author: ROBERTS, J. WETHERELL, J., THOMAS, J. KAHN, J.,

text:
    Kimberly M. HALL, Mother, Appellant/Cross-Appellee, v. Roberto R. MAAL, Father, Appellee/Cross-Appellant.
    No. 1D08-4776.
    District Court of Appeal of Florida, First District.
    March 30, 2010.
    Rehearing Denied April 29, 2010.

      John L. Myrick, Pensacola, for Appellant/Cross-Appellee.
    Gregory D. Smith, Pensacola, for Appel-lee/Cross-Appellant.
   ROBERTS, J.

Appellee, Roberto Maal, moves for rehearing en banc with regard to this court’s determination that a valid marriage existed between him and appellant, Kimberly Hall. We grant the motion for rehearing en banc on this issue, withdraw the opinion of the court, Hall v. Maal, 34 Fla. L. Weekly D2152 (Fla. 1st DCA Oct.20, 2009), and substitute the following in its place.

Ms. Hall and Dr. Maal were engaged to be married on March 2, 2002, at Old Christ Church in Pensacola. Leading up to their wedding date, they went through many of the familiar activities of those who intend to marry. They arranged for the church, engaged a minister, sent out invitations, arranged for flowers and a photographer, and attended pre-marital counseling. They attended at least two wedding showers. And, as some couples do, they started to work out a pre-nuptial agreement.

The week before the wedding, the couple was scheduled to go to the office of the county court clerk to get a marriage license. However, on that day, Dr. Maal called Ms. Hall at work and told her that they were not going to be able to get a marriage license because they had not agreed on the pre-nuptial agreement. Ms. Hall was understandably upset by this — all of the arrangements had been made and many of the guests were already in Pensacola for the ceremony. Dr. Maal persuaded her to go ahead with the ceremony, reassuring her that “everything will be alright.” On March 2, 2002, Dr. Maal and Ms. Hall participated in a full wedding ceremony performed by a minister at the church with numerous family members and friends present, complete with attendants, music, and flowers, and followed by a very nice reception. They did this knowing that they had not ever applied for nor received a marriage license.

In the years following the 2002 ceremony, two children were born of the relationship, Dr. Maal referred to Ms. Hall as his “wife,” and she referred to him as her “husband.” The mortgage on the parties’ home referred to them as “husband and wife.” Ms. Hall was referred to as “Mrs. Maal” in her workplace, although she had not legally changed her name. The parties continued to file separate tax returns.

A year after the “marriage” ceremony, the parties appeared before the clerk of the court and applied for and received a marriage license. However, the license was neither solemnized nor returned to the clerk of the court to be made part of the official records of the county.

On April 18, 2006, Ms. Hall filed a petition for dissolution of marriage. Dr. Maal responded by filing an answer and counter-petition to establish paternity, wherein he denied the existence of a valid marital relationship. Ms. Hall then filed a “Motion Requesting Judicial Determination of a Valid Marital Relationship.” The court held a hearing on the motion, finding that a valid marital relationship did not exist.

In this appeal, Hall argues that the trial court erred in ruling that the lack of a marriage license was fatal to the existence of a legally cognizable marriage.

Since 1967, when the Florida legislature abolished common law marriage, there has been only one method of producing a legally cognizable marriage in Florida. See generally §§ 741.01-.212, Fla. Stat. (2002). Persons desiring to be married are required to apply for a marriage license which can be issued by a county court judge or the clerk of the circuit court. See § 741.01, Fla. Stat. (2002). After issuance, a license is valid for 60 days within which time the marriage must be solemnized. See § 741.041, Fla. Stat. (2002). Marriage may be solemnized by ordained clergy, judges, clerks of court, or notaries public. See § 741.07, Fla. Stat. (2002). After solemnization, the officiant shall certify on the license that the marriage has been performed and deliver it, within 10 days, to the clerk or judge that issued it. See § 741.08, Fla. Stat. (2002). The county court judge and the clerk of the circuit court are required to keep a correct record of all licenses issued and of the licenses returned as certified by the officiant. See § 741.09, Fla. Stat. (2002). There are also provisions for proving up a marriage when the certificate is not completed on the marriage license, when the certified license is lost or when death or other cause prevents a certificate from being made. See § 741.10, Fla. Stat. (2002).

Section 741.08, Florida Statutes (2002), provides:

Marriage not to be solemnized without a license. — Before any of the persons named in s. 741.07 shall solemnize any marriage, he or she shall require of the parties a marriage license issued according to the requirements of s. 741.01, and within 10 days after solemnizing the marriage he or she shall make a certificate thereof on the marriage license, and shall transmit the same to the office of the county court judge or clerk of the circuit court from which it issued.

There are two eases which examine this section. The first case, In re: Estate of Litzky, 296 So.2d 638 (Fla. 3d DCA 1974), is indistinguishable from the case before us. Rose Litzky, a/k/a Rose Zyontz, married Isaac Litzky in an Orthodox Jewish ceremony officiated by an Orthodox Rabbi and the couple was issued a “Ksuba,” a Hebrew marriage certificate, by the Rabbi. Mr. Litzky died five months later and Ms. Litzky filed a notice of election to take dower. The court referenced part of section 741.211, which eliminated common law marriage and states, “nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and substantial compliance with this chapter.” Id. at 639 (emphasis added). The court ruled that the parties were never legally married stating:

We are in accord with the able probate judge’s opinion that the law of Florida now provides for only one kind of marriage, one which is entered into by the parties in good faith and in substantial compliance with Chapter 741.

Id.

In Metropolitan Dade County v. Shelton, 375 So.2d 32 (Fla. 4th DCA 1979), a couple who sought to be married applied for a license on a Wednesday. However, because a three-day waiting period applied, the license could not be issued until the following Monday. When the couple informed the deputy clerk of court that the ceremony was scheduled for that Friday, the deputy clerk assured them that it would be legal to perform the ceremony on Friday and have the license issued the following Monday. The deputy clerk went so far as to call the notary to provide assurance of the validity of this procedure. The couple had a marriage ceremony on Friday before the notary and other witnesses and then executed the newly issued marriage license in the office of the clerk of court with the notary and the same witnesses present the following Monday.

The Shelton court, while invited by Dade County to declare that ceremonial marriage without a marriage license results in a valid marriage, ruled more narrowly. In applying the “good faith and substantial compliance” test from section 741.211 first applied in Litzky, the court found that the parties acted in good faith in attempting to comply with the statute because “[b]oth of them intended to enter into a valid marriage and both assumed that the licensing procedure suggested by the clerk was valid.” Id. at 33.

The Fifth District addressed a similar set of facts under Oregon law. In Preure v. Benhadj-Djillali, 15 So.3d 877 (Fla. 5th DCA 2009), the parties participated in a religious ceremony in Oregon, but did not apply for nor obtain a marriage license. Ms. Preure claimed that there was a valid marital relationship, although she admitted that a marriage license is required in Oregon for a lawful marriage to exist. She relied on section 106.150(2) of the Oregon revised statutes, which provided that all marriages not affected by legal impediments that are solemnized in a religious ceremony are valid. However, the court determined that the additional statement in section 106.150(2), which provided that the person presiding over the ceremony shall deliver the marriage license to the county clerk who issued the license, presupposed the existence of a marriage license and that the savings clause relied on by Ms. Preure was inapplicable. Therefore, the court found that there was no valid marital relationship under Oregon law. Thus, a much broader savings clause than the one that exists under section 741.211, Florida Statutes (2002), was held not to apply because an in pari materia reading of the marriage statutes demonstrated that a license was needed to be married.

Floi’ida’s marriage statute must be read in pari materia. Couples who desire to be married must apply for a license. There is a fee for getting a marriage license and that fee is reduced for attending pre-marital counseling. The license is valid for 60 days. The officiant at the ceremony must certify that the marriage was solemnized. The certified marriage license must be returned to the clerk or issuing judge within 10 days and the clerk or judge is required to keep a correct record of certified marriage licenses. Finally, there is a provision by which the marriage may be proved in instances where the license is lost or destroyed. At every turn in Chapter 741, marriages are presupposed to have a license. To depart from the requirement to have a license recreates common-law marriage as abolished by section 741.211.

In the case before us, the parties did not proceed in good faith. “Good faith” is defined as “an honest belief.... Honesty of intention, and freedom from knowledge of circumstances which ought to put the holder on inquiry.... [It] de-scribefs] that state of mind denoting honesty of purpose ... and, generally speaking means being faithful to one’s duty or obligation.” The Fla. Bar v. Jackson, 494 So.2d 206 (Fla.1986) (quoting Black’s Law Dictionary 628-24 (5th ed. 1979)). The testimony in the record demonstrates that both Dr. Maal and Ms. Hall were aware that to become married in Florida they were required to appear before the clerk of the court together and apply for and receive a marriage license. Furthermore, the parties applied for and received a license to marry a year after the ceremony at issue here. That license was neither solemnized nor returned to the clerk to become part of the official records of the county. This subsequent act of applying for a license demonstrates that Dr. Maal and Ms. Hall were well aware that their original wedding ceremony did not produce a marriage under Florida law. Although there is little doubt that Ms. Hall genuinely wanted to be married, she could not have reasonably believed she achieved that aim after engaging in a wedding ceremony in full knowledge that neither she nor Dr. Maal had ever applied for a marriage license. A distinction needs to be made between sincerely desiring to be married and attempting in good faith to go through the steps that will result in a legally cognizable marriage.

The parties were not in substantial compliance with Chapter 741. Whether substantial compliance exists is a fact-based inquiry. However, in order for there to be substantial compliance, there has to be some compliance. Some compliance would, at a minimum, entail the parties applying for and receiving a license.

The dissent compares the lack of a marriage license to an unrecorded deed and points out that failure to record a deed does not make invalid the transfer of land. This analogy would work if Ms. Hall and Dr. Maal had actually received a license, gone through a ceremony, and then failed to return the certified license to the clerk of court. The facts before us are more analogous to a situation in which the parties are in negotiation for the purchase of land and reach agreement on a wide range of the terms of the sale yet cannot reach agreement on one final and material term. Therefore, no deed is executed and no sale is made.

The dissent also relies on the canon of expressio unius est exclusio alterius, reasoning that the legislature has explicitly made invalid same-sex and incestuous marriages and therefore did not intend to make invalid marriages that occur without the benefit of a license. The legislature has clearly provided that same-sex marriages are invalid, stating that they “are not recognized for any purpose in this state.” § 741.212(1), Fla. Stat. (2002). However, with regard to incestuous marriages, the statute provides that people in certain familial relationships “may not marry.” § 741.211, Fla. Stat. (2002). This language prohibits a marriage from occurring rather than nullifying one that has occurred much like the language of section 741.08, which the dissent finds to be merely regulatory.

To the extent that the dissent would hold that a marriage ceremony without a license, coupled with living together and “acting married,” results in a valid marriage, it would recreate a species of common-law marriage in violation of section 741.211, Florida Statutes (2002). If the dissent asserts that Ms. Hall entered a technically defective marriage “in good faith and in substantial compliance” with Chapter 741, the record demonstrates otherwise.

Accordingly, the judgment of the trial court is AFFIRMED.

WOLF, WEBSTER, BENTON, PADOVANO, LEWIS, CLARK, and ROWE, JJ., concur.

WETHERELL, J., concurs in part and dissents in part in an opinion with which HAWKES, C.J., DAVIS and MARSTILLER, JJ., concur.

THOMAS, J., dissents in an opinion with which KAHN, J., concurs.

KAHN, J., dissents in an opinion with which THOMAS, J., concurs.

VAN NORTWICK, J., recused.

WETHERELL, J.,

concurring in part and dissenting in part.

I concur in the decision to affirm the trial court’s determination that the parties did not have a valid marriage for the reasons stated in the en banc majority opinion, but I respectfully dissent from the decision to affirm trial court’s ruling on the child support issue raised in the cross-appeal. I would reverse that issue and remand for the trial court to conduct the accounting agreed to by the parties and expressly provided for in the Temporary Order entered at the outset of this case.

Two children were born to the parties during their relationship. It is undisputed that Dr. Maal is the biological father of these children and that he has a legal duty to provide support for them. The parties agreed to shared parental responsibility, with Ms. Hall having primary residential custody of the children.

The petition for dissolution of marriage filed by Ms. Hall in April 2006 sought an award of child support. The counter-petition to establish paternity filed by Dr. Maal in response to the petition for dissolution likewise requested that the trial court establish child support in accordance with the statutory guidelines.

On October 20, 2006, pursuant to the agreement of the parties, the trial court entered a Temporary Order that included the following provisions concerning child support:

3. As for child support, the Respondent [Dr. Maal] shall pay to the Petitioner [Ms. Hall] the sum of $5,000 per month commencing on October 1, 2006 and on the first of every month thereafter until further order of this Court.
4. The parties acknowledge that the said child support probably exceeds the to-be-determined guidelines support amount. The parties further acknowledge that there may be ar-rearage due since the actual date of filing. The Court reserves jurisdiction in order to effect necessary adjustments as far as support payable is concerned should either party be entitled to credit for any overpayment andlor underpayment of child support payable. This Court does find that the Respondent has paid as child support the sum of $1,750 per month for the period May through September 2006. (emphasis added)

On October 22, 2007, after a hearing, the trial court entered a Temporary Order on Child Support and Visitation. This second temporary order modified Dr. Maal’s child support obligation effective November 1, 2007, to $3,528 per month, which was comprised of $2,528 per month in guideline support and an additional $1,000 per month for speech therapy for one of the children.

The Final Judgment of Paternity entered by the trial court on September 2, 2008, modified Dr. Maal’s child support obligation to $2,807 per month in guideline support and up to an additional $1,000 per month for speech therapy. The final judgment denied Dr. Maal’s request for reimbursement of any alleged child support overpayments without conducting the accounting required by the initial temporary order to determine whether “either party [was] entitled to credit for any overpayment and/or underpayment of child support.” The sole basis for the denial was the trial court’s finding that “the amounts paid by [Dr. Maal] were pursuant to a Stipulated Agreement entered into between the parties, and, as such, he is not entitled to reimbursement of any amounts paid in accordance with that Stipulated Agreement.”

In his cross-appeal, Dr. Maal does not challenge the amount of the child support obligation established in the final judgment. He only challenges the trial court’s denial of his request for reimbursement of the child support he allegedly overpaid pursuant to the initial temporary order.

The abuse of discretion standard typically applies to our review of a trial court’s award of child support. See Shaw v. Nelson, 4 So.3d 740, 742 (Fla. 1st DCA 2009). However, in my view, the de novo standard of review applies to our review of the child support issue in this case because the trial court’s denial of Dr. Maal’s request for reimbursement was not based upon an exercise of judicial discretion, but rather was based upon the trial court’s apparent misinterpretation of, or failure to follow, the initial temporary order entered pursuant to the agreement of the parties. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980) (recognizing that the abuse of discretion standard does not apply where the appellate court is reviewing the trial court’s alleged failure to apply the correct legal rule); see also Avellone v. Avellone, 951 So.2d 80, 83 (Fla. 1st DCA 2007) (applying the de novo standard when reviewing the trial court’s interpretation of a marital settlement agreement incorporated into the final judgment).

As noted above, the trial court found that Dr. Maal was not entitled to reimbursement of any child support overpay-ments solely because the payments were made pursuant to an agreement of the parties. Although not cited by the trial court or Ms. Hall, there is case law that stands for the proposition that a parent is not entitled to reimbursement of excess child support that is paid voluntarily without an expectation that it is a loan that will have to be repaid. See, e.g., Martinez v. Martinez, 383 So.2d 1153, 1155-56 (Fla. 3d DCA 1980). In this case, however, the “voluntary” nature of the overpayments is not determinative because the parties expressly agreed that the trial court would conduct an accounting to determine whether “either party [was] entitled to credit for any overpayment and/or underpayment of child support.”

In my view, the trial court erred as a matter of law by failing to conduct the accounting agreed to by the parties and required by the initial temporary order. Alternatively, if the abuse of discretion standard applied, I would conclude that the trial court abused its discretion by failing to exercise it as contemplated by the initial temporary order. See V.F.D. v. State, 19 So.3d 1172, 1175 (Fla. 1st DCA 2009) (“The trial court abused its discretion by not hearing evidence and exercising its discretion based on the facts and circumstances of [the] ease.”).

The child support payments made by Dr. Maal pursuant to the initial temporary order were not vested rights/obligations that could not be retroactively modified as was suggested in the original panel opinion. See 34 Fla. L. Weekly at D2154 (quoting Waldman v. Waldman, 612 So.2d 703, 704 (Fla. 3d DCA 1993)). First, the payments were made pursuant to a temporary order, not a final judgment as was the case in Waldman. Second, in this case, the trial court expressly reserved jurisdiction in the initial temporary order to conduct an accounting to determine whether one of the parties was due a credit based upon an overpayment or underpayment of support. Third, our sister courts have consistently rejected the proposition that temporary support orders establish vested rights that are not subject to retroactive adjustment. See, e.g., Ghay v. Ghay, 954 So.2d 1186, 1190 (Fla. 2d DCA 2007); Roberts v. Roberts, 906 So.2d 1193 (Fla. 4th DCA 2005); Flores v. Flores, 874 So.2d 1211, 1212 (Fla. 4th DCA 2004); Dent v. Dent, 851 So.2d 819, 820-21 (Fla. 2d DCA 2003).

The record supports Dr. Maal’s claim that he overpaid child support pursuant to the initial temporary order and that he was therefore entitled to a credit in some amount. Dr. Maal presented evidence at the final hearing that he overpaid $19,006 in child support between October 2006 and October 2007, but my rough calculations suggest that the amount of credit that he is due is significantly less. However, without any findings from the trial court based upon the accounting contemplated by the initial temporary order, we are unable to properly review this issue. Remanding the child support issue to the trial court would allow it to make the necessary findings.

I recognize that trial courts have broad discretion in family law matters concerning child support and the best interest of the children. However, this broad discretion does not give the trial court free reign to ignore the parties’ agreement and the requirements of its prior order simply to reach a decision that might be viewed by some as “equitable” to Ms. Hall under the circumstances.

In my view, there is nothing unusual or inequitable in the approach agreed to by the parties and adopted by the trial court in its initial temporary order concerning child support. See Dent, 851 So.2d at 821-22 (Stringer, J., concurring specially) (explaining that “[a] temporary support order is often required at the beginning of the dissolution action, before the parties have had an opportunity to complete discovery” and that “[a]s the case progresses, the developing evidence or changes in the parties’ financial circumstances may reveal inequities or errors in the prior support awards that require adjustment in the final analysis”). The accounting agreed to by the parties must be viewed in context of the entire agreement, the apparent purpose and clear effect of which was to ensure that the children promptly received support, rather than delaying the child support payments to Ms. Hall while the parties bickered over the precise amount of support that should be paid. This type of approach should be encouraged, but the only way to do so is by requiring the trial court to give full effect to the parties’ agreement by conducting the accounting agreed to by the parties.

That said, I recognize the perceived unfairness of a decision requiring Ms. Hall to reimburse Dr. Maal for child support that he paid pursuant to the initial temporary order, particularly where one of the children has special needs and the validity of marriage issue is being resolved against Ms. Hall. However, that is what the parties agreed to, and I am confident that the trial court would be able to craft an equitable remedy if, as it appears, Dr. Maal overpaid child support and is entitled to reimbursement under the terms of the parties’ agreement.

For these reasons, I respectfully dissent from the decision to affirm the child support issue. In all other respects, I fully concur in the en banc majority opinion.

THOMAS, J.

Dissenting.

I respectfully dissent from the majority’s decision on the merits, but I agree that this is a case of great public importance because “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (quoting Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942)).

In essence, the en banc majority opinion rewrites and condenses the relevant statutory sections to read: No couple who fails to obtain a marriage license will be considered legally married, regardless of any legitimate evidence of marriage to the contrary. The majority’s statute is clearer than the Legislature’s statute, but the judicial branch is bound by the words voted on by the Legislature, which undisputedly does not contain the above sentence.

The Legislature’s statute creates a factual question to determine whether a couple entered into a valid marriage “in good faith and in substantial compliance ” with the entire statutory scheme. § 741.211, Fla. Stat. This is unlike any other licensing scheme regulating professional activities. The Legislature did not prohibit marriage without a license; instead, it created a type of registration to ensure certain criteria are met. The Legislature’s statute is consistent with the recognition that a ceremonial marriage between an adult man and an adult woman unrelated by blood should not be rendered invalid merely because the couple did not obtain a governmental license.

Although Florida has abolished common-law marriage, it has not abolished unlicensed marriages. Should the State intend to do so, it must do so clearly and specifically. By its decision here, the majority has crafted a statute that proclaims that the parties, who engaged in a solemn, religious and public marriage ceremony, after receiving premarital counseling, are denied the fundamental right to be married. In addition, the couple’s two children are now deemed to be born out of wedlock. This result is contrary to the strong presumption of legitimacy attached to children born in wedlock. Knauer v. Barnett, 360 So.2d 399, 403 (Fla.1978).

In addition, the majority fails to consider any equity that might be relevant to the factfinder and must be a consideration under chapter 61, Florida Statutes. The majority’s new statute compels a court to countenance inequitable actions. Here, Appellee’s inequitable conduct has deprived Appellant of the protections accorded spouses under the law.

The procedures for contracting a valid marriage in Florida are regulated by chapter 741, Florida Statutes. As stated in section 741.211, Florida Statutes, “No common-law marriage entered into after January 1, 1968, shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.” Nowhere in chapter 741 is it expressly stated that marriages conducted without a license are invalid or prohibited. In contrast, same-sex and incestuous marriages are prohibited. §§ 741.21, 741.212, Fla. Stat. (2002).

The Legislature is quite capable of writing a strict statute that prohibits an exception for unlicensed marriages. For example, unlicensed drivers, unlicensed lawyers, unlicensed doctors, and various other activities too numerous to mention are prohibited. See, e.g., §§ 322.03, 454.23, 458.327, Fla. Stat. In many of these examples an unlicensed person may incur criminal liability, and there is no defense for asserting “good faith” or “substantial compliance” with the relevant statutes.

A common-law marriage is defined as “ ‘[a] marriage that takes legal effect, without license or ceremony, when a couple live together as husband and wife, intend to be married, and hold themselves out to others as a married couple.’ ” Lowe v. Broward County, 766 So.2d 1199, 1210-1211 (Fla. 4th DCA 2000) (emphasis added) (citing Black’s Law Dictionary, 986 (7th ed. 1999). This case before us does not involve a common-law marriage; rather, in light of the public, solemn and religious wedding ceremony, it involves an unlicensed marriage.

The absence of an express invalidation of unlicensed marriages may be considered an expression of legislative intent under the canon of statutory construction known as expressio unius est exdusio alterius. Prewitt Mgmt. Corp. v. Nikolits, 795 So.2d 1001, 1005 (Fla. 4th DCA 2001). This rule “requires that when a law expressly describes a particular situation where something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded.” Id. Where the Legislature has not expressly prohibited or invalidated unlicensed marriages, we may not read such a prohibition or invalidation into Florida law. See, e.g., State v. Rife, 789 So.2d 288, 293-94 (Fla.2001) (holding that legislature did not expressly prohibit downward-departure sentences in cases involving a minor’s consent to sexual activity, thus, courts have authority to impose such sentences).

Other state legislatures have expressly invalidated unlicensed marriages. See, e.g., In re Silverman’s Estate, 94 N.J.Super. 189, 227 A.2d 519 (1967) (noting that legislature expressly set out to abolish common-law marriages and invalidate marriages that occur without a license by stating unequivocally that “no marriage ... ‘shall be valid unless the contracting parties have obtained a marriage license.’ ”) (citing N.J. Stat. Ann. § 37:1-10); Dire v. Dire-Blodgett, 140 Idaho 777, 102 P.3d 1096, 1098 (2004) (holding that a marriage license is required for a valid marriage where the law expressly states, “Consent alone will not constitute marriage; it must be followed by the issuance of a license and a solemnization as authorized and provided by law.”); Carabetta v. Carabetta, 182 Conn. 344, 438 A.2d 109, 111 (1980) (holding that a marriage solemnized by a religious ceremony without a license was not void where Connecticut Statutes states, “No persons shall be joined in marriage until both have joined in an application ... for a license for such marriage,” but also provides for only a fíne for those who marry without obtaining a license and also that certain other marriages are void); but see Harlow v. Reliance Nat’l, 91 S.W.3d 243 (Tenn.2002) (holding that party was not a surviving spouse and thus not entitled to death benefits under workers’ compensation law because a marriage license was not obtained and Tennessee law provides that parties “shall” provide a license before being joined in marriage); Parks v. Martinson, 694 So.2d 1386, 1390 (Ala.Civ.App.1997) (holding that no valid statutory marriage occurred where parties did not obtain a license and statutory law required that “[n]o marriage shall be solemnized without a license.”).

An unlicensed marriage is analogous to an unrecorded deed. “A deed is merely an instrument formally evidencing the transfer of an intangible title interest in and to land and when delivered it fulfills its purpose and is exhausted and remains only as evidence of the transfer that occurred.” Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114, 120 n. 5 (Fla. 5th DCA 1982). An unrecorded deed does not indicate that there was no transfer of land. See Sasha & Sasha, Inc. v. Stardust Marine, S.A., 741 So.2d 558 (Fla. 4th DCA 1999) (holding that where a deed was unrecorded, the transfer of the land was deemed to have occurred just prior to commencement of action under the Uniform Fraudulent Transfer Act). Likewise, in my view, an unlicensed marriage does not indicate that a marriage did not occur; it indicates a lack of evidence of the marriage.

A solemnized marriage without a marriage license is not per se invalid under Florida law, because the fundamental right of a man and woman to marry cannot be denied on the basis of ambiguous statutory language. “Once a marriage is shown to have been ceremonially entered into it is presumed to be legal and valid.” Stewart v. Hampton, 506 So.2d 70, 71 (Fla. 5th DCA 1987) (citing Grace v. Grace, 162 So.2d 814 (Fla. 1st DCA 1964)). In addition, parties seeking to dissolve their marriage are not required to demonstrate the existence of a marriage license. § 61.052(7), Fla. Stat.; see, e.g., Cobo v. Sierralta, 13 So.3d 493, 496-98 (Fla. 3d DCA 2009) (quoting Stewart, 506 So.2d at 71, and Grace, 162 So.2d at 317, for the proposition that the party attacking a marriage’s validity bears the burden of rebutting the presumption that the marriage is valid).

The absence of an express invalidation of unlicensed marriages, combined with the importance of marriage recognized in the law, demonstrates that unlicensed, ceremonial marriages are not facially invalid in Florida. While the regulation of marriage is within the purview of the legislative branch, should the Legislature intend to invalidate all unlicensed ceremonial marriages, then Florida’s laws must expressly prohibit such unions. The majority’s decision that an unlicensed marriage is invalid in all circumstances will have wide-sweeping ramifications, which should be carefully evaluated by the Legislature, and not decided by the judiciary.

A valid marriage affects confidential spousal communications, wrongful death, workers’ compensation claims, and social security benefits. See, e.g., Blackburn for Blackburn v. Taylor, 566 So.2d 915 (Fla. 1st DCA 1990) (holding that claimant was a surviving spouse of the deceased and thus entitled to workers’ compensation death benefits); Yokie v. State, 773 So.2d 115 (Fla. 4th DCA 2000) (holding that defendant’s conversation with his spouse was protected by marital privilege); King v. Font Corp., 612 So.2d 662 (Fla. 2d DCA 1993) (holding that mother was the father’s “surviving spouse” and thus entitled to an award of lost support and services under the Wrongful Death Act); Hisquierdo v. Hisquierdo, 439 U.S. 572, 575, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (discussing spouse’s entitlement benefits under the Social Security Act). Such a monumental decision declaring all unlicensed ceremonial marriages invalid is properly assigned to the Legislature under the separation of powers requirement of Article II, Section 3 of the Florida Constitution.

Thus, it follows that Appellant, the party asserting that she entered into a valid marriage in good faith and in substantial compliance with chapter 741, is entitled to an evidentiary hearing to prove her claim. It will then become Appellee’s burden to overcome the strong presumption under the law that this solemn, religious and ceremonial marriage was valid ab initio.

A factfinder could determine that Appellant substantially complied with chapter 741 by taking part in premarital counseling, participating in a solemn marriage ceremony by an authorized minister, and entering into a marriage that is not common-law, same-sex, or incestuous in nature. See generally ch. 741, Fla. Stat. In addition, “proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law. The legislature has given trial judges wide leeway to work equity in chapter 61 proceedings.” Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997) (internal citations omitted). Based on the facts of this case, it appears that Appellee may have unclean hands. Any equitable result would include a validation of the parties’ marriage if it can be shown that Appellant entered into the marriage in good faith and in substantial compliance with chapter 741. The trial court, however, made no factual findings regarding whether Appellant entered into the marriage in good faith. As such, a remand is required for the trial court to make such a determination.

Conclusion

Based on the foregoing, I would reverse the trial court’s determination that a valid marital relationship did not exist, and remand for proceedings to determine whether Appellant entered the ceremonial marriage in good faith and in substantial compliance with chapter 741, Florida Statutes, and whether Appellee’s inequitable conduct compels legal recognition of the marriage.

KAHN, J.,

dissenting.

I concur in all respects with Judge Thomas’ dissent. I write to express a few additional thoughts concerning Ms. Hall’s right to her day in court.

The majority appears to hold that Florida recognizes “only one method of producing a legally cognizable marriage.... ” Op. at 684. This cannot be true, though, because the very statute abolishing common-law marriage allows, as Judge Thomas has pointed out, recognition of any marriage entered into “in substantial compliance with this chapter.” § 741.211, Fla. Stat. (2002). Substantial compliance seems to require a factual determination, and the present case has never proceeded beyond the motion stage.

I next note, in conjunction with Judge Thomas’ observations, the statutory scheme concerning marriage licenses. To be sure, the Florida Statutes contain a section entitled “Marriage not to be solemnized without a license.” § 741.08, Fla. Stat. (2002). Nevertheless, the text of that statute applies solely to a person authorized by section 741.07, Florida Statutes (2002), to solemnize the marriage. The provisions of subsection 741.08, including the directives to require a marriage license and transmit the license to the clerk’s office, seek to control only the behavior of the officiant. Here, and without dispute, the minister did, although without untoward intent, default upon the statutory obligation. The officiant testified clearly that he had been affirmatively led to believe that Dr. Maal had a license but had left the license at home. The officiant further testified that if anything at all regarding the circumstances had given him the impression that the marriage was anything other than a formal and binding wedding ceremony, he “wouldn’t have performed the ceremony.” Because this statute sets out no positive obligation as to the couple engaging in the ceremony, I would not craft such a requirement.

The final point involves a traditional rule of contracts and the analogy of marriage to contracts. See Connor v. S.W. Fla. Reg’l Med. Ctr., Inc., 668 So.2d 175, 177 (Fla.1995) (Overton, J. dissenting) (referring to “the legal obligations of the marriage contract”); Johnson v. Lincoln Square Props., Inc., 571 So.2d 541, 543 (Fla. 2d DCA 1990) (recognizing potential validity of out-of-state marriage because under Florida law, “validity of marriage is determined by the law of the state where the contract of marriage occurred”). Instead of concluding, as the majority does, that this couple did not proceed in good faith, a finder of fact might determine that it should examine the actual exchange of the vows, rather than any withheld, or subjective, but unexpressed, feelings. This is the way we construe contracts where the language is unambiguous:

In Stokes et al. v. Victory Land Company, 99 Fla. 795, 128 So. 408, Mr. Justice Ellis, speaking for the court, said: ‘The intention of the parties to a contract is to be deduced from the language employed by them. The terms of the contract, when unambiguous, are conclusive, in the absence of averment and proof of mistake, the question being, not what intention existed in the minds of the parties, but what intention is expressed by the language used. Continental Casualty Co. v. Bows, 72 Fla. 17, 72 So. 278; Atlanta St. A.B.R. Co. v. Thomas, 60 Fla. 412, 53 So. 510.

Lyng v. Bugbee Distrib. Co., 133 Fla. 419, 182 So. 801, 802 (1938). A court is “guided first by the language of the contract itself and where the contract is clear and unambiguous there is no reason to go further.” Lab. Corp. of Am. v. McKown, 829 So.2d 311, 313 (Fla. 5th DCA 2002). “In such a situation, the intent of the parties must be determined from only the four corners of the document, and not parol evidence.” V & M Erectors, Inc. v. Middlesex Corp., 867 So.2d 1252, 1253-54 (Fla. 4th DCA 2004).

I am not persuaded, on the present facts, that the marriage license is part of the marital contract or that the absence of a license would, in every case, void the marital status. A marriage covenant, where not prohibited by law, is solemnized by the words and promises exchanged, and not by the license. I thus completely agree with Judge Thomas that an eviden-tiary hearing is in order.

      . The court in Shelton could have, and perhaps should have, reached the same result by holding that the parties were not in fact married on Friday when they had their marriage ceremony, but became married when they signed the license on Monday before a notary and the required witnesses. "Solemnization” under section 741.08 does not require any particular ceremony or the recitation of any particular words but only that the license is executed before the appropriate persons.

      . The en banc opinion affirms the child support issue without discussion. The original panel opinion also affirmed this issue, holding that the trial court did not abuse its discretion in denying Dr. Maal reimbursement for alleged overpayments of child support because the payments were vested rights/obligations not subject to retroactive modification and because the payments were made voluntarily and were not considered a loan. See 34 Fla. L. Week at D2154.

      . A subsequent order modified the child support obligation to a total of $3,854 per month, effective February 1, 2008. That modification has no bearing on the child support issue before us.

      . Assuming no arrearage was due for any period prior to May 2006 (which was another fact the initial temporary order deferred resolution of), it appears to me that the overpayment was closer to $10,246. The petition for dissolution of marriage was filed in April 2006, and between May and September 2006, Dr. Maal appears to have underpaid child support in the amount of $8,890 because, according to the temporary order, he was paying only $1,750 per month when he should have been paying $3,528 per month. But, between October 2006 and October 2007, Dr. Maal appears to have overpaid support in the amount of $19,136 because he was paying $5,000 per month pursuant to the temporary order when he should have only been paying $3,528 per month.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Rufino HERNANDEZ, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as subrogee of RFB Investment Group and State Farm Mutual Automobile Insurance Company, as subrogee of Roy Bray, Appellee.
    No. 4D09-3825.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.

      José E. Pagan and Christopher H. McElroy of Allen, Kopet & Associates, PLLC, Tallahassee and Neil V. Singh of Allen, Kopet & Associates, PLLC, Fort Lauderdale, for appellant.
    Samuel Bookhardt, III of Vance, Lotane & Bookhardt, P.A., Cocoa, for appellee.
   WARNER, J.

Rufino Hernandez appeals the trial court’s order denying his motion to quash service of process, claiming that the trial court erred in determining that the plaintiff had sufficiently complied with the statutory prerequisites for substituted service. We agree and reverse, because the allegations of the complaint concerning service were not sufficient to invoke substituted service over the appellant, and the plaintiff did not produce a return receipt for certified mail signed by the appellant in compliance with section 48.161, Florida Statutes.

Appellant was involved in an automobile accident in which the vehicle he was driving collided with a vehicle insured by State Farm. Approximately fifteen months later, State Farm brought a subrogation action against Hernandez, seeking to recover monies it paid to satisfy uninsured motorist and property damage claims its insured brought following the accident. In paragraph 20 of the complaint, State Farm alleged: “Defendant is being served through the offices of a Sheriff, an authorized process server, or, in the alternative, after diligent search and inquiry, Defendant is a non-resident of the State of Florida or Defendant is concealing his whereabouts and avoiding service of process and is being served within the scope of Florida Statutes 48.161 and 48.171.”

The original summons was issued on September 29, 2008, listing Hernandez’s last known address, but State Farm was unable to perfect personal service on Hernandez. On March 18, 2009, State Farm filed an Affidavit in Support of Service under section 48.171, Florida Statutes, in which the efforts to locate Hernandez were detailed, including a check of his driver’s license records. Those records contained the address where personal service was attempted, but Hernandez had not lived there for several years. The affiant concluded that Hernandez was either not a resident of Florida or was concealing his whereabouts. Thereafter, the complaint and second summons were served upon the Secretary of State. In addition, a notice of the action was sent by certified mail to Hernandez’s last known address, but the mail was returned without having been accepted. The post office notation is not entirely clear. Either it was returned for “no mail receptacle” or “forwarding order expired.” (The marking by the carrier fell between the two selections.)

Hernandez filed a motion to quash service of process, noting that State Farm had not properly pled substituted service nor filed a signed receipt of mailing the complaint to Hernandez. The court granted the motion at a hearing where State Farm’s counsel was inadvertently excluded. State Farm then filed an affidavit of compliance as well as a notice of fifing the return receipt, which was unsigned by Hernandez. State Farm then moved to vacate the order granting the motion to quash service, following which the trial court did vacate the order and reset the motion to quash service of process.

At a full hearing, the court denied the motion. It found that all of the requirements for substituted service of process had occurred, and a diligent search for Hernandez had been accomplished. From that order Hernandez appeals.

As a preliminary matter, Hernandez claims that the court lost jurisdiction to vacate its order, because State Farm failed to move for rehearing within ten days. The order granting the motion to quash service of process was not a final order, however, in that it only granted the motion to quash and did not dismiss the case. Moreover, it states “Defendant’s motion [singular] is granted.” From the hearing transcript it appears that the court heard only the motion to quash service of process. Therefore, not only are there no words of finality in the motion which would make the order a final order subject to the rehearing time of Rule 1.530, but the order does not appear to address the motion to dismiss at all. Even if the trial court’s original order was intended to address the motion to dismiss, an order that merely grants a motion to dismiss is not a final order. See Hayward & Assocs., Inc. v. Hoffman, 793 So.2d 89, 91 (Fla. 2d DCA 2001). To satisfy finality, the order must go further and dismiss the cause or complaint. Raphael v. Carner, 194 So.2d 298, 300 (Fla. 4th DCA 1967). Therefore, because the order granting Hernandez’s motion to quash was not a final order, the trial court retained jurisdiction to reconsider the motion.

Turning to the merits, Hernandez maintains that State Farm failed to strictly adhere to proper pleading and notice requirements necessary to perfect substitute service upon him. State Farm responds that it filed all the required documents to prove that it had perfected substituted service upon Hernandez and that its complaint alleged sufficient grounds in support of service under sections 48.161 and 48.171, Florida Statutes.

A trial court’s ruling on a motion to quash service of process consists of a question of law subject to a de novo standard of review. Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179, 1181 (Fla. 3d DCA 2007). Because the statute allowing substituted service is an exception to the general rule requiring a defendant to be personally served, there must be strict compliance with the statutory requirements so as to protect due process guarantees. Monaco v. Nealon, 810 So.2d 1084, 1085 (Fla. 4th DCA 2002); Alvarado v. Cisneros, 919 So.2d 585, 588-89 (Fla. 3d DCA 2006). If the complaint fails to allege the jurisdictional requirements for substituted service as prescribed by the statute, a defendant cannot be properly served by substituted service and a motion to quash service of process should be granted. Drake v. Scharlau, 353 So.2d 961, 964 (Fla. 2d DCA 1978).

When using substituted service under section 48.171, a plaintiff must meet two requirements. First, the complaint must allege the ultimate facts bringing the defendant within the purview of the statute. See Monaco, 810 So.2d at 1085; Wiggam v. Bamford, 562 So.2d 389 (Fla. 4th DCA 1990). This requires the plaintiff to “allege in his complaint that the defendant was a non-resident, or a resident of Florida who subsequently became a non-resident, or a resident of Florida concealing his whereabouts.” Journell v. Vitanzo, 472 So.2d 827, 828 (Fla. 4th DCA 1985). Second, the service must strictly comply with section 48.161, which sets forth the method of substituted service of process. Monaco, 810 So.2d at 1085.

State Farm’s original complaint constituted a shotgun approach to this strict pleading requirement. It alleged that Hernandez was either being personally served or after diligent search and inquiry that he was a non-resident or was concealing his whereabouts and avoiding service, thus supporting service pursuant to sections 48.161 or 48.171. At the time of the filing of the complaint, a summons for personal service was issued. When that was returned unexecuted, it appears that an investigator was then retained to search for Hernandez. Thus, at the time the complaint was filed, no diligent search and inquiry had been made, and the pleader did not know whether the defendant could be served by substituted service.

The complaint is deficient because it alleges that personal service is being made, meaning that the defendant is amenable to such service. The Secretary of State is not authorized to accept service of process unless one of the other two jurisdictional grounds is alleged. Alleging in the alternative does not strictly satisfy the jurisdictional prerequisite for service. If a plaintiff could simply allege inconsistent ultimate facts of inability to serve the defendant because of concealment or non-residency at the same time it also alleges that the defendant is amenable to personal service, then the pleading requirements of the statute would be meaningless.

In addition to failing to properly plead the basis for seeking substitute service, State Farm also failed to comply with the statutory notice requirements for perfecting substitute service. Under section 48.161, the plaintiff must serve the Secretary of State and mail a copy of the summons and complaint to the defendant by registered or certified mail. See Wise v. Warner, 982 So.2d 591, 598-94 (Fla. 5th DCA 2006) (holding that substitute service was not perfected where “the record reflects no attempt by Warner to serve Wise by registered or certified mail”). “Section 48.161, Florida Statutes, requires that the process be sent to the defendant via certified or registered mail, the receipt of which must be evidenced by the defendant’s return receipt. Of course, where the defendant takes affirmative action to avoid acceptance of such mailing, the requirement will be deemed to be satisfied.” Turcotte v. Graves, 374 So.2d 641, 643 (Fla. 4th DCA 1979). However, where the failure of delivery of process was not caused by the defendant’s rejection of the mail and where such failure might have resulted from a cause not chargeable to the defendant, then the statutory requirements have not been met and service of process is insufficient. Id.

The fact that State Farm filed an unsigned return receipt was not sufficient to comply with the statute. See Chapman v. Sheffield, 750 So.2d 140, 143 (Fla. 1st DCA 2000) (“A strict interpretation of this statute compels us to conclude that, when service is attempted on a defendant who is a natural person, the receipt must be signed by the defendant ....”) (emphasis added). However, “the courts have created an exception to the requirement that the plaintiff file the defendant’s return receipt for those situations in which the defendant is actively refusing or rejecting the substituted service of process.” Smith v. Leaman, 826 So.2d 1077, 1078 (Fla. 2d DCA 2002).

This record does not show that the failure to deliver was the result of Hernandez actively refusing or rejecting substituted service. The mere fact that Hernandez was not located at the address where State Farm sent the certified mail does not give rise to an inference that Hernandez intentionally failed or refused to claim the substitute process. All that is known is that the letter carrier was unable to deliver it either because there was no mail receptacle or because a forwarding address had expired. When coupled with the affidavit of diligent search, which revealed that someone at the address told the process server that the defendant had not lived there for four years, no active evasion by Hernandez is shown.

This case is similar to Wyatt v. Haese, 649 So.2d 905 (Fla. 4th DCA 1995), where we held that strict compliance with the statutory prerequisites was not met under the following circumstances:

The face of the record and affidavit demonstrate failure to comply with the statutory notice prerequisites. No return receipt was executed by the defendant. Moreover, the certified letter returned “UNCLAIMED” and the second notice sent by regular mail and returned “NOT AT THIS ADDRESS” do not reflect that appellant intentionally failed or refused to claim the notices. Therefore, no conclusion can be drawn that the failure to deliver process was caused by the defendant rejecting the mail. Consequently, the statutory requirement was not met as no return receipt for the certified mail was obtained, nor can an inference of intentional rejection be made from the record.

Id. at 907 (citations omitted). Likewise, the unsigned return of service on Hernandez is insufficient to show that he was evading service.

As we said in Wyatt, “The purpose of service, substituted or otherwise, is to provide the defendant with notice so that he might exercise his opportunity to be heard.” Id. at 908. Where a plaintiff resorts to substituted service, “strict compliance with the statutes governing this form of service is essential to obtaining valid personal jurisdiction over the defendants).” Fed. Nat’l Mortg. Ass’n v. Fandino, 751 So.2d 752, 753 (Fla. 3d DCA 2000). Without such compliance, the trial court does not acquire jurisdiction over the defendant.

We reverse and remand for entry of an order quashing service of process on defendant without prejudice to plaintiff seeking to serve Hernandez by fully complying with the substituted service requirements.

POLEN and STEVENSON, JJ., concur.


text:
    James F. JOHNSTON and Sandra Johnston, Appellants, v. Jeanne HUDLETT, Appellee.
    No. 4D08-4636.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.

      Bonnie S. Satterfield of Bonnie S. Sat-terfield, P.A., Coral Springs, for appellants.
    Robin F. Frydman of The Frydman Law Group, PLLC, Hollywood, for appel-lee.
   WARNER, J.

Appellants, James and Sandra Johnston, timely appeal a final judgment of foreclosure. They make multiple claims of error. However, we find that the issues raised were either not preserved, waived, or are meritless. We affirm.

Appellants’ home was encumbered by a first mortgage to Citi Mortgage and a second purchase money mortgage executed to appellee, Jean Hudlett. The first mortgagee of the property, Citifinancial Mortgage Company (“Citi”), brought a foreclosure action against the Johnstons and others with an interest in the property, including Hudlett. Hudlett filed an answer to Citi’s complaint and a cross-claim against the Johnstons, seeking to foreclose her mortgage on the property. However, Hudlett’s answer and cross-claim did not attach a copy of the promissory note or the mortgage deed.

A process server personally served James Johnston with the cross-claim. Sandra Johnston was not personally served with the cross-claim, but was purportedly served by substitute service when her husband was served at the residential property. The record does not contain any objections to the service of process. James Johnston filed an answer to the cross-claim; Sandra Johnston did not file an answer.

The Johnstons refinanced the home and settled the original mortgage foreclosure action with Citi, at which point Citi’s foreclosure claim was dismissed. Although the record indicates that Hudlett’s mortgage was to be paid through the refinancing, that did not occur. Eventually the cross-claim was set to be tried on September 29, 2008. Before the trial date, both Hudlett and James Johnston filed Pre-Trial Statements in which Johnston stipulated to the essential facts required for foreclosure, including the execution of the mortgage, the events of default, and that no payments had been paid for several years.

At trial, Sandra Johnston appeared and was represented by counsel. Hudlett’s attorney orally moved for a default against her. Sandra’s attorney claimed that she had not been served. After hearing argument, the court entered a default against her.

The trial proceeded. James Johnston’s attorney admitted that the mortgage had been unpaid and the amount of principal and interest due, but disputed the interest rate. Hudlett’s attorney advised the court that he would dispense with the routine testimony regarding default and amounts due. Mr. Johnston agreed to a stipulation regarding those issues.

The court admitted the mortgage and note, but they apparently were returned to Hudlett’s attorney immediately after the final judgment was entered, as they did not appear in the record originally filed with this court. Then the court entered a written default of Sandra Johnston and a foreclosure judgment in favor of Hudlett, which the appellants challenge in this appeal.

As their first issue on appeal, the Johnstons claim that the cross-claim of foreclosure never stated a cause of action because the mortgage and note were not attached to the cross-claim. While it is true that Hudlett failed to attach the Note and Mortgage Deed to the cross-claim complaint, this issue is being raised for the first time on appeal. It was never raised in any responsive pleading or motion to dismiss, nor was it raised at trial. “[I]t is axiomatic that it is the function of the appellate court to review errors allegedly committed by trial courts, not to entertain for the first time on appeal issues which the complaining party could have, and should have, but did not, present to the trial court.” See Abrams v. Paul, 453 So.2d 826, 827 (Fla. 1st DCA 1984). In Abrams, the appellant argued for the first time on appeal that the trial court had committed error in entering a default judgment upon a complaint which failed to state a cause of action. Finding the alleged error neither fundamental nor jurisdictional, the First District declined to consider the question for the first time on appeal. Id.

Here, because the Johnstons did not preserve for appellate review the defense of failure to state a cause of action, this court will not consider this issue for the first time on appeal. See Abrams, supra. Further, any error could not be considered fundamental, where the trial court actually considered the note and the mortgage deed at the trial.

The Johnstons also claim that the final judgment was void, because the mortgage and note were never introduced in evidence. But the record shows that the documents were introduced in evidence. Unfortunately, they were then returned to the Hudlett’s attorney after the trial. That does not make the judgment void.

We are, however, concerned of what appears to be a practice in Broward County of the clerk’s office returning exhibits immediately after the end of a trial, to the attorneys for the parties who introduced such exhibits. We do not know if this is at the direction of the judges or simply a practice of the clerk’s office. Nevertheless, it is in violation of Rule of Judicial Administration 2.430(f)(2) which requires that the clerk retain all exhibits until 90 days after the judgment becomes final, which means after a final judgment is entered and the time for appeal has expired or an appeal has been taken and disposed of. The clerk has no authority to release exhibits to the parties prior to that time. Otherwise, should an appeal be filed the appellate court would not have access to exhibits.

Moreover, in the case of original mortgages and promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. See Perry v. Fairbanks Capital Corp., 888 So.2d 725, 726 (Fla. 5th DCA 2004). The judgment cancels the note. The clerk cannot return these instruments to the parties.

In this case, the appellee has refiled the note and mortgage with the clerk. Therefore, these instruments have been properly surrendered. Appellants never raised any objection below based on section 90.952, Florida Statutes, generally referred to as the “best evidence rule,” nor did appellants raise any authenticity objection. Thus, any such evidentiary objections should not be considered now for the first time on appeal. See, e.g., Tengbergen v. State, 9 So.Sd 729, 781 (Fla. 4th DCA 2009) (holding that a party’s trial objection was waived by his failure to object when the expert evidence was introduced); P.J. v. Dep’t of Children & Families, 783 So.2d 1148, 1150 (Fla. 5th DCA 2001) (stating that unless evidentiary objections are made during trial they are waived for purposes of appellate review). No harmful error has occurred.

The Johnstons also raise claims that the enforcement of Hudlett’s mortgage is barred by the statute of limitations or statute of repose. Like so many of the other claims, this too was not preserved. “Both the statute of limitations and the statute of repose are affirmative defenses.” Doe v. Hillsborough County Hosp. Auth., 816 So.2d 262, 264 (Fla. 2d DCA 2002). An affirmative defense is waived unless it is pleaded. Fla. R. Civ. P. 1.140(h)(1). These defenses were never pleaded below. Moreover, the defenses of the statute of limitations and statute of repose are being raised for the first time on appeal, and therefore were not preserved for appellate review. See, e.g., Square D Co. v. State Farm Fire & Cas. Co., 610 So.2d 522 (Fla. 3d DCA 1992) (“In this case, the appellant did not raise the Statute of Repose before the trial court in a timely manner. Accordingly, the applicability of the Statute of Repose to this case was not preserved for our review.”).

Appellants argue that the trial court made its ruling based solely on the allegations of Hudlett’s attorney. Appellants claim that “[n]o written stipulation of facts for which proof was unnecessary was prepared by counsel; no stipulation of agreed facts were verbally entered into the record by counsel; ... no promissory note was reviewed or referenced by the court.” Appellants overlook the fact that in this case there were both written and oral stipulations regarding the facts, from Mr. Johnston’s counsel, and Sandra Johnston was defaulted as to the material allegations of the complaint.

Finally, the Johnstons allege that Sandra Johnston was never personally served with process, nor was substituted service or process properly made on her. Section 48.031(l)(a), Florida Statutes, permits service of process “by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.” All requirements for substituted service must be strictly complied with or service is rendered void. Milanes v. Colonial Penn Ins. Co., 507 So.2d 777, 778 (Fla. 3d DCA 1987). The term “usual place of abode” means the place where the defendant is actually living at the time of service. Cordova v. Jolcover, 942 So.2d 1045, 1046 (Fla. 2d DCA 2006).

Here, the record contains a return of service for the cross-claim on Sandra Johnston, indicating that she was served by delivering the summons to her husband, James, at their residence. While some claim was made at trial that the Johnstons were having marital issues at the time, this would be relevant only if Sandra Johnston had actually moved out of the home and had relocated to a different “usual place of abode” at that time. See Barnett Bank of Clearwater, N.A. v. Folsom, 306 So.2d 186 (Fla. 2d DCA 1975).

Sandra never filed a motion to quash service of process, nor did she request to offer evidence to support her contention that service was improper. The defense of insufficient service of process was waived below by failing to raise the defense in a motion or an answer. A party waives the defense of insufficient service of process if it is not presented in a pre-answer motion to dismiss or in the answer. See Parra v. Raskin, 647 So.2d 1010, 1011 (Fla. 3d DCA 1994); Fla. R. Civ. P. 1.140(h). Although Sandra claims she could not raise the issue until this appeal, she is wrong. Sandra could have filed a motion in the trial court to set aside the default, to quash service of process or to vacate the final judgment. See Montero v. Duval Fed. Sav. and Loan Ass’n of Jacksonville, 581 So.2d 938 (Fla. 4th DCA 1991). Sandra even appeared with counsel at the final hearing and never took the proper steps to challenge service of process. We conclude that the issue has not been preserved for appeal.

In any event, Sandra was not a party to the promissory note. Although the final judgment had the effect of foreclosing a mortgage on the property, Sandra was not individually liable for any damages pursuant to the final judgment. She was a party only because of whatever property interest she had in the residential property. Thus, we reject the argument Sandra did not have the opportunity to present evidence pertaining to “unliquidat-ed damages” and that her due process rights were violated as a result.

For the foregoing reasons, we affirm the final judgment of foreclosure, including any issues not specifically addressed in this opinion.

POLEN and STEVENSON, JJ„ concur.

      . According to Citi’s foreclosure complaint filed in 2002, James Johnston was the sole record owner of the property at that time, but Sandra was added as a defendant because of her potential interest in the property as a spouse.


author: PER CURIAM.

text:
    William J. TILLMAN, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, and Bill McCollum, Attorney General, State of Florida, Respondents.
    No. 1D10-1246.
    District Court of Appeal of Florida, First District.
    April 6, 2010.
    William J. Tillman, pro se, Petitioner.

      No appearance for Respondents.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, LEWIS, and MARSTILLER, JJ., concur.


text:
    Linwood James IVEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1294.
    District Court of Appeal of Florida, First District.
    April 6, 2010.
    Linwood James Ivey, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, LEWIS, and MARSTILLER, JJ., concur.


text:
    Felipe DOMINGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4278.
    District Court of Appeal of Florida, First District.
    April 6, 2010.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Tasker v. State, 12 So.3d 889 (Fla. 1st DCA 2009), review granted, 29 So.3d 292 (Fla.2009).

WOLF, LEWIS, and MARSTILLER, JJ., concur.


author: TAYLOR, J.

text:
    Garfield JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-5014.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.

      Carey Haughwout, Public Defender, and Paul E. Petillo and Elisabeth Porter, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jiminez-Orosa and August A. Bonavita, Assistant Attorneys General, West Palm Beach, for appellee.
   TAYLOR, J.

After a jury trial, Garfield Jones was convicted of attempted first degree murder and armed robbery of Alex Gomez. He makes four arguments on appeal: (1) the trial court failed to conduct an adequate Richardson hearing; (2) the trial court abused its discretion in denying the defendant’s motion for continuance; (3) the trial court abused its discretion in permitting the state to impeach the defendant’s statement with his prior convictions; and (4) the trial court erred in admitting into evidence a gun cleaning kit. Because we conclude that the trial court failed to conduct an adequate inquiry into a potential discovery violation and abused its discretion in denying the defendant’s motion for continuance, we reverse and remand for a new trial.

At trial, Deputy Scott Popick testified that he responded to the scene minutes after the victim, Alex Gomez, was shot. He found Gomez lying in the doorway of an apartment, bleeding, screaming, and crying. Initially, Gomez told police that a friend, Nikko (Nnanniko Lightbourne), telephoned him and soon thereafter met him outside his apartment building. He said that Nikko was accompanied by a Hispanic male named Javier, who started shooting at him before taking $50 from him.

At the hospital, approximately an hour later, Gomez gave a different account of the incident. He said that Nikko met him outside, along with a Jamaican male, and that Nikko shot him. About a half hour later, when Detective Kogan arrived at the hospital, Gomez told yet another version of the incident. This time he said that he and Nikko got into a physical altercation, during which Nikko put him in a bear hug. Then another person, a black male, came over and tried to hit him over the head with a handgun. When Gomez started to run away, he was shot in the back.

Dwayne Lawrence testified that on the day of the shooting Nikko Lightbourne came to Lawrence’s apartment with a black man (Defendant), who Lightbourne introduced as “Spawn.” The three of them went to Gomez’s to buy marijuana. Lawrence stayed in the car. The other two were gone about ten minutes. During that time, Lawrence heard two or three gunshots. When Lightbourne and Spawn returned, they got in the car and drove off. As Spawn was driving, he took a gun out of his pocket and put it in his lap. Lightb-ourne told Spawn, “you shouldn’t have shot him.” Spawn responded, “he run, that’s why I did it.” He added, “I think he is dead.”

Before the victim, Alex Gomez, was called to testify, the court took a short recess. Afterwards, the prosecutor advised the court that he had spoken to Gomez in the holding cell before trial and that Gomez told him that the defendant had threatened him in jail the last time he was brought back from prison to testify in this case. The incident allegedly occurred on July 23, 2007, when he was in one cell and the defendant was in a separate cell directly across the hallway from him. At that time, the defendant told Gomez that he should have killed him that night or that he’s lucky that he didn’t kill him. The defendant then made a gesture with his hand, as if he had a gun, and commented that he knew where Gomez’s mother lived. Gomez also said that after the threats and threatening gestures, the defendant’s expression changed. He smiled and indicated that he would pay Gomez. The prosecutor said that he had just learned about this incident and that he immediately informed defense counsel.

Defense counsel objected to admission of evidence of the defendant’s threats due to its late disclosure. She complained that she could not effectively cross-examine Gomez about this testimony without an opportunity to investigate the alleged threats. She said that she believed the prosecutor’s representation that he had just learned about the incident, but that permitting this evidence in the middle of trial would make this a “trial by ambush.” She explained to the court:

It puts a lot of work in the middle of trial. I now have to go find witnesses and view the cell. I have to have a recess. I have to go interview people at BSO. I have to see the holding cell. I have to do all this in order to be able to cross-examine this guy when he had from July 23rd to August 2nd to tell [the prosecutor] about this statement.
How is that fair? I have to put everything on hold now because of that. When this could have been said, if indeed it happened. I have to now find subpoenas for Terry Lynch. I have to go find out who the deputies were that were [there], I have to go see the room. I have to find out who the people were in the holding room to see if they saw anything. Otherwise, I’m blindly cross-examining.

Defense counsel argued that evidence of the defendant’s threats to the victim would be highly prejudicial and, thus, should be excluded. She further requested a recess to investigate the incident. The trial court refused to recess the trial and admitted the evidence.

Alex Gomez testified that on the night of the shooting, he received a telephone call for a half ounce of marijuana. Because the voice sounded familiar, Gomez agreed to meet the person downstairs at his building. While waiting outside his apartment, Gomez saw two men dressed in black approach him. He recognized one of the men as his neighbor’s cousin, Nikko. While Gomez was talking to Nikko, the defendant approached and pointed a gun at Gomez’s stomach. Nikko searched Gomez and took all his money and marijuana. Nikko told the defendant to kill Gomez because he knew too much. The defendant told Nikko to hold Gomez while he shot him. He then told Nikko to release him. As soon as Nikko did so, Gomez ran and the defendant started shooting at his back. The defendant shot Gomez three times — in the back of his arm, middle of his back, and upper buttocks. Gomez picked the defendant out of a photo lineup and identified him in court as the shooter.

Near the end of his direct examination, Gomez testified about his contact with the defendant at the jail holding cell. He said that the defendant told him that he was lucky to be alive because he should have killed him. The defendant also made his hand into the shape of a gun and said, “Don’t forget I know where your mother lives.” Then “his face went from being real mean to just smiling,” and he offered to pay Gomez. On re-cross examination, Gomez testified that he reported the defendant’s threat to a jail deputy, but the deputy did nothing.

Nikko testified that he knew the defendant, Garfield Jones, who also went by the name “Spawn.” On the day in question, Lawrence called Nikko because Lawrence wanted to rob Gomez, who Lawrence believed had $10,000 on him. Nikko agreed. When Lawrence showed up at Nikko’s apartment, they began looking for someone with a gun to assist with the robbery. After a few unsuccessful calls, they went to the defendant’s apartment and discussed plans for the robbery. The defendant agreed to get his gun and participate. Nikko testified that the defendant shot Gomez three times in the back.

Officer Anthony Delpozzo testified concerning the consent search he conducted of the apartment that the defendant shared with his girlfriend, Melissa Martin. He did not find a gun or ammunition, but he found a gun cleaning kit in a hall closet. The kit was generic and could be used to clean any type of gun. The state introduced the gun cleaning kit into evidence at trial and mentioned it during closing argument, suggesting that the defendant had a gun.

The defendant was found guilty and sentenced to life imprisonment on each count, to run concurrently.

The Richardson Hearing

The prosecutor has a duty to disclose in discovery “any written or recorded statements and the substance of any oral statements made by the defendant.” Fla. R.Crim. P. 3.220(b)(1)(C). This duty “extends to a defendant’s statements made to a witness who is not an agent of the state.” Landry v. State, 931 So.2d 1063, 1065 (Fla. 4th DCA 2006). Further, the duty to disclose a defendant’s oral statement is a continuing discovery obligation. Fla. R.Crim. P. 3.2200).

In this case, the defendant’s alleged threat against the victim was an “oral statement made by the defendant,” but it was not disclosed until the middle of trial. The defendant argues that the trial court failed to conduct a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971). The state counters that the defendant never objected on the basis of a Richardson violation, and that, in any event, the trial court conducted a sufficient Richardson hearing when it determined that the state’s inability to disclose the threats until it heard about it rendered the nondisclosure inadvertent.

“There are no exact ‘magic words’ or phrases which must be used by the defense in order to necessitate the inquiry; only the fact that a discovery request has not been met.” Smith v. State, 7 So.3d 473, 506 (Fla.2009) (citing Copeland v. State, 566 So.2d 856, 858 (Fla. 1st DCA 1990); In re F.R., 539 So.2d 588, 589 (Fla. 1st DCA 1989)). Once a trial court has notice of a discovery violation, the court must conduct a Richardson hearing to inquire about the circumstances surrounding the state’s violation of the discovery rules and examine the possible prejudice to the defendant. Id. at 505. This requirement applies when the court learns of a possible discovery violation, in order to determine whether there has been an actual discovery violation. Landry, 9B1 So.2d at 1065. It also applies even if the defendant does not request a Richardson hearing. See C.D.B. v. State, 662 So.2d 738, 741 (Fla. 1st DCA 1995); Sears v. State, 656 So.2d 595 (Fla. 1st DCA 1995). Cf. Major v. State, 979 So.2d 243, 244 (Fla. 3d DCA 2007) (holding that “[wjhere a defendant fails to timely object to a discovery violation or to request a Richardson hearing, the defendant does not preserve the point for appellate review”).

Unlike the defendant in Major, who failed to lodge any objection whatsoever to the changed opinion of a medical examiner, see 979 So.2d at 244, here defense counsel objected to introducing the defendant’s threatening statements to the victim. Although she acknowledged that the prosecutor disclosed the defendant’s threat as soon as he learned of it, she still invoked the need for a Richardson hearing. According to the defendant, Gomez’s testimony that he told a jail deputy about the threat raised the possibility that the prosecutor may have been chargeable with this knowledge. See, e.g., Tarrant v. State, 668 So.2d 223, 225 (Fla. 4th DCA 1996) (“It is well-settled that the state is charged with constructive knowledge and possession of evidence withheld by state agents, including law enforcement officers.”).

Defendant contends that the trial court did not determine whether there was a discovery violation and, consequently, it did not conduct an adequate inquiry into three other required areas: “(1) whether the discovery violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party’s trial preparation.” McDuffie v. State, 970 So.2d 312, 321 (Fla.2007). Contrary to the defendant’s assertions, the trial court did find that the late disclosure of the threats was inadvertent, which presupposes that the trial court found that there was a discovery -violation. However, the trial court did not determine whether it was trivial or substantial and whether the violation prejudiced the defendant’s ability to properly prepare for trial. See Richardson, 246 So.2d at 775.

The defendant argues that he was procedurally prejudiced by the trial court’s failure to hold an adequate Richardson hearing. He contends that a timely disclosure of the alleged threats would have allowed his attorney to investigate the incident and search for evidence to refute it or at least cast doubt on the victim’s testimony regarding the incident. In addition, he could have called into question the victim’s credibility as a whole. We agree that the defendant has demonstrated procedural prejudice that precludes us from deeming the error harmless. See Scipio v. State, 928 So.2d 1138, 1150 (Fla.2006); State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995).

Motion for Continuance

The denial of a motion for continuance is committed to the sound discretion of the trial judge. Hernandez-Alberto v. State, 889 So.2d 721, 730 (Fla.2004). An abuse of discretion is generally not found unless the court’s ruling on the continuance results in undue prejudice to the defendant. Id.

The state argues that because the court session ended at 5:00 p.m. on the day the victim testified, defense counsel could have conducted her investigation that evening before cross-examining the victim the next morning. The defense counters by citing to our recent decision in Pickel v. State, 32 So.3d 638 (Fla. 4th DCA 2009). There, the defense complained that it had been prejudiced by the trial court’s denial of a motion for a continuance after the state disclosed its DNA statistical expert on the first day of trial. Id. at 638-39. We agreed, stating that “[r]ushed hotel depositions in the nighttime by exhausted defense counsel cannot possibly balance the scales of preparation.” Id.

The defendant also relies on Boland v. State, 946 So.2d 642 (Fla. 4th DCA 2007). In Boland, the defendant was charged with armed robbery and burglary. Id. at 643. The victim and the defendant resided in the same detention center and communicated with each other at some point before trial. Id. According to the victim, the defendant told him he was sorry about committing the crimes and asked him not to testify against him, or to testify falsely. Id. at 643-44. The victim agreed but asked the defendant to write a letter telling him exactly what to say. Id. at 644. On the day of trial, the victim brought the letter with him to the courthouse. Id. He gave it to the prosecutor, who immediately shared it with defense counsel. Id. The defendant moved for a continuance to allow a handwriting expert to analyze the letter purportedly written by the defendant. Id. The trial court denied the motion. Id. On appeal, we found that the denial of the motion for continuance was an abuse of discretion and reversed for a new trial. We were unable to say that the error was harmless because “[h]ad the outcome of that analysis supported the defendant’s position that he didn’t write the letter, the victim’s credibility would have been severely undermined.” Id. at 645. See also Griffin v. State, 598 So.2d 254 (Fla. 1st DCA 1992) (holding that state’s late disclosure of witness required a continuance).

Similarly, in this case, had the defendant been granted a recess to investigate Gomez’s claim that the defendant threatened him in jail, the investigation might have produced evidence to cast doubt on this claim, as well as on his overall veracity. Among other things, defense counsel could have investigated Gomez’s statement that he reported the threat to a jail deputy. We conclude that the denial of the motion for a recess to allow counsel sufficient time to investigate the matter was an abuse of discretion warranting a new trial.

The Gun Cleaning Kit

Because we are reversing and remanding this case for a new trial, we comment briefly on an issue raised by defendant that could recur. At the commencement of trial, the defendant moved in limine to exclude the gun cleaning kit seized from the defendant’s home on the ground that it was irrelevant and that any probative value of this evidence was outweighed by its prejudicial effect. We conclude that the trial court erred in denying the motion and admitting the gun cleaning kit into evidence.

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2008). “The trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.” Heath v. State, 648 So.2d 660, 664 (Fla.1994).

“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2008). “The weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two.” Sims v. Brown, 574 So.2d 131, 133 (Fla.1991).

“[W]here the evidence at trial does not link a weapon seized to the crime charged, the weapon is inadmissible.” O’Connor v. State, 835 So.2d 1226, 1231 (Fla. 4th DCA 2003). Accord Huhn v. State, 511 So.2d 583, 589 (Fla. 4th DCA 1987) (“Here, there is nothing unlawful about Huhn’s ownership of the gun, and nothing to connect the particular gun to the crimes for which Huhn was on trial. We conclude that the gun was not relevant to the case.”).

Similarly, in this case, there was nothing unlawful about the defendant’s ownership of a gun cleaning kit and nothing was shown to connect it to the crimes charged. Its admission served only to suggest that at some point the defendant owned a gun.

Finally, because we are reversing and remanding this case for a new trial, we need not comment on the defendant’s argument that the trial court erred in permitting the state to impeach his exculpatory statement with his felony convictions.

Reversed, and Remanded for a new trial.

STEVENSON and MAY, JJ., concur.

      . Richardson v. State, 246 So,2d 771 (Fla.1971).

      . During this time period, Gomez was in custody serving a prison sentence for felony possession of marijuana.


author: FARMER, J.

text:
    Gerry GOLDSMITH, Appellant, v. Jack McDONALD, Palm Beach County Canvassing Board, The Town of Palm Beach and Susan Bucher, Appellees.
    No. 4D09-1658.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    Rehearing Denied May 14, 2010.
    Gerald F. Richman and John R. Whittles of Richman Greer, P.A., West Palm Beach, for appellant.
    Jack L. McDonald, Palm Beach, pro se.
    Ronald L. Labasky and John T. LaVia, III, of Young Van Assenderp, P.A., Tallahassee, for Town of Palm Beach and Susan Bucher, Supervisor of Elections.
   FARMER, J.

This election dispute comes from the Town of Palm Beach where its incumbent Mayor McDonald was reelected by a single vote. The runner-up, Goldsmith, argues that the Canvassing Board invalidly failed to count some absentee ballots. The trial judge found no basis to quash the Board’s findings. Under the facts of this case, we affirm.

The election was February 3rd. Candidates were Jack McDonald, Gerry Goldsmith and Susan Markin. No one attained a majority. The runoff was two weeks later, February 17th, with two candidates receiving the highest votes, Mayor McDonald and Challenger Goldsmith, the only names on the ballot.

The Palm Beach Supervisor of Elections distributed the absentee ballots for the runoff election. Those ballots identified the supervisor’s post office box located at the main post office for Palm Beach County as an additional place to return absentee ballots. That post office box is on the mainland in West Palm Beach, not on the island of Palm Beach.

When the polls closed the Town’s Canvassing Board reported McDonald received 3 more votes than Goldsmith out of 3,173 cast. As the margin was less than .005 the Board conducted a machine recount. That recount did not change the margin; hence a manual recount ensued. Thirteen absentee ballots in the manual recount were held invalid because they were not timely returned. The manual recount showed McDonald winning by a single vote: 1,590 to 1,589.

Goldsmith filed an election contest. He alleged that 9 of the 13 absentee ballots were improperly excluded as untimely. At trial, he sought to prove that 3 of these absentee ballots had been placed in the U.S. Mail in Palm Beach on February 14th and should have been received in the West Palm Beach post office box by 7:00 p.m. on February 17th. Employees from the supervisor’s office twice surveyed the box on February 17th, once at 10:00 a.m. and then at 5:00 p.m. Some ballots were found in the first survey; none in the last.

Goldsmith contended that at least 3 of the ballots found in the post office box the next day might have been placed there on February 17th by postal workers between 5:00 and 7:00 p.m. But USPS officials stated that mail reaching the main facility on February 17th would not be placed in the box until the next day. At the end of the bench trial, the court found no evidence supporting Goldsmith’s claim, that it was based on speculation.

Florida law allows qualified voters to request an absentee ballot from the Supervisor of Elections. Section 101.6103(2) explicitly states: “The elector shall mail, deliver, or have delivered the marked ballot so that it reaches the supervisor of elections no later than 7 p.m. on the day of the election.” [e.s.] Absentee ballots also have this instruction to voters:

“VERY IMPORTANT. In order to ensure that your absentee ballot will be counted, it should be completed and returned as soon as possible so that it can reach the supervisor of elections of the county in which your precinct is located no later than 7 p.m. on the day of the election.” [e.s.]

No one suggests this warning was not furnished to those whose absentee ballots were untimely.

Of course, the right to vote is fundamental in our system of democratic government. Boardman v. Esteva, 323 So.2d 259, 263 (Fla.1975). There is some sentiment that unlike the right to vote in person, the ability to “vote by absentee ballot is a privilege.” In re November 4, 1997 Election for the City of Miami, 707 So.2d 1170, 1173 (Fla. 3d DCA 1998); Anderson v. Canvassing and Election Bd. of Gadsden County, 399 So.2d 1021, 1023 (Fla. 1st DCA 1981); see also McDonald v. Miller, 90 So.2d 124 (Fla.1956) (in view of fact that absentee voting was unknown to common law, statutes for absentee voting should be cautiously and specifically followed). But Boardman held:

“realizing as we do that strict compliance has been required by this Court in other cases, we now recede from that rule and hereby reaffirm the rule ... that substantial compliance with the absentee voting laws is all that is required to give legality to the ballot.” [e.s.]

323 So.2d at 264.

Absentee voting is only one way of exercising the right to vote. For all ways of voting, however, the statutes require eligible voters to comply with specific conditions before their vote may have effect. Voters must have attained proper age; establish residence; duly register before the registration deadline; present oneself on election day at the proper polling place before the polls close; prove identity; indicate one’s choices in the approved manner. For absentee voters, the statutes substitute the condition of returning the completed ballot before the polls close.

Goldsmith posits that substantial compliance is met by placing the returned absentee ballot in the U.S. Mail sometime before election day, just early enough that the USPS should be able to get it into the supervisor’s box by the deadline. He argues that mail reaching the main facility (where the supervisor’s box is located) any time on election day should be deemed timely received by the supervisor and be counted.

Yet the statute for absentee voting explicitly places the burden on the voter (not the USPS) to deliver the ballot no later than 7:00 p.m. on election day. The voter is given the choice of personally conveying the ballot or relying on others (such as the USPS) to do so. The statutes omit any implication that ballots would or should be deemed received by the supervisor simply because before election day they were somewhere in the hands of the USPS.

We do not read Goldsmith’s contention of mere placement in the U.S. Mail system as compliance in any sense — substantial or otherwise — with the actual statutory return requirement for absentee voters: “The elector shall mail ... ballot so that it reaches the supervisor of elections no later than 7 p.m. on the day of the election.” [e.s.] It is the voter who must get the returned ballot into the supervisor’s hands before polls close, not the USPS. The ballot explicitly warns voters of that requirement. The very statutory warning itself makes clear the Legislature understood the vagaries of third party delivery yet made the voter responsible to get the ballot to the polls on time. Just as the voter who votes in person must show up at the polls on time.

The delivery deadline is not subject to interpretation by dissecting conceivable applications and variations on Boardman’s descriptive term substantial. 323 So.2d at 264. The statute’s condition for counting the ballot is plain and unqualified: it must reach the supervisor before the voting period lapses. It is not a condition capable of being met closely afterwards. If it arrives before closing, it may be counted; if it doesn’t, it will not be counted. The statutes and the obligation they impose on the absentee voter could not be more obviously beyond such cavil. Late but close is not compliance of any kind.

The judgment of officials duly charged with carrying out the election process should be presumed correct if reasonable and not in derogation of the law. Krivanek v. Take Back Tampa Political Comm., 625 So.2d 840, 844-45 (Fla.1993). Indeed as the court explained in Boardman:

“The election process is subject to legislative prescription and constitutional command and is committed to the executive branch of government through duly designated officials all charged with specific duties.... [The] judgments [of those officials] are entitled to be regarded by the courts as presumptively correct and if rational and not clearly outside legal requirements should be upheld rather than substituted by the impression a particular judge or panel of judges might deem more appropriate. It is certainly the intent of the constitution and the legislature that the results of elections are to be efficiently, honestly and promptly ascertained by election officials to whom some latitude of judgment is accorded, and that courts are to overturn such determinations only for compelling reasons when there are clear, substantial departures from essential requirements of law.”

323 So.2d at 268-69, n. 5.

In this case, the trial court found:

“The evidence by any standard of proof (a preponderance of the evidence, clear and convincing, etc.) demonstrated that there were no absentee ballots placed in the Supervisor’s box between approximately 5:00 p.m. February 17th (when last checked by the Supervisor’s office) and 7:00 p.m. February 17, 2009.”

The trial court held the procedures employed by the supervisor complied with the statutes. That decision is amply supported by the law and the record on appeal.

Affirmed.

GROSS, C.J., and CIKLIN, J„ concur.

      . See § 102.141(7), Fla. Stat. (2008).

      . See § 102.166, Fla. Stat. (2008).

      . See § 102.168, Fla. Stat. (2008).

      . See § 101.62, Fla. Stat. (2008).

      . See § 101.65, Fla. Stat. (2008) (¶ 1).

      . How close would be enough to be substantial?


text:
    Ronald ALEXANDER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-932.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    Rehearing Denied May 14, 2010.
    Ronald Alexander, Raiford, pro se.
    No response filed on behalf of respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits. Appellate counsel is not deficient for failing to raise claims of ineffective assistance of trial counsel on direct appeal. Suarez v. Dugger, 527 So.2d 190, 193 (Fla.1988); Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987). With extremely limited exceptions, the appropriate place to raise a claim of ineffective assistance of trial counsel is a Florida Rule of Criminal Procedure 3.850 motion, not on direct appeal. “Appellate counsel cannot be faulted for preserving the more effective remedy and eschewing the less effective.” Blanco, 507 So.2d at 1384.

STEVENSON, MAY and DAMOORGIAN, JJ„ concur.


text:
    Antonio D. MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6052.
    District Court of Appeal of Florida, First District.
    April 7, 2010.
    Antonio D. Miller, pro se, Petitioner.
    Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Antonio Miller filed a post-judgment motion in his criminal case, seeking return of personal property. The motion was denied and Miller moved for rehearing. He seeks belated appeal because he did not receive the order denying rehearing until it was too late to appeal.

We find that belated appeal is the proper remedy because the motion was filed in Miller’s criminal case. See Powell v. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999). Further, the order denying the motion is appealable pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(D). Miller’s motion for rehearing was unauthorized and did not postpone rendition of the underlying order. Cochrane v. State, 997 So.2d 1221 (Fla. 2d DCA 2008). Miller’s late receipt of the order denying rehearing therefore does not entitle him to relief. The petition for belated appeal is accordingly denied.

PETITION DENIED.

BENTON, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Charleston Dwayne GRINER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0273.
    District Court of Appeal of Florida, First District.
    April 7, 2010.

      Charleston Dwayne Griner, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Charleston Dwayne Griner is hereby afforded a belated appeal from the order denying motion to correct illegal sentence in Duval County case number 16-1994-CF-4586-EXXX. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BENTON, VAN NORTWICK, and CLARK, JJ., concur.