         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.




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