DAMPIER v. DAMPIER (2020)

The former husband appeals from a final judgment of dissolution of marriage, specifically as it relates to equitable distribution. He asserts that the trial court improperly refused to assign certain debts and obligations to the former wife which had been incurred as a result of forgery by the former wife. We agree that these obligations were nonmarital liabilities pursuant to section 61.075(6)(b)5, Florida Statutes, even though the trial court determined there was no evidence that she misused the funds obtained through forgery for her own benefit. We, therefore, reverse that portion of the judgment dealing with equitable distribution and remand for the trial court to revisit the entire equitable distribution scheme.

In the final judgment, the trial court rejected the former wife's explanation concerning the disputed liabilities and determined they were incurred as a result of fraud. Yet the trial judge considered these obligations as marital obligations and equitably distributed them. The only reason given was that the court could not determine how the illegally obtained funds were spent. The trial court erred in determining that it mattered whether the funds had been misused or misspent. Section 61.075(6)(b)5 does not place the burden on the wronged spouse to prove how the funds were used, but makes it mandatory that the party that committed the forgery be assigned the debt.

Section 61.075(6)(b)5 defines a “nonmarital asset” to include “[a]ny liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature.” This provision does not apply to “any forged or unauthorized signature that was subsequently ratified by the other spouse.” Id. For instance, when a former husband forged his former wife's signature without her knowledge so that he could borrow $100,000 against the marital residence and the former wife never ratified the loan, the Fifth District Court of Appeal concluded that the $100,000 was a nonmarital liability that should have been assigned to the former husband. Mills v. Mills, 192 So. 3d 515, 516–17 (Fla. 5th DCA 2016).

We, therefore REVERSE that portion of the final judgment dealing with equitable distribution and REMAND for the trial court to revisit that portion of the final judgment in accordance with the dictates of this opinion.

Per Curiam.

Wolf, Bilbrey, and M.K. Thomas, JJ., concur.