IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR
FOR PALM BEACH COUNTY, FLORIDA
CASE No. 50 2005DR001269XXXXMB
IN RE: The Marriage of
Family Law Division
JEFFREY P. LAWSON,
Petitioner/Husband,
and
KATHY ANN GARCIA-LAWSON
Respondent/Wife.
______
RESPONDENT/WIFE’S MOTION TO DISMISS THE ACTION OF PETITIONER/HUSBAND FOR LACK OF SUBJECT MATTER JURISDICTION AND INCORPORATED SUPPORTING MEMORANDUM OF LAW
COMES NOW, the Respondent/Wife, KATHY ANN GARCIA-LAWSON, by and through the undersigned counsel, and hereby moves this Court for the entry of an Order dismissing Petitioner’s Verified Petition for Dissolution of Marriage for lack of subject matter jurisdiction and in support thereof states as follows.
1.Petitioner/Husband is Jeffrey P. Lawson (hereinafter referred to as “Husband”).
2.Respondent/Wife is Kathy Ann Garcia-Lawson (hereinafter referred to as
“Wife”).
3.The real party in interest is the only child of Husband and Wife, Alexandra
Ann Garcia Lawson (age 12), (hereinafter referred to as “Child”).
4.On February 1, 2005 Husband filed an action against Wife on two counts in “Husband’s Verified Petition for Dissolution of Marriage” (hereinafter referred to as “Husband’s Petition”).
- Count 1 of Husband’s Petition seeks a divorce, shared parental
responsibility of the Child, equitable distribution of the marital assets and liabilities
pursuant to Florida Statutes Section 61.075 (2004), and distribution of other assets
alleged to be non-marital.
6.Count 2 of Husband’s Petition seeks partition of the family home.
7.Wife moves for an order dismissing Counts 1 and 2 of Husband’s Petition.
8.The grounds for this motion are that Husband’s Petition fails to invoke the court’s jurisdiction over the subject matter because:
(1) Husband’s Petition fails to show his standing to seek judicial relief;
and
(2) Husband’s Petition fails to state a claim upon which relief may lawfully be granted by any court of law or equity; and
(3) is groundless, i.e. the Florida divorce scheme based upon “irretrievable breakdown” is unconstitutionally voidand therefore has no lawful underlying statutory basis, because it operates in violation of the rights to which Wife and Child each are entitled under multiple provisions of the Florida and United States Constitutions.
9.In summary, Fla. Stat. §§ 61.011, 61.052, 61.043, and 61.044, individually or collectively, or both, are unconstitutional facially, and as applied, in violation of (one or more of) the following:
Article 1, Section 2, of the Florida Constitution;
Article 1, Section 9, of the Florida Constitution;
Article 1, Section 10, of the Florida Constitution;
Article 1, Section 12, of the Florida Constitution;
Article 1, Section 17, of the Florida Constitution;
Article 1, Section 21, of the Florida Constitution;
Article 1, Section 22, of the Florida Constitution;
Article 1, Section 23, of the Florida Constitution;
Article 1, Section 10 of the United States Constitution; and
Article 4, Section 4 of the United States Constitution;
1st, 4th, 9th, and 14th Amendments of the United States Constitution.
10.This motion is based on the Husband’s Petition on file in this action, the attached memorandum of points and authorities, and the evidence and arguments to be presented at an evidentiary hearing on this motion. This motion is made in good faith and not for the purpose of unnecessary delay.
11.Please take notice that Wife moves for a specially set date and time at which to bring this motion for an evidentiary hearing in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida.
12.Please take notice that Wife moves for a stay of all further legal proceedings until the Court rules upon this challenge to the Court’s jurisdiction over the subject matter. Wife is ready to present some, but not all of the constitutional issues and reserves all rights and remedies until they are formally presented to the court.
13.Extensive legal research into Wife’s U.S. Constitutional rights and remedies is nearing completion. Briefing is under way, as needed to articulate U.S. Constitutional challenges to Florida statutes and procedures under:
express prohibition against state bills of attainder (Article 1, Section 10);
express prohibition against laws impairing the obligations of contracts (Article 1, Section 10);
guarantee to state citizens of a Republican form of government (Article 4, Section 4):
Liberty (14th Amendment);
Privacy (as a constitutional penumbra protecting the family, and as a penumbra of the specific guarantees of the Bill of Rights, and as an element of the 9th Amendment, and under the autonomy branch of privacy found in the guarantee of substantive due process in the 14th Amendment);
Association (1st Amendment);
Procedural Due Process (14th Amendment);
Substantive Due Process (14th Amendment);
Equal Protection (14th Amendment);
Supremacy Clause (Art. VI); and
Other Rights retained by the People (9th Amendment).
Extensive legal research into Wife’s Florida Constitutional rights and remedies is nearing completion, but another three to four weeks may be required to complete the
briefing process with all deliberate speed because extensive legal research into Child’s Constitutional rights and remedies under the Florida and U.S. Constitutions is yet to be done.
Under these circumstances, Wife and Child are not ready for an evidentiary hearing on the Constitutional issues. Therefore, Wife and Child request a case management hearing (as the Court previously conducted at the request of Husband’s counsel prior to entry of appearance by Wife’s counsel of record), and that the Court enter a stay and scheduling order to control the filing and disposition of all briefs, discovery, and requests for pre-trial relief.
MEMORANDUM OF LAW
In his complaint, Husband alleged as the sole basis for his action that the marriage of Husband and Wife is “irretrievably broken.” Husband has not set forth the requisite fact(s) that show actionable harm, fault, or breach by Wife in violation of Fla. R. Civ. P. Rule 1.110(b)(2) which requires “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.”
“Florida is a fact-pleading jurisdiction. Continental Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla. 5th DCA 1994); see also Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990) (“Florida Rule of Civil Procedure 1.110(b)(2) requires that ‘[a] pleading which sets forth a claim for relief ... must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief’ ”). Florida's pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort. Continental Baking Co., 634 So.2d at 244. Furthermore, at the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla.1988).” Horowitz v. Laske, 855 So.2d 169, 172-3, Fla.App. 5 Dist., 2003.
It is manifest that Husband’s complaint fails to comply with the requirement of Fla. R. Civ. P. Rule 1.110(b)(2) for “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief;” this fact is of great import in the context of three key jurisdictional issues, standing, justiciablity, and whether or not the complaint fails to state a claim.
Allegations of fact (from which there is actionable harm by Wife, for which Husband can obtain judicial relief) are essential to show Husband’s standing to prosecute a legal action. “To establish standing it must be shown that the party suffered injury in fact (economic or otherwise) for which relief is likely to be redressed and, in non-constitutional situations, that the interest sought to be protected falls within a statutory or constitutional guarantee (i.e., the zone of interest ...). See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The injury must be distinct and palpable. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). It may not be abstract, conjectural or hypothetical. Allen v. Wright, 468 U.S. 737, 741, 104 S.Ct. 3315, 3319, 82 L.Ed.2d 556 (1984).” Peregood v. Cosmides, 663 So.2d 665, 668, Fla.App. 5 Dist., 1995.
Because Husband’s complaint fails to show his standing (by pleading the requisite facts to identify the Wife’s actionable harm, fault or breach), Husband’s complaint is legally insufficient to invoke the subject matter jurisdiction of this Court; therefore the Court should dismiss Count 1 of Husband’s Petition.
Likewise, because Husband’s complaint fails to state a claim upon which relief can be granted, it is legally insufficient and therefore the Court should dismiss Count 1 of Husband’s Petition. The court has authority to dismiss a suit for failure to state a claim upon which relief can be granted if the complaint clearly demonstrates that plaintiff cannot prove any set of facts that would entitle it to relief. Hishon v. King & Spalding,467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984).
In addition, Husband’s Petition is legally insufficient on the ground that the Florida divorce scheme (based upon “irretrievable breakdown”) is void because it violates the rights to which Wife and Child each are entitled under multiple provisions of the Florida and United States Constitutions as outlined below; consequently, there is no valid statutory basis for Florida’s divorce scheme.
Fla. Stat. §§61.011, 61.043, 61.044, and 61.052,[1] individually or collectively, or both, are unconstitutional facially, and as applied, in violation of (one or more of) the following:
Article 1, Section 2, of the Florida Constitution;
Article 1, Section 9, of the Florida Constitution;
Article 1, Section 10, of the Florida Constitution;
Article 1, Section 12, of the Florida Constitution;
Article 1, Section 17, of the Florida Constitution;
Article 1, Section 21, of the Florida Constitution;
Article 1, Section 22, of the Florida Constitution;
Article 1, Section 23, of the Florida Constitution;
Article 1, Section 10 of the United States Constitution;
Article 4, Section 4 of the United States Constitution;
1st, 4th, 9th, and 14th Amendments of the United States Constitution.
For example, Husband’s Petition should be dismissed because Fla. Stat.§ 61.044 is facially unconstitutional in violation of the guarantee that every citizen in a Florida divorce action is entitled to defend themselves, their marriage contract and marriage status, their child(ren), and their property under Article 1, Sections 2, 9, and 17 of the Florida Constitution and the 14th Amendment of the United States Constitution.
Well over one hundred years ago, the Supreme Court of the United States addressed the folly that the judicial power could be exercised against one party who has no right to a defense.
Can it be doubted that due process of law signifies a right to be heard in one's defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department-the source and fountain of justice itself-has yet the authority to render lawful that which, if done under express legislative sanction, would be violative of the constitution. If such power obtains, then the judicial department of the government, sitting to uphold and enforce the constitution, is the only one possessing a power to disregard it. If such authority exists, then, in consequence of their establishment, to compel obedience to law, and to enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent.
Hovey v. Elliott, 167 U.S. 409, 417 (1897).
If this Court allows the prosecution of Husband’s divorce case and Wife has no defense against the action, then that process, enabled by this Court, will violate the most rudimentary notions of due process of law under the American system of justice; in so doing, the Court will (paraphrasing the Supreme Court in Hovey) inflict the very wrong which it was created to prevent.
The Supreme Court of the United States has held that “… a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment.” Vlandis v. Kline, 412 U.S. 441, 446 (1973). Fla. Stat.§ 61.044 is a statute that creates not just a presumption, but an absolute bar, that denies Wife any opportunity to defend herself, her marriage contract and marriage status, her child, and her property. By abolishing Wife’s defenses, Fla. Stat.§ 61.044 flagrantly violates the rights of Wife and Child to due process clause of the Fourteenth Amendment of the United States Constitution.
That prospect is certainly offensive to notions of fair play and substantial justice. That the process without due process implicates the fundamental rights of both Wife and Child makes the process without due process to exponentially more offensive. There is "historical recognition that freedom of choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." Santosky v Kramer, 455 U.S. 745, 753 (1972).
And there is no doubt that multiple aspects of the intact family life of Wife and Child have been recognized by the Supreme Court of United States as fundamental or basic civil rights. Throughout the modern era, the Supreme Court of the United States has consistently emphasized the importance of the family and repeatedly described the rights of citizens in marriage, parenting, and family rights as “fundamental” or “basic civil rights.”
“The rights to conceive and to raise one's children have been deemed ‘essential,’... ‘basic civil rights of man,’” (citations omitted.) Hodgson v. Minnesota, 497 U.S. 417, 447 (1990).
“[T]he liberty…to direct the upbringing and education of children, …are among ‘the basic civil rights of man.’” Thornburgh v. American Coll. of Obst. & Gyn., 476 U.S. 747, 773 (1986) (Mr. Justice Stevens, concurring).
“[O]ne of the ‘basic civil rights of man’ is the right to marry and procreate.” (citations omitted) Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 463 (1985).
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”… “the foundation of the family and of society, without which there would be neither civilization nor progress”... (citations omitted). Zablocki v. Redhail, 434 U.S. 374, 383, 384 (1978).
The "rights to conceive and to raise one's children have been deemed ‘essential,’… ‘basic civil rights of man,’”. Weinberger v. Salfi, 422 U.S. 749, 771 (1975).
“[T]here is a right ‘to be free from unwarranted... intrusion... affecting... the decision whether to bear or beget a child.’... [M]aternity leave rules directly affect ‘one of the basic civil rights of man.’” (citations omitted.) Cleveland Board of Education v. Lafleur, 414 U.S. 632, 639-640 (1974).
“The rights to conceive and to raise one's children have been deemed essential ... basic civil rights of man... far more precious ... than property rights...” Stanley v. Illinois, 405 U.S. 645, 651 (1972).
“[T]he right ‘to marry, establish a home and bring up children,’... and ‘the liberty to direct the upbringing and education of children,’... are among ‘the basic civil rights of man.’” Griswold v. Connecticut, 381 U.S. 479, 503 (1965)(Mr. Justice White, concurring.)
“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
"It is cardinal with us that the custody, care, and nurture of the child reside first in the parents. ... The integrity of the family unit has found protection in the Due Process clause of the Fourteenth Amendment, ... the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment ...” (citations omitted). Stanley v. Illinois, 405 U.S. 645, 651 (1972).
From these and other cases, the Supreme Court of the United States has articulated a long, but not exhaustive, list of parental rights. “The liberty interest at issue… care, custody, and control of their children… establish a home and bring up children… control the education… direct the upbringing and education… nurture him and direct his destiny… prepare him for additional obligations… custody, care, and nurture… companionship, care, custody, and management… [I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65-66, (2000).
All aspects of Wife’s intact family life are implicated by Husband’s attack upon their marriage, and his direct attack upon the Wife’s marriage is an indirect attack upon the Child, because dissolution of Wife’s marriage has such profound consequences for Child. All of the many fundamental liberty interests of Wife and Child which stem from their intact family are left defenseless when Wife’s marriage is rendered defenseless by Fla. Stat.§ 61.044.
"The Fourteenth Amendment forbids the government to infringe fundamental liberty interests, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Washington v Gluckberg, 521 U.S. 702, 721 (1997), citing Reno v Flores, 507 U.S. 292, 302 (1993). The state has a profoundly compelling interest in marriage, and there is certainly no compelling state interest in divorce, and yet the state of Florida purports to strip Wife of any legal defense of her marriage by way of Fla. Stat.§ 61.044.
These are just a few of the reasons Fla. Stat.§ 61.044 is facially unconstitutional in violation ofthe 14th Amendment of the United States Constitution, and Wife has not even begun to articulate the many ways Fla. Stat.§ 61.044 is facially unconstitutional in violation of Article 1, Sections 2, 9, and 17 of the Florida Constitution (guarantees that every citizen in a Florida divorce action is entitled to defend themselves, their marriage contract and marriage status, their child(ren), and their property).
Moreover, Fla. Stat.§ 61.044 leverages the legal effect of Fla. Stat.§§61.011, 61.043, and 61.052, so that these statutes operating together utterly negate the legislative intent expressed in Fla. Stat. § 61.001, by requiring divorce in every case in which a judgment is entered. Such a legislatively preordained outcome violates the prohibition against bills of attainder and laws impairing the obligations of contract in Article 1, Section 12 of the Florida Constitution and Article 1, Section 10 of the United States Constitution.
Long ago, Mr. Justice Chase, in Calder v. Bull, generally described the types of state actions embodied in the Florida divorce scheme as a form of “heresy altogether inadmissible in our free republican governments.”
A law that punishes… for an innocent action…; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A and gives it toB; It is against all reason and justice for a people to entrust a Legislature with such powers; …therefore, it cannot be presumed that they have done it. [T]he nature and the spirit, of our State Government, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy altogether inadmissible in our free republican governments. Calder v. Bull, 3 Dall. 386, 388-389 (1798).