       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

   EDWARD I. GOLDEN, as Curator of the Estate of Katherine Jones,
                          Appellant,

                                     v.

CAROL ANN JONES, as Successor Trustee of the H. Bruce Jones, M.D.,
 P.A. Money Purchase Plan and the H. Bruce Jones, M.D., P.A. Pension
                      and Profit Sharing Plan,
                             Appellees.

                              No. 4D14-3063

                             [June 22, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Laura M. Watson, Judge; L.T. Case No. FMCE 99-
013968 (42).

  William H. Glasko of Golden Glasko & Associates, P.A., Miami, for
appellant.

   Robin F. Hazel of Hazel Law, P.A., Pembroke Pines, for appellees.

CONNER, J.

   Appellant, Edward Golden (“the Curator”), as curator for the Estate of
Katherine Jones (“the Wife”), appeals the trial court’s order dismissing his
complaint, with prejudice, filed against Appellee, Carol Jones (“the
Trustee”), as the successor trustee for certain retirement plans for H.
Bruce Jones (“the Husband”). We reverse the trial court after determining
the trial court erred in dismissing the initial complaint with prejudice
without giving at least one opportunity to amend, and in not transferring
the complaint to another division of the court, if the complaint should have
been filed as an independent action.

             Factual Background and Trial Court Proceedings

   In 2003, after the Wife and the Husband entered into a marital
settlement agreement (“MSA”), the marriage between them was dissolved
by a final judgment entered in the family division of the trial court below.
The final judgment stated, as agreed by the parties, that the “[MSA] shall
not be merged in the Final Judgment but shall survive same.”
Additionally, the final judgment retained jurisdiction to enter further
orders to enforce the MSA and to enter appropriate qualified domestic
relations orders (“QDRO”).

    The MSA included provisions regarding two retirement plans that were
listed as the H. Bruce Jones M.D., P.A. Money Purchase Pension Plan and
the H. Bruce Jones M.D., P.A. Profit Sharing Plan. It also stated that the
Husband agreed to be the trustee of both plans.

   In 2005, the trial court entered QDROs regarding both retirement
plans. Both QDROs stated that the benefits that had accrued under the
plan from the date of the marriage to the date of the dissolution of marriage
were marital property, and therefore assigned to the Wife “50% of the
[Husband]’s account balance determined as of August 31, 2003; and any
gains/losses, earnings and interest from August 31, 2003 through the
date of distribution or segregation of the [Wife]’s share.” The QDROs also
stated that “[t]he [Husband] shall take no action which will in any way
impact upon the [Wife]’s rights to receive benefits pursuant to this Order.”

    In 2007, the Husband died. A probate proceeding for his estate was
filed in Broward County. After the Husband’s death, the Trustee became
the personal representative of his estate and the trustee for both
retirement plans. In 2010, the Wife died. A probate proceeding for her
estate was filed in Dade County. The Curator was appointed in that
proceeding.

   In 2012, the Curator, on behalf of the Wife’s Estate, filed a third-party
complaint to enforce judgments (“the Complaint”) against the Trustee
regarding both retirement plans. The Complaint alleged that the Husband
had diverted portions of the retirement plans to which the Wife was entitled
under the MSA and “the Judgments,” and that, as of the date of filing,
those assets had not been distributed to the Wife or her estate. The
Complaint sought to enforce both QDROs. Although not alleged in the
Complaint, the Curator had previously sought enforcement of the Wife’s
claims related to the retirement plans by filing a claim in the Husband’s
probate proceeding. The Curator’s claim in the Husband’s probate
proceeding was stricken.

   The Trustee moved to dismiss the Complaint, alleging that the Curator
had previously filed a claim in the Husband’s probate proceeding, which
was stricken, seeking the same relief sought in the Complaint. For that
reason, the Trustee alleged that the Complaint was barred by res judicata
and collateral estoppel. Additionally, the Trustee alleged the Complaint


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was barred by the statute of limitations and lack of standing (since neither
the Curator, nor the Trustee, were parties to the dissolution action).

    At the hearing on the motion to dismiss, the Trustee argued that “[t]here
is [sic] a lot of jurisdictional problems here,” since (1) enforcement of a
trust has to be filed in probate court, (2) no party had been substituted for
the Wife, and (3) the Curator brought the same action in the other probate
case. The Curator argued that there were two different types of assets in
play: (1) assets that the Husband owned in his name at the time of his
death, and (2) assets in the trust at the time of the Husband’s death, and
that the Complaint sought enforcement as to assets of the retirement plans
held in trust, not assets subject to control by the probate court. Thus, he
argued that the Wife, through him as curator, had brought suit against
the Trustee to enforce the QDROs, which was proper for the family division
to handle, just as if a bank, as the trustee of a retirement plan, was not
complying with a QDRO. The Curator also argued that, if the case should
be in the probate division because it involves litigation regarding assets in
a trust, then the trial court should transfer the case, not outright dismiss
the case.

   The trial court ruled orally at the hearing:

      I’m dismissing the third-party complaint. Irrespective of
      whether you’re discussing estate assets or trust assets, it has
      no business being brought in this court, and I have no
      jurisdiction over a matter like this.

Upon the Curator’s request that the court dismiss without prejudice so
that he could bring the action in another court, the trial court stated:

      I’m dismissing the case, with prejudice, as to this family law
      case 99-13968. How that washes about bringing another
      claim, I don’t know.

Subsequently, the trial court entered a written order granting the motion
to dismiss and denying the Curator’s motion for rehearing. The Curator
gave notice of appeal.

                            Appellate Analysis

   “We review dismissal orders de novo.” West v. West, 126 So. 3d 437,
438 (Fla. 4th DCA 2013) (citing Simpson v. State, 33 So. 3d 776, 778 (Fla.
4th DCA 2010)).



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    The Complaint facially alleges a cause of action against a trustee based
on a prior judgment. More specifically, the Complaint alleges that assets
the Wife was to receive from a retirement plan as equitable distribution
under a final judgment of dissolution of marriage were wrongfully diverted
into a trust. The Complaint, in a somewhat contradictory manner, states
in an introductory paragraph that it is “an action for damages in excess of
$15,000,” yet the subsequent paragraphs indicate the Complaint seeks
something other than a judgment for damages. In summarizing the relief
sought, the Complaint “requests that this Honorable Court enter judgment
against the Trustee enforcing and compelling compliance with the August
2, 2005 Qualified Domestic Relations Orders (the Judgments), determining
the current value of the Disputed Assets[,] . . . awarding prejudgment
interest, . . . and, if the Trustee is found in civil contempt, order
compensatory and/or coercive fines, and granting any additional relief
which this Court deems appropriate.”

   We agree that the Complaint was subject to dismissal because it is
unclear what relief is sought (damages, coercive orders, or both) and what
legal theory and ultimate facts support a further decision or judgment by
the trial court. The Trustee argued multiple bases for dismissal. The trial
court appears to have concluded the Complaint was not properly filed in
the family division of the court. It is unclear from the record if the trial
court’s decision was based on one or more of the grounds for dismissal
argued by the Trustee, or some other unarticulated ground.

  As we explained in DeSantis v. DeSantis, 714 So. 2d 637, 638 (Fla. 4th
DCA 1998),

      Once the final judgment [of dissolution of marriage] awarded
      each party the interest in his or her own pension plan, those
      assets were no longer marital property but the sole property
      of the individual spouse. . . . Once the final judgment is
      entered, there are no longer marital property rights, only
      individual property rights.      The remedies available for
      enforcement of those provisions of the final judgment with
      regard to the equitable distribution of assets are those of
      creditor against debtor.

(citation omitted). Since it appears that the Curator is not seeking relief
from judgment in the context that the final judgment of dissolution of
marriage or the QDROs were entered in error, the trial court may have
correctly determined the Complaint was not properly filed in the family
division of the trial court.



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   However, the trial court erred in two regards. First, a dismissal with
prejudice was improper. Kairalla v. John D. and Catherine T. MacArthur
Found., 534 So. 2d 774, 775 (Fla. 4th DCA 1988) (“This court has held on
numerous occasions that a dismissal with prejudice should not be ordered
without giving the plaintiff an opportunity to amend the defective pleading,
unless it is apparent that the pleading cannot be amended to state a cause
of action.”). Second, a complaint filed in the wrong division of the court
should be transferred to the proper division, rather than dismissed with
prejudice. As we said in West,

      We have previously acknowledged that, in a situation where a
      complaint should have been filed in the probate division, the
      court should not dismiss the case solely because it was filed
      in the wrong division. Grossman v. Selewacz, 417 So. 2d 728,
      730 (Fla. 4th DCA 1982) (citing In re Guardianship of Bentley,
      342 So. 2d 1045 (Fla. 4th DCA 1977)). “[W]hile the circuit
      court is divided into divisions for efficiency in administration,
      all judges of the circuit court exercise the court’s jurisdiction,
      and cases filed in the wrong division should be transferred to
      the proper division.” Id.

West, 126 So. 3d at 438-39 (alteration in original).

   It appears the Curator is attempting to enforce prior judgments. Since
both the Husband and the Wife are now deceased, the Complaint does not
appear to state grounds for enforcing the judgments in the same action
within the family division of the court from which the judgments issued.
The trial court may have properly concluded the Complaint should be filed
as an independent action. Either way, the Complaint should not have
been dismissed with prejudice, and the Curator should have had an
opportunity to amend the pleading. To the extent the Complaint may be
seeking a remedy available to a creditor against a debtor as an
independent action, the Complaint should have been transferred to the
appropriate division of the trial court.

   Reversed and remanded.

GROSS and LEVINE, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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