Malave v. Malave

• Decision Date: 09 October 2015
• Docket Number: No. 5D14–1167.,5D14–1167.
• Citation: 178 So.3d 51
• Parties: Christina Marie MALAVE, Appellant, v. Marybell MALAVE, Carmen Lopez, et al., Appellees.
• Court: Florida District Court of Appeals

178 So.3d 51

Christina Marie MALAVE, Appellant,

v.Marybell MALAVE, Carmen Lopez, et al., Appellees.

No. 5D14–1167.

District Court of Appeal of Florida, Fifth District.

Oct. 9, 2015.

William Glenn Roy, III and Tyler J. Chasez of McIntyre Roy, P.A., Lake Mary, for Appellant.

Nichole J. Segal and Andrew A. Harris, of Burlington & Rockenbach, P.A., West Palm Beach, for Appellees.

ZAMBRANO, R.A., Associate Judge.

Christina Malave appeals the family court's order dismissing with prejudice her ancillary petition filed after the death of her husband, Wilfredo Malave. In her petition, she alleged fraudulent dissipation and concealment of marital assets by several members of her husband's family, her husband's divorce attorney, Herbert W. Biggs, and Joseph T. Schiavone, Jr.¹ The family court found that it lacked jurisdiction over the divorce action because Mr. Malave died before a judgment dissolving the marriage was entered. We reverse the dismissal of the ancillary petition, find that the dismissal with prejudice was improvidently entered, and direct the circuit court to transfer the ancillary petition from its family division to its civil division.

The tragic facts of this case merit some discussion. On July 12, 2012, Mrs. Malave filed a verified petition for divorce from her husband in the family law division of the circuit court. Mr. Biggs filed an appearance on behalf of Mr. Malave. Three months later, Mrs. Malave filed a motion to compel responses to her interrogatories alleging that her husband was evading discovery and had not produced any of the required financial disclosures. On January 18, 2013, four days before the hearing on the motion to compel and before the entry of a final judgment dissolving the marriage, her husband and their three minor children died in an automobile crash when her husband drove off the road at a high rate of speed and hit several objects. The divorce petition was abated by his death.²

After the divorce case was dismissed, Mrs. Malave discovered that her husband allegedly made a substantial number of property and money transfers to his relatives shortly before his death. She learned that her husband had, among other things, allegedly divested himself from ownership of the bulk of his assets, including marital assets. She also found that her husband had changed the beneficiaries in his and their children's life insurance policies. She asserted that roughly one-half million dollars from her husband's 401(k) account and life insurance policy benefits had been removed from the marital estate and gifted to his relatives in some form or another. She alleged that all these events took place between the filing of the divorce and his death. She deduced that the disposal of marital assets was intentional and that Mr. Biggs and Mr. Schiavone had assisted in the allegedly fraudulent transfers.

Subsequently, Mrs. Malave moved to reopen the abated divorce case and to file an ancillary petition naming Mr. Biggs, Mr. Schiavone, and her husband's relatives³ as defendants. The family court granted the motion. In her petition, Mrs. Malave alleged, among other things, that Mr. Biggs and Mr. Schiavone colluded with her husband in committing fraudulent acts during the pendency of the divorce proceedings in order to facilitate the dissipation and concealment of marital assets. Neither Mr. Biggs nor Mr. Schiavone filed a response to the petition. The clerk entered a default against Mr. Schiavone. Eventually, Mr. Biggs filed a motion to dismiss the ancillary petition asserting that the family court lost jurisdiction over the divorce case when the husband died.

The family court dismissed the ancillary petition and the dissolution of marriage case finding that because the husband's death occurred prior to the entry of a final judgment dissolving the marriage, the court no longer had jurisdiction over the dissolution case. It also found that because Mrs. Malave had an "adequate remedy at law," the court could not grant equitable relief. The family court granted Mrs. Malave's motion for rehearing on additional issues, but the court reached the same conclusion. This time when the family court dismissed the marriage dissolution petition and the ancillary petition, it did so with prejudice. The instant appeal followed.

In this case, Mrs. Malave's attempt to sue her husband's lawyer for fraud in the divorce action was misplaced. Because no judgment had been entered dissolving the marriage at the time of the husband's death, the divorce action ended when the husband died. See Fernandez v. Fernandez, 648 So.2d 712, 714 (Fla.1995) ; Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105, 107 (1944) (citing Price v. Price, 114 Fla. 233, 153 So. 904, 905 (1934) ); Topol v. Polokoff, 88 So.3d 341, 344 (Fla. 4th DCA 2012). The trial court rightly recognized this issue. Even so, the trial court should not have dismissed the ancillary petition when it dismissed the dissolution action.

Ancillary relief is generally available in dissolution of marriage cases. See Adler v. Adler, 365 So.2d 411, 412 (Fla. 3d DCA 1978) ; Schetter v. Schetter, 279 So.2d 58, 59 (Fla. 4th DCA 1973) (citing Spector v. Ahrenholz, 107 So.2d 34, 36 (Fla. 3d DCA 1958) ); Henry P. Trawick, Jr., Trawick's Fla. Prac. & Proc., § 30:5 (2015 ed.); 13 Fla. Jur.2d Creditors' Rights § 242 (2015). However, the ancillary relief must relate to matters which are personal and proper to the divorce action itself. For example: injunctions, writs of ne exeat, receivers, sequestration, garnishment, and partition actions are some of the legally recognized ancillary matters to a divorce action; but only when they are subordinate to the main action. See Trawick, supra, § 30:5. The common thread between them is a distinct relationship linking the parties and the subject of the litigation. Id.

Mrs. Malave's ancillary petition itself is not ancillary to the divorce because Mr. Biggs was not a party to that litigation. See Rosenhouse v. Ever, 150 So.2d 732, 732 n. 1 (Fla. 3d DCA 1963) (noting that the spouse's attorney was not a party to the dissolution of marriage action (citing Smith v. Smith, 90 Fla. 824, 107 So. 257, 259 (1925) )). In other words, the ancillary petition was not part of the main action; it was an independent civil action. See Garcia–Roque v. Roque–Velasco, 855 So.2d 668, 668–69 (Fla. 3d DCA 2003) ; Valdespino v. Pedraza, 510 So.2d 978, 978 (Fla. 3d DCA 1987) (finding that the third-party claims must be brought in an independent action after the death of a spouse when no judgment dissolving the marriage was entered). Indeed, we have previously held that "frauds on the court ... must be brought as an independent action and not by motion in the original action." Dyke v. Dyke, 837 So.2d 584, 586 (Fla. 5th DCA 2003) (citing Gordon v. Gordon, 625 So.2d 59, 63–64 (Fla. 4th DCA 1993) ).

Although the dissolution of marriage petition was properly dismissed, the family court should have sua sponte⁴ transferred the ancillary petition to the civil division of the circuit court rather than dismissing it with prejudice. See Fla. R. Civ. P. 1.060(a) ; Fla. Fam. L.R.P. 12.060 ; West v. West, 126 So.3d 437, 438–39 (Fla. 4th DCA 2013) (citing Gross v. Franklin, 387 So.2d 1046, 1048 (Fla. 3d DCA 1980) ); Chanin v. Feigenheimer, 111 So.3d 292, 293 (Fla. 4th DCA 2013) (quoting Fort v. Fort, 951 So.2d 1020, 1022 n. 2 (Fla. 1st DCA 2007) ); Weaver v. Hotchkiss, 972 So.2d 1060, 1062 (Fla. 2d DCA 2008). Courts have long recognized the importance of assigning cases to the correct divisions of the circuit court. See, e.g., Art. V, §§ 7, 20(c)(10), Fla. Const.; § 43.30, Fla. Stat. (2015) ; Williams v. State, 737 So.2d 1141, 1141 (Fla. 4th DCA 1999). A circuit court, however, does not lack jurisdiction simply because a case is filed or assigned to the wrong division within the circuit court. See Partridge v. Partridge, 790 So.2d 1280, 1284–85 (Fla. 4th DCA 2001). Rather, it is true that:

All circuit court judges have the same jurisdiction within their respective circuits. A judge in the probate division or the juvenile division or the civil division or the criminal division has the authority and jurisdiction to hear cases involving child custody or dependency. The internal operation of the court system and the assignment of judges to various divisions does not limit a particular judge's jurisdiction.

In re Peterson, 364 So.2d 98, 99 (Fla. 4th DCA 1978) ; accord Partridge, 790 So.2d at 1284–85. Thus, the filing of an action in the wrong division should be remedied by reassignment to the correct division as opposed to a dismissal of the action. See West, 126 So.3d at 438–39 ("[I]n 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." (citing Grossman v. Selewacz, 417 So.2d 728, 730 (Fla. 4th DCA 1982) )); Chanin, 111 So.3d at 293 ("Because the circuit court had jurisdiction, however, the court should not have dismissed the case. ‘If an action is filed in the incorrect division, the proper remedy is to transfer the case to the correct division, subject to the payment of any filing fee and subject to the requirements of any local administrative rule.’ " (quoting Fort, 951 So.2d at 1022 n. 2 )).

Notably, in a Connecticut case, which remarkably parallels the facts of this case, the remedy was identical to our holding here. In Aksomitas v. Aksomitas, 2009 WL 4683556, 48 Conn. L. Rptr. 750 (Conn.Sup...