Ruth D. Ledoux-Nottingham v. Jennifer Joy Downs, etc.

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.
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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
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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
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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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