment would not cause reasonable person to suffer emotional distress.

LC v. AMC, 36 Fla. L. Weekly D1853; 2011 Fla. App. LEXIS 13084 (Fla. 2^nd DCA 2011).  Final judgment of injunction against domestic violence reversed for inadequate notice.  Respondent was served 25 hours before hearing, tried to obtain a lawyer but couldn’t, promptly filed for rehearing with counsel and alleged victim was not in imminent harm.

Barker v. Rodriguez, 36 Fla. L. Weekly D1805; 2011 Fla. App. LEXIS 12972 (Fla. 4^th DCA 2011).  Final judgment of injunction against domestic violence that granted mother temporary custody of child affirmed where no transcript present that supported Husband’s claim he was denied due process.

Parrish v. Price, 36 Fla. L. Weekly D1233; 2011 Fla. App. LEXIS 8458 (Fla. 2^nd DCA 2011).  Parent is authorized to file domestic violence injunction on behalf of their minor child.

Moriggia v. Moriggia, 62 So. 3d 1151 (Fla. 2^nd DCA 2011).  Trial court erred in granting injunction against domestic violence when there was no evidence to support respondent was physically abusive and no evidence to support respondent will be victim of domestic violence.

Horton v. Horton, 62 So. 3d 689 (Fla. 2^nd DCA 2011).  Trial court reversed for failing to use Parry coverture method in valuing husband’s marital portion of retirement.  Trial court erred in awarding husband non-marital portion of residence when proceeds from sale were deposited into joint accounts and comingled.

Konz v. Konz, 63 So. 3d 845 (Fla. 4^th DCA 2011).  Judge Brunson reversed for valuing mortgage at $145,000 when only evidence valued it at $105,000.  Court also failed to distribute certain liabilities.

Stewmon v. Stewmon, 66 So. 3d 312 (Fla. 2^nd DCA 2011).  Trial court reversed for ruling property distribution equalizing payment “nondischargeable” in bankruptcy.  Further equitable distribution scheme reversed due to inconsistent valuation dates and insufficient findings of fact.  61.075(3) requires the following findings: 1) identification of non-marital assets; 2) identification of marital assets, including valuation of significant assets and designation of who asset is awarded to; 3) designation of marital liabilities and designation of responsible spouse; and 4) any other finding necessary to explain distribution.

L.C. c. A.M.C.,  67 So. 3d 1181 (Fla. 2^nd DCA 2011).  Domestic violence injunction against child’s grandfather reversed because respondent only received one day’s notice of hearing, could not obtain an attorney and Court did not provide opportunity for evidentiary hearing.

Fortune v. Fortune, 61 So. 3d 441 (Fla. 2^nd DCA 2011).  Error to award tax exemption to Father without making it contingent upon support being current.

Power v. Boyle, 60 So. 3d 496 (Fla. 1^st DCA 2011).  In support of repeat violence injuction allegations of yelling obscenities, flipping off, dog urinating on property, yelling obscenities while drunk is not legitimate basis for issuance of injunction per 784.046.  Judge’s desire “to keep the peace” not sufficient to support injunction.

Cox v. Deacon, 36 Fla. L. Weekly D733; 2011 Fla. App. LEXIS 4788 (Fla. 4^th DCA 2011).   Trial Court affirmed for granting jurisdiction in excess of one year.  One year limitation removed from statute in 1997.

Kugler v. Joosten, 58 So. 3d 323 (Fla. 1^st DCA 2011).  Error for Court to summarily dismiss motion to dissolve injunction without an evidentiary hearing.   Moving party deserves meaningful opportunity to be heard.

Murphy v. Reynolds, 55 So. 3d 716 (Fla. 1^st DCA 2011).  Injunction against repeat violence reversed when no evidence respondent conducted events of cyber stalking.

Alkhoury v. Alkhoury, 54 So. 3d 641 (Fla. 1^st DCA 2011).  Order denying motion to dissolve injunction affirmed when moving party failed to demonstrate scenario underlying injunction no longer exists or continuation of the injunction would serve no valid purpose.

Monteiro v. Monteiro, 55 So. 3d 686 (Fla. 3^rd DCA 2011).  Court affirmed for ordering in camera interview of children of alleged sexual abuse.  Trial Court has inherent and authority to protect a child witness.  Court may implement procedures not expressly authorized by law to further public interest.

Randolph v. Rich, 58 So. 3d 290 (Fla. 1^st DCA 2011).  D.V. injunction reversed.  Parties had acrimonious relationship, former wife complained former husband harassed her and there was an incident where former husband grabbed papers from former wife’s hands but did not touch or verbally threaten her.  Law requires more than general relationship problems and uncivil behavior to support issuance of injunction.  Party seeking injunction must present sufficient evidence to establish objective fear of imminent harm.

Fleshman v. Fleshman, 50 So. 3d 797 (Fla. 2^nd DCA 2011).  Error to enter domestic violence injunction between Father and son when they have never lived together.

Gill v. Gill, 50 So. 3d 772 (Fla 2^nd DCA 2011).  DV injunction reversed when there was insufficient evidence on objective fear of imminent danger.  An isolated incident of domestic violence that occurred years before the petition for injunction was filed will not support injunction without current allegations of abuse.

Enforcement:

Hernandez v. Frontiero, 36 FLW D2427 (Fla. 4^th DCA 2011).  Judge Diana Lewis reversed for requiring former husband to pay $20 per month towards arrears.  Former Husband was not present at hearing and did not rebut presumption of ability.  There was no evidence to justify trial court’s ruling.

Phillip v. DOR, 36 FLW D2381 (Fla. 3^rd DCA 2011).  Contempt order reversed as trial court did not have competent substantial evidence of present ability to pay.Levy v. Jacobs, 36 Fla. L. Weekly D2099; 2011 Fla. App. LEXIS 14981 (Fla. 4^th DCA 2011).  Injunction against repeat violence affirmed.  In order to support injunction against repeat violence there must be at least two qualifying acts of violence.  Multiple acts stemming from a single violent  incident do not constitute repeat violence where acts are not separated by time or distance.  In this case, there were two separate attacks, one outside, one inside, and they were separated by five minutes.

Jackmore v. Estate of Jackmore, 36 Fla. L. Weekly D2217; 2011 Fla. App. LEXIS 15783 (Fla. 1^st DCA 2011).  Dismissed action against estate for unpaid alimony reversed.  Florida does not have statute of limitations on alimony.  Remanded for evidentiary hearing to ensure latches does not apply.

Harris v. Hampton, 36 Fla. L. Weekly D2183; 2011 Fla. App. LEXIS 15740 (Fla. 4^th DCA 2011).  Contempt order requiring former wife to enroll child in specific private school reversed when underlying order did not make it clear who was going to pay for school and no findings as to ability to afford private school.

Brown v. Brown,  68 So. 3d 964 (Fla. 2^nd DCA 2011).  Contempt order requiring Husband to pay less support then he agreed to affirmed.  Amount agreed to exceeded Husband’s ability to pay.  Trial Court authorized to fashion purge provision on party’s ability.  Court did not modify obligation, it just would not enforce an amount Husband could not afford despite his agreement.

Opatz v. Opatz, 67 So. 3d 446 (Fla. 4^th DCA 2011).  Court reversed for failing to hold Former Husband in contempt after matter referred to magistrate who never issued report.  Court also reversed for improperly modifying support when it had not been pled.

Simpson v. Simpson, 68 So. 3d 958 (Fla. 4^th DCA 2011).  Court did not err denying motion for contempt seeking to enforce payment of vehicle loan which was not incident of support.

Keeler v. Keeler, 66 So. 3d 1081 (Fla. 3^rd DCA 2011).  Order finding party in criminal contempt reversed when trial court found past ability to pay versus present.

Hunter v. Hunter, 65 So. 3d 1213 (Fla. 2^nd DCA 2011).  Trial court reversed for granting change in custody as based on 2^nd motion for contempt when relief was not requested and Court did not find modification in child’s best interest.

Hill v. Hill, 65 So. 3d 143 (Fla. 5^th DCA 2011).  Trial court erred in entering judgment for $90,000 when wife requested partition to enforce settlement.  Former wife never requested money judgment as relief.  Remanded to trial court to treat motion for partition as a motion for relief from judgment.

Lustgarten v. Lustgarten, 65 So. 3d 85 (Fla. 4^th DCA 2011).  Judge Makemson reversed for holding former husband in contempt for failing to pay $300,000 for former wife’s kidney transplant.  Former husband agreed to pay former wife’s uncovered expenses.  However, wife’s first doctor did not recommend transplant so former husband had enough concern his refusal to pay was not “intentional”.  Fact agreement did not specify medical expenses must be “reasonable and necessary” does not waive defense that expenses must be “reasonable and necessary.”  Former husband still required to pay cost of transplant ($169,000) but order of contempt reversed.

Galpern v. DOR, 58 So. 3d 438 (Fla. 4^th DCA 2011).  Judge Burton reversed for purge provision required father to pay $700 immediately and $20,000 every sixty days thereafter when only evidence of ability was father made $400 a week plus commissions plus food stamps.  Order is facially deficient.

Elliot v. Bradshaw, 59 So. 3d 1182 (Fla. 4^th DCA 2011).   Judge Brunson reversed for considering husband’s equity in house of 2.25 million which is listed for sale.  In present distressed house it is uncertain is husband could sell property even at discount.  Present ability to pay not supported by evidence.

Morena v. Morena, 57 So. 3d 995 (Fla. 3^rd DCA 2011).  Court reversed for not granting contempt based upon agreed order neither party would disparage.  Wife wrote a book, did interviews and disparaged husband.  Trial Court had no discretion to deny any motion.  However, in footnote, Appellate Court suggests nominal fine as parties failed to agree on sanction.

Powell v. Powell, 55 So. 3d 708 (Fla. 4^th DCA 2011).  Trial Court’s order on fees and order on contempt for failure to pay fees reversed.  Order lacked findings of fact on reasonableness of rate and hours.  Husband cannot be held in contempt for violating improper fee award.

Pirelli v. Bolanos, 54 So. 3d 1047 (Fla. 4^th DCA 2011).  Judge Brunson reversed because she failed to identify  source of purge in commitment order.

Criollo v. Criollo, 53 So. 3d 391 (Fla. 5^th DCA 2011).  Error to incarcerate former husband for 100 days or until he paid full $67,000 purge when there was no evidence former husband had ability to meet purge.

Equitable Distribution:

Zambuto v. Zambuto, 36 FLW D2758 (Fla. 2^nd DCA 2011).  Trial court erred in assigning $90,000 in gambling losses in absence of misconduct.  Misconduct is not shown by mismanagement or simple squandering of assets in a manner other spouse disapproves.  Rather, there must be a specific finding of intentional misconduct and money was used for one’s benefit for a purpose unrelated to marriage at a time when marriage is undergoing an irreconcilable breakdown.

Kerzner v. Kerzner, 36 FLW D2608 (Fla. 3^rd DCA 2011).  Trial court affirmed for affording homestead protection on husband’s proceeds from sale of homestead property.  A protected homestead may be voluntarily sold and funds will be protected so long as they are not commingled and are held for the sole purpose of acquiring another home within a reasonable period of time.  Former Husband did not waive this protection for child support arrears from another relationship by agreeing to “pay any lien or encumbrance against marital home from proceeds”.

Tuomey v. Tuomey, 36 FLW D2539 (Fla. 5^th DCA 2011).  Trial court reversed for offsetting former husband’s obligation to pay expenses on residence with the value of received by his use of the property when there are no findings as to fair market rental value.

Witt v. Witt, 36 FLW D2352 (Fla. 2^nd DCA 2011).  Final judgment with equitable distribution reversed as it was unclear.  Trial court failed to assign $100,000 contingent tax liability, failed to accept parties’ stipulation on value of premarital portion of business, and made a number of other mistakes.

Wu v. Xing, 36 FLW D2444 (Fla. 3^rd DCA 2011).  Trial court reversed for awarding marital residence, the only significant marital asset, to one party without findings of fact that would justify unequal distribution.

Fotinos v. Fotinos, 36 FLW D2287 (Fla. 2^nd DCA 2011).  Judgment awarding exclusive use and possession of marital property to husband reversed when property not included in equitable distribution scheme and no findings of fact to support unequal distribution.

Cortese v. Cortese, 36 FLW D2272 (Fla. 5^th DCA 2011).  Trial Court reversed for granting husband credit for one half of the mortgage and house related expenses during pendency of divorce because; 1) credit not requested in pleadings, 2) inappropriate to credit husband with payment of these expenses when he is the bread winner and 3) husband’s payments were part of temporary alimony award.

Coleman v. Bland, 36 Fla. L. Weekly D2110; 2011 Fla. App. LEXIS 15174 (Fla. 5^th DCA 2011).  Final Judgment reversed because judgment contained no findings of fact on husband’s pension (i.e. whether it was marital or non-marital).  Remanded only as to disposition of pension.

Jurasek v. Jurasek, 67 So. 3d 1210 (Fla. 3^rd DCA 2011).   Trial court reversed for awarding husband “special equity” in marital residence based upon his investment of non-marital inheritance.  Husband did not overcome presumption of gift.

Joshi v. Joshi, 66 So. 3d 1101 (Fla. 5^th DCA 2011).  Trial court reversed for assigning $1,800 stimulus to Husband in equitable distribution when record contained no support Husband received check.

Vanzant v. Vanzant, 36 Fla. L. Weekly D1797; 2011 Fla. App. LEXIS 12794 (Fla. 1^st DCA 2011).  Trial court reversed for failing to make equalizing payment.  No findings of fact to support unequal distribution.  Trial court’s valuation of business reversed when not supported with findings and it looks like Court split difference between competing experts.

Bell v. Bell, 68 So. 3d 321 (Fla. 4^th DCA 2011).  Judge Stern reversed for failing to include $660,000 in receivables from Husband’s business.  Court erred in finding house husband inherited from mother as marital even when Husband helped his Mother pay mortgage before she died.

Tummings v. Francois, 36 Fla. L. Weekly D1737; 2011 Fla. App. LEXIS 12556 (Fla. 2^nd DCA 2011).  Trial Court reversed for including Wife’s bonuses in equitable distribution scheme.  It is error to include assets that have been dissipated or diminished during the pendency of action.  An exception exists is dissipation is based on misconduct.  Court must make finding of intentional dissipation or destruction resulting from intentional misconduct.

Morenberg v. Morenberg, 65 So. 3d 1199 (Fla. 4^th DCA 2011).  Judgment requiring Husband to equally divide all future text book roya­­­lties reversed on Husband’s fourth edition of text book which was started after divorce was filed.  A former spouse in not entitled to receive benefits that accrue after dissolution.

Bush v. Bush, 65 So. 3d 1101 (Fla. 2^nd DCA 2011).   It was error to award Wife with full value of account which was depleted during pendency of divorce.  Wife was not awarded temporary alimony and Court made no finding of misconduct or waste.

Demont v. Demont, 67 So. 3d 1096 (Fla. 1^st DCA 2011).  Trial court affirmed for rejecting wife’s claim husband depleted accounts during pendency when husband demonstrated monies spent were not for his own personal enjoyment but to pay usual and customary household and other family expenses established during marriage.  Court erred in classifying payment for non-compete after divorce as compensation was based on future promises as opposed to marital labor.

Mills v. Mills, 62 So. 3d 672 (Fla. 2^nd DCA 2011). Court reversed for failing to include assets purchased post filing  that were funded by the sale of marital assets.  Further, Court failed to provide findings of fact to support depletion of marital funds were for living expenses pf parties as opposed to property distribution.

Fuentes v. Fuentes, 59 So. 3d 1204 (Fla. 2^nd DCA 2011).  Equitable distribution reversed because Court failed to allocate $40,000 Husband withdrew during proceedings.  If Court meant unequal distribution, findings of fact are required.  Court should also address Husband’s claim money was spent on family living expenses and he should not be credited with the amount in property division.

Fortune v. Fortune, 36 61 So. 3d 441 (Fla. 2^nd DCA 2011).  Error to classify $150,000 “loan” made from Husband to his employer as marital liability just before filing.  Only corroborating evidence was affidavit of employer of affidavit.  Affidavit should not have been admissible and there was no other evidence supporting Husband’s contention.

Lacoste v. Lacoste, 58 So. 3d 404 (Fla. 1^st DCA 2011).  Trial Court’s award of unequal distribution based on 1) short term marriage and 2) party used non-marital assets to enhance.

Brathwaite v. Brathwaite, 58 So. 3d 398 (Fla. 1^st DCA 2011).  Trial Court reversed for classifying entire military retirement as marital when most of it was earned before marriage.

Kight v. Kight, 61 So. 3d 415 (Fla. 3^rd DCA 2011).  Trial Court reversed for treating $6,000.00 contribution to IRA made after date of filing as marital property.

Wagner v. Wagner, 61 So. 3d 1141 (Fla. 1^st DCA 2011).  Trial Court reversed for failing to distribute home furnishings even when neither party presented evidence of value.  Court has to categorize and value, even if no evidence.  Unequal distribution without explanation reversed.

Orloff v. Orloff, 67 So. 3d 271 (Fla. 2^nd DCA 2011).  Trial Court reversed for classifying husband’s business as marital.  Entity was formed as sole proprietorship and incorporated before marriage.  After marriage, husband re-incorporated in Florida.  This did not make company marital and new Florida corporation came from assets acquired before marriage.

David v. David, 58 So. 3d 336 (Fla. 5^th DCA 2011).  Trial Court reversed for unequal distribution of credit card debt based upon disparity of income of parties.

Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2011).  Revised opinion.  Adopts Stevens. Formula for passive appreciation for a non-marital property.

Lee v. Lee, 56 So. 3d 819 (Fla. 2^nd DCA 2011).  Equitable Distribution reversed because it failed to delineate marital and non-marital property and not all assets are assigned values.  Further, the findings an unequal distribution is “equitable under the circumstances” is insufficient to articulate basis for unequal distribution.

Randall v. Randall, 56 So. 3d 817 (Fla. 2^nd DCA 2011).  Trial Court erred in awarding engagement ring to former husband because engagement ring is generally a premarital gift.  In addition, husband listed ring as wife’s non-marital property on his financial affidavit.

Belford v. Belford, 51 So. 3d 1259 (Fla 2^nd DCA 2011).  Trial Court reversed for charging Husbad wirh $44k depleted during pendency.  In the absence of misconduct, it is error to cha­­rge to a party’s share of equitable distribution assets dissipated during the dissolution proceeding.

Dybalski v. Dybalski, 52 So. 3d 825 (Fla 5^th DCA 2011).  Trial court affirmed for modifying a judgment of consent when issue wasn’t really resolved and matter was tried by consent.  Court reversed for unequal distribution without adequate explanation.

Santiago v. Santiago, 51 So. 3d 637 (Fla 2^nd DCA 2011).  Unequal equitable distribution reversed when Court failed to value marital waste.  Remanded for Court to determine actual amount of waste.

Tilchin v. Tilchin, 65 So. 3d 1207 (Fla. 2^nd DCA 2011).   Trial court reversed for awarding disproportionate share of property distribution when husband paid off a mortgage on a residence during the pendency of the action.

Income:

Beasley v. Beasley, 36 Fla. L. Weekly D2680 (Fla. 4th DCA December 7, 2011). Trial Court affirmed for imputing $50,000 per year when Former Wife never grossed more than $25,000 a year as a landscape architect. In this case, the evidence showed that Former Wife chose not to use her degrees, license, and 25 years of marketing experience to actualize her earning capability. Former Wife’s hourly billing was below market rate. Former Husband’s vocational expert testified that Former Wife was well qualified as a landscape architect and had skills that exceeded a typical landscape architect. The median income for landscape architects was $59,638 at the time of trial. Former Wife had not sacrificed her career to rear children, to maintain a home, or to promote Former Husband’s career. In the final judgment, the trial judge concluded: “There is no question from the evidence that the wife has made little or no effort to earn an income consistent with the level of her work experience, education, and ability for years prior to and during the pendency of this divorce litigation.” The judge’s finding that Former Wife is capable of earning $50,000 a year is reasonable and supported by competent substantial trial evidence. Trial Court affirmed for denying permanent alimony in 21 year marriage and awarding bridge-the-gap alimony for 1 year.

Torres v. Torres, 36 Fla. L. Weekly D2151; 2011 Fla. App. LEXIS 15254 (Fla. 2^nd DCA 2011).  Order imputing income reversed when no basis to impute in judgment.  Mere allegations of employability do not constitute competent substantial evidence to impute income.  Here former husband did not take exceptions.  Appellate court reversed because it is clear on judgment findings were insufficient to support imputation.

Halawy v. Halawy, 67 So. 3d 447 (Fla. 2^nd DCA 2011).  Support order reversed when both parties imputed minimum wage income and Husband had to pay full obligation for both incomes.  Wife had conceded error.

Cissel v. Cissel, 36 Fla. L. Weekly D1351; 2011 Fla. App. LEXIS 9602 (Fla. 4^th DCA 2011).  Finding of income reversed when court failed to deduct undisputed legitimate business expenses and including income of a non-recurring nature.

Fuesy v. Fuesy, 64 So. 3d 151 (Fla. 2^nd DCA 2011).  Trial court’s determination of wife’s income reversed when it failed to include wife’s voluntary retirement contributions.

Mudafort v. Lee, 62 So. 3d 1196 (Fla. 4^th DCA 2011).  Trial court’s imputation to wife of $500 per week reversed when no evidence to rebut wife’s testimony of her income.  The burden of proof is on the party seeking to impute.

Fischer v. Fischer, 55 So. 3d 725 (Fla. 5^th DCA 2011).  Trial Court affirmed for imputing income of $60,000 to Husband when Husband represented he made $45,000 in income on loan application, he had additional rental income and had 2 new jobs.

Jurisdiction:

Gray v. Bresler, 53 So. 3d 1043 (Fla. 4^th DCA 2011).  Judge Stein affirmed for denying husband’s motion to vacate final judgment based on fact he was not Florida resident 6 months prior to filing.  Wife filed counter-petition 6 months after husband moved to Florida which satisfied residency requirement.

Miscellaneous:

Irvin v. Irvin, 36 Fla.L.Weekly D2667 (Fla. 2^nd DCA 2011).  Trial court reversed for failing to hold Former Husband in contempt when he failed to pay Former Wife her share of receivables from a note.  Parties settled divorced and agreed proceeds would be divided.  A modification was filed and resolved and provided all unmodified provisions in first provision remain in effect.  Modification did not involve receivables and Former Wife did not divest her interest.

Matteis v. Matteis, 36 Fla. L. Weekly D2029; 2011 Fla. App. LEXIS 14561 (Fla. 4^th DCA 2011).  Judge Burton reversed for failing to resolve issues with marital home.  Remanded for clarification of payment of expense pending sale as well as contingency if house does not sell in specified period.

In Re: Oath of Admission to Florida Bar, 36 Fla. L. Weekly S505 (Fla. 2011).  Adds to oath;  “To opposing parties and their counsel, I pledge fairness, integrity and civility, not only in Court, but also in written and oral communications”.

Comstock v. Comstock, 36 Fla. L. Weekly D1742; 2011 Fla. App. LEXIS 12505 (Fla. 4^th DCA 2011).  Final post judgment order enforcing mediated agreement which was not approved by court in an order or judgment was affirmed in part and reversed in part.  Issues concerning property enforcement are enforceable under contract law.  That part of judgment affirmed.  Portion enforcing issues relating to child custody and support reversed because court never determined stipulation to be in children’s best interest.

Estate of King v. King, 67 So. 3d 387 (Fla. 4^th DCA 2011).  Trial court reversed for denying Husband’s estate’s motion to substitute in seeking to enforce final judgment on a property issue.  Here, Husband died after entry of final judgment and Court reserved jurisdiction.  This was not a claim against the estate.  Rather, the estate was making a claim against the Former Wife.

Taylor v. Taylor, 67 So. 3d 359 (Fla. 4^th DCA 2011).  Trial court’s order denying 1.540 motion for relief from judgment reversed because husband never received notice of final hearing therefore judgment is void.  Wife’s claim her attorney mailed notice of final hearing to husband’s last known address pursuant to Rule 1.080 defeated on rebutted evidence wife led husband to believe she was not pursuing divorce.

Foster v. Foster, 36 Fla. L. Weekly D1486; 2011 Fla. App. LEXIS 10653 (Fla. 5^th DCA 2011).  Final judgment requiring life insurance to insure alimony obligation reversed because court failed to make findings of facts regarding availability and cost of insurance, obligor’s ability to pay, and special circumstances that warrant requirement of security.

Glanz v. Glanz, 63 So. 3d 936 (Fla. 4^th DCA 2011).  Judge Burton reversed for refusing to strike a lis pendens on a property titled in name of a business owned by husband.  Because business was not a named party, court had no jurisdiction.

Ross v. Ross, 61 So. 3d 479 (Fla. 4^th DCA 2011).  Court reversed for violating Perlow rule and adopting parties’ proposed order verbatim and not providing other party opportunity to review or object.

Fortune v. Fortune, 61 So. 3d 441 (Fla. 2^nd DCA 2011).   Error to deny Wife’s request to restore maiden name.

Teague v. Gritman, 67 So. 3d 284 (Fla. 5^th DCA 2011).  Motion to disqualify judge based on events at hearing two months prior rendered motion legally insufficient.  Motion must be filed within 10 days.

Hughes v. Krueger, 67 So. 3d 279 (Fla. 5^th DCA 2011).  Trial Court reversed for ordering an accounting on a property two divorced people owned as tenants in common.  The husband was using the property for his business and never excluded, ousted former wife from property.  A tenant in common who has exclusive possession of real property and uses it for his own benefit is not liable or accountable to a co-tenant out of possession unless possession is adverse or result of ouster.

Hill v. Hill, 36 Fla. L. Weekly D475; 2011 Fla. App. LEXIS 11777 (Fla. 3^rd DCA 2011).  Court reversed for awarding alimony after reserving jurisdiction for 18 years.  Court never determined need or awarded nominal alimony.  No limited or reasonable duration on reservation.

R.M.F. v. D.C., 55 So. 3d 684 (Fla. 2^nd DCA 2011).  Appeal with no transcript.  Lack of transcript precludes review of visitation.  Attorney fees reversed due to lack of findings.

Sullivan v. Hoff-Sullivan, 58 So. 3d 293 (Fla. 1^st DCA 2011).  Florida trial court reversed  for interpreting child support provisions when exact issue was previously litigated in Georgia based on res judicata.

Schang v. Schang, 53 So. 3d 1168 (Fla. 1^st DCA 2011).  Trial court reversed for issuing final judgment over a year after trial and judgment did not reflect full and accurate consideration of pertinent facts.

Beharry v. Drake, 52 So. 3d 790 (Fla 5^th DCA 2011).  Trial Court affirmed for adopting proposed judgment verbatim.  Requirement to maintain life insurance in excess of support obligation reversed.

Modification:

Khutorsky v. Ilina, 36 FLW D2715 (Fla. 3^rd DCA 2011).  Trial court reversed for requiring Former Husband to pay portion of private school when only relief requested was former husband’s request to remove restriction to live in particular school district.  When relief is not sought in pleadings, it should not be granted, unless tried by consent.

Buhler v. Buhler, 36 FLW D2653 (Fla. 5^th DCA 2011).  Trial Court reversed for modifying child support retroactive to date of filing when it should have modified it retroactive to date parent first failed to regularly exercise court ordered visitation.

Delivorias v. Delivorias, 36 FLW D2711 (Fla. 1^st DCA 2011).  *Clarifying opinion.  Order on contempt providing modification of final judgment affirmed even when trial court failed to include “magic words of a substantial change of circumstances.   Here, competent substantial evidence supports the result and trial court’s failure to explain reasoning does not compel reversal if it is readily apparent why the trial court ruled in the manner it did.

Crowell v. Crowell, 36 FLW D2336 (Fla. 5^th DCA 2011).  Final judgment dismissing modification entered after opening statements but before the introduction of evidenced reversed.  Party who makes sufficient allegations in pleading is entitled to evidentiary hearing.

Simpson v. Simpson, 68 So. 3d 958 (Fla. 4^th DCA 2011).  Modification of alimony reversed after Husband suffered temporary unemployment, even though Wife acquiesced to modification in an email because she did not have full disclosure of husband’s income and Husband would not have otherwise passed Pimm test.  A temporary reduction may have been appropriate if Husband suffered temporary loss of income without deliberately seeking to avoid alimony and acting in good faith to return income to previous level.

Ragle v. Ragle, 36 Fla. L. Weekly D1790; 2011 Fla. App. LEXIS 12738 (Fla. 1^st DCA 2011).  Order modifying custody reversed when based on Mother’s decision to relocate 28 miles, failure to allow frequent and liberal timesharing, and unilaterally changing school.  A desire to relocate is not a substantial change in circumstances.  Parties’ inability to co-parent does not constitute change.  Trial court failed to make findings of fact and record did not support contention of visitation interference.

Estate of Reale v. Horwitz, 67 So. 3d 1145 (Fla. 3^rd DCA 2011).  Trial court affirmed for bringing alimony modification to an end after former husband’s death and denying attorney fees occurred post mortem.  However, order denying fees pre mortem reversed.

Talbi v. Essoufi, 65 So. 3d 1207 (Fla. 2^nd DCA 2011).  Portion of final judgment which provides a list of specific tasks Wife needed to complete to modify custody does not limit or prohibit future court from considering traditional modification factors governed by case law in determining future modifications.  Courts cannot modify appropriate standard to be used in future modifications.

Hahn v. Hahn, 66 So. 3d 345 (Fla. 4^th DCA 2011).  Order modifying alimony from $1,000 to $450 reversed when based on court’s finding of fact, former husband lacked ability to pay any alimony at all.

Bachman v. McLinn, 65 So. 3d 71 (Fla. 2^nd DCA 2011).  Trial court reversed for applying 61.13 as amended in 2008 in reaching ultimate conclusion on modification as opposed to heavy burden required to modify judgment.  Error to apply new statute as if it were initial determination.

Shelden v. Shelden, 63 So. 3d 78 (Fla. 2^nd DCA 2011).  Crazy procedural nightmare of a case involving two pro se litigants.  Court ultimately reversed for accepting magistrate’s report where Husband had burden but was not permitted opportunity to present evidence.

Poe v. Poe, 63 So. 3d 842 (Fla. 5^th DCA 2011).  Trial court affirmed for modifying support based on Husband’s testimony he lost job based on Husband’s testimony he lost job one month after the final judgment and change was not anticipated, even though credible evidence supported contention Husband lost his job the day before he signed the agreement, and therefore the change was anticipated.  Credibility of witness is within trial court’s exclusive purview.

Denker v. Debroski, 60 So. 3d 1104 (Fla. 4^th DCA 2011).  Judge Stern affirmed for modifying custody when former wife did not attend final hearing or present evidence.  Here, case was not decided by default.  There was a full presentation of evidence that supported Court’s decision.

­­­Morrison v. Morrison, 60 So. 3d 410 (Fla. 2^ndDCA 2011).  Upward modification reversed when circumstances did not meet “Bedell” exception.   Bedell exception allows an upward modification upon a change in circumstances when court was legally obligated to order an amount of alimony that did not meet the needs of the recipient in original final judgment, based on standard of living at marriage, due to payor’s limited ability.  In case at hand, parties entered into a settlement agreement (and contractually agreed on alimony amount).  Court further erred in finding former husband’s income increased based on temporary trust payments that were known about when parties entered into original settlement.

_­­Doran v. Doran, 49 So. 3d 1290 (Fla 1^st DCA 2011).  Order denying custody modification reversed when party was not allowed to present evidence of abuse.   Remanded for new trial.

Parenting:

Sparks v. Sparks, 36 FLW D2760 (Fla. 1^st DCA 2011).  Trial Court’s final judgment reversed because trial court did not allow Father to challenge whether parenting aspects of settlement agreement were in best interests of child.  Trial Court’s responsibility cannot be abdicated to any parent or expert.

Cheek v. Hesik, 36 FLW D2378 (Fla. 1^st DCA 2011).  Trial Court’s order on contempt awarding former husband 150 consecutive days of makeup time sharing reversed in part when not found to be in child’s best interest and order basically changed child’s residence and allowed relocation.  No error in trial court’s determination that former husband was entitled to makeup time sharing.  Further 61.34(4)( c) unequivocally provides Court SHALL award sufficient amount of extra timesharing to compensate for time missed.

Otto-Jones v. Jones, 36 Fla. L. Weekly D1941; 2011 Fla. App. LEXIS 13893 (Fla. 2^nd DCA 2011).  Order requiring child to attend private school for first half of school year and public school for second half reversed when no evidence to support rotating custody in child’s best interest.  Remanded for court to decide appropriate school.

Bainbridge v Pratt, 68 So. 3d 310 (Fla. 1^st DCA 2011).  Order rotating custody on an annual basis reversed.  Neither party requested this arrangement.  Despite trial court using magic words that this arrangement was in child’s best interest, there is no record evidence to support trial court’s conclusion.

Leneve v. Leneve, 64 So. 3d 196 (Fla. 4^th DCA 2011).  Judge Brunson reversed for denying motion to dismiss motion invoking Keeping Children Safe Act, Section 39.0139, Florida Statutes.  This does not apply to Chapter 61 proceedings and other courts have found statute unconstitutional.

A.M.M v. J.M.M, 63 So. 3d 910 (Fla. 2^nd DCA 2011).  Order awarding grandmother temporary custody under Chapter 751 reversed as facially deficient.  It appears court decided issue solely on default.  A mother’s fundamental liberty interest in care, custody and management of their child cannot be taken because she failed to file pleadings or hire an attorney.  Court required to provide findings that mother abused, neglected, or abandoned clear child by clear and convincing evidence as opposed to relying on default.

Mudafort v. Lee, 62 So. 3d 1196 (Fla. 4^th DCA 2011).  Statutory changes in past few years have abrogated any judicial presumption against equal time-sharing.

Sotero v. Sullivan, 60 So. 3d 512 (Fla. 3^rd DCA 2011).  Non final order appointing parental coordinator reversed because it delegated authority to make binding decision to therapist, allowed therapist to impose monetary sanctions and waived confidentiality.

Straney v. Floethe, 58 So. 3d 374 (Fla. 2^nd DCA 2011)/  Trial Court reversed for granting modification after considering factors in 61.13(3).  Court must find substantial change of circumstances since entry of final judgment.

Winters v. Brown, 51 So. 3d 656 (Fla. 4^th DCA 2011).  Court affirmed for granting Father exclusive decision making on health/medical issues because Mother was proponent of holistic medicine who believed anything introduced into the body to prevent disease or illness is against God’s will.

Arcot v. Balaraman, 57 So. 3d 907 (Fla. 5^th DCA 2011).  Trial Court reversed for interpreting visitation schedule to provide husband had only 2 exclusive weeks in summer.  Parties alternated weekends and per agreement that was only superseded by holidays.

Paternity:

P.G. v. E.W., 36 FLW D2577 (Fla. 2^nd DCA 2011).  Order denying disestablishment of paternity reversed.  Even though Father had primary residency, he is a male ordered to pay support because he was ordered to share in health expenses.  Did not require newly discovered evidence other than DNA test.  Conflicts with Hooks v. Quaintance.

Hooks v. Quaintance,  36 Fla. L. Weekly D2214 (Fla. 1^st DCA 2011).  Petition to disestablish paternity reversed because petitioner did not allege “newly discovered evidence”.  In this case, the alleged Father knew there was 50% chance he was not father when paternity established.  Newly discovered evidence is evidence that by due diligence could not have been discovered in time to more for a new trial or rehearing.  Here because alleged father did not challenge paternity initially, he lost chance to disestablish, even though he has a DNA test that proves he is not the biological father.

McKee v. Sinco, 36 Fla. L. Weekly D2162; 2011 Fla. App. LEXIS 15436 (Fla. 5^th DCA 2011).  Even though parties still reside together, Court affirmed for requiring Father to pay pro rata share of health insurance, day care and agreed upon extracurricular activities.

Slowinski v. Sweeney,  64 So. 3d 128 (Fla. 1^st DCA 2011).  J.S. and C.L. v. S.M.M., 36 Fla. L. Weekly D1941 (Fla. 2^nd DCA 2011).  Order giving putative father standing to seek genetic testing quashed when child born into intact marriage.

DOR v. Kathcart, 36 Fla. L. Weekly D1880 (Fla. 4^th DCA 2011).  Non-final order requiring genetic testing quashed when respondent signed acknowledgment of paternity and paternity was not at issue.  Child was born in intact marriage.  Judgment awarding custody to biological father reversed as fundamental error.  A putative father has no cause of action to challenge child’s paternity.

Calloway v. Shirley, 61 So. 3d 1240 (Fla. 1^st DCA 2011).  Order on paternity changing name of child to Father reversed becaused there was no evidence it was in the child’s best interest.

DOR v. Robinson, 67 So. 3d 442 (Fla. 1^st DCA 2011).  Trial Court reversed for ordering DNA testing when paternity not an issue.

DOR v. Lynch, 53 So. 3d 1154 (Fla. 1^st DCA 2011).  Trial court reversed for ordering genetic paternity testing in post judgment case where there was no disestablishment action pending.

Procedure:

Rodriguez v. Santana, 36 FLW D2732 (Fla. 4^th DCA 2011).  Trial Court reversed for entering final judgment of paternity at a hearing scheduled as status conference.  This violated due process.

Miranda v. Munoz-Ortiz, 36 FLW D2699 (Fla. 2^nd DCA 2011).  Final order on parental responsibility reversed when Father was incarcerated and denied opportunity to participate in evidentiary hearing telephonically.

Frady v. Deringer, 36 FLW D2678 (Fla. 4^th DCA 2011).  Trial court’s order granting relief from judgment 7 years after entry reversed.  A certificate of service raises a presumption of delivery.  A denial of receipt does not overcome presumption.  Evidentiary hearing is necessary.

In Re: Fla. Family Law Rules, 36 FLW S646 (Fla. 2011).  New forms for notice of action of dissolution of marriage, and notice of family law case with minor child.

Achurra v Achurra, 36 Fla. L. Weekly D2104; 2011 Fla. App. LEXIS 15029 (Fla. 1^st DCA 2011).  Income deduction order used to garnish husband’s pay to replenish children’s college funds reversed as that is an obligation that may not be enforced by income deduction order.  IDO’s may only be used to collect support and attorneys fees related to support.

In Re: Amendments to Fla. SC Forms, 36 Fla. L. Weekly S547 (Fla. 2011).  New family law forms that include disability notice pursuant to Rule of Judicial Administration Rule 2.540.

Smith v. Smith, 36 Fla. L. Weekly D1379 (Fla. 4^th DCA 2011).  Judge Makemson reversed for allowing husband to obtain wife’s medical therapy records because wife attempted suicide ten (10) months prior to filing petition.  Remanded for an evidentiary hearing to determine whether mental health is at issue.  If not, court should order psychological examination.

In Re: Rules of Family Law Procedure, 36 Fla. L. Weekly S267 (Fla. 2011).  Approved new Income Deduction Order (“IDO”) form.  Also confirms IDO payments must be made through support depository.

Swor v. Swor, 56 So. 3d 825 (Fla. 2^nd DCA 2011).  Retroactive child support reversed due to erroneous calculation.  Court included alimony Wife never received in making calculation.

Webber v. Webber, 56 So. 3d 822 (Fla. 2^nd DCA 2011).  Court erred by making support retroactive to date custody changed (January 2007) when it should have been on date modification (May 2007).

Roth v. Cortina, 36 Fla. L. Weekly D457 (Fla. 3^rd DCA 2011).  Order denying attorney’s motion to withdraw reversed.  Approval by the Court should be rarely withheld and then only upon a determination that to grant withdrawal would interfere with efficient and proper functioning of the Court.

Laussermair v. Laussermair, 36 Fla. L. Weekly D448 (Fla. 4^th DCA 2011).  Judge Brunson reversed for dismissing petition for upward modification based on attorney’s “representation” former husband was unemployed at hearing.  Representation by attorney exceeded the four corners of the petition.

Spano v. Bruce, 62 So. 3d 2 (Fla. 3^rd DCA 2011).  Trial Court reversed for awarding retroactive relief to date of amended petition as opposed to date of filing.  Need for modification was present at time of filing.

Relocation:

Kish v. Kish, 36 Fla. L. Weekly D2228 (Fla. 5^th DCA 2011).  Relocation to California affirmed.  However, order remanded to Court to include detailed visitation schedule relocation was premised on.

Wraight v. Wraight, 36 Fla. L. Weekly D1898; 2011 Fla. App. LEXIS 13492 (Fla. 5^th DCA 2011) .  Relocation to UK affirmed.  So long as trial court make findings of fact, appellate court cannot re-weigh evidence.

Valqui v. Rodriguez, 36 Fla. L. Weekly D1855; 2011 Fla. App. LEXIS 13230 (Fla. 3^rd DCA 2011).  Relocation of child from Florida to California affirmed as appellate court could not find an abuse of discretion.  Entire order under appeal published.  Good pro-relocation case.

Rossman v. Ghuman-Profera, 67 So. 3d 363 (Fla. 4^th DCA 2011).  Order modifying custody to Father affirmed when final judgment contained a provision prohibiting relocation and Mother Mata v. Mata, 36 FLW D2465 (Fla. 3^rd DCA 2011).  Trial Court’s order granting emergency motion to permit temporary relocation reversed as it did not hold  evidentiary hearing as required by statute.

A.F. v. R.P.B., 36 FLW D2414 (Fla. 2^nd DCA 2011).  61.13001 does not apply where wife lived in Florida and Husband lived in Pennsylvania.  New version of statute only applies if one parent seeks to relocate with child.

Rossman v. Ghuman-Profera, 67 So. 3d 363 (Fla. 4th DCA 2011).  Order modifying custody to Father affirmed when final judgment contained a provision prohibiting relocation and Mother ignored provision and relocated child anyway.  Analysis is fact intensive.  Mother moved after Father objected to notice of intent to relocate.  Mother said she would not return to Florida regardless of Court’s decision.  Father was active in child’s life, talking to her every day, coaching her sports team, regular visitation, camping trips.  Granting relocation solely on best interests of party (as opposed to child) is reversible.  Trial court’s decision denying relocation affirmed Modification also affirmed even the Court did not state “a substantial change in circumstances occurred”.  Change of circumstances can be found in trial court’s detailed findings.  Generally, Court’s cannot base substantial change on relocation alone.  This is different, Mother has already relocated, FJ prohibited relocation and Mother stated she would not return.

Orta v. Suarez, 63 So. 3d 936 (Fla. 4^th DCA 2011).  Trial court’s order denying relocation reversed.  Very lengthy relocation opinion.  In this case, wife met her burden because parties always intended to relocate to California where wife had dental license and could work.

Raulerson v. Wright, 60 So. 3d 487 (Fla. 1^st DCA 2011).  Trial Court reversed for granting relocation when petitioner failed to strictly comply with 61.13001.

Galpern v. DOR, 58 So. 3d 438 (Fla. 4^th DCA 2011).  Trial court reversed for purge provision required father to pay $700 immediately and $20,000 every sixty days thereafter when only evidence of ability was father made $400 a week plus commissions plus food stamps.  Order is facially deficient.

Arthur v. Arthur, 54 So. 3d 454 (Fla. 2011).  Revised opinion.  Trial Court reversed for granting relocation when 16 month old turns 3.  Court does not have a crystal ball.

UCCJEA:

Schaffer v. Ling, 36 Fla. L. Weekly D2152 (Fla. 4^th DCA 2011).  Judge Burton affirmed for dismissing a paternity case where child conceived in Florida but never lived here.  Father sought time sharing and shared parental responsibility.  Florida was not home state of child pursuant to UCJEEA.

Wigley v. Hares, 67 So. 3d 363 (Fla. 4^th DCA 2011). 36 Fla. L. Weekly D1624 (Fla. 4^th DCA 2011).  Order denying petition for return of child affirmed even when Court misapplied Convention when it found child had settled in new environment because Court concluded child would be placed in harm’s way if returned.  Courts can only determine rights per convention and cannot address underlying custody issues.  Trial Court found as fact Father brandished a gun towards Wife and child and Father threatened to kill child.   Detailed discussion of Hague convention.

Douglas v. Johnson, 65 So. 3d 605 (Fla. 2^nd DCA 2011).  Trial court erred in granting non-final order requiring mother to return child to jurisdiction without allowing mother opportunity to challenge subject matter jurisdiction.

Sarpel v. Elflani, 65 So. 3d 1080 (Fla. 4^th DCA 2011).  Judge Burton affirmed for declaring Florida child’s home state when child was in Turkey seven (7) weeks during six-month period.  Trip to Turkey was temporary and no evidence move was intended to be permanent.

Holub v. Holub, 54 So. 3d 585 (Fla. 1^st DCA 2011).  Trial court affirmed for accepting jurisdiction when child lived in Florida for previous six months.  Former husband was allowed to challenge subject matter jurisdiction for the first time on appeal.

No. 4D09-4106

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

2011 Fla. App. LEXIS 19534

December 7, 2011, Decided

NOTICE:

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John L. Phillips, Judge; L.T. Case No. 502008 DR 009849 XXXXMB.

COUNSEL: Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellant.

Robert J. Hauser of Beasley, Hauser, Kramer, Leonard & Galardi, P.A., West Palm Beach, and Odette Marie Bendeck of Fisher & Bendeck, P.A., West Palm Beach, for appellee.

JUDGES: CONNER, J. WARNER  and POLEN , JJ., concur.

OPINION BY: CONNER

OPINION

CONNER, J.

Elizabeth Marshall-Beasley (“Former Wife”) appeals the final judgment dissolving her marriage to James W. Beasley, Jr., (“Former Husband”) following trial as to equitable distribution and bridge-the-gap alimony. Specifically, she challenges six decisions by the trial court: (1) the award of the marital home to her, (2) the amount of employment income imputed to her, (3) the award of bridge-the-gap alimony instead of permanent periodic alimony, (4) the determination of jewelry gifts by Former Husband to be a marital rather than nonmarital asset, (5) Former Husband’s post-petition spending was not waste, and (6) Former Husband’s pre-petition advance distribution of his 401(k) account was taxed properly. We affirm.

Factual Background

The parties were married in 1986. Their marriage lasted 21 years, and they had no children. Former Husband, 66 at the time of trial, historically has earned $400,000 a year as a litigation attorney; he plans to retire in mid-2013 at 70. Former Husband is a 90% shareholder in a small litigation law firm with a negative net worth. He is the only member of the firm who personally guarantees the firm’s lease and line of credit. At the time of trial, Former Husband personally was indebted to Northern Trust for $618,507 that he had borrowed and loaned to the firm.

Former Wife, 50 at the time of trial, has impressive educational and professional credentials. She has a degree from Princeton University in urban policy and planning. During the marriage, she obtained a degree in drafting and design and a master’s degree in landscape architecture. She has been on the State Board of Landscape Architecture since 2002, the highest state regulatory body in the profession, and has served as the chair of that organization.

From 2001 until their separation, the parties enjoyed a comfortable lifestyle. Their pre-petition expenses exceeded their combined income from investments and employment, which required them to invade the principal of their investment accounts. In mid-June, 2008, Former Husband vacated the marital home in Palm Beach (“Bahama Lane”). In August, 2008, he withdrew $450,000 from his 401(k) account to buy a separate local residence. The amount of the funds after income tax was $351,112. Former Husband used a portion of these funds as a down payment on a house in West Palm Beach (“Rugby Road”) in October, 2008. Former Wife petitioned for dissolution on September 1, 2009, and sought exclusive possession of Bahama Lane. Prior to trial, Former Wife decided that she wanted to buy a $1.4 million cottage in Palm Beach and to sell Bahama Lane. Given the stock market and real estate plummets, costs, and depreciation, approximately $9 million marital assets remained for distribution between the parties.

Following trial, the judge awarded Bahama Lane to Former Wife and the Nantucket vacation home to Former Husband; the houses were approximately of equal value. The judge equally divided the assets and gave Former Husband and Former Wife each $4.5 million in real and personal property, including accounts and investments. The judge found Former Wife’s reasonable after-tax needs to be $10,000 per month, and her expected income after taxes to be $12,166 per month, including $50,000 per year of professional income after taxes. The trial judge awarded $4,000 per month bridge-the-gap alimony for a year to give Former Wife time to develop her professional earning ability and to liquidate Bahama Lane.

Legal Analysis

Bahama Lane Residence

Although the trial judge had invited the parties to submit a complete written agreement of equitable distribution, they did not do so. The Joint Equitable Distribution Update that was provided to the judge on the first day of trial testimony was a listing of assets that the parties had valued and those left for the court to determine. The valuations to which the parties stipulated were limited to real property and brokerage accounts and not all their assets for equitable distribution. The judge ascertained that the parties understood that the equitable distribution was to be decided by the court:

. . . I’m not bound at all in the work I’m asked to do on a trial by the request you’ve made about how you would like to have things equitably distributed. That’s something I have to figure out, and I have to have the ability to work with whatever assets and liabilities there are to make it come up fairly and equitably.

Regarding Bahama Lane, Former Wife argues that she and Former Husband entered into a joint stipulation providing that the marital home would go to Former Husband and that the trial judge erred by ignoring their stipulation. She asserts that she cannot afford Bahama Lane’s overhead and that it will not be easy to sell the house, even with aggressive marketing. The parties, however, never “unequivocally agreed or stipulated to the court” to award Bahama Lane to Former Husband. Farrell v. Farrell, 661 So. 2d 1257, 1259 (Fla. 3d DCA 1995). HN3A binding agreement to convey real property from the marital estate to one of the parties requires a writing signed by the parties, or an explicit bilateral stipulation on the record before a court reporter. See § 725.01, Fla. Stat. This alleged joint stipulation had neither, and no agreement was “entered and filed” in accordance with section 61.075(3).

In determining Former Wife’s property and support claims, the trial judge reasoned that she could liquidate Bahama Lane, valued at $1.85 million, within the bridge-the-gap period. Thereafter, Former Wife could relocate, as did Former Husband, to a lower-priced home free of debt. She would be able to support herself with investment income and the sale proceeds from Bahama Lane. Because there was no valid agreement conveying Bahama Lane to Former Husband, the trial judge did not abuse his discretion in making it part of the overall distribution of the marital estate assets.

Imputed Income

Former Wife argues that the final judgment lacks the required findings to impute to her annual income of $50,000, when she never  grossed more than $25,000 a year as a landscape architect. “The standard of review of a court’s decision to impute income is whether it is supported by competent, substantial evidence.” Mount v. Mount, 989 So. 2d 1208, 1209 (Fla. 2d DCA 2008). Former Wife has a Princeton undergraduate degree, two post-graduate degrees, and 25 years of executive business experience.

More than 20 years ago, Former Wife earned $40,000 to $50,000 annually in top managerial jobs. Former Wife’s estimation of her earning capacity, as reported on her professional insurance applications, declined after her first consultation with a divorce attorney. Her last work for a paying client was in 2007. By mid-2009, Former Wife represented that she might be mentally or physically unable to work, although she regularly went to her office. When Former Husband sought discovery on Former Wife’s health issues, they were withdrawn two months before trial.

Former Wife’s hourly billing was below market rate. Despite her extensive marketing background, Former Wife did not create a portfolio, have a website, or photograph her work, and she did minimal advertising and marketing. Her failure to promote herself through standard marketing avenues inhibited her ability to acquire clients, which depressed her income. Jennifer Tighe, a landscape architect and acquaintance of Former Wife, testified at trial that it was important for landscape architects to be aggressive in their marketing efforts in the current economy. She further testified that Former Wife had an advantage procuring government contracts, because Former Wife’s firm is considered to be both minority-owned and a small business.

Former Husband had encouraged Former Wife to advertise and had persuaded her to issue a press release, at his expense, using his firm’s public relations company. Former Wife, however, refused to have photographs taken of her work. She had not joined professional organizations, such as the local chapter of the American Institute of Architects. She also did not take advantage of longstanding contacts for which she had worked previously, such as employment with a worldwide entertainment enterprise and former Florida governor.

Former Husband’s vocational expert testified that Former Wife was well qualified as a landscape architect and had skills that exceeded a typical landscape architect. The median income for landscape architects was $59,638 at the time of trial. Former Wife’s credentials and experience did not support her contention that she could perform at only the lowest percentile of licensed landscape architects. Former Husband’s vocational expert concluded that Former Wife could earn $60,000 at the time of trial as a sole practitioner, which would increase to $112,000 to $150,000 in the near future. If she could not succeed practicing alone, then Former Wife could expect to earn $72,000 as a firm employee. The vocational expert also had located advertisements for employment for which Former Wife was qualified.

Former Wife had not sacrificed her career to rear children, to maintain a home, or to promote Former Husband’s career. Instead, by working full-time as a litigation attorney, Former Husband had financed and encouraged Former Wife’s pursuit of her landscape architecture degree and license. He completely had supported her while she was in graduate school and studied for her license exam. He further had provided her a “lovely” office and encouraged her to develop her practice after completing her degree.

In this case, the evidence showed that Former Wife chose not to use her degrees, license, and 25 years of marketing experience to actualize her earning capability. In the final judgment, the trial judge concluded: “There is no question from the evidence that the wife has made little or no effort to earn an income consistent with the level of her work experience, education, and ability for years prior to and during the pendency of this divorce litigation.” The judge’s finding that Former Wife is capable of earning $50,000 a year is reasonable and supported by competent substantial trial evidence. See Fitzgerald v. Fitzgerald, 912 So. 2d 363, 368 (Fla. 2d DCA 2005) (finding, when former wife had an earning history of up to $57,000 a year, a vocational expert’s testimony was competent substantial evidence that former wife could be imputed $40,900 earning capability a year).

Bridge-the-Gap Alimony

Based on 21 years of marriage, Former Wife contends that the trial judge erred in not awarding her permanent periodic alimony. She further contends that the bridge-the-gap alimony of $4,000 a month for one year, two-thirds of which is required to maintain Bahama Lane, is insufficient to provide financial stability until her investments begin to generate adequate funds, and she can establish her landscape architecture business. “A trial court’s decision on whether to award permanent periodic alimony is subject to an abuse of discretion standard of review.” Hornyak v. Hornyak, 48 So. 3d 858, 861 (Fla. 4th DCA 2010);  [*12] see Mondello v. Torres, 47 So. 3d 389, 396 (Fla. 4th DCA 2010) (noting that “the nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court” (citation, internal quotation marks, and alteration omitted)); § 61.08(2), Fla. Stat. (2009).1 This decision is based on “the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.” Leonardis v. Leonardis, 30 So. 3d 568, 570 (Fla. 4th DCA 2010) (citation and internal quotation marks omitted). “The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.” Mallard v. Mallard, 771 So. 2d 1138, 1140 (Fla. 2000) (citation and internal quotation marks omitted).

In the final judgment, the trial judge noted that Former Wife has a net worth of $4.5 million with no marital debts. In addition, Former Husband’s income will be substantially reduced when he retires in 2013 at 70. The parties had no children, and Former Wife’s impressive education, marketing experience, and her own landscape architecture business, as well as being younger with more earning years than Former Husband, would enable her to supplement her income to provide for a suitable standard of living. This court has recognized that HN11″[d]isparity in income alone does not justify an award of permanent periodic alimony” and that “[a]n award of permanent alimony is improper where the evidence does not reflect permanent inability on the part of the wife to become self-sustaining.” Rosecan v. Springer, 845 So. 2d 927, 929, 930 (Fla. 4th DCA 2003) (citation and internal quotation marks omitted). There was no abuse of discretion in the trial judge’s awarding Former Wife one year of bridge-the-gap alimony and not awarding her permanent periodic alimony.

Jewelry Gifts

Former Wife contends that a portion of her jewelry collection was a nonmarital asset, based on a deed of gift given to her by Former Husband. It is undisputed by the parties that all of Former Husband’s jewelry gifts to Former Wife were purchased with marital funds. HN12″Marital assets” include “[i]nterspousal gifts during the marriage.” § 61.075(6)(a)1.c., Fla. Stat.   (2009); see Ruiz v. Ruiz, 548 So. 2d 699, 699-700 (Fla. 3d DCA 1989) (reversing trial court for failing to treat the uncontroverted purchase of jewelry with marital assets as marital property subject to equitable distribution and citing § 61.075 relating to interspousal gifts as declaratory of Florida law). “Under well-established statutory and case law, an interspousal gift during the marriage is a marital asset.” Maddox v. Maddox, 750 So. 2d 693, 694 (Fla. 1st DCA 2000); cf. Gardner v. Gardner, 452 So. 2d 981, 983-84 (Fla. 5th DCA 1984) (“Separate property of a spouse includes assets of one spouse acquired from a source outside or unconnected with the marriage, such as by inheritance, property owned prior to marriage, or gifts from third parties.”). Any gift of jewelry from Former Husband to Former Wife bought with marital assets remains a marital asset. The alleged written deed, which was not admitted into evidence, would confirm solely that an interspousal gift was made. Former Wife introduced no evidence showing an intent to remove the jewelry from the marital estate. Her assertion that the jewelry is nonmarital property is contrary to the plain language of section 61.075(6).

Post-petition Spending

Former Wife had sought an equalization credit of approximately $300,000 after distribution of all assets for Former Husband’s alleged post-petition spending. Former Wife, however, failed to establish that any of Former Husband’s post-petition spending constituted waste. The trial judge concluded that Former Wife’s claim was “not credible” and “not supported by the evidence,” because there was “approximately equal non-wasteful spending by both parties.” Therefore, no credit was “given for the spending differential between the husband and the wife on non-litigation subjects during the pendency of this case.” On appeal, Former Wife asserts that she is entitled to a $73,567 credit for Former Husband’s post-petition spending, based on Former Husband’s concession, which he denies. Because the trial judge did not abuse his discretion in concluding that Former Wife was not eligible for any equalizing post-distribution payment from Former Husband for post-petition spending, we will not disrupt the court’s equitable distribution with an additional monetary credit, when the trial judge found none of Former Husband’s post-petition spending to be waste. See Bush v. Bush, 824 So. 2d 293, 294 (Fla. 4th DCA 2002) (recognizing error to include as part of the equitable distribution scheme a portion of stock options husband had depleted during dissolution proceedings to satisfy couple’s financial obligations).

Pre-petition 401(k) Advance Distribution

Former Wife argues that the trial judge erred in finding that Former Husband’s advance distribution of his 401(k) account was $351,112 rather than $450,000. When Former Husband withdrew $450,000 from his 401(k) to purchase Rugby Road, his bank was required to withhold almost $100,000 for income taxes. Former Wife contends that Former Husband depleted his 401(k) account as a marital asset.

Former Wife received a credit for the net amount of the withdrawal of $351,112 in the equitable distribution. The withdrawal occurred pre-petition, and the resulting income tax liability was incurred at that time. The bank properly withheld income taxes on Former Husband’s withdrawal from his 401(k) account. Former Husband’s certified public accountant testified at trial that there was no depletion because Former Husband was beyond retirement age and his work expectancy. Therefore, his 401(k) account necessarily was going to be withdrawn and taxed. Even Former Wife’s  [*20] certified public accountant viewed Former Husband’s tax-deferred retirement assets as an immediately accessible source of income.

In the final judgment, the trial judge “accept[ed] the treatment accorded the 401(k) withdrawal by husband’s accounting expert . . . as being equitable and accurate.” HN13In an equitable distribution of marital assets, “[t]he trial court’s findings are entitled to the presumption of correctness accorded to trial court judgments where the credibility of witnesses is a factor.” Rafanello, 21 So. 3d at 869 (citation and internal quotation marks omitted). Based on the accounting testimony, the trial judge did not err in determining that Former Husband’s advance distribution of his 401(k) account was $351,000 instead of $450,000, because of the deferred taxes withheld by the bank.

We affirm the trial court’s final judgment as to all issues challenged on appeal.

Affirmed.

WARNER  and POLEN , JJ., concur.