Smith v. Smith, — So.3d —-, 2017 WL 3774702 (Fla. August 31, 2017)

How do we protect the elderly from exploitation and abuse, without sacrificing our fundamental rights as we enter old age, like the constitutionally protected right to marry? That balancing act is incredibly difficult to pull off, especially in a state as large and diverse as ours, which not surprisingly (perhaps unavoidably) leads to instances of abuse and recurring cycles of legislative outrage/reform (see here, here).

The tension between the state’s parens patriae role in guardianship proceedings and Florida’s strong public policy favoring the preservation of fundamental rights as we age (even for incapacitated wards), is front and center in F.S. 744.3215(2)(a), the ambiguous guardianship statute at the core of this hotly contested marriage case. But you can’t really understand how this dispute played out before three different courts unless you take a step back and consider the dynamics lurking under the surface, which got me thinking about framing.

Framing Effect:

If you think cases are decided solely on the basis of cold hard logic, you’re kidding yourself. Unconscious biases drive much of our decision making (which I’ve reported on here as applied to bench trials, here as applied to sentencing patterns, and here as applied to settlement negotiations). These biases can play a dominant role in how even the most abstract and non-emotional of issues are decided (including the proper construction of ambiguous guardianship statutes). In fact, the Nobel prize in economics just went to an economist who studies how “predictably irrational” we really are when it comes to making important decisions (see here).

In my opinion, how the Smith case was decided first by the trial judge, then by the 4th DCA, and now by the Florida Supreme Court, is largely attributable to one variable: the framing effect, a cognitive bias that leads people to react to the same choice in different ways depending on how it’s presented. Framing can be an incredibly powerful advocacy tool (see herehere). Now back to the statute.

Legislative History:

F.S. 744.3215(2)(a) was amended in 2006 to address what happens when an incapacitated adult’s right to contract is taken away for his or her own protection, but the right to marry (which is a form of contract) hasn’t also been removed. It’s not a common scenario, but it does happen, as it did in this case.

As amended, the statute now provides that when an incapacitated adult’s right to contract is removed, his or her right to marry isn’t automatically removed as well, but it does become “subject to court approval”. No one disputes court approval in this context is a good idea. But here’s the problem: the statute doesn’t say if court approval has to happen before the marriage is entered into or if it can also happen after the fact. That’s the statutory construction issue decided in this case. (Spoiler alert: FL Supreme Court held court approval after the marriage ceremony is OK too.)

According to the Legislative Staff Analysis for the 2006 amendment to F.S. 744.3215(2)(a), the statutory compromise between not being able to contract but still being able to marry subject to court approval, “reinforc[es] the significance of the right to marry”. The Staff Analysis also reported that the amended statute incorporated the recommendations made by a legislative task force. In its report, the Task Force made the following recommendations, which provided important guidance to the court in this case:

The Task Force spent a significant amount of time debating the concept of the right to marry being a contractual right. It had been suggested that if the court removes the right to contract then the court must remove the right to marry. The language that was agreed upon provides that if the right to contract is removed from the ward but not the right to marry, the right to marry should be subject to court approval. This is because marriage is a contract and requires that an individual understand the relationship and the rights the spouse will acquire at the time the marriage is solemnized. The right to marry should not be removed, as it is a fundamental right, but should be subject to court approval so that the judge can determine if the ward understands the marriage contract and that the ward is not a likely victim of abuse or financial exploitation.

See Guardianship Task Force, Final Report at 8 (2004).

Frame or be Framed:

How a case is framed not only structures the way in which key issues are defined and argued, it also plays a critical role in determining the eventual outcome, as it did in this case.

For example, if you frame the statutory construction issue in this case as an all-or-nothing choice between “void” and “voidable” marriages, the outcome’s inevitable: you’re going to construe F.S. 744.3215(2)(a) as requiring court approval prior to the marriage (otherwise, you’re left opting for a construction of the statute that makes judicial oversight almost impossible). That’s how the 4th DCA framed the issue in its decision, and how the Elder Law Section of the Florida Bar framed the issue in its amicus brief, and — not surprisingly — in both instances they concluded the statute required court approval prior to the marriage (which effectively made it impossible for the non-disabled putative spouse to get her marriage OK’d in court).

On the other hand, if you ditch the void vs. voidable paradigm and instead frame the issue as a choice between court approval before or after the wedding, and an outcome that makes it impossible for the non-disabled putative spouse to ever have her day in court, you’re probably going to construe F.S. 744.3215(2)(a) as permitting court approval before or after the marriage is entered into (it’s the best of both worlds: the marriage remains subject to court approval, and the putative spouse gets her day in court). That’s how the Florida Supreme Court re-framed the issue in its opinion, and the RPPTL Section of the Florida Bar re-framed the issue in its amicus brief, and in both instances they concluded — surprise! —  the statute permits court approval before or after the wedding.

New Frame = Supreme Court Win:

Bottom line, depending on how the issue is framed only one outcome becomes reasonably possible. Behold the power of framing!

Here’s how the Florida Supreme Court re-framed the statutory construction issue relying both on the statute’s actual text (nowhere does the statute contain any reference to void or voidable marriages), and on the statute’s legislative history linked-to above. As to the text of the statute:

The plain language of section 744.3215(2)(a) reflects that the Legislature did not intend for the type of invalid marriage at issue in this case to be classified as either void or voidable according to how these terms have been defined under Florida precedent.

The disputed provision does not use the terms “void” or “voidable,” nor does it use language that embodies the traditional definitions of these terms. Other statutes clearly identify circumstances that render a marriage void; however, such language was not used in section 744.3215(2)(a). For example, section 741.211, Florida Statutes (2016), is titled “Common-law marriages void,” and provides “[n]o common-law marriage … shall be valid.” (Emphasis added.) Similarly, section 741.21, Florida Statutes (2016), is titled “Incestuous marriages prohibited,” and provides that a man or woman “may not” marry certain relatives. (Emphasis added.) In contrast, section 744.3215(2)(a) does not expressly provide that an incapacitated person whose right to contract has been removed is “prohibited” from marrying unless court approval is obtained, or that any marriage entered into would be “void” absent such approval.

. . .

The plain language of section 744.3215(2)(a) is likewise inconsistent with the traditional meaning of a “voidable” marriage. As previously discussed, the statute makes a ward’s “right to marry” contingent on court approval if the right to contract has been removed. In other words, the ward’s ability to enter into a valid marriage depends on court approval. Thus, if the right to marry is not approved, any attempt by the ward to marry would result in an invalid marriage. If court approval is never obtained, the invalidity of the marriage cannot be cured, and the marriage can be given no effect. This is inconsistent with the traditional concept of a “voidable” marriage, which is “good for every purpose” until it is challenged, and “good ab initio” if it is not challenged within the parties’ lifetimes. Kuehmsted, 138 So. at 777.

. . .

Accordingly, we conclude that the Legislature did not intend for the concept of a “void” or “voidable” marriage to apply to the disputed provision. We hold that section 744.3215(2)(a) does not preclude the possibility of ratification of a marriage if the court subsequently gives its approval, but an unapproved marriage is invalid and can be given legal effect only if court approval is obtained.

And here’s what the court had to say about how its reading of the statue lines up with the statute’s legislative history:

The legislative intent, as declared in section 744.1012, Florida Statutes (2016), [evidencing] the goal of protecting incapacitated persons from exploitation while upholding their rights … combined with the legislative history of the Florida Guardianship Laws, demonstrates the Legislature’s consistent efforts to uphold incapacitated persons’ rights to the greatest extent possible. Therefore, the Legislature likely did not intend for section 744.3215(2)(a) to render a ward’s unapproved marriage absolutely void, particularly in cases such as this, where the ward was not deemed incapacitated with respect to his right to marry, the parties were engaged prior to his incapacitation, the guardian was asked twice to obtain the court’s approval, and there is no evidence whatsoever of abuse or financial exploitation.

Similarly, to interpret section 744.3215(2)(a) as rendering a ward’s unapproved marriage merely voidable would undermine the Legislature’s efforts to safeguard a ward’s inalienable right “to be protected against abuse, neglect, and exploitation.” § 744.3215(1)(d), Fla. Stat. As previously discussed, if a ward whose right to contract has been removed enters into a marriage without obtaining court approval, and such a union is considered voidable, the effect is that the marriage is essentially valid “for every purpose” unless and until it is challenged in a direct proceeding during the ward’s lifetime. This affords the ward and the ward’s estate little, if any, protection from financial exploitation if the ward passes away before the validity of the marriage can be challenged.

The interpretation of section 744.3215(2)(a) the Legislature likely intended—that, absent court approval, a marriage entered into by a ward whose right to contract has been removed is invalid, but ratifiable—advances both objectives of the Florida Guardianship Laws. It protects the ward and the ward’s estate by allowing a court to assess the risk of abuse and exploitation before the alleged spouse acquires any rights as a result of the marriage. It also upholds the ward’s fundamental right to marry to the greatest extent possible by allowing for the possibility of ratification.

Based upon the foregoing, we answer the certified question by holding that a ward’s failure to obtain court approval prior to exercising the right to marry does not render the marriage void or voidable. Instead, we conclude that under section 744.3215(2)(a), court approval is required before a ward whose right to contract has been removed may enter a valid marriage. Any marriage entered into without court approval is invalid. However, the statute does not prevent the ward or the intended spouse from seeking court approval after marrying in order to ratify the marriage. Accordingly, we quash the decision of the Fourth District and remand to the district court for proceedings consistent with this opinion.