SANDRA EPPERSON RICH vs JOHN D. RICH, ET AL

Lakeland, FL - Divorce lawyer represented defendant appealing final judgment of dissolution of her marriage.

The parties have two children, and their marriage was of

moderate duration—lasting equally as long as the litigation in this

case. Both parties are well-educated attorneys—the Former Wife

also holds her LLM in taxation, and the Former Husband has a

master's degree in business administration.

At the forefront of this dispute lies an antenuptial agreement

(Agreement) and whether the Former Wife waived as part of that

Agreement her claim to any interest the Former Husband acquired

during the marriage in the companies controlled by the Former

Husband's father, along with any income, appreciation, and/or

proceeds of any sale of such interests.2

As shown by the recitals in

the Agreement, the parties intended to define their nonmarital

assets. The relevant portions of the Agreement provide:

2

The dissolution proceedings were bifurcated into two phases.

In Phase One, the trial court determined the existence, content, and

validity of the Agreement after a challenge by the Former Wife. The

trial court's ruling on the validity of the Agreement is not the

subject of this appeal.

4

WHEREAS, JOHN and SANDRA desire to fix and

determine by antenuptial agreement the right and claim

that will accrue to each other by reason of their

cohabitation and possible future marriage in the property

of the other, as set forth specifically hereinbelow, and in

certain property which may be hereinafter acquired, prior

to any marriage between the parties or hereinafter

acquired by inheritance or gift from the parents of either

party, or hereinafter acquired by becoming the

beneficiary of a trust established for the benefit of the

party if such trust is derived from funds or property from

a settlor from whom the party would otherwise inherit,

and to accept the provisions of this agreement, in lieu of

and in full discharge, settlement and satisfaction of all

such rights and claims in and to the said property set

forth specifically hereinbelow, and in property hereinafter

acquired prior to any marriage between the parties, to

property hereinafter acquired by inheritance or gift from

the parents of either party, to property hereinafter

acquired by becoming the beneficiary of a trust

established for the benefit of the party if such trust is

derived from funds or property from a settlor from whom

the party would otherwise inherit; and in certain limited

property acquired after marriage as specifically set forth

hereinbelow.

(Emphasis added.)

As to the Former Husband's nonmarital assets at issue here,

the Agreement provides that the following relevant assets were "free

and clear from any interest, claim or right of [the Former Wife]":

(a) That parcel of real property legally described as:

Island Estates, Unit #1, Lot 33, and, commonly known as

656 Normandy Road, Madeira Beach, Florida 33708, with

all improvements thereon or replacement thereof.

5

. . . .

(j) Any real or personal property [the Former Husband]

might come to receive in the future by inheritance or gift

from a third person, including all income and

appreciation of said property, and/or proceeds of any

sale of such property.

(k) [The Former Wife] agrees that at any time before or

after marriage, [the Former Husband] may establish for

himself a savings, money market or brokerage account in

his name that will be and remain his sole and divided

property, including all future payments and deposits

even though made from earnings, before or after the

marriage, as well as any earnings, interest, appreciation

or equity that may accrue to said account, and [the

Former Husband] may make monthly deposits in this

account in the amount of up to five hundred dollars

($500) less any marital assets actually used or paid into

or applied to from his earnings the real property

described in paragraph 1(a), above. This amount is

intended to approximately represent one-half the amount

of marital assets, if any, applied to the real property

described in paragraph 1(a), above, for indebtedness,

taxes, maintenance, repairs, improvements or

replacements, all as reduced by tax benefits derived by

[the Former Husband] and [the Former Wife] from

deduction of mortgage interest, points, taxes, or other

costs and expenses made on the real property herein

described in paragraph 1(a) above. This provision

creating sole and separate property shall apply to any

assets, or portions or percentages thereof, purchased at

any time specifically from the proceeds or balance of the

account contemplated in this paragraph.

(l) Any interest [the Former Husband] may come to

receive by way of gift, inheritance or otherwise in the

business and corporation known as Bannum,

Incorporated, and its affiliates and successors.

6

(Emphasis added.)

Both parties worked at the Former Wife's father's law firm

earning modest salaries at the start of the marriage. In 2001, the

Former Husband left the law practice to work for his father; he

served as corporate counsel and was a shareholder of both Bannum

and KMG. Bannum owns a number of subsidiaries that build

halfway houses for the Department of Justice. Each Bannum

company pays management fees to KMG for the management of

these facilities. In 2002, the Former Husband and his father

entered into an agreement whereby shares of stock in Bannum and

KMG were gifted to the Former Husband—these shares represented

twenty five percent of the stock in these two companies. The

Former Wife concedes that these shares constitute nonmarital

property under the terms of the Agreement.

In 2006, the Former Husband acquired an additional twenty

percent interest in Bannum and KMG, which he claims was

acquired after a capital call and purchased with nonmarital funds.

However, the Former Wife argues that these twenty percent

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interests were purchased with marital funds and are therefore

marital assets subject to equitable distribution.

During the marriage the Former Husband also established his

own legal consulting company, 656 R/E Venture, Inc., and opened

a number of bank accounts in 656 R/E Venture's name.

The marriage came to an end in September of 2009, when the

Former Husband filed for divorce. The Former Wife filed a

counterpetition alleging, among other claims, that 656 R/E Venture

is a marital asset and that certain nonmarital assets lost their

nonmarital character as a result of the Former Husband's

commingling of those nonmarital assets with marital assets.

While the dissolution proceedings were pending, in 2012,

Arnold Rich, KMG, and ARICH Family filed civil complaints, in what

can only be described as "friendly" lawsuits, suing the Former

Husband for amounts allegedly owed by the Former Husband

pursuant to lines of credit secured by all personal and corporate

assets owned by the Former Husband and executed after the

dissolution proceedings commenced.3

The Former Husband did not

3

After the commencement of the dissolution proceeding and

prior to the "friendly" lawsuits, the Former Husband's father also

8

defend these lawsuits or the execution proceedings on the resulting

judgments entered against him. Based on the dissipation of these

assets, the Former Wife joined the Additional Defendants

contending that they had committed nefarious acts by creating liens

for the sole purpose of squandering the marital estate. See Martinez

v. Martinez, 219 So. 3d 259, 262 (Fla. 5th DCA 2017) ("Under

principles of equity, a trial court may determine whether a third

person has acted with a spouse to deprive the other spouse of his or

her share in the marital estate. However, for the court to make a

complete determination of the case before it, that person . . . must

be joined as a party to the action. . . .").

In Phase One of the final hearing, the trial court determined

that the Agreement was valid and enforceable. In its findings, the

trial court found all parties to be less than credible: it found the

Former Wife's lack of knowledge of a certain bank account

filed, in his individual capacity and as the majority shareholder of

Bannum and KMG, a civil lawsuit against the Former Husband and

the Former Wife. In that lawsuit he sought to prevent the Former

Wife from claiming an interest in any and all assets related to his

companies that were acquired by the Former Husband during the

marriage, and among other relief, to enjoin the Former Wife from

"taking any action which is inconsistent with the terms and spirit of

the [Agreement]."

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"completely fabricated" when on cross-examination she admitted to

endorsing and depositing a check in that account, and it found that

the Former Husband and Arnold Rich were "less than full and frank

regarding their business dealings . . . at the time the Parties signed

the [Agreement]" but that regardless, their general disclosure was

adequate. The trial court deferred the issue of how the Agreement

would be interpreted and enforced in the area of equitable

distribution for Phase Two of the final hearing, along with the issue

of the Former Husband's unclean hands.

With the validity of the Agreement solidified in Phase One, the

Additional Defendants filed a renewed motion for partial summary

judgment (Renewed Motion), seeking a ruling that pursuant to the

Agreement the Former Wife waived any and all interest in any

appreciation in value of the gifted twenty-five percent of stock in

Bannum and KMG; the later-acquired twenty percent of stock in

Bannum and KMG; and all interests formerly held by the Former

Husband in his father's businesses. In its order granting the

Renewed Motion, the trial court determined that the Agreement was

clear and unambiguous as to the use of the term "affiliates" and

dismissed with prejudice all claims against the Additional

10

Defendants "which relate to or which are based on [the Former

Husband's] ownership interests at any time during the marriage in

the companies of [Arnold Rich], or to any income, appreciation

and/or proceeds of the sales of such interests," finding such to be

contemplated under the Agreement.

A final hearing was conducted almost a decade after the

Former Husband filed his petition and after seven appeals. The

Former Wife testified that the Former Husband deposited his

earnings, including his salary, bonuses, and distributions into

various accounts of 656 R/E Venture. According to the Former

Wife, these monies were later used to purchase the marital home

the parties resided in just prior to these proceedings.

In support of these allegations, the Former Wife admitted into

evidence financial records of the Former Husband and the

Additional Defendants, including banking and accounting records

prepared by third parties. The Former Wife testified that she

obtained these financial records—which she contends were

withheld from discovery—through nontraditional methods,

specifically, rummaging through the dumpster behind the Former

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Husband's accountant's office.4

While the Former Husband and the

Additional Defendants initially objected to the admission of the

"dumpster documents," those objections were ultimately withdrawn,

and the Former Husband did not dispute the documents'

substantive accuracy or legitimacy. Indeed, the Former Husband

and the Additional Defendants conceded at oral argument that they

knowingly and voluntarily waived, on the record below, any

accountant-client privileges with respect to these "dumpster

documents" and stipulated to the admission of those records into

evidence at trial.

The Former Husband testified at trial that during the marriage

he acquired nonmarital assets—stock; distributions; gifts, both

monetary and nonmonetary; real property; and the like—which he

would deposit into an account in the name of 656 R/E Venture.

The Former Husband testified that he solely owned and

4

Throughout the dissolution proceeding, the Former Husband

and Arnold Rich persistently attempted to thwart discovery and

demonstrated a continued refusal to comply with discovery

obligations and orders compelling the same. The Former Husband

was found in contempt and sanctioned for his behavior on more

than one occasion, and the trial court even went so far as to

threaten incarceration should the Former Husband continue his

intentional and willful noncompliance.

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incorporated 656 R/E Venture but insisted that the 656 R/E

Venture accounts were established to accommodate nonmarital

earnings, as contemplated by the Agreement. In any event,

according to the Former Husband, whatever nonmarital assets

might have existed have since been fully depleted as a result of the

dissolution proceedings. He explained that he was forced to take

out loans from his father in order to comply with various court

orders in the dissolution proceedings, as well as to pay for his own

attorney's fees and costs; his father then called the loans and sued

him in the above-mentioned "friendly" lawsuits.

After presiding over the three-day final hearing, the trial court

entered a final judgment of dissolution of marriage wholly

disregarding the Former Wife's substantive evidence supporting her

claims of commingling and her claim that some of the interests in

the Additional Defendants were marital assets not governed by the

terms of the Agreement. The trial court found that it had already

determined that the ownership interests of the Former Husband in

the Additional Defendants were nonmarital by virtue of the plain

language of the Agreement when it granted the Renewed Motion,

13

and accordingly, how the Former Husband treated those assets

during the dissolution proceedings was not relevant.

II

We first address the order granting the Renewed Motion. We

review an order granting summary judgment de novo. Volusia

County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130

(Fla. 2000). "Summary judgment is proper if there is no genuine

issue of material fact and if the moving party is entitled to a

judgment as a matter of law." Id. (citing Menendez v. Palms W.

Condo. Ass'n, 736 So. 2d 58 (Fla. 1st DCA 1999)). "It is the

movant's burden to prove the nonexistence of genuine issues of

material fact . . . ." Est. of Githens v. Bon Secours-Maria Manor

Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006).

Only after the movant carries his initial burden does the burden

shift to the nonmoving party to show that there is an actual issue of

material fact that remains to be tried. McNabb v. Taylor Elevator

Corp., 203 So. 3d 184, 185 (Fla. 2d DCA 2016). The burden does

not shift to the opposing party unless and until the moving party

satisfies its initial burden of demonstrating that no genuine issue of

material fact exists.

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In its order granting the Renewed Motion, the trial court found

that the terms of the Agreement were unambiguous and that "any

interest which may be acquired by [the Former Husband] in his

father's companies are covered by the [Agreement] and are thus

non-marital in character." Hence, the trial court found the Former

Wife "waived any claims as to [the Former Husband's] interests in

his father's companies, as well as to any income, appreciation

and/or proceeds of any sale of such interests." However, that order

does not identify any specific companies that should be considered

"the father's companies" and does not specify any "affiliates" by

name. Importantly, neither the Renewed Motion nor the order

granting the Renewed Motion specifically addresses 656 R/E

Venture,5

much less the Former Wife's commingling claims.

5

The Former Husband's testimony was consistent with other

record evidence submitted by Arnold Rich in his amended sworn

affidavit in support of the Renewed Motion, attesting that Arnold

Rich had no interest in 656 R/E Venture prior to the "friendly"

lawsuits. Therefore, 656 R/E Venture cannot be one of the

affiliated or successor companies as contemplated by the

Agreement.

15

With regard to the additional twenty percent of stock in

Bannum and KMG acquired after the marriage, the trial court

found:

In the present context, [the Former Husband's]

acquisition of an additional interest in his father's

companies, even if by purchase, nevertheless results in

his having an interest as to which [the Former Wife] has

waived any claim. Moreover, if the capital call paid by

[the Former Husband] by accepting the ownership of

additional stock should be treated as a purchase (as

claimed by [the Former Wife]), then nevertheless the

additional stock ownership could not have been marital

property because the funds used to pay the capital call

were non-marital. See Orloff v. Orloff, 67 So. 3d 271 (Fla.

2d DCA 2011).

Based on these findings, the trial court dismissed with

prejudice all claims of the Former Wife as to the Additional

Defendants "which relate to or which are based on the Former

Husband's ownership interests at any time during the marriage in

the companies of Arnold R. Rich, or to any income, appreciation

and/or proceeds of the sales of such interests."

This was error. While Orloff stands for the proposition that

when an asset is acquired entirely with nonmarital funds, it retains

its nonmarital classification, this is not the case here. In the

instant case, the Former Husband presented no evidence to support

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his claim that he acquired the additional twenty percent interests

by way of nonmarital funds. Cf. Orloff v. Orloff, 67 So. 3d 271, 273

(Fla. 2d DCA 2011) ("[T]his asset must be classified as nonmarital

because Mr. Orloff used solely nonmarital assets to form it."). There

was a dispute as to how the additional stock was acquired: the

Former Wife alleged the Former Husband purchased the stock with

marital funds, while the Former Husband maintained that the stock

was acquired by way of a capital call that he paid using nonmarital

assets. The determinative question is whether the monies the

Former Husband used, whether to purchase or to answer a capital

call, were marital in nature.

Because the record is void of any evidence supporting the

Former Husband's and the Additional Defendants' claims that the

additional shares were acquired by use of nonmarital funds—

thereby allowing the shares to retain their nonmarital character,

whether by terms of the Agreement or under section 61.075(6)(b),

Florida Statutes (2009)—the burden never shifted to the Former

Wife to introduce evidence that the shares were acquired by the use

of marital funds, namely those held by 656 R/E Venture.

17

Accordingly, the trial court erred in granting summary

judgment as it relates to the additional twenty percent interests

where there remains a disputed issue of material fact as to whether

the additional twenty percent interests were acquired using marital

funds, thereby taking them outside the purview of the Agreement.

And so it follows that the trial court also erred in dismissing with

prejudice the Former Wife's claims against the Additional

Defendants.6

In the final judgment, the trial court compounds this

error by relying upon the order granting the Renewed Motion

to find:

13. Business Interests: One of the substantial

disputes, in this case, revolves around the valuation and

usage of the [Former] Husband's ownership interest in

various businesses listed under Tab G of the Equitable

6

The Former Wife's claims against the Additional Defendants

go beyond whether she is entitled to any portion of the Former

Husband's interests in his father's companies. The Former Wife

alleged that the Former Husband and his father conspired to

deplete the martial estate with the help of the Additional

Defendants and that as a result of such fraudulent behavior, she

may be entitled to relief from the Additional Defendants. Because

these claims exceeded the narrow relief sought in the Renewed

Motion, dismissal was improper.

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Distribution Schedule.[7] This Court has previously

found, in its Order Granting Additional Defendants'

Motion for Partial Summary Judgment dated December

5, 2017, that the ownership interests of the [Former]

Husband in these companies were nonmarital by virtue

of the plain language of the parties' [Agreement].

. . . .

The Court finds that the interpretation of this

provision of the parties' Antenuptial Agreement as it

relates to affiliates and successors encompasses all

corporations involved in the owning and operating of

half-way houses, which is the purpose of [Bannum]. As

such, the [Former Husband's ownership interest[s] in

these corporations were nonmarital and what he did with

his ownership interest during the pendency of this action

is immaterial for purposes of equitable distribution.

(Emphasis added.)

Because the order granting the Renewed Motion made no

determination that the Former Husband's ownership interests in

any of the specific Additional Defendants was nonmarital under the

Agreement, or to the extent the trial court did find, in its previous

order, that the Former Husband's interests in Bannum and KMG

were nonmarital, that finding as it relates to the additional twenty

7

The companies listed in Tab G of the Equitable Distribution

Schedule include: 656 R/E Venture, Inc.; Accounting, Etc., Inc.;

Bannum Place of Washington DC, Inc.; Kentucky Management

Group, Inc.; JJ Leasing of Central Florida, Inc.; Bannum of Sioux

City, Inc.; Airrich, LLC [sic]; AJ RE Venture, LLC; Bannum, Inc.;

and AJ Moderation, Inc.

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percent interests in Bannum and KMG was improper. Accordingly,

we reverse in part the order granting partial summary judgment

and remand for the trial court to consider whether the Former

Husband acquired the additional twenty percent interests in

Bannum and KBG by use of marital funds. Moreover, because the

order granting the Renewed Motion merely finds that companies

owned by the Former Husband's father—without identifying any

specific company—constitute affiliates of Bannum, the trial court

shall, on remand, identify which companies, if any, are affiliates of

Bannum.

III

We next address the Former Wife's contentions that the trial

court erred in wholly disregarding the "dumpster documents" as

substantive evidence. We review the "trial court's characterization

of an asset as marital or nonmarital de novo" and review for

competent substantial evidence those "factual findings necessary to

make [such] legal conclusion." Dravis v. Dravis, 170 So. 3d 849,

852 (Fla. 2d DCA 2015); see also Hahamovitch v. Hahamovitch, 174

So. 3d 983, 986 (Fla. 2015) (holding that the plain meaning of a

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prenuptial agreement controls when the agreement is clear and

unambiguous).

The trial court declined to consider the "dumpster documents"

as substantive evidence on the dual bases that it found (i) the

Former Wife was not credible and (ii) the circumstances of her

acquisition and the purported timing of disclosure of the "dumpster

documents" raised concerns about fairness and their "authenticity."

In the particular context of this case, these findings do not support

the trial court's decision to disregard the documents entirely.

As a threshold matter, the trial court as the finder of fact in a

dissolution proceeding unquestionably has discretion to determine

the credibility of witnesses and to weigh their testimony

accordingly. See, e.g., Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976)

("It is clear that the function of the trial court is to evaluate and

weigh the testimony and evidence based upon its observation of the

bearing, demeanor and credibility of the witnesses appearing in the

cause."). Here, the trial court found the Former Wife to be not

credible. However, in the unique context of this case, that

credibility finding simply cannot serve as the basis to entirely

disregard the "dumpster documents" as substantive evidence.

21

Regardless of the Former Wife's credibility or the circumstances of

her acquisition of these financial documents, they were largely

created by third parties, including the Additional Defendants, and—

more importantly—neither their substantive legitimacy nor

accuracy were in dispute below. Indeed, our review of the record

shows that some of the "dumpster documents" had in fact been

admitted into evidence by the Former Husband in Phase One.

Thus, the probative value of the "dumpster documents" did not

depend in any meaningful way on the Former Wife's credibility, and

the trial court erred to the extent it wholly disregarded them on that

basis.

Nor do the court's stated concerns about the documents'

"authenticity," the circumstances of their acquisition, or the

purported timing of their disclosure warrant disregarding this

evidence entirely. As recounted in the factual findings of the final

judgment, the trial court questioned the authenticity of the

"dumpster documents" obtained by the Former Wife's questionable

measures. While the trial court may have found the method in

which the Former Wife obtained relevant financial records

questionable, the Former Husband and the Additional Defendants

22

clearly stipulated at trial to the admission of the "dumpster

documents" and waived any applicable privileges. This stipulation

was binding and resulted in the waiver of the Former Wife's

obligation to lay a foundation for admission and authentication of

these records. See, e.g., Gunn Plumbing, Inc. v. Dania, 252 So. 2d 1,

4 (Fla. 1971) ("A stipulation properly entered into and relating to a

matter upon which it is appropriate to stipulate is binding upon the

parties and upon the Court."); Jackson v. Household Fin. Corp. III,

298 So. 3d 531, 535 (Fla. 2020) (recognizing that a party can lay a

foundation for the admission of documents by obtaining a

stipulation of admissibility from the opposing party). Because the

trial court appropriately received these records into evidence, it

could not summarily disregard them without even considering their

substance. See, e.g., Durousseau v. State, 55 So. 3d 543, 560-61

(Fla. 2010) (recognizing the "general rule" that even "uncontroverted

factual evidence cannot simply be rejected unless it is contrary to

law, improbable, untrustworthy, unreasonable, or contradictory."

(quoting Walls v. State, 641 So. 2d 381, 390 (Fla. 1994)).

Here, the documents were admitted into evidence without

objection, and all applicable privileges were expressly waived.

23

Thus, the documents had a proper foundation, and their

authenticity was not in question. See Jackson, 298 So. 3d at 535;

Third Fed. Savs. & Loan Ass'n of Cleveland v. Koulouvaris, 247 So.

3d 652, 654 (Fla. 2d DCA 2018) ("Florida law requires the

authentication of a document prior to its admission into evidence."

(citing § 90.901, Fla. Stat. (2012))). Further, the Former Husband's

unqualified stipulation to admit the documents into evidence

waived any objections he may have had regarding their acquisition

or disclosure. See Heath v. Thomas Lumber Co., 140 So. 2d 865,

866 (Fla. 1962) ("Petitioner waived any objection she might have

had by her stipulation at the May 17 hearing that the depositions of

respondent be admitted in evidence.").

The documents the trial court disregarded constituted much of

the Former Wife's substantive evidence. These "dumpster

documents" included third-party financial documents relied upon

by the Former Wife to prove her claim that some of the assets

transferred by the Former Husband to his father during the

pendency of this dissolution proceeding constituted marital

property. These "dumpster documents" also supported her claims

of commingling, which could, of course, result in this nonmarital

24

property losing its nonmarital nature. See Dravis, 170 So. 3d at

852 ("Nonmarital assets may lose their nonmarital character and

become marital assets where, as here, they have been commingled

with marital assets." (citing Abdnour v. Abdnour, 19 So. 3d 357, 364

(Fla. 2d DCA 2009))). This evidence would also support the Former

Wife's argument that 656 R/E Venture and its accounts were

marital in nature due to commingling and that the additional

twenty percent of stock in Bannum and KMG, acquired in 2006,

was acquired using marital funds.

As such, by declining to even consider the "dumpster

documents," the trial court made no independent analysis of the

Former Wife's commingling claims or claims that the Former

Husband's transfer of certain assets constituted misconduct during

the dissolution case which resulted in the dissipation of marital

assets. See Dravis, 170 So. 3d at 853 (explaining that misconduct

during the dissolution that results in the dissipation of marital

assets is the exception to the general rule that assets diminished or

dissipated during the dissolution proceedings should not be

included in the equitable distribution scheme). In the context of

25

this case, the trial court erred by declining to consider these

documents as substantive evidence.

Because these erroneous findings were integral to other

factual findings in the final judgment concerning marital assets,

equitable distribution, and child and spousal support, a new trial is

required. Cf. Orloff, 67 So. 3d at 275. On remand, the trial court

shall determine what if any allegedly nonmarital property—

including, but not limited to, the twenty percent interests in

Bannum and KMG acquired in 2006, the marital home, and any

accounts held by 656 R/E Venture—lost their nonmarital character

as a result of the commingling with marital property. See Dravis,

170 So. 3d at 852 ("Nonmarital assets may lose their nonmarital

character and become marital assets where, as here, they have

been commingled with marital assets." (citing Abdnour, 19 So. 3d at

364)). The trial court shall then equitably distribute all marital

assets. Further, based upon the evidence established at the new

trial, the trial court shall recalculate child support, determine

whether the Former Wife is entitled to any spousal support, and

reconsider the parties' motions for attorney's fees and costs. See

Orloff, 67 So. 3d at 275. Finally, the trial court shall consider

26

whether any of the Former Husband's actions taken during the

dissolution proceedings constitute misconduct that resulted in the

dissipation of marital assets.

Affirmed in part, reversed in part, and remanded with

instructions