Martinez v. Martinez , 2017 Fla. App. LEXIS 7183 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
SUSAN MARTINEZ,
Appellant,
v. Case No. 5D16-795
ISAAC MARTINEZ,
Appellee.
________________________________/
Opinion filed May 19, 2017
Appeal from the Circuit Court
for Flagler County,
Michael S. Orfinger, Judge.
David A. Maney, of Maney Damsker
Jones & Kuhlman, P.A., Tampa,
for Appellant.
Courtney M. Keller, I. William Spivey, II, and
Colin S. Baker, of Greenberg Traurig, P.A.,
Orlando, for Appellee.
PER CURIAM.
Susan Martinez (“Susan”) appeals the final summary judgment entered in favor of
her stepson, Isaac Martinez (“Isaac”), which effectively dismissed Isaac as a respondent
from the dissolution of marriage litigation between Susan and her husband, Jared
Martinez (“Jared”). For the following reasons, we reverse.
In November 2009, Susan filed her initial petition for dissolution of marriage in
Seminole County. She voluntarily dismissed that action in February 2011, but refiled her
petition one week later, this time in Flagler County, where it remains pending. In July
2012, Susan filed a two-count amended petition for dissolution of marriage, and in count
two, she joined additional respondents,1 including Isaac and various corporations that
Jared formed during the marriage. Susan alleged that, among other things, Jared had
been commingling the parties’ marital assets with assets owned by Isaac and by the
corporate respondents. Susan also asserted that Jared and Isaac were receiving
distributions from these corporations, under the guise of “loans,” in an effort by Jared to
deplete the marital estate. Susan sought partition of the marital assets, recognition and
equitable distribution of her interest in the corporations that Jared formed during the
marriage, to have the court “claw” back and then equitably distribute to the spouses any
marital assets previously transferred to the newly joined respondents, and injunctive
relief.
In 2015, Susan amended her petition to add a third count.2 Susan continued to
assert that she had a “marital interest” in certain properties now held by these
Susan referred to these respondents as “third-party defendants” in her pleading,
1
but that was not technically correct. See Fla. Fam. L. R. P. 12.180 (providing that third-
party respondents are joined to an action by the respondent, through the serving of a
summons and third-party petition upon each third-party respondent, based on the
respondent’s claim that the third-party respondent is liable to the respondent for all or part
of the petitioner’s claim against the respondent); see also Fla. R. Civ. P. 1.180 (the
counterpart rule governing third-party practice in general civil actions). Rather, Isaac and
the corporate parties were technically joined as respondents pursuant to either Florida
Family Law Rules of Procedure 12.210(a) or 12.250(c).
The trial court had previously granted Isaac a summary judgment on Susan’s
2
claims for partition and injunctive relief.
2
respondents, who she alleged were involved in a plan with her husband to minimize or
conceal Jared’s net worth in an effort to defraud Susan from any interest in what she
stated were millions of dollars of marital assets that Jared had transferred to these parties
for little, if any, consideration. Susan asked that, among other things, the trial court
identify all properties that should be classified as marital assets and, after making this
determination, require the impleaded respondents to “account” for their receipt of these
marital properties. Susan requested that the court then equitably distribute all marital
assets between the spouses.
After the parties conducted some discovery, Isaac moved for final summary
judgment. His argument was two-fold. Isaac first asserted that Susan pleaded no
cognizable cause of action against him to entitle her to any relief, but that if she had
pleaded an arguable claim under the “Uniform Fraudulent Transfers Act,”3 it was barred
by the applicable statute of limitations. Susan filed a memorandum in opposition to the
motion. After each party filed their summary judgment evidence pursuant to Florida
Family Law Rule of Procedure 12.510, the court held a hearing on Isaac’s motion and
entered the unelaborated final summary judgment in Isaac’s favor now under review.
In a dissolution of marriage proceeding, section 61.075(1), Florida Statutes (2015),
requires the trial court to equally distribute the marital assets and liabilities between the
spouses unless there is a justification for an unequal distribution based on the factors
listed in subparagraphs (a)-(j). Subparagraph (i) is pertinent to this appeal, providing that
a spouse’s “intentional dissipation, waste, depletion, or destruction of marital assets after
the filing of the petition[,] or within two years prior to the filing of the petition,” must be
3 Chapter 726, Florida Statutes.
3
considered by the court in distributing the marital assets. § 61.075(1)(i), Fla. Stat. (2015).
Under this statute, if a spouse intentionally dissipates a marital asset, the trial court has
the authority and discretion to assign the dissipated asset to the dissipating spouse as
part of that spouse’s equitable distribution. Karimi v. Karimi, 867 So. 2d 471, 475 (Fla.
5th DCA 2004) (citing Bush v. Bush, 824 So. 2d 293 (Fla. 4th DCA 2002); Romano v.
Romano, 632 So. 2d 207 (Fla. 4th DCA 1994)).
Susan alleged that Jared’s fraudulent dissipation of some of the marital assets to
or through Isaac and the corporate respondents took place more than two years before
her petition for dissolution of marriage was filed. In Beers v. Beers, 724 So. 2d 109, 115
(Fla. 5th DCA 1998), this court held that section 61.075(1)(i) did not operate as a two-
year statute of limitations to bar one spouse’s efforts to subject marital assets dissipated
by the other spouse to equitable distribution. We determined that for cases of dissipation
of marital assets occurring more than two years before the filing of the petition, section
61.075(1)(j), which permits a trial court to consider “any other factors necessary to do
equity and justice between the parties,” allows, but does not require, the court to consider
the more remote dissipation of marital assets when equitably distributing the marital
assets and marital liabilities to the spouses. Beers, 724 So. 2d at 114-15; accord Amos
v. Amos, 99 So. 3d 979, 980 (Fla. 1st DCA 2012) (finding this court’s analysis of remote
dissipation in Beers to be persuasive). Thus, Beers provides Susan the ability to pursue
Jared for his alleged remote dissipation of their marital assets.
Turning back to Isaac, we begin our analysis with the preliminary recognition that
a dissolution action is an action in equity. See § 61.011, Fla. Stat. (2015) (“Proceedings
4
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
SUSAN MARTINEZ,
Appellant,
v. Case No. 5D16-795
ISAAC MARTINEZ,
Appellee.
________________________________/
Opinion filed May 19, 2017
Appeal from the Circuit Court
for Flagler County,
Michael S. Orfinger, Judge.
David A. Maney, of Maney Damsker
Jones & Kuhlman, P.A., Tampa,
for Appellant.
Courtney M. Keller, I. William Spivey, II, and
Colin S. Baker, of Greenberg Traurig, P.A.,
Orlando, for Appellee.
PER CURIAM.
Susan Martinez (“Susan”) appeals the final summary judgment entered in favor of
her stepson, Isaac Martinez (“Isaac”), which effectively dismissed Isaac as a respondent
from the dissolution of marriage litigation between Susan and her husband, Jared
Martinez (“Jared”). For the following reasons, we reverse.
from making a full and complete adjudication of the spouses’ marital property rights to
those dissipated assets by dismissing Isaac from the litigation based on his statute of
limitations defense.
A final summary judgment, as entered in this case, “is proper only where the
[issues of] fact[ ] are ‘so crystalized’ that nothing remains [for resolution] but questions of
law.” McCabe v. Fla. Power & Light Co., 68 So. 3d 995, 997 (Fla. 4th DCA 2011) (quoting
Tolan v. Coviello, 50 So. 3d 73, 74 (Fla. 4th DCA 2010)). “[I]f the record raises even the
slightest doubt that [a genuine] issue [of material fact] might exist, summary judgment is
improper.” Grisset v. Circle K Corp. of Tex., 593 So. 2d 291, 293 (Fla. 2d DCA 1992)
(citing Crandall v. Sw. Fla. Blood Bank, Inc., 581 So. 2d 593 (Fla. 2d DCA 1991); Gomes
v. Stevens, 548 So. 2d 1163 (Fla. 2d DCA 1989)). In the present case, the record is by
no means clear whether the trial court will exercise its discretion under section
61.075(1)(j) to consider assets allegedly remotely dissipated by Jared in order to make a
complete determination of the cause to achieve equity and justice between the spouses.
If, after receiving evidence and argument at trial, the court elects to exercise its discretion
and distributes remotely dissipated assets in its equitable distribution of the marital assets
and marital liabilities to Susan and Jared, then those parties whose property rights would
be affected by the distribution (such as Isaac) are indispensable to the complete
adjudication of the case.
Accordingly, the final summary judgment entered in favor of Isaac is reversed, and
this matter is remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
COHEN, C.J., SAWAYA and LAMBERT, JJ., concur.
6