24 Fla. L. Weekly Supp. 206a

Online Reference: FLWSUPP 2403PROGInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — Where plaintiff clinic failed to register with Department of Health after divorce of clinic owners disqualified it from exemption from registration requirement for clinics wholly owned by health care practitioner and spouse, services provided after date of divorce were not lawfully rendered, and PIP insurer is not required to pay for those services — Trial court erred in finding that date of divorce was date of rendition of amended final judgment vacating and superceding earlier final dissolution judgment, rather than date of that earlier dissolution judgment, where amended judgment related only to asset distribution

PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. R&P MEDICAL CENTER, INC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 2014-079, 080 to 086, 091 to 094 & 096 AP. L.T. Case Nos. 2007-6599, 6607, 6609, 6612, 6613, 7506 to 7508, 7510, 7517 & 7522 SP 26 (03). June 22, 2016. A consolidated appeal of thirteen decisions by the County Court in and for Miami-Dade County, Florida, Michaelle Gonzalez-Paulson, Judge. Counsel: Douglas H. Stein, Maury L. Udell, and Stephanie Martinez, for Appellant. Marc S. Hannon and Marlene S. Reiss, for Appellee.

(Before: SCOLA, SCHLESINGER, and BUTCHKO, JJ.)

(PER CURIAM.) Progressive Express Insurance Company [Progressive] appeals a summary final judgment for R&P Medical Center [RPM] of thirteen consolidated cases on the basis that the portion of the final judgment dissolving a marriage is inherently separate and distinct from the part addressing the parties’ assets and entitlements. Thus, a superseding amended dissolution judgment altering the latter issue does not change the original divorce date. For the reasons stated below, we agree and reverse. We also deny RPM’s motion for attorney fees, and grant Progressive’s attorney fee motion, but the amount of fees awarded shall be determined on remand.

FACTS & PROCEDURAL HISTORY

In each of these thirteen cases, an individual insured by Progressive was injured in a car accident and sought medical care at RPM in 2003. These individuals paid for their treatment by assigning their insurance policy payment rights to RPM, but Progressive refused to pay for any care rendered after March 20, 2003 due to RPM’s noncompliance with section 456.0375, Florida Statutes.¹ More specifically, RPM failed to “register, and . . . maintain a valid registration with [Florida’s] Department of Health,” and therefore, its “charges and reimbursement claims” were “unlawful[, . . .] noncompensable[,] and unenforceable.” §§ 456.0375(2)(a), (4)(a). Clinics “wholly owned by a licensed health care practitioner and [his/her] spouse, parent, or child,” though, were excused from said requirement, § 456.0375(1)(b)(6);² but because its owners — Dr. Ricardo Presas and Caridad Marquez — divorced on March 20, 2003, Progressive contended that RPM no longer qualified for this exemption. RPM, however, asserted its owners did not divorce until May 31, 2005, the date an “Agreed Amended Final Judgment” was entered that “vacated, set aside, and superseded” the March 20, 2003 order. Thus, with no factual disputes between them, the parties sought summary judgment on the legal issue of RPM’s owners’ marital status between 2003 and 2005. A hearing was held on October 18, 2013, and the trial judge ruled for RPM. This appeal followed. We have jurisdiction, Fla. R. App. P. 9.030(c)(1); and the standard of review is de novo. Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) [28 Fla. L. Weekly S866a] (“A trial court’s ruling on a motion for summary judgment posing a pure question of law is subject to de novo review.”).DISCUSSION

“A marriage is [either] intact or it is not,” and in Florida, only “death or a . . . final judgment” can break “[t]he bonds of matrimony.” Lohman v. Carnahan, 963 So. 2d 985, 987 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D2259a]. RPM’s owners utilized the latter option, and it is undisputed that they were divorced when the first final dissolution judgment was issued on March 20, 2003. The law, after all, plainly states that “[a] judgment of dissolution of marriage shall result in each spouse having the status of single and unmarried,” § 61.052(2)(b)(4); and at that point, “either party is free to marry or remarry.” In re Beacher’s Estate, 177 So. 2d 838, 843 (Fla. 3d DCA 1965). Paragraph B of said decision even states their marriage was “irretrievably broken, and . . . hereby dissolved.” The order also incorporated a marital settlement agreement [MSA] that, among other things, divided their property, and said division “could not have been [made] unless the marriage had been dissolved.” Reopelle v. Reopelle, 587 So. 2d 508, 511 (Fla. 5th DCA 1991).

Here though, the trial court concluded that RPM’s owners’ divorce date became May 31, 2005, when an amended final judgment was entered that “vacated, set aside, and superseded” the March 2003 order, and “the effect of [vacating a final order] is to return the case and the parties to the same position that they were in before the court entered the judgment.” Bane v. Bane, 775 So. 2d 938, 941 (Fla. 2000) [25 Fla. L. Weekly S1070a]. This Court must therefore determine if a judge changes the parties’ divorce date by subsequently vacating a dissolution of marriage decision, and thus “judicially remarries” them for the interim period of time. This issue is one of first impression in Florida because only the Nevada Supreme Court seems to have addressed — and strongly disapproved — the notion of judicial un-divorcing/remarriage but then simultaneously re-divorcing couples by vacating a final dissolution order and entering an amended one. Milender v. Marcum, 879 P.2d 748, 750-51 (Nev. 1994) (stating that absent fraud, any “attempt to ‘undo’ an absolute divorce, by supplanting the original decree with a ‘superseding’ order purporting to rescind the absolute divorce that both parties desired to remain in effect and thus restore them to an unwanted married status creates confusion” and the potential for “[g]reat mischief”).

Florida jurisprudence, though, has implicitly rejected said concept because it recognizes that marital dissolution and asset distribution are two inherently related but divisible parts of divorce cases. More specifically, the courts have said the latter is collateral to the former. See Reopelle, 587 So. 2d at 509-11 (concluding, in part, that a divorce occurred when the dissolution order was issued, rather than amended, because at rehearing, the parties only argued about the property divisions; neither said the marriage was improperly dissolved or should be restored); Becker v. King, 307 So. 2d 855, 858 (Fla. 4th DCA 1975) (reasoning that the initial judgment divorced the parties because the subsequent decision only addressed property issues that were “collateral to, and made necessary and appropriate for legal decision by, the adjudication of dissolution”). Thus, a Rule 1.540 motion related to asset distribution, such as the one filed by RPM’s owners in their divorce case, would not alter the marital dissolution date, but in order to address the distribution matter and avoid the confusion that would arise from having multiple final judgments, a court must vacate its erroneous order and issue a new one. See Romero v. Romero, 959 So. 2d 333, 338 n.6 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1345a] (“If the trial court did find fraud, the proper course of action would have been to set aside the final judgment and redistribute the marital assets.”).

It, furthermore, is highly doubtful that a divorce court has the general jurisdictional authority to un-divorce/remarry people, let alone via a Rule 1.540 motion as said relief is only available in narrow circumstances. See Lucky Nation, LLC v. Al-Maghazchi, 186 So. 3d 12, 15 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D139a] (“Subject matter jurisdiction has two components: (1) ‘the power of the trial court to deal with the class of cases to which a particular case belongs’ and (2) lawfully invoking the court’s jurisdiction ‘by the filing of a proper pleading.’ ‘Pleadings’ include complaints, answers, and counterclaims, but a motion is not a pleading.”) (internal citations omitted); Balmoral Condo. Ass’n v. Grimaldi, 107 So. 3d 1149, 1152 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D174b] (“In contrast to rule 1.530, the grounds to seek relief from a final judgment or order under rule 1.540 are narrow. In fact, the grounds for relief are strictly limited to an enumerated list.”); Fla. R. Civ. P. 1.110 (limiting the relief a party can obtain to the matters pled). The Florida Legislature has also enacted different statutory schemes for marriage (Ch. 741) and divorce (Ch. 61), and since “courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another,” judicial remarriage by motion could only occur if Florida’s marriage laws were satisfied. See Knowles v. Beverly Enterprises-Florida, Inc., 898 So. 2d 1, 6 (Fla. 2004) [29 Fla. L. Weekly S788a] (emphasis supplied; internal citation and quotations omitted). The instant records, though, do not reflect that RPM’s owners fulfilled said requirements at the time their Rule 1.540 motion was filed. For example, section 741.04 states that people must obtain a license before getting married, but because section 61.052(4) declares that a dissolution judgment renders the parties “single and unmarried,” it is an open question whether RPM’s owners needed a new license or could just utilize their original one. Thus, the procedural notion that amending a judgment un-divorces/remarries and simultaneously divorces its named parties “invokes precious little support in reason or potential benefit. If the parties had desired to remarry, they could have done so with far less effort and expense by merely undergoing a simple ceremony.” Milender, 879 P.2d at 750.

In addition, the trial court’s interpretation of the amended final judgment at issue conflicts with two basic tenets of statutory construction: 1) that a document’s words must be interpreted literally unless doing so creates an absurd result, Dep’t of Revenue v. Sch. Bd. of Hillsborough Cnty., 62 So. 3d 686, 689 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1227a]; and 2) that words must be read in context, rather than isolation. Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 915 (Fla. 2001) [26 Fla. L. Weekly S549a]. Here, the amended final judgment was entered pursuant to a Rule 1.540 motion that was titled as a “Motion to Set Aside and Vacate Final Judgment Dissolving Marriage,” but did not request the court to return the parties to their once married state. Instead, the motion only sought to alter the terms of their MSA because it was based on fraudulent financial affidavits. In said motion, the parties are referred to as “Former Husband/Wife,” and these terms were also used in their amended MSA, which was executed before the amended judgment was issued, incorporated into said judgment, and included a clause recognizing the parties’ original divorce date. Thus, the context of the amended judgment clearly shows that it was not “vacating, setting aside, and superseding” the original order in its entirety because the parties knew they were divorced as of March 2003 and did not intend to modify that point. The fact that the record contains conflicting affidavits from RPM’s owners on their marital status between 2003 and 2005 further undermines the notion that they intended to change their divorce date.

Moreover, from a policy perspective, the trial court’s ruling is an absurd interpretation of the amended judgment because one’s marital status impacts so many aspects of one’s life and of society overall. Milender, 879 P.2d at 750-51 (“Intervening relationships, legal and otherwise, could be adversely affected and complicated by the entry of such an order” that purports to rescind a divorce and restore a marriage.). Marriage, for instance, changes one’s tax liabilities and inheritance rights as the surviving spouse is entitled to an elective share of the deceased partner’s estate. Thus, had one of RPM’s owners remarried, purchased a home, had a child, and/or died between 2003 and 2005, the impact of the trial court’s orders would have been vast. See also § 826.01 (outlawing bigamy). Said orders also fundamentally clash with Florida’s “well-recognized policy favoring the finality of judgments, especially in family law contexts,” because ex post facto marriages inherently undermine finality. Romero, 959 So. 2d at 336; see also Wade v. Hirschman, 903 So. 2d 928, 932-33 (Fla. 2005) [30 Fla. L. Weekly S377a] (“After the trial court enters the original final judgment decree, it is res judicata of the facts and circumstances at the time the judgment became final.”).

Finally, RPM’s contention that Nevitt v. Bonomo, 53 So. 3d 1078 (Fla. 1st DCA 2010) [29 Fla. L. Weekly S788a] and Bane, supra, support the trial court’s ruling is misplaced. In Nevitt, the Appellant sued to find out if he fathered a child that was conceived while the mother and her husband (the Appellees) were married but not born until after they divorced on February 10, 2010. 53 So. 3d at 1079. This paternity case, though, was dismissed for lack of standing “because the final judgment dissolving Appellees’ marriage had been set aside and vacated nunc pro tunc to February 10, 2010, and, thus, the child was born during [the] Appellees’ marriage.” Id. at 1080 (emphasis removed). However, the First DCA only hypothetically addressed the nunc pro tunc order’s legal effect and instead found that the trial court improperly went beyond the complaint by relying on said order. Id. at 1082 (“Even if the order had the effect of legally undoing Appellees’ divorce such that they are now considered to have been married when the paternity action was filed and when the child was born, the divorce proceeding was still pending at those times and the trial court could therefore consider the ‘intactness’ of Appellees’ marriage.”) (emphasis added).³ Similarly, while the Bane Court stated that vacating an order returns the parties to their pre-judgment position, its underlying judgment, like that of RPM’s owners’, was only set aside to address issues in the parties’ MSA, and the parties were disputing if the former wife’s attorney was entitled to fees for the time spent on the motion to vacate. 775 So. 2d at 939. Neither case consequently suggests that a superseding dissolution judgment changes one’s divorce date by un-divorcing the parties.

Thus, while vacating a judgment technically restores the parties to their pre-decision status, no court can completely disregard what occurs in the intervening time. This Court, more specifically, simply cannot read Florida Civil Procedure Rule 1.540 and Family Law Rule 12.540 in a vacuum and ignore all of the aforementioned regulatory statutes and public policy concerns applicable to the trial court’s analysis. A precedent that permits ex post facto marriages can have far-reaching effects and determine other cases. Accordingly, it is held that in general, the portion of a final judgment dissolving a marriage is inherently divisible and separate from the part that addresses the parties’ property rights and entitlements. Said holding means that RPM’s owners were divorced as of March 20, 2003, and thus, the clinic itself was no longer excused from registering with Florida’s health department at that time. §§ 456.0375(1)(b)(6), (2)(a). RPM’s failure to register consequently rendered the medical claims at issue unlawful, and Progressive is not required to pay for unlawful services. Active Spine Ctrs., LLC v. State Farm Fire & Cas. Co., 911 So. 2d 241 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2286a]; §§ 456.0375(4)(a); 627.736(5)(a), (5)(b)(1)(b); 627.732(11) (defining lawful). The orders below are therefore

REVERSED.MOTIONS FOR ATTORNEY’S FEES & COSTS

Per Florida Appellate Procedure Rule 9.400, both Progressive and RPM filed motions for attorney’s fees and costs as this rule authorizes the prevailing party on appeal to recover these expenses. The statutory basis for Progressive’s motion is section 768.79, Florida Statutes (2007) (offer of judgment statute), and RPM relies on section 627.428(1). Given the above holding, RPM’s motion is DENIED, and Progressive’s motion is GRANTED. The amount of fees awarded shall be determined on remand. See USAA Cas. Ins. Co. v. Am. MRI, LLC, 19 Fla. L. Weekly Supp. 534a (Fla. 11th Cir. Ct. 2012).

REVERSED and REMANDED for proceedings consistent with this opinion.

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¹Unless otherwise stated, all statutory references are to the 2003 version of the Florida Statutes because the Florida Legislature’s 2003 revisions to section 456.0375 operated retroactively. It is also noted that section 456.0375 was repealed in 2004 and replaced by sections 400.990-400.995.

²The law defined clinics as “a business operating in a single structure or facility, or in a group of adjacent structures or facilities operating under the same business name or management, at which health care services are provided to individuals and which tender charges for reimbursement for such services.” § 456.0375(1)(a).

³Nevitt is also distinguishable because the instant amended judgment was not entered nunc pro tunc. A nunc pro tunc order, though, is only entered “ ‘to correct the record to reflect a prior ruling made in fact but defectively recorded.’ ” Merritt v. Merritt, 802 So. 2d 1206, 1209 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D136a] (internal citation omitted). Such language, therefore, could not be included because RPM’s owners sought to substantively change their MSA. See De Baun v. Michael, 333 So. 2d 106, 108 (Fla. 2d DCA 1976) (“However, where an order does not merely correct clerical errors or omissions, but actually modifies the Substance [sic] of a prior ruling or of itself constitutes a ruling not previously made in fact, it should not be given retrospective effect.”). Moreover, a nunc pro tunc order “does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act.” Wells v. State, 796 So. 2d 1276, 1277 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2492a] (internal citations and quotations omitted).