        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                       GLENDA MARTINEZ SMITH,
                              Appellant,

                                        v.

                              J. ALAN SMITH,
                                  Appellee.

                                  No. 4D14-1436

                                  [March 2, 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.

DAMOORGIAN, J.

  Glenda Martinez Smith appeals a final judgment annulling her
marriage to J. Alan Smith (the “Ward”). We affirm.

    The annulment challenge is an offshoot from a guardianship case in
which the Ward was judicially declared incompetent. Within the order
appointing the plenary guardian, the court removed the Ward’s right to
contract and, concomitantly, provided that the Ward’s right to marry was
“subject to court approval.” Despite the court’s restriction on the Ward’s
right to marry, Appellant and the Ward married without court approval.
The Ward’s independent counsel appointed in the guardianship case
instituted a proceeding to annul the marriage. Ultimately, the court
granted the requested relief and annulled the marriage. This appeal
follows.

  Appellant argues, among other things, that the final judgment
annulling her marriage with the Ward must be vacated because prior court
approval was not required by the court’s order or the controlling statute.
   Section 744.3215 of the Florida Statutes outlines the rights which a
person determined incapacitated retains and those which may be
removed. § 744.3215, Fla. Stat. (2013). With respect to marriage,
subsection (2)(a) provides:

      (2) Rights that may be removed from a person by an order
      determining incapacity but not delegated to a guardian
      include the right:

      (a) To marry. If the right to enter into a contract has been
          removed, the right to marry is subject to court approval.

§ 744.3215(2)(a), Fla. Stat. (2013). The order appointing the plenary
guardian mirrored section 744.3215(2)(a).

   In construing section 744.3215(2)(a)’s limitations on a ward’s right to
marry, we must give the statute’s language its plain and ordinary meaning
and may not ignore words or, alternatively, add words not included by the
Legislature. See, e.g., Exposito v. State, 891 So. 2d 525, 528 (Fla. 2004)
(when construing a statute, the court may not add words not placed there
by the Legislature); State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) (“[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.”). The statute does not state
that “a marriage” is subject to court approval, but rather, it states that
“the right to marry” is subject to court approval. Therefore, if a person
deemed incapacitated has had his or her right to contract removed, he or
she has no right to marry unless the court gives its approval.

   A marriage entered into by a person with no right to marry is void. See
Kuehmsted v. Turnwall, 138 So. 775, 777−78 (Fla. 1932) (marriage entered
into by person lacking mental capacity to consent is void); Dandy v. Dandy,
234 So. 2d 728, 730 (Fla. 1st DCA 1970) (marriage between parties was
void because one of the parties was still legally married to another and
thus lacked the right to marry again). Thus, it follows that in order to
enter into a valid marriage, an incapacitated person who has had his or
her right to contract removed must first ask the court to approve his or
her right to marry.

   Based on the foregoing, the court’s interpretation of section
744.3215(2)(a) was correct: at the time the Ward and Appellant married,
the Ward had no right to marry as he had not obtained court approval.



                                    2
Therefore, the trial court correctly determined that the marriage was void.1

   Affirmed.

MAY, J., concurs specially with opinion.
WARNER, J., dissents with opinion.

MAY, J., concurring specially.

   I concur with the majority opinion. I write only to add that even if
section 744.3215(2)(a), Florida Statutes (2013), was read to allow court
approval subsequent to the marriage, in essence ratifying a marriage after
the fact, this case would still be an affirmance. Once the ward’s attorney
petitioned to annul the marriage, the wife moved to ratify approval of the
marriage or to alternatively approve the marriage. The court denied the
motion to ratify the marriage.

    While I agree that the statute is prospective regarding approval of the
right to marry once the ward’s right to contract has been removed,
ultimately the trial court is in the best position to determine whether the
ward had the capacity to enter into the marriage. See Griffin Indus., LLC
v. Dixie Southland Corp., 162 So. 3d 1062, 1066–67 (Fla. 4th DCA 2015)
(stating the trial court is in the best position to evaluate and weigh the
testimony and evidence and make factual findings). Whether the statute
is prospective or allows for ratification, the order should be affirmed.

WARNER, J., dissenting.

   The right to marry is a fundamental right, protected by the United
States Constitution. See Obergefell v. Hodges, 135 S.Ct. 2584, 2598
(2015):

      Choices about marriage shape an individual’s destiny. As the
      Supreme Judicial Court of Massachusetts has explained,


    1   As the marriage was void from the inception, Appellant’s argument that
the court “ratified” the marriage by acknowledging it at the December 18, 2012
hearing is without merit. A void marriage, in legal contemplation, has never
existed and, therefore, cannot be ratified. See, e.g., Arnelle v. Fisher, 647 So. 2d
1047 (Fla. 5th DCA 1994) (discussing distinction between a void and voidable
marriage). At any rate, this Court reversed the court’s order stemming from the
December 18, 2012 hearing and remanded for a new hearing. By virtue of our
mandate, nothing the court did on December 18, 2012 has any binding legal
effect.

                                         3
      because “it fulfils yearnings for security, safe haven, and
      connection that express our common humanity, civil marriage
      is an esteemed institution, and the decision whether and
      whom to marry is among life’s momentous acts of self-
      definition.”

Id. at 2599 (quoting Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 955
(Mass. 2003)). Because the court did not remove the right to marry from
the ward, he was not rendered incompetent as to his ability to marry. I
would hold that the failure to obtain court approval prior to the marriage
at most rendered the marriage voidable, not void, so that the court could
approve the union post-marriage.         As the sole ground alleged for
invalidating the marriage was the failure to obtain court approval prior to
the marriage, and there was no claim that the ward did not understand
the marriage contract or that any financial exploitation occurred, I would
hold that the marriage should have been ratified by the court. Further, I
would hold that the attorney ad litem had no authority to bring this action,
and the ward was denied fundamental due process because he did not
have independent counsel in these proceedings. I would reverse.2

   Appellant Glenda Martinez met appellee J. Alan Smith in 2008, while
Smith was still married to his first wife. Martinez and Smith vacationed
together and eventually moved in together. The couple became engaged
in 2009. Smith wrote letters to Martinez declaring his love and affection.
He also executed a designation of health care surrogate and living will
declaration, designating Martinez as his health care surrogate, as well as
giving her power of attorney. He commenced divorce proceedings against
his first wife.

    In January 2010, Smith was involved in an automobile accident in
which he suffered head trauma. As a result, his daughter filed a petition
to appoint a guardian of the person and property of Smith. After a hearing,
the court denied appointment of a guardian of the person and appointed
only a limited guardian of the property.            After the hearing on
incompetency, the court found that Smith had “lessening of some cognitive
functions possibly due to dementia that make him incapacitated, the
nature and scope being that he is unable to manage his property and to
contract.” The court also specifically found that “there is no incapacity on
the part of J. Alan Smith that would warrant a guardian of a person.”
Thus, the only rights which the court removed from Smith were the right

2 I note that neither the “attorney” for the ward nor the guardian has filed an
answer brief in this case. I take that as the possibility of a concession to the
validity of the issues raised in the appellant’s brief.

                                       4
to contract and to manage his finances, including his ability to make a gift
or dispose of property. In the letters of guardianship, the court delegated
to the limited guardian the right to contract with the following form note:
“Note: if the right of the Ward to contract has been delegated to the
Guardian but the right to marry is retained, then the right to marry is
subject to Court approval.”       This was in compliance with section
744.3045(2)(a), Florida Statutes (2013).

   Although Smith’s son was first appointed limited guardian of his father,
a conflict arose as to his place in the divorce proceedings with his mother.
Therefore, a professional guardian, John Cramer, was appointed in his
place. The divorce proceedings continued and were finalized. Smith was
represented by his own counsel in these proceedings. In December 2011,
Smith and Martinez were married. Martinez had called Cramer two times
to request that the guardian ask the judge for approval, but Cramer
refused. She did not, at the time, seek to have a lawyer pursue obtaining
court approval.

   Smith and Martinez lived together as husband and wife, and for a year
after the marriage they resided in a rental house in Miami. Their neighbor
testified at the annulment proceedings that Martinez was very caring and
loving towards Smith. Smith’s divorce attorney also testified to the same
and noted that Martinez paid many of Smith’s bills during the divorce
proceedings.

   Unfortunately, Smith’s mental and physical state continued to
deteriorate. By May or June of 2012, Smith could no longer verbally
communicate. Eventually, he was placed in a nursing home and had to
be moved several times. Martinez felt he was being mistreated in the
nursing home and complained to Cramer. Cramer did not agree,
contending that Martinez simply did not communicate well with the staffs
of the facilities. Smith was transferred in and out of various facilities,
sometimes because he developed infections at the facilities. As we found
in Martinez v. Guardianship of Smith, 159 So. 3d 394, 401 (Fla. 4th DCA
2015), there were reasons for each transfer. Martinez sought to have
Smith in a home where they could reside together, with nursing aids
present, while Cramer wanted him in a nursing facility.

   Given this friction, Cramer petitioned to be appointed plenary guardian
of Smith in 2012. During a hearing regarding Smith’s moving to another
facility, the issue of Smith’s marriage to Martinez came up. Cramer stated
that he didn’t think the parties were married, because without approval
there was no authority to marry. The judge, however, acknowledged that
his order determining capacity had not removed Smith’s right to marry.

                                     5
At that hearing, their certificate of marriage was introduced and admitted
into evidence. After appointing Cramer as emergency temporary guardian
(“ETG”) and indicating that he would appoint Cramer as plenary guardian
if a petition for appointment was filed, the judge said the following with
respect to the marriage between Smith and Martinez:

      [M]y concern for you, Mr. Cramer, because I’m going to look
      to you to make proper decisions, is that Mr. Smith is married,
      apparently to Ms. Martinez, I have a certificate of marriage,
      that right was not removed, and her testimony I struck, but
      the essence of her testimony that was important to me had to
      do with the fact that she is able to provide companionship and
      companion care, those two things. Now for someone like Mr.
      Smith, it’s great that he has good doctors, good nurses, and
      people like that from a medical point of view, but that is not
      substitute [sic] for the type of personal ability that a spouse has
      to provide companion care to their spouse. Like it or not . . .
      she is his spouse, she certainly is hands-on and it is often
      when a spouse is in an impaired condition like that one of the
      real benefits, even to someone in Mr. Smith’s condition, is to
      still see his spouse, be able to know she’s there and benefit
      from that, so while the ETG will be plenary in nature . . . you
      must take into consideration what I just said about Ms.
      Martinez being able to have close and continuing contact,
      providing she behaves herself, with her husband, because I
      think Mr. Smith still looks out to her . . . .

(Emphasis added). After this hearing, however, the presiding judge was
disqualified for remarks during this proceeding regarding Martinez. See
Martinez v. Smith, 111 So. 3d 206 (Fla. 4th DCA 2013).

   When Cramer was appointed ETG, the court also appointed an attorney
for Smith, Lynne Hennessey. Almost immediately, Hennessy initiated a
petition to annul the marriage based solely upon the allegation that court
approval was not obtained prior to the marriage. Cramer did petition and
was appointed plenary guardian of Smith in 2013. Later, the court
authorized Cramer to pursue annulment of the marriage and to retain
counsel. Cramer was substituted as a party, but it appears from the
record that Hennessey continued to litigate the issue of annulment at the
hearing on the matter. Thus, it appears that Hennessey, as Smith’s court-
appointed attorney, represented the guardian as the substituted party
during the annulment proceedings.



                                      6
   After the petition for annulment was filed, Martinez filed a motion to
ratify the marriage, noting the foregoing facts and also the former judge’s
approval of the marriage.

   Hennessey, purportedly on behalf of Smith even though Cramer had
been substituted as the petitioning party, moved for summary judgment
on the ground that section 744.3215, Florida Statutes (2013), requires
approval prior to the marriage. The court ruled on the motion to ratify the
marriage and the summary judgment at the same time. As the evidence
was undisputed that court approval prior to the marriage was not
obtained, the court granted summary judgment and annulled the
marriage. The court denied the motion to ratify without stating any
grounds other than the failure to obtain prior court approval. Martinez
appeals.

   The question presented in this appeal is whether the failure to obtain
court approval of the parties’ marriage prior to its solemnization renders
the marriage absolutely void, as the majority holds, or whether it is simply
voidable and thus could be approved by the court after the fact. Because
the failure to obtain pre-marriage court approval would render the
marriage only voidable, and Smith retained his right to marry, I would hold
that the court could ratify the marriage and essentially did so prior to the
appointment of the ETG. Moreover, as the approval should be based upon
Smith’s competency to enter into the marriage contract, and there is no
evidence in this record to show that Smith was incompetent to enter into
a marital relationship, I would reverse and direct the court to approve the
marriage.

    Marriage is a fundamental right. As noted both by the Supreme Court
and the original presiding judge in these proceedings, it “shape[s] an
individual’s destiny.”       Obergefell, 135 S.Ct. at 2599.       For elderly
individuals, having a caring spouse can make all the difference between a
life of loneliness and a life of compassionate care. As the presiding judge
said in the present case, “it is often when a spouse is in an impaired
condition [] that one of the real benefits, even to someone in Mr. Smith’s
condition, is to still see his spouse, be able to know she’s there and benefit
from that.” Therefore, courts should be loath to interfere with this
fundamental right.

   A marriage is considered a contract, although it is not just a simple civil
contract, as it is an important institution of society.

      To constitute a valid marriage, the marital contract must be
      voluntarily entered into in good faith for the purposes

                                      7
       actuating such contracts, the parties must be legally eligible
       to make the contract, and their status must be such that the
       union will not be contrary to public policy or obnoxious to the
       prevailing social mores.

Goldman v. Dithrich, 179 So. 715, 717 (Fla. 1938).

    While “insanity” renders a marriage void, very few other prohibitions on
the marriage relationship render a marriage void ab initio as opposed to
being voidable. A marriage is void when it is impossible under the law for
the parties to correct or ratify it by any subsequent conduct. 25 Fla. Jur.
2d, Family Law § 36. For instance, a bigamous marriage is void because
it is prohibited. See Jones v. Jones, 161 So. 836, 832 (Fla. 1935).
Similarly, an incestuous marriage is absolutely prohibited. See § 741.21,
Fla. Stat. (2013). On the other hand, a marriage is merely voidable where
the marriage is not absolutely illegal and the parties could ratify it. A
marriage entered into by minors without parental consent, as an example,
is generally considered voidable, not void. See, e.g., Needam v. Needam,
33 S.E.2d 288 (Va. 1945); Matturro v. Matturro, 111 N.Y.S.2d 533 (N.Y.
1952).

   What is important in this case is that the right to marry was not
removed from Smith at the time of the marriage ceremony. Only a limited
guardian of the property was appointed to manage his financial affairs
only. Thus, Smith was not incompetent or “insane” and legally disqualified
from marriage. Section 744.3215(2)(a), Florida Statutes (2013), does
provide that where the right to contract has been removed, the right to
marry is subject to court approval.3 It does not state that marriage is
prohibited unless approval is given prior to the marriage. Where a
marriage is prohibited, the legislature knows how to say it. See § 741.21,
Fla. Stat. (2013).


3 The provision requiring court approval is a late addition to the statute, having
been enacted in 2006. See Ch. 2006-178, § 10, Laws of Fla., eff. July 1, 2006.
This was first proposed in 2005 in the House of Representatives in House Bill
1615. The staff analysis to that bill states, in part: “Emphasizing the importance
of an incapacitated person’s right to quality of life, clarifying which rights cannot
be delegated, reinforcing the significance of the right to marry[.]” The bill provides
that the right to marry be subject to court approval so that a judicial
determination can be made as to whether the ward understands the marriage
contract and is not a likely victim of abuse or financial exploitation. Staff
Analysis,                  HB                    1615,                    4/13/2005.
http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=
h1615a.FFF.doc&DocumentType=Analysis&BillNumber=1615&Session=2005

                                          8
    As such, and consistent with an understanding of the difference
between void and voidable marriages, I conclude that the failure to obtain
court approval prior to the marriage would render it at most voidable, not
void. The court can ratify the marriage, after the fact, if, as in this case,
neither party was legally disabled from marriage. As the marriage is a civil
contract, contractual provisions may be ratified, even where the
contracting party is incompetent at the time of its execution. See Perper
v. Edell, 35 So. 2d 387 (Fla. 1948). Should we not extend that principle to
a marriage contract? What is the harm to allowing a court to determine
post-marriage whether the elderly person understands that he is married
and ensure that he has not been taken advantage of financially by the
marriage?

   By treating the failure to secure court approval prior to the marriage as
voiding the marriage without inquiry, the court has effectively prevented
Smith from the comfort and companionship of a spouse, something he
most likely desperately needs in his declining years. The first judge
recognized that and expressly approved the marriage, albeit not by a
written order. On this record, there is nothing to suggest that Smith did
not understand the contract. Indeed, he asked Martinez to marry him
prior to any incapacity. And there was no testimony that Martinez was
taking financial advantage of him. To the contrary, Smith’s divorce lawyer
testified that Martinez was paying many of Smith’s bills. I think it is a
travesty that this frail man has been deprived of his wife by judicial fiat
where there is no intrinsic invalidity to the marriage itself.

    I would disagree with Judge May’s concurring opinion that, because
the court denied the motion to ratify the marriage, we should affirm,
leaving factual determinations to the trial court. First, the court clearly
denied the motion because it concluded that the marriage was void
pursuant to the statute. Second, if the court had ruled that the ward did
not understand the marriage contract or had been taken advantage of
financially, then I would reverse as there is simply no evidence in this
record to support either contention. In fact, the evidence is quite the
opposite—that Smith, at the time of the marriage, knew and desired the
marriage. And there is absolutely no evidence of financial exploitation.
Moreover, the petition for annulment did not allege any incapacity or
financial exploitation. The sole and only ground for annulment was the
failure to obtain court approval prior to the marriage.

   In addition to the foregoing, I would also hold that Hennessey, as
attorney for the ward, had no authority to petition for annulment of the
marriage on his behalf. At the time that the attorney was appointed, Smith
was non-verbal and did not communicate to the attorney any desire to

                                     9
have his marriage to Martinez annulled. The court appointed the attorney
to represent Smith “in all matters pending under Section 744.3031(2)
Petition for Determination of Temporary Guardian . . . .” The attorney’s
authority did not extend to filing a petition for annulment of his marriage.
Further, section 744.102(1), Florida Statutes, defines the role of an
attorney for an alleged incapacitated person:

      “Attorney for the alleged incapacitated person” means an
      attorney who represents the alleged incapacitated person.
      The attorney shall represent the expressed wishes of the
      alleged incapacitated person to the extent it is consistent with
      the rules regulating The Florida Bar.

§ 744.102 Fla. Stat. (2013). As there is no evidence on the record that
Smith himself expressed any wish to annul his marriage, there is nothing
to support Hennessey’s filing of this petition.

    Further, although Cramer, as guardian, was granted substitution in
the petition for annulment after his appointment, this should not cure any
lack of authorization to commence this proceeding. Indeed, it has only
raised more concerns and further denial of fundamental due process.
Cramer continued to be represented by Hennessy, which violated section
744.331(2)(c), Florida Statutes (2013). That statute prohibits an attorney
representing the incapacitated person from serving as guardian or counsel
for the guardian. As independent counsel is essential to protect the due
process rights of the incapacitated person, the order granting the petition
for annulment should be reversed for this fundamental conflict of interest.
See In re Fey, 624 So. 2d 770 (Fla. 4th DCA 1993).

   Finally, although not raised, I do not believe that due process of the
ward was sufficiently protected, even if the guardian could bring the
petition for annulment. Where a guardian seeks to pursue a dissolution
of marriage on behalf of the ward, the guardian must seek authority.
Before the court may grant authority, section 744.3725(1), Florida
Statutes (2013), requires the court to appoint independent counsel for the
ward. Additionally, section 744.3725(5), Florida Statutes (2013), requires
the court to find by clear and convincing evidence that the action of
dissolving the marriage is in the best interests of the incapacitated person.
I would apply these same provisions to an annulment of a voidable
marriage. Clearly, the ward did not have independent counsel, nor did the
court consider his best interests in annulling his marriage.

   The Legislature stated its intent in the guardianship laws as protecting
the rights of the ward to the maximum extent possible:

                                     10
      The Legislature finds that adjudicating a person totally
      incapacitated and in need of a guardian deprives such person
      of all her or his civil and legal rights and that such deprivation
      may be unnecessary. . . . Recognizing that every individual
      has unique needs and differing abilities, the Legislature
      declares that it is the purpose of this act to promote the public
      welfare by establishing a system that permits incapacitated
      persons to participate as fully as possible in all decisions
      affecting them; that assists such persons in meeting the
      essential requirements for their physical health and safety, in
      protecting their rights, in managing their financial resources,
      and in developing or regaining their abilities to the maximum
      extent possible; and that accomplishes these objectives
      through providing, in each case, the form of assistance that
      least interferes with the legal capacity of a person to act in her
      or his own behalf. This act shall be liberally construed to
      accomplish this purpose.

§ 744.1012, Fla. Stat. (2013) (emphasis added). This has not happened in
this case. Instead, this frail gentleman has been deprived of his
fundamental right to marry, in proceedings which violated his
fundamental rights of due process and without a consideration of his best
interest. I think this totally thwarts the Legislature’s express intent.

   For all of the foregoing reasons, I would reverse the annulment of the
parties’ marriage and remand with directions to enter an order ratifying
the marriage, as the original trial judge verbally approved it in prior
proceedings. In the alternative, I would reverse for new proceedings
because of the failure to afford the ward due process and independent
counsel.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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