Charlie Mae Jordan procured a final decree of divorce from her husband, William P. Jordan, on June 17, 1942. The decree awarded the custody of the minor child of the parties to Mrs. Jordan and required Mr. Jordan to pay a certain specified amount monthly to the mother for the support of the child. On February 5, 1943, the father of the child petitioned the trial court for change of custody of the child to him, alleging grounds therefor. In due course the mother answered the petition, denying the allegations of the petition and praying affirmatively that custody in her be continued and that she be allowed suit money and attorney's fees for defending the case made by the petition. On June 3, 1943, at final hearing the chancellor entered an order granting custody of the child to the father for the school term of each year and to the mother for the remaining period. The order also denied the mother's application for suit money and attorney's fees. *Page 790
On August 23, 1943, Charlie Mae Jordan, who is now Charlie Mae Jordan Chiapetta, brought the order made by the trial court pertaining to custody of the child here for review. She has likewise filed in this court a petition alleging her indigency and praying that Jordan be reqiured to pay fee to her attorney for this appeal and to advance monies to pay for the costs of the transcript of the testimony taken below, so that such testimony may be before this court on appeal. The respondent, William P. Jordan, has filed a motion to strike the petition for allowance of attorney's fees and costs.
Prior to May 28, 1943, a divorced wife was not entitled to an allowance of attorney's fees, court costs and suit money in proceedings subsequent to a final decree of divorce, even on the husband's petition for the custody of minor children. Davis v. Davis, 143 Fla. 282, 196 So. 614. If the authority now exists to grant such allowances in such a proceeding it exists by virtue of Chapter 21881, Laws of Florida, 1943, which became law on May 28, 1943.
But it is contended by respondent in opposition to the petition, on grounds squarely raised in the motion to strike, that the act constitutes class legislation so lacking in uniformity as to all persons similarly situated as to be void.
The context of the material portions of Chapter 21881, Acts of Florida, 1943, is as follows:
"Section 1. Whenever, subsequent to the rendition of an absolute decree of divorce by any of the Courts of this State, either party thereafter in good faith prosecutes or defends further proceedings either in respect to the custody of the children of such divorced parties, or in respect to the enforcement of modification of alimony, provided for by such divorce decree, or any other matter arising as a direct result of such divorce decree, the court may, in the exercise of a sound judicial discretion allow to the divorced wife, or husband and order the divorced husband, or wife to pay such sums for suit money, including a reasonable attorney's fee, as from the circumstances of the parties and the nature of the case shall be fit, equitable and just." *Page 791
"Section 3. This Act shall apply in all cases now pending or hereafter instituted in which the final decree of divorce was recorded prior to the effective date of this Act."
"Section 4. This Act shall become effective immediately upon becoming a law."
It will be noted from a reading of Section 3 of Chapter 21881 that the act applies only to those classes of cases arising out of divorce decrees where the final decree of divorce was recorded prior to the effective date of the act. The question is whether this classification adopted by the law-making body is so restrictive in its application as to render the act nugatory.
It is so well settled as to need no citation of authority that the Legislature may classify objects of legislation if the clasification is not clearly arbitrary and unreasonable, the test being that in such attempted classification all persons or things similarly situated under substantially like circumstances must be included therein. In other words, for such legislation to be valid the same means and methods must be applied impartially to all the constituents of a class so that the law shall operate equally and uniformly upon all persons in similar circumstances — the classification must be based upon some essential difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.
It takes only a casual inspection of Section 3 to determine that the statute does not comport with this rule. There can be no reasonable basis for legislative distinction between those cases arising out of final decrees of divorce recorded before and those recorded after the effective date of the act. Patently, a classification based upon such attempted distinction is purely arbitrary. The act, therefore, must fall, unless, perchance, it can be saved by an elimination of Section 3 as being incidental and nonessential to the legislative scheme, thus leaving the act operative in its remaining portions. See 11 Am. Jur., Constitutional Law, Sections 150, 158, 159. We fear, however, that this may not be done, for it may not be said that Section 3 of the Act is immaterial, or incidental or subordinate matter not necessary to the act, or *Page 792 that the Legislature would have enacted the remainder of the statute into law without the restrictive, modifying influence of the invalid section. Indeed, it is clear that the whole legislative scheme, as reflected in the act, is predicated upon the legislative intent that the act shall operate only in that narrow, restricted field of cases arising out of final decrees of divorce recorded prior to the effective date of the act, leaving those cases arising out of divorce decrees recorded subsequent to the act to be controlled, necessarily, by the law of this State as it existed prior to the passage of the act in question.
When legislative intent is made so manifestly clear it is without our province to hold that the act has a broader application and thus substitute judicial views for those of the Legislature so clearly expressed, even though by so doing we might be able to save a statute which attempts to operate in a field of law which has, for so long, needed such salutary legislation.
From the conclusions we have reached, it follows that the motion to strike the petition for an allowance of attorney's fees and costs in this court should be granted, and the petition denied.
It is so ordered.
BUFORD, C. J. BROWN and ADAMS, JJ., concur.
TERRELL, CHAPMAN and THOMAS, JJ., dissent.
ON REHEARING