HOWARD J. FLEISCHER, APPELLANT,
v.
IVY FASKE FLEISCHER, APPELLEE
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In a dissolution of marriage case, the trial court ordered the husband to consent to obtaining a Jewish religious document (a 'get') as a condition of the property settlement. The appellate court affirmed, holding that the husband waived any constitutional objection by failing to raise it in the trial court and instead conditioning his consent on favorable property division terms.
The court affirmed the trial court's order requiring the husband's consent to the 'get'. The husband waived his First Amendment constitutional objection by failing to raise it in the trial court, and constitutional issues must be presented at trial or they are waived unless they constitute fundamental error. The trial court's order was proper because the husband failed to oppose the provision on any basis other than conditioning his agreement on property settlement terms.
[1] A constitutional issue is waived on appeal if not first presented in the trial court.
[2] The raise-it-or-waive-it rule for constitutional issues has an exception only for fundamental error.
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Join FLexlaw to unlock all legal intelligence“A 'get' is a document prescribed by Jewish religious tradition, severing the marriage upon an authorization by the husband, which places the wife in a position to remarry within the Jewish religion.”
Defines the religious document at issue in the case
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Join FLexlaw to unlock all legal intelligenceDuring dissolution of marriage proceedings, the trial court ordered the husband to give his approval for a 'get'—a document under Jewish religious tra…
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FARMER, Judge.
We affirm on all issues and mention only briefly an issue sought to be presented on this appeal: whether the chancellor in a dissolution of marriage case can require the husband to get a “get” for his now former wife. A “get” is a document prescribed by Jewish religious tradition, severing the marriage upon an authorization by the husband, which places the wife in a position to remarry within the Jewish religion. See Minkin v. Minkin, 180 N.J.Super. 260, 484 A. 2d 665, 667 (1981). In Turner v. Turner, 192 So. 2d 787 (Fla. 3rd DCA 1967), cert. denied, 201 So. 2d 233 (1967), the third district held that such a provision is unenforceable.
On appeal, the husband argues that it is a violation of the First Amendment to enforce this provision. His argument might be entitled to consideration, however, if he had not taken such an inconsistent position in the trial court on this issue. As it happened, he never opposed it on constitutional grounds. In fact, he testified that he would agree to it if he got what he wanted in the property division. He certainly never raised any kind of constitutional attack on the provision, as he now seeks to do in this court.
Constitutional issues, like any other, are waived unless they are first presented in the trial court. Sanford v. Rubin, 237 So. 2d 134 (Fla.1970); and Granados v. Miller, 369 So. 2d 358 .(Fla. 4th DCA 1979). The only exception to the raise-it-or-waive-it rule is for fundamental error. “Fundamental” error, in this sense, refers to error that goes to the very heart of the judicial process, not to mistakes as to which arguably correct law or rule to apply, or as to the application of such a rule of law to the facts in the case.
In this case, the trial judge ordered the husband to give his approval to the wife’s application for a “get” and allowed the wife to withhold money she owes the husband under the final decree until he gives such approval. Because he failed to oppose this provision on any basis other than that he would agree to it if he got the property he wanted, we find that he has failed to show any error in the trial judge’s decision.
AFFIRMED.
STONE and GARRETT, JJ., concur.
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Jo-Anne YAU v. Iwdwarriors, 144 So. 3d 557 (Fla. 1st DCA 2014)…uld be imposed. That she failed to timely raise a meritorious statutory defense (and waived it by filing a notice of appeal) was not because of a lack of due process; as such, fundamental error on this basis is not shown. See Fleischer v. Fleischer, 586 So. 2d 1253, 1254 (Fla. 4th DCA 1991) (“Fundamental error, in this sense, refers to error that goes to the very heart of the judicial process, not to mistakes as to which arguably correct law or rule to apply, or as to the application of such a rule of law to t…
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Bloch v. Bloch, 688 So. 2d 945 (Fla. 3d DCA 1997)…ons of this Judgment in order to make them more equitable in the light of the [former] Wife’s changed status. [*947] However, while the court lacks authority to order the former husband to participate in a religious ceremony, Fleischer v. Fleischer, 586 So. 2d 1253 (Fla. 4th DCA 1991); Turner v. Turner, 192 So. 2d 787 (Fla. 3d DCA 1966), cert. denied, 201 So. 2d 233 (Fla.1967), we find that this provision is nothing more than a permissible reservation of jurisdiction. To prevail in any future modification requ…1 / 2
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- Granados v. Miller, 369 So. 2d 358 (Fla. 4th DCA 1979)
- Anne Turner v. Turner, 192 So. 2d 787 (Fla. 3d DCA 1966)
- Sussman v. Berger, 201 So. 2d 233 (Fla. 1967)
- Trace v. Dist. Court of Appeal, 201 So. 2d 233 (Fla. 1967)