        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                       GLENDA MARTINEZ SMITH,
                              Appellant,

                                        v.

                              J. ALAN SMITH,
                                  Appellee.

                                  No. 4D14-1436

                                  [June 29, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; David E. French, Judge; L.T. Case No. 502013DR002143.

  Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, P.A., Palm
Beach Gardens, for appellant.

   No brief filed for appellee.

     ON MOTION TO CERTIFY A QUESTION OF GREAT PUBLIC IMPORTANCE

PER CURIAM.

  We deny the motion for rehearing and rehearing en banc. We grant the
motion to certify a question of great public importance.

    The majority and dissent disagree on the effect of a statute which
restricts the fundamental right to marry. “Marriage is one of the ‘basic
civil rights of man,’ fundamental to our very existence and survival.”
Loving v. Virginia, 388 U.S. 1, 12 (1967). Where a fundamental right is
involved, the statute must be “strictly tailored to remedy the problem in
the most effective way and must not restrict a person’s rights any more
than absolutely necessary.” Mitchell v. Moore, 786 So. 2d 521, 527 (Fla.
2001). Section 744.3215(2), Florida Statutes (2013), which requires court
approval of a marriage of a ward, whose right to contract has been removed
but whose right to marry has not, affects the rights of wards of all types,
although it particularly affects the elderly. Because of its implications on
that fundamental right to marry and its potential impact on wards, the
interpretation of that statute is a question of great public importance, and
we certify the following question:
      Where the fundamental right to marry has not been removed
      from a ward under section 744.3215(2)(a), Florida Statutes,
      does the statute require the ward to obtain approval from the
      court prior to exercising the right to marry, without which
      approval the marriage is absolutely void, or does such failure
      render the marriage voidable, as court approval could be
      conferred after the marriage?

WARNER and MAY, JJ., concur.
DAMOORGIAN, J., dissents with opinion.

DAMOORGIAN, J., dissenting.

   I dissent because the ward did not lose his right to marry. Rather, his
right to marry was made subject to court approval for his own
protection. Strikingly absent from the majority’s attempt to explain why
this case is a matter of great public importance justifying the certified
question, is any attempt to argue that the state does not have a compelling
state interest in protecting those who are declared incompetent from
becoming victims of nefarious conduct. Perhaps this is because the
condition precedent imposed on the ward’s right to marry is not unduly
burdensome. The implication of the majority’s certified question is to allow
a ward to be victimized and then have the court system unravel the mess. I
do not join in such an undertaking.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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