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 

 

1 The 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.
2

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 
3

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 
4

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 exspouses 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.