        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                             FREDERIC BOUIN,
                                Appellant,

                                        v.

                             GINA DISABATINO,
                                 Appellee.

                                No. 4D17-2250

                                [June 13, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Joseph George Marx, Judge; L.T. Case No.
502017CA001113XXXXMBAN.

  Anthony Brown of Lavalle, Brown & Ronan, P.A., Boca Raton, for
appellant.

  Ronald P. Ponzoli, Jr., of GrayRobinson, P.A., West Palm Beach, for
appellee.

KLINGENSMITH, J.

    Frederic Bouin appeals the trial court’s dismissal of his seven-count
complaint against his wife, Gina DiSabatino. 1 Bouin filed his complaint
while a separate dissolution of marriage proceeding was pending before
another judge. For the reasons set forth below, we find that it was error
for the trial court to dismiss Bouin’s complaint with prejudice without
allowing for leave to amend. Therefore, we reverse.

   Among the many allegations in his complaint, Bouin claimed
DiSabatino had forged checks from his bank account, stolen his credit
cards out of the mail, and transferred money to herself and her mother
from Bouin’s bank account without his permission. He also asserted that
DiSabatino’s actions caused him to be rejected for a $2,500,000 mortgage

1The complaint contained the following separate counts: Intentional Infliction of
Emotional Distress; Tortious Interference with a Business Relationship; Breach
of Contract; Conversion; Civil Theft; Violation of the Civil Remedies for Criminal
Practices Act; and Defamation by Implication.
he sought for purchasing a house. The trial court ruled that all counts of
the complaint were not only barred by the applicable statutes of
limitations, but also failed to state a cause of action. Additionally, the
court found that since the claims arose from acts that occurred during the
parties’ marriage, they were under the exclusive jurisdiction of the family
court handling the dissolution proceeding. Consequently, it dismissed the
complaint with prejudice pursuant to Beers v. Beers, 724 So. 2d 109 (Fla.
5th DCA 1998).

   “‘The standard of review of orders granting motions to dismiss with
prejudice is de novo.’” Preudhomme v. Bailey, 211 So. 3d 127, 130 (Fla.
4th DCA 2017) (quoting Garnac Grain Co. v. Mejia, 962 So. 2d 408, 410
(Fla. 4th DCA 2007)).

   “The purpose of a motion to dismiss is ‘to test the legal sufficiency of
the complaint, not to determine factual issues.’” Rolle v. Cold Stone
Creamery, Inc., 212 So. 3d 1073, 1076 (Fla. 3d DCA 2017) (quoting The
Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006)). “When determining
the merits of a motion to dismiss, a court may not go beyond the four
corners of the complaint and must accept the facts alleged therein and
exhibits attached as true, with all reasonable inferences drawn in favor of
the pleader.” Regis Ins. Co. v. Miami Mgmt., Inc., 902 So. 2d 966, 968 (Fla.
4th DCA 2005).

   During argument by counsel on the motion, the trial court recognized
that if it were to dismiss the complaint based solely on the statute of
limitations, it should be without prejudice. Specifically, the court
commented at the hearing that Bouin could likely “clean up his counts
and maneuver . . . differently” to comply with them. Ultimately, the trial
court dismissed the complaint with prejudice, but the court correctly noted
in its order that the failure to state a cause of action generally does not
result in a dismissal with prejudice. Therefore, the trial court’s dismissal
with prejudice appears to be based solely on the court’s application of
Beers regarding the nonviability of maintaining a separate interspousal
action outside of the dissolution proceedings.

    “In general, there are two aspects to a court’s subject matter
jurisdiction. The first concept ‘concerns the power of the trial court to deal
with the class of cases to which a particular case belongs.’” Garcia v.
Stewart, 906 So. 2d 1117, 1122 (Fla. 4th DCA 2005) (quoting Paulucci v.
Gen. Dynamics Corp., 842 So. 2d 797, 801 n.3 (Fla. 2003)). “The second
aspect requires that a court’s jurisdiction be lawfully invoked by the filing
of a proper pleading.” Id. “Whether a court has subject matter jurisdiction


                                      2
is a question of law reviewed de novo.” Sanchez v. Fernandez, 915 So. 2d
192, 192 (Fla. 4th DCA 2005).

   As to whether separate interspousal actions may be brought outside of
the dissolution case in a collateral proceeding, this court has observed:

      In Waite v. Waite, 618 So. 2d 1360 (Fla. 1993), the court
      abrogated the doctrine of interspousal immunity for all torts,
      thereby allowing spouses to sue one another for damages from
      tortious acts. The opened door raises an issue as to when
      such a suit may be brought. In Snedaker v. Snedaker, 660
      So. 2d 1070 (Fla. 4th DCA 1995), we allowed the tort claim to
      be brought within the dissolution of marriage action. In
      Hogan v. Tavzel, 660 So. 2d 350 (Fla. 5th DCA 1995), the Fifth
      District allowed the claim to be brought three years after the
      marriage had been dissolved. In short, under Florida law an
      interspousal tort claim may be brought in the dissolution of
      marriage action, or it may be brought in a separate action not
      associated with a dissolution of marriage action.

San Pedro v. San Pedro, 910 So. 2d 426, 428 (Fla. 4th DCA 2005).

    However, “[w]here no specific transaction or agreement exists between
the spouses, the dissolution of marriage statute, specifically, subsection
61.075(1), provides the exclusive remedy where one’s spouse has
intentionally dissipated marital property during the marriage.” Beers, 724
So. 2d at 117 (emphasis added); accord Doctor Rooter Supply & Serv. v.
McVay, 226 So. 3d 1068, 1073 (Fla. 5th DCA 2017). As it relates to claims
brought in a collateral proceeding involving one spouse’s misappropriation
of the other’s nonmarital assets, the Fifth District in Beers stated:

      We do not address the propriety of the joinder of a separate
      count for conversion or fraudulent dissipation of nonmarital
      assets. See, e.g., Delahunty v. Massachusetts Mut. Life Ins.
      Co., 236 Conn. 582, 674 A.2d 1290 (Conn. 1996), a decision
      cited by the former wife. Our decision also does not conflict
      with Snedaker v. Snedaker, 660 So. 2d 1070 (Fla. 4th DCA
      1995), which approved the pleading of a battery claim as a
      separate count in a dissolution action.

Beers, 724 So. 2d at 117 n.6.

  We understand the trial court’s concerns regarding the prospect that
maintaining a separate suit in a collateral proceeding might be considered

                                    3
judge shopping. Pursuing such an action for interspousal claims outside
of the dissolution proceeding would provide an additional forum, and
perhaps an even more contentious environment, to those spouses or ex-
spouses eager to prolong their conflict. Nonetheless, whether Bouin’s
complaint could be brought separately, or was exclusively within the
jurisdiction of the dissolution case, depended on the trial court making
findings of fact as to whether the claims involved marital or nonmarital
property. See Demont v. Demont, 67 So. 3d 1096, 1104 (Fla. 1st DCA 2011)
(“The initial determination as to whether an asset is marital or non-marital
is a fact-finding process.”).

   While it is true that the remedy for dissipation of marital assets lies via
section 61.075(1), see Beers, 724 So. 2d at 117, there were no allegations
within the “four corners” of the complaint, or attached thereto, that
indisputably classified the property, monies, or assets in question as
marital. A motion to dismiss analyzes questions of law to test the legal
sufficiency of a complaint, not the facts. See Rolle, 212 So. 3d at 1076.
The trial court’s determination that this case dealt with assets of the
marital estate was fundamentally a fact-finding endeavor.              See §
61.075(6)(a), (b)(1); Demont, 67 So. 3d at 1104. This was improper at the
motion to dismiss stage.

    Moreover, Bouin should have been provided the opportunity to amend
his complaint at least once as a matter of course since no responsive
pleading had been filed. See Fla. R. Civ. P. 1.190(a) (“A party may amend
a pleading once as a matter of course at any time before a responsive
pleading is served . . . . Leave of court shall be given freely when justice
so requires.”); Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567 (Fla. 2005)
(“[T]he first sentence of the rule grants plaintiffs an automatic right to
amend the complaint once before a responsive pleading is served.”). We
find that the trial court erred when it dismissed Bouin’s complaint with
prejudice.

      Reversed and remanded.

DAMOORGIAN and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      4
