Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-603 _____________________________ THOMAS MITCHELL POTTER IV, Husband, Appellant/Cross-Appellee, v. MALEE POTTER, Wife, and TCB VETERINARY SERVICES, INC., d/b/a Allied Veterinary Emergency Hospital, a Florida For Profit Corporation, Appellees/Cross-Appellants. _____________________________ On appeal from the Circuit Court for Leon County. Martin A. Fitzpatrick, Judge. March 15, 2021 B.L. THOMAS, J. In this dissolution case, Appellant asserts the trial court incorrectly determined the total length of the parties’ marriage under section 61.08(4), Florida Statutes. We reject this argument for three reasons: 1) binding caselaw precludes approving the argument; 2) the statute fails to abrogate this caselaw; and 3) the statute itself requires an equitable analysis that here favors the former wife. We decline to address any other issues raised on appeal or on cross-appeal and affirm the order below. The parties married in Alabama, divorced after nine years, quickly reunited, moved to Florida, and remarried less than a year later. Appellee raised their three children, worked to support Appellant while he attended veterinary school, and then worked at Appellant’s Tallahassee veterinary practice, which ultimately proved very successful. Their marriage ended in 2018 after Appellant’s excessive spending on vacations, gifts, and use of funds for women outside the marriage for many years. Appellant argues that the prior decisions of the supreme court and this Court approving the consideration of multiple marriages between the same parties to be one marriage * were abrogated by legislation enacted in 2010. Section 61.08(4), Florida Statutes (2018), provides that “[t]he length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.” (emphasis added). Appellant asserts that the phrase “the marriage” can only refer to the second marriage between the same parties. At oral argument, he acknowledged that under his interpretation, a couple might be married for decades, divorce for a month, remarry for a short period and divorce again, and the court could only consider the brief second marriage for alimony determination. We held in Thomas that the trial court erred by considering only the second marriage for alimony determinations: In the unique circumstances of this case, it is unrealistic to view the wife’s request for alimony in the context of a three-year marriage. The parties to this proceeding spent thirty-three years together, interrupted by a four to six month hiatus. The record establishes unequivocally that the husband’s present prosperity is attributable in large measure to the wife’s efforts in the family business the parties built together. Therefore, we conclude the trial court abused its discretion in making an alimony determination without considering the prior thirty-year marriage of the parties. See Cox v. Cox, 659 So. 2d 1057 (Fla. 1995); Thomas v. * Thomas, 571 So. 2d 499 (Fla. 1st DCA 1990). 2 571 So. 2d at 503. The supreme court agreed with this Court that a remarriage must include all years the parties were married and cited Thomas: In passing, we note that the trial court declined to award Kimi Cox permanent alimony “[d]ue [in part] to the short duration of the marriage.” During the parties’ first marriage, James Cox served on active duty with the military for almost nine years. Additionally, James Cox served on active duty throughout the parties’ second marriage which lasted less than two years. In view of the short interval between the two marriages, we believe that it would be inequitable to treat the Coxes’ marriage as lasting less than two years. See Thomas v. Thomas, 571 So. 2d 499 (Fla. 1st DCA 1990). Cox, 659 So. 2d at 1055 n.5 (alteration in original). We note that the supreme court held in Cox that the executed provisions of a prior marital settlement agreement are not affected by reconciliation or remarriage, but a reconciliation or marriage abrogates the executory provisions of a prior marital settlement agreement. Id. at 1054. This rationale and logic support our decision here. The supreme court explicitly recognized that public- policy considerations favor abrogation “since the policy of courts is to encourage and strengthen the bond of marriage, it is the presumed intent of the parties at the time of the reconciliation to resume the marital relationship in all respects . . . .” Id. (emphasis added) (quoting Brazina v. Brazina, 558 A.2d 69, 72 (N.J. Super. Ct. Ch. Div. 1989)). Those same public-policy considerations clearly support the trial court’s decision here to consider the parties’ two marriages as one. Second, while we acknowledge that the statute could be read as Appellant argues, and thus considered ambiguous, we reject his interpretation and instead apply the well-established rule of statutory construction that the Legislature is presumed to be cognizant of relevant judicial decisions when enacting statutes. In fact, the Legislature will be presumed to adopt those relevant prior judicial decisions unless the contrary is expressed: 3 Although absence of an expression of intent to overrule this Court's precedent is not dispositive in all cases, we presume that the Legislature would not effect so important a measure as the overruling of Pan–Am or the reassertion of sovereign immunity to contract actions without expressing a clear intention to do so. Cf. Knowles v. Beverly Enterprises–Florida, Inc., 898 So. 2d 1, 9 (Fla. 2004) (recognizing that the courts must presume that the Legislature will not effect so important a measure as the repeal of a law without expressing an intention to do so).10 Furthermore, “the legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version.” Jones, 793 So. 2d at 917 (emphasis supplied) (quoting City of Hollywood v. Lombardi, 770 So. 2d 1196, 1202 (Fla. 2000)). Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1269–70 (Fla. 2008) (footnote omitted). We will not assume the Legislature intended to abrogate prior judicial constructions in the absence of legislative intent: “Florida's well-settled rule of statutory construction [is] that the legislature is presumed to know the existing law when a statute is enacted, including ‘judicial decisions on the subject concerning which it subsequently enacts a statute.’” Wood v. Fraser, 677 So. 2d 15, 18 (Fla. 2d DCA 1996) (quoting Collins Inv. Co. v. Metropolitan Dade County, 164 So. 2d 806, 809 (Fla. 1964)). Seagrave v. State, 802 So. 2d 281, 290 (Fla. 2001) (alteration in original); see also Winn-Dixie Stores, Inc. v. Reddick, 954 So. 2d 723, 728 (Fla. 1st DCA 2007) (quoting Seagrave). Here, the Legislature provided no indication that it intended to abrogate the supreme court’s precedent or our precedent that required trial courts to acknowledge parties’ multiple marriages as one marriage for durational analysis under section 61.08(4), Florida Statutes. Thus, where the Legislature declines to abrogate supreme court precedent, and we lack the authority to disobey supreme court precedent, we must reject Appellant’s argument. 4 This is particularly true where the statute here was enacted in 2010, fifteen years after the decision in Cox and twenty years after our decision in Thomas. Another rule of statutory construction, which states that courts may not insert words into a statute that the Legislature declined to enact, compels our reading of section 61.08(4), Florida Statutes. Nothing in the statute addresses remarriages or explicitly limits the trial court from combining two marriages between the same parties for alimony determinations. See Surf Works, L.L.C. v. City of Jacksonville Beach, 230 So. 3d 925, 930 (Fla. 1st DCA 2017) (courts should not insert words or phrases into ordinances to express intentions that do not appear unless it was clear the omission was an accident). Finally, our third reason for rejecting Appellant’s argument is the statute itself. The Legislature has authorized trial courts to consider “[a]ny other factor necessary to do equity and justice between the parties.” See § 61.08(2)(j), Fla. Stat. (2018). Courts have recognized that “[t]he nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court.” Green v. Green, 126 So. 3d 1112, 1114 (Fla. 4th DCA 2012) (quoting Lule v. Lule, 60 So. 3d 567, 569 (Fla. 4th DCA 2011)). And the trial court “possesses broad discretionary authority to do equity between the parties . . . .” Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980) (emphasis added). Here, the trial court’s ruling that the parties’ marriages were, in fact, one marriage for alimony analysis was equitable. Appellee worked during the first marriage and raised the children so Appellant could attend veterinary school. During the second phase of the marriage, Appellee continued to support Appellant when their standard of living dramatically improved. The parties were only apart for a short time before they reconciled. Their marriage finally disintegrated following Appellant’s marital misconduct. Thus, the trial court did not abuse its discretion when it combined the length of both marriages under section 61.08(4), Florida Statutes. See Canakaris, 382 So. 2d at 1202. AFFIRMED. 5 M.K. THOMAS, J., concurs; ROWE, J., concurs in part, dissents in part with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ ROWE, J., concurring in part, and dissenting in part. I concur in the majority’s affirmance of all the issues in this appeal and cross-appeal except for its conclusion that the trial court could consider the length of the Potters’ previous marriage when calculating the duration of their marriage in its alimony determination. This case presents a straightforward question of statutory interpretation: does section 61.08(4), Florida Statutes (2018), allow the trial court to combine the lengths of two marriages when determining the length of a marriage for an alimony award? The statute provides: For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long- term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage. § 61.08(4), Fla. Stat. (2018) (emphasis supplied). The statute refers to “a marriage,” signifying a singular marriage. See, e.g., Bautisa v. State, 863 So. 2d 1180, 1182–83 (Fla. 2003) (discussing the legislature’s use of the article “a” with respect to allowable units of prosecution under a criminal statute); Gannon v. Cuckler, 281 So. 3d 587, 595 (Fla. 2d DCA 2019) 6 (discussing that the use of “a motion” means a singular motion). The statute requires a trial court considering an alimony award to calculate the length of marriage from “the” date of marriage until “the” date of filing of an action for dissolution. See Velez v. CoAdvantage, 220 So. 3d 1253, 1254–55 (Fla. 1st DCA 2017) (discussing that “the” is a definite article that “limits that to which it refers to only one, to the exclusion of all others”). Nothing in the statute authorizes a trial court to combine the length of two marriages to determine the length of a marriage when awarding alimony. Instead, under the plain language of the statute, the trial court may consider only one marriage, one date of marriage, and one dissolution date when determining the length of a marriage when awarding alimony. See Citizens v. Brown, 269 So. 3d 498, 504 (Fla. 2019) (“[W]here 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 Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). And because the statute’s language is plain and unambiguous, the majority’s interpretation of the statute should have ended there. See Surf Works, L.L.C. v. City of Jacksonville Beach, 230 So. 3d 925, 930–31 (Fla. 1st DCA 2017) (“Under the plain meaning rule, . . . if a court finds that the language of the statute is unambiguous, it should not resort to further construction or interpretation.”). Instead, the majority asserts, based on prior judicial interpretations of other provisions of the alimony statute, that a trial court may combine the lengths of two marriages when calculating the length of a marriage in an alimony determination. The majority cites the Florida Supreme Court’s decision in Cox v. Cox, 659 So. 2d 1051 (Fla. 1995), and this Court’s decision in Thomas v. Thomas, 571 So. 2d 499 (Fla. 1st DCA 1990), as authority. But the majority’s reliance on these decisions is misplaced for two reasons. First, the statement in Cox suggesting that a trial court may combine the length of two marriages when determining the length of a marriage for an alimony award is dictum. In Cox, the supreme court exercised its jurisdiction to answer a certified question that had nothing to do with alimony or how a trial court should calculate the length of marriage when fashioning an alimony 7 award. See Art. V, sec. 3(b)(4), Fla. Const. Rather, the sole question certified to the court concerned the effect of reconciliation or remarriage on a property settlement agreement or separation agreement. Cox, 659 So. 2d at 1052. It is true the supreme court noted “in passing”—in a footnote—its view that it would have been inequitable for the trial court, when it awarded alimony, to treat the parties’ marriage as lasting less than two years when the parties had been married twice and divorced only briefly. But that statement was not essential to the holding in the case and “is obiter dictum, pure and simple.” See Doherty v. Brown, 14 So. 3d 1266, 1267 (Fla. 1st DCA 2009) (“[A] purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle, or application of law not necessarily involved in the case or essential to its determination is obiter dictum, pure and simple.” (quoting Bunn v. Bunn, 311 So. 2d 387, 389 (Fla. 4th DCA 1975))); Pedroza v. State, 291 So. 3d 541, 547 (Fla. 2020) (“Any statement of law in a judicial opinion that is not a holding is dictum.”). Second, when Cox and Thomas were decided, the alimony statute provided no guidance on how the length of a marriage should factor into the trial court’s alimony determination. The statute authorized the trial court to award one of two types of alimony: rehabilitative alimony or permanent alimony. See, e.g., § 61.08(1), Fla. Stat. (1990). And the statute required the trial court to consider the “duration” of the marriage when determining whether to award alimony. Id. But the statute provided no guidance on how long the marriage needed to be before the trial court could award the different types of alimony. See § 61.08, Fla. Stat. (2009). Trial courts were left to determine case-by-case whether a marriage fell into the short-term category or long-term category and then to consider whether an alimony award was appropriate. See, e.g., Biskie v. Biskie, 37 So. 3d 970, 973 (Fla. 1st DCA 2010) (holding that a fifteen-year marriage falls “between a short-term and long-term marriage, in the ‘gray’ area”); Grimes v. Grimes, 700 So. 2d 293, 294 (Fla. 1st DCA 2000) (holding that a marriage of twelve years was in the gray area with no presumption for or against permanent alimony). These case-by-case determinations led to disparate treatment of parties with marriages of similar length. See, e.g., Bishop v. Bishop, 976 So. 2d 1166, 1167 (Fla. 2d DCA 2008) (reversing an award of permanent 8 alimony where a trial court classified a twelve-year marriage as a long-term marriage); Krafchuck v. Krafchuk, 804 So. 2d 376, 381 (Fla. 4th DCA 2001) (noting that the trial court improperly treated the twelve-year marriage as a short-term marriage). But in 2010, the Legislature substantially revised the alimony statute and addressed how trial courts should factor the length of a marriage into an alimony determination. See Ch. 2010-199, § 1, Laws of Fla. (“providing for the determination of the length of a marriage”). The amended statute codified how a trial court should calculate the length of a marriage: “The length of a marriage is the period of time from the date of marriage until the date of filing an action for dissolution of marriage.” § 61.08(4), Fla. Stat. The statute also authorized two new types of alimony: “durational” alimony and “bridge-the-gap” alimony. See Ch. 2010-199, § 1, Laws of Fla. The Legislature then provided rebuttable presumptions for the award of the different types of alimony, based on whether the length of the marriage was short, moderate, or long. Id. And tellingly, after the 2010 amendments to the statute, no court has relied on Cox or Thomas to approve a trial court’s combination of the length of two marriages when calculating the duration of a marriage in an alimony determination. * Even so, the majority maintains that Cox and Thomas remain “binding caselaw” because when it enacted section 61.08(4), the Legislature did not reject or otherwise abrogate the holdings in those cases. Majority Opinion at 4. The majority relies on the rule of statutory construction that provides that the Legislature is presumed to know the law and is presumed to adopt prior judicial constructions of the law unless the Legislature expresses a contrary intent. See Fla. Dep’t of Envt’l Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1269–70 (Fla. 2008); Seagrave v. State, 802 So. 2d 281, 290 (Fla. 2001). But the rule applies only when there is a prior judicial construction of a law and the law was later changed. See Collins Inv. Co. v. Metro. Dade Cnty., 164 So. 2d * For that matter, only one Florida court before 2010 cited the dicta in footnote 5 as support for combining the length of two marriages when determining alimony. See Forster v. Forster, 11 So. 3d 972, 973 (Fla. 5th DCA 2009). 9 806, 809 (Fla. 1964) (“When a statutory provision has received a definite judicial construction, a subsequent re-enactment will be held to amount to a legislative approval of the judicial construction.”) (emphasis supplied). That principle does not apply here because there was no prior judicial construction of any statute concerning how a trial court should calculate the length of a marriage when awarding alimony. Neither Cox nor Thomas interpreted any provision of the alimony statute addressing how a trial court should determine the length of marriage—because no such provision existed when those cases were decided. Even so, despite the plain language of section 61.08(4) and their misplaced reliance on Cox and Thomas, the majority insists that a trial court may still combine the length of two marriages when calculating the duration of a marriage based on the court’s authority to “do equity between the parties” under section 61.08(2)(j), Florida Statutes. I disagree. “It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 84 (Fla. 2000) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992)). And related statutory provisions must be construed in harmony with one another. See Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008). Here, while section 61.08(2)(j) authorizes a trial court making an alimony award to consider any factor necessary to do equity between the parties, it may only calculate the length of a marriage based on the clear directives of section 61.08(4)—from the date of the marriage to the date of filing for dissolution. To allow the trial court to do otherwise would render meaningless the codification in section 61.08(4) of how trial courts are to calculate and characterize the length of a marriage. See Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 198–99 (Fla. 2007) (holding that a basic rule of statutory construction is that the Legislature does not intend to enact provisions that would render parts of a statute meaningless). For these reasons, I dissent in part from the majority opinion. The trial court erred when it ignored the clear dictates of section 10 61.08(4) and had no authority to combine the lengths of the parties’ two marriages to calculate the duration of the marriage in its alimony determination. See Nassau Cnty. v. Willis, 41 So. 3d 270, 279 (Fla. 1st DCA 2010) (“Courts should exercise great caution before deviating from the plain text of a constitution, statute, or legislative document to purportedly avoid reaching what a court considers an ‘absurd result.’”); Horizon Hosp. v. Williams, 610 So. 2d 692, 693 (Fla. 2d DCA 1992) (“[N]o court is entitled to disregard the plain language of a statute in favor of what it deems to be a more reasonable construction.”). Here, the parties’ first marriage ended when an Alabama court entered a final judgment of dissolution in September 2009. The parties reconciled and remarried ten months later on June 26, 2010. The petition to dissolve the second marriage was filed on September 28, 2018. Thus, under the plain language of section 61.08(4), the trial court should have determined that the marriage lasted eight years—from the date of the second marriage to the date the petition was filed in 2018. I would reverse and remand for the trial court to reconsider the alimony award based on a proper application of section 61.08(4). _____________________________ Michael L. Duncan of Duncan Trial & Mediation, Jacksonville, and Ethan Andrew Way of Way Law Firm, PA, Tallahassee, for Appellant/Cross-Appellee. D. Christine Thurman and Sarah R. Mathews of Thurman Law Firm, PLLC, Tallahassee; and Diane G. DeWolf of Akerman LLP, Tallahassee; and Ryan D. O'Connor of Akerman LLP, Orlando, for Appellees/Cross-Appellants. 11