Ruth D. Ledoux-Nottingham v. Jennifer Joy Downs, etc. , 42 Fla. L. Weekly Supp. 195 ( 2017 )


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  •           Supreme Court of Florida
    ____________
    No. SC15-1037
    ____________
    RUTH D. LEDOUX-NOTTINGHAM,
    Petitioner,
    vs.
    JENNIFER JOY DOWNS, etc.,
    Respondents.
    [February 16, 2017]
    CANADY, J.
    In this case we consider whether the Full Faith and Credit Clause of the
    United States Constitution requires enforcement of a sister state’s judgment
    ordering grandparent visitation with minor children despite the fact that the right of
    privacy set forth in article I, section 23 of the Florida Constitution protects the right
    of parents to raise their children free from unwarranted governmental interference.
    We have for review LeDoux-Nottingham v. Downs, 
    163 So. 3d 560
    (Fla. 5th DCA
    2015), in which the Fifth District Court of Appeal rejected the argument that a
    Colorado judgment ordering grandparent visitation is unenforceable as a matter of
    Florida law and public policy because it violates “childrearing autonomy”
    guaranteed to parents under article I, section 23 of the Florida Constitution. The
    Fifth District held that under “the Full Faith and Credit Clause [of the United
    States Constitution], trial courts are required, without discretion, to give
    recognition to final judgments of another state when applicable,” and certified
    conflict with M.S. v. D.C., 
    763 So. 2d 1051
    , 1055 (Fla. 4th DCA 1999), in which
    the Fourth District held that the Full Faith and Credit Clause does not trump
    Florida’s overriding public policy of a guaranteed fundamental right of privacy in
    childrearing autonomy. 
    LeDoux-Nottingham, 163 So. 3d at 563-65
    . We have
    jurisdiction. See art. V, § 3(b)(4), Fla. Const.
    For the reasons we explain, we approve the Fifth District’s decision in
    LeDoux-Nottingham and disapprove the Fourth District’s decision in M.S. We
    also disapprove the decision of the Second District in Fazzini v. Davis, 
    98 So. 3d 98
    (Fla. 2d DCA 2012), to the extent that it holds that Florida’s public policy may
    provide an exception to the full faith and credit due judgments of sister states.
    I. BACKGROUND
    Petitioner, Ruth D. LeDoux-Nottingham, and the father of her two minor
    children were divorced in Colorado in 2010. 
    LeDoux-Nottingham, 163 So. 3d at 561
    . The father died in 2011 in Colorado. 
    Id. Immediately after
    the funeral,
    LeDoux-Nottingham and her minor children moved to Florida. 
    Id. Respondents, Jennifer
    Joy Downs and William Glen Downs (hereinafter “the Grandparents”),
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    timely initiated a proceeding in Colorado seeking visitation with the children. 
    Id. LeDoux-Nottingham then
    filed a separate action in Florida to register the Colorado
    final judgment dissolving her marriage and for a judicial determination that the
    Grandparents have no legal right to timesharing with her minor children. 
    Id. In October
    2012, the Colorado court issued a final judgment awarding the
    Grandparents visitation with the children (hereinafter “the Colorado order”). 
    Id. at 562.
    LeDoux-Nottingham then amended her petition in Florida and sought to both
    domesticate and modify the Colorado order, arguing, in relevant part, that under
    Florida law, enforcement of a grandparent visitation order is unconstitutional and
    against public policy. 
    Id. After a
    trial, the Florida court entered a final order
    which registered and domesticated the Colorado order, stated that it was
    enforceable in Florida, and denied LeDoux-Nottingham’s request for modification.
    
    Id. LeDoux-Nottingham appealed
    the Florida trial court’s order, arguing that the
    Colorado order was unenforceable as a matter of Florida law and public policy
    because it violates childrearing autonomy guaranteed to parents under article I,
    section 23 of the Florida Constitution, which states that “[e]very natural person has
    the right to be let alone and free from governmental intrusion into the person’s
    private life except as otherwise provided herein.” 
    Id. (alteration in
    original). In
    rejecting LeDoux-Nottingham’s argument, the Fifth District relied on the decision
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    of the United States Supreme Court in Baker v. General Motors Corp., 
    522 U.S. 222
    (1998), which the district court concluded “makes clear that the public policy
    of one state has no effect on whether the state must give full faith and credit to
    judgments, rather than law, of another state,” and held that under “the Full Faith
    and Credit Clause, trial courts are required, without discretion, to give recognition
    to final judgments of another state when 
    applicable.” 163 So. 3d at 563
    . The
    district court concluded that the trial court properly enforced the Colorado order
    granting the Grandparents visitation, reasoning as follows:
    Since the Colorado order was a final judgment and emanated from a
    “child custody proceeding” within the meaning of section 61.503(4),
    Florida Statutes (2013),[N.2] it became enforceable in Florida pursuant
    to the Full Faith and Credit Clause as well as section 61.526, Florida
    Statutes. See 
    [Baker, 522 U.S. at 232-33
    ]; § 61.526(1), Fla. Stat.
    (2013) (“A court of this state shall recognize and enforce a child
    custody determination of a court of another state if the latter court
    exercised jurisdiction in substantial conformity with this part or the
    determination was made under factual circumstances meeting the
    jurisdictional standards of this part and the determination has not been
    modified in accordance with this part.”).
    [N.2] § 61.504(4), Fla. Stat. (2013) (defining “child
    custody proceeding” as “a proceeding in which legal
    custody, physical custody, residential care, or visitation
    with respect to a child is an issue”).
    
    Id. The Fifth
    District also affirmed the trial court’s decision that modification of
    the Colorado order was not warranted because there had not been a subsequent
    substantial and material change in circumstances. 
    Id. at 564.
    And the Fifth
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    District certified conflict with M.S., in which the Fourth District reversed an order
    granting a motion for visitation filed by grandparents based on a Connecticut
    divorce and custody decree that provided for grandparent visitation. The Fourth
    District in M.S. stated:
    We have considered the argument that the Connecticut
    [grandparent] visitation order is entitled to full faith and credit.
    However, a visitation provision such as this, while entitled to our
    respect on comity principles, does not prevent the application of an
    overriding provision of our law, applying a paramount public policy.
    As our supreme court has recognized, few policies in the state are
    more paramount than enforcement of an exercise of a recognized
    constitutional right to 
    privacy. 763 So. 2d at 1055
    (citations omitted).
    II. ANALYSIS
    In the analysis that follows, we first consider whether final judgments
    entered by sister states relating to child custody and visitation are entitled to full
    faith and credit or subject to the principles of comity. Because we conclude that
    such judgments are entitled to full faith and credit, we then consider whether the
    Full Faith and Credit Clause mandates enforcement of the Colorado order in
    Florida even if such enforcement would violate LeDoux-Nottingham’s right of
    privacy under the Florida Constitution or whether there is a public policy exception
    to the Full Faith and Credit Clause. We conclude that there is no public policy
    exception to the Full Faith and Credit Clause, and the Colorado order is
    enforceable in Florida.
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    A. Comity vs. the Full Faith and Credit Clause
    Because the Fourth District in M.S. held that a grandparent visitation order
    from a sister state was entitled to “respect on comity 
    principles,” 763 So. 2d at 1055
    , while the Fifth District below held that under “the Full Faith and Credit
    Clause, trial courts are required, without discretion, to give recognition to final
    judgments of another state when 
    applicable,” 163 So. 3d at 563
    , we first consider
    whether child custody and visitation orders entered by a sister state are entitled to
    full faith and credit or merely subject to the principles of comity.
    The Full Faith and Credit Clause of the United States Constitution provides
    that “Full Faith and Credit shall be given in each State to the public Acts, Records,
    and judicial Proceedings of every other State.” Art. IV, § 1, U.S. Const. The
    clause was intended to replace the earlier rule of comity with a constitutional duty
    of states to honor the laws and judgments of sister states. Estin v. Estin, 
    334 U.S. 541
    , 546 (1948) (noting that the Full Faith and Credit Clause “substituted a
    command for the earlier principles of comity and thus basically altered the status of
    the States as independent sovereigns”). The clause contains implementing
    language that gives Congress the power “by general Laws [to] prescribe the
    Manner in which such Acts, Records and Proceedings shall be proved, and the
    Effect thereof.” Art. IV, § 1, U.S. Const. Congress adopted such a law with regard
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    to custody determinations when it enacted the Parental Kidnaping Prevention Act
    of 1980 (PKPA). Pub. L. 96-611, §§ 6-10, 96 Stat. 3568 (1980).
    The PKPA requires “every State [to] enforce according to its terms . . . any
    custody determination or visitation determination made consistently with the
    provisions of this section[1] by a court of another State.” 28 U.S.C. § 1738A(a)
    (2012). In Thompson v. Thompson, 
    484 U.S. 174
    , 183 (1988), the United States
    Supreme Court explained that “Congress’ chief aim in enacting the PKPA was to
    extend the requirements of the Full Faith and Credit Clause to custody
    determinations” and that “the PKPA is a mandate directed to state courts to respect
    the custody decrees of sister States.” Thus, there is no doubt that custody
    determinations of a sister state are entitled to full faith and credit.
    LeDoux-Nottingham acknowledges that custody determinations are entitled
    to full faith and credit under the PKPA and she does not contend that the Colorado
    1. Consistency with section 1738A has been described as follows:
    In order for a state court’s custody decree to be consistent with the
    provisions of the Act, the State must have jurisdiction under its own
    local law and one of five conditions set out in § 1738A(c)(2) must be
    met. Briefly put, these conditions authorize the state court to enter a
    custody decree if the child’s home is or recently has been in the State,
    if the child has no home State and it would be in the child’s best
    interest for the State to assume jurisdiction, or if the child is present in
    the State and has been abandoned or abused.
    Thompson v. Thompson, 
    484 U.S. 174
    , 176-77 (1988).
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    court did not have jurisdiction to enter the visitation order. Even so, she contends
    that the PKPA does not apply here because “this is not a custody issue” and the
    PKPA applies only to parents. This contention is untenable.
    The PKPA was amended in 1998 to include any “visitation determination”
    in addition to “any custody determination.” See Enforcement of Child Custody
    and Visitation Orders, Pub. L No. 105-374, 112 Stat. 3383 (1998) (“Section
    1738A(a) of title 28, United States Code, is amended by striking ‘subsection (f) of
    this section, any child custody determination’ and inserting ‘subsections (f), (g),
    and (h) of this section, any custody determination or visitation determination.’ ”).
    The 1998 amendment also modified the definition of a “contestant” in subsection
    (b)(2) from “a person, including a parent, who claims a right to custody of a child”
    to “a person, including a parent or grandparent, who claims a right to custody or
    visitation of a child.” 
    Id. (emphasis added).
    Because the PKPA explicitly applies to “any custody determination or
    visitation determination,” including those in which a grandparent claims a right to
    visitation of a child, the Colorado order—which was entered in compliance with
    the PKPA—is by the express terms of the PKPA subject to the commands of the
    Full Faith and Credit Clause. And to the extent that the PKPA conflicts with
    Florida law, the PKPA—as federal law—controls under the Supremacy Clause of
    the United States Constitution. Yurgel v. Yurgel, 
    572 So. 2d 1327
    , 1329 (Fla.
    -8-
    1990) (“Under the supremacy clause of the [United States] Constitution, the PKPA
    supersedes any and all inconsistent state laws.” (citing Thompson)); see art. VI, cl.
    2, U.S. Const. (“This Constitution, and the Laws of the United States which shall
    be made in Pursuance thereof; and all Treaties made, or which shall be made,
    under the Authority of the United States, shall be the supreme Law of the Land;
    and the Judges in every State shall be bound thereby, any Thing in the Constitution
    or Laws of any State to the Contrary notwithstanding.”).2
    B. Whether a Public Policy Exception
    to the Full Faith and Credit Clause Exists
    We next consider whether a public policy exception to the Full Faith and
    Credit Clause exists that would prevent enforcement of the Colorado order in
    Florida. LeDoux-Nottingham asserts that enforcement of the Colorado order is not
    required in Florida because it would offend the right of privacy as articulated in
    article I, section 23 of the Florida Constitution and there is a public policy
    exception to the Full Faith and Credit Clause. While the Florida Constitution does
    protect the right of parents to raise their children free from unwarranted
    governmental interference, see Richardson v. Richardson, 
    766 So. 2d 1036
    , 1043
    (Fla. 2000), that state right is subordinate to the directives of the Federal
    2. LeDoux-Nottingham has not challenged the constitutional authority of
    Congress to enact the PKPA.
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    Constitution under the Supremacy Clause, and the United States Supreme Court
    has made it clear that there is no public policy exception to the full faith and credit
    due final judgments of a sister state.
    As explained by the Supreme Court, the Full Faith and Credit Clause
    “requires each State to recognize and give effect to valid judgments rendered by
    the courts of its sister States.” V.L. v. E.L., 
    136 S. Ct. 1017
    , 1020 (2016). It
    serves “to alter the status of the several states as independent foreign sovereignties,
    each free to ignore obligations created under the laws or by the judicial
    proceedings of the others, and to make them integral parts of a single nation.”
    Milwaukee County v. M.E. White Co., 
    296 U.S. 268
    , 277 (1935); see also
    Magnolia Petroleum Co. v. Hunt, 
    320 U.S. 430
    , 439 (1943) (noting that “the clear
    purpose of the full faith and credit clause” was to establish the principle that “a
    litigation once pursued to judgment shall be as conclusive of the rights of the
    parties in every other court as in that where the judgment was rendered”); Pac.
    Employers Ins. Co. v. Indus. Accident Comm’n, 
    306 U.S. 493
    , 501 (1939) (“[T]he
    purpose of [the Full Faith and Credit Clause] was to preserve rights acquired or
    confirmed under the public acts and judicial proceedings of one state by requiring
    recognition of their validity in other states . . . .”). As authorized by the Full Faith
    and Credit Clause, Congress has prescribed:
    Such Acts, records and judicial proceedings or copies thereof,
    so authenticated, shall have the same full faith and credit in every
    - 10 -
    court within the United States and its Territories and Possessions as
    they have by law or usage in the courts of such State, Territory or
    Possession from which they are taken.
    28 U.S.C. § 1738.
    In interpreting the Full Faith and Credit Clause, the Supreme Court stated in
    Baker, “Regarding judgments . . . the full faith and credit obligation is exacting. A
    final judgment in one State, if rendered by a court with adjudicatory authority over
    the subject matter and persons governed by the judgment, qualifies for recognition
    throughout the 
    land.” 522 U.S. at 233
    . There is “no roving ‘public policy
    exception’ to the full faith and credit due judgments.” 
    Id. (citing Estin,
    334 U.S. at
    546 (stating that the Full Faith and Credit Clause “ordered submission by one State
    even to hostile policies reflected in the judgment of another State, because the
    practical operation of the federal system, which the Constitution designed,
    demanded it”), and Fauntleroy v. Lum, 
    210 U.S. 230
    , 237 (1908) (holding that
    judgment of Missouri court was entitled to full faith and credit in Mississippi even
    if Missouri judgment rested on a misapprehension of Mississippi law)).
    Last year, the Court reiterated these principles, stating:
    With respect to judgments, “the full faith and credit obligation
    is exacting.” Baker v. General Motors Corp., 
    522 U.S. 222
    , 233
    (1998). “A final judgment in one State, if rendered by a court with
    adjudicatory authority over the subject matter and persons governed
    by the judgment, qualifies for recognition throughout the land.” 
    Ibid. A State may
    not disregard the judgment of a sister State because it
    disagrees with the reasoning underlying the judgment or deems it to
    be wrong on the merits. On the contrary, “the full faith and credit
    - 11 -
    clause of the Constitution precludes any inquiry into the merits of the
    cause of action, the logic or consistency of the decision, or the validity
    of the legal principles on which the judgment is based.” Milliken v.
    Meyer, 
    311 U.S. 457
    , 462 (1940).
    
    V.L., 136 S. Ct. at 1020
    . The Supreme Court thus continues to reject any notion
    that a state may elevate its own public policy over the policy behind a sister state’s
    judgment and thereby disregard the command of the Full Faith and Credit Clause.
    Although we have previously held unconstitutional numerous Florida
    statutes providing for grandparent visitation as violative of Florida’s right of
    privacy,3 the question presented here is not whether the Grandparents are entitled
    to visitation under Florida law, but whether Florida is required to enforce the
    Colorado order despite the fact that entry of a similar judgment by a Florida court
    under the same circumstances would be prohibited by the Florida Constitution,4
    and the answer is yes.
    3. See Sullivan v. Sapp, 
    866 So. 2d 28
    , 37 (Fla. 2004); Richardson v.
    Richardson, 
    766 So. 2d 1036
    , 1043 (Fla. 2000); Saul v. Brunetti, 
    753 So. 2d 26
    , 29
    (Fla. 2000); Von Eiff v. Azicri, 
    720 So. 2d 510
    , 517 (Fla. 1998); Beagle v. Beagle,
    
    678 So. 2d 1271
    , 1276 (Fla. 1996). We have not considered the constitutionality
    of the current limited grandparent visitation provision, section 752.011, Florida
    Statutes (2015).
    4. Entry of a similar judgment by a Florida court under the same
    circumstances would undoubtedly be prohibited by the Florida Constitution.
    Colorado law provides for grandparent visitation in the case of a divorce or a
    deceased parent based on the best interests of the child without first requiring proof
    of demonstrable harm to the child, see section 19-1-117, Colorado Revised
    Statutes, and the Colorado court here indeed ordered visitation based on the
    children’s best interests alone, but we held in Von 
    Eiff, 720 So. 2d at 516-17
    , that
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    III. CONCLUSION
    For the reasons explained above, we approve the decision of the Fifth
    District in LeDoux-Nottingham and disapprove the decision of the Fourth District
    in M.S. to the extent that it applied comity principles to an out-of-state visitation
    order rather than the Full Faith and Credit Clause and concluded that Florida’s
    public policy can override the requirement to provide full faith and credit to
    judgments entered by a sister state. We also disapprove the decision of the Second
    District in Fazzini to the extent that it holds that the public policy of Florida may
    provide an exception to the full faith and credit due to judgments entered by a
    sister state.
    It is so ordered.
    LABARGA, C.J., and PARIENTE, QUINCE, and POLSTON, JJ., concur.
    LEWIS, J., concurs in result.
    LAWSON, J., did not participate.
    NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
    IF FILED, DETERMINED.
    Application for Review of the Decision of the District Court of Appeal – Certified
    Direct Conflict of Decisions
    Fifth District - Case No. 5D14-944
    (Orange County)
    Florida’s right of privacy was violated by section 752.01(1)(a), Florida Statutes
    (1993), which mandated that if one or both parents are deceased, a court shall order
    grandparent visitation when in the best interest of the minor child, without first
    requiring proof of demonstrable harm to the child.
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    Jamie Billotte Moses of Holland & Knight LLP, Orlando, Florida,
    for Petitioner
    Andrew Thomas Windle of The Windle Family Law Firm, P.A., Orlando, Florida,
    for Respondents
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