By final decree appellant was granted a divorce from appellee and given the custody of their minor child for a major part of each year. Upon a later petition by appellee the provisions of the final decree relating to this custody were modified. This was July 15, 1943, and meanwhile the Legislature enacted Chapter 21881, Laws of Florida, Acts of 1943. F.S.A. Sec. 65.16 and note. The appellant filed here a petition for certiorari to review the order of modification and also petitioned this Court to grant her an allowance for counsel fees and costs.
We are concerned now only with the preliminary matter of the propriety of such an allotment, and to decide the point *Page 793 we must determine the constitutionality of the act, for if it violates organic law the appellant is barred from this relief by former decisions of this Court, for example, Davis v. Davis,143 Fla. 282, 196 So. 614.
In resisting the motion appellee contends that the title of the act is defective because it bore no notice of provisions relative to custody of children and indicated no purpose to make its contents retrospective. It was further challenged on the ground that it was so restrictive as to constitute class legislation.
As we strive for a correct conclusion we will ignore Sections 2 and 4, relating to enforcement of orders and the effective date of the act, and confine our discussion to those numbered 1 and 3. The first, abridged to eliminate parts of it inapplicable to facts here involved, provides that "Whenever, subsequent to the rendition of an absolute decree of divorce . . . either party thereafter . . . prosecutes or defends further proceedings . . . in respect to the custody of children . . . the Court may . . . 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 . . . shall be . . . just.", (Italics furnished.)
The question of the restricted scope of the act may be attributed to the unfortunate language of 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." In deciding it we must indulge the presumption that the law is constitutional and in treating of ambiguities and imperfections it must be our goal to save the law and preserve the intention of the Legislature if that may be done. Meanwhile in our consideration we are confined to the channels of construction long and often recognized.
Appellee contends that the third section, taken literally, provides the remedy only in those cases where the final decree has been recorded before the act became a law. Restricting its provisions in this manner would be the equivalent of inserting and adopting the word "only" as a part of the phraseology the Legislature chose. It seems to a majority of the *Page 794 court that introduction of the word "also" would be more consistent and more in keeping with the design gleaned from the entire law. The extent of its provisions is indicated by the very first word of the law, "Whenever," which means "at whatever time," "no matter when," "at any or all times," and "in any or every instance in which." It is significant, too, that the word "thereafter" was also employed. Bearing in mind the broad meaning of the word "whenever" and the true definition of the word "thereafter" the context of the principal part of the law, Section 1, clearly conveys the thought that at any time in the future when a decree is granted and a party after that presents or defends against a petition he may secure the allowances. It is the appellee's position that despite this phraseology the court should give the third section the narrow construction which would confine such benefits to those divorce suits already concluded by the recording of the decree when the act passed.
If we give Section 3 this strict interpretation the result is remarkable. Quoting the section in the alternative it provides, first, "This Act shall apply in all cases now pending . . . in which the final decree of divorce was recorded prior to the effective date of this Act," and second, "This Act shall apply in all cases . . . hereafter insituted in which the final decree of divorce was recorded prior to the effective date of this Act." It is our view that the confusion has been largely caused by the definition attributed to the word "cases." If considered as meaning "suits for divorce" provision is made for the remedy in suits pending where a final decree has been entered. By the next reference it would apply in suits thereafter instituted in which a final decree had already been entered. Both provisions would, therefore, appear absurd. In casting about for the true intention of the Legislature it has become obvious to us that the word "cases" should be considered a synonym of "supplementary proceedings." If such a definition is adopted the contents of Section 3 become understandable, for they then simply provide that in proceedings of this character, pending or brought in the future, the benefits of the act will be available to all parties.
We have observed that the appellee claims a construction which is the equivalent of reading into this section the word *Page 795 "only" to confine it to proceedings supplemental to divorce decrees already entered. By supplying the word "also" we would take no more liberty with the language used by the Legislature, and thus make the remedy available to parties in proceedings pending and to be brought regardless of the date of the entry of the final decree. We believe this to have been the purpose of the Legislature — to furnish this remedy, long needed in our jurisprudence.
We are particularly conscious of two principles of statutory construction followed by the authorities. Substance of one is that all parts of an act must be considered and harmonized so that the whole scheme may be made effectual; the other, that all parts of a law should be preserved. Withal it is the duty of the court to follow the cardinal rule that it is the legislative intent which in the final analysis must govern. Feeling strongly that the design of the law-making body was clearly expressed in the first section we do not hesitate to adopt the view that it meant the remedy to be available in all events where changes in circumstances justified the chancery court in reviewing and readjusting alimony allowances and relationships between divorced parents and their children.
It is argued that the title apprised no one of the provisions of the law about custody of children or its operation retroactively. That the reader may have before him this title we quote it: "An Act to Provide Under Certain Conditions Suit Money, Including a Reasonable Attorney's Fee, to a Divorced Wife, or Husband in Proceedings Subsequent to the Rendition of a Fnal Decree of Divorce by the Courts of This State." It is true that custody of children is not mentioned, but that is certainly one of the matters which may be adjudicated "in Proceedings Subsequent to the Rendition of a Final Decree of Divorce.' So long as the recipient of alimony remains unmarried and until children of divorced parents reach majority, the courts are always open to consider and determine modification of orders fixing alimony and custody. It was not the primary purpose of the act to regulate such proceedings long since recognized and sanctioned by the courts, but to vest authority in the courts to tax money and counsel fees. That is the prime subject of the act, and of it there was ample notice. *Page 796
We have the conviction that the law is not susceptible of the criticism that it is retroactive simply because of its application to future supplementary proceedings where the final decree in the original divorce suit had been recorded before its passage. The title we have quoted was, however, not sufficient to give notice that it was meant to operate retrospectively, that is, on proceedings of that kind which had already been instituted. See Van Loon v. Van Loon, 132 Fla. 535,182 So. 205.
The petition for modification sought to be reviewed was filed before the act became effective. The appeal here by certiorari being but a step in that cause we are unable to see how the appellant may avail herself of the advantages of the law. Therefore her motion is
Denied.
TERRELL, CHAPMAN and ADAMS, JJ., concur.
BROWN, J., concurring specially.
BUFORD, C. J., and SEBRING, JJ., adhere to original opinion.
ON REHEARING