Burden v. Dickman

• Decision Date: 06 June 1989
• Docket Number: No. 88-2190,88-2190
• Parties: 14 Fla. L. Weekly 1357 Paul M. BURDEN and Evelyn Burden, Appellants, v. Robert J. DICKMAN, Guardian Ad Litem of Adam Paul Burden, Appellee.
• Court: Florida District Court of Appeals

Page 170

547 So.2d 170

14 Fla. L. Weekly 1357

Paul M. BURDEN and Evelyn Burden, Appellants, v. Robert J. DICKMAN, Guardian Ad Litem of Adam Paul Burden, Appellee.

No. 88-2190.

District Court of Appeal of Florida,

Third District.

June 6, 1989.

Rehearing Denied Sept. 1, 1989.

Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.

Robert J. Dickman, P.A., Coral Gables, and Karen Bzdyk, for appellee.

Before JORGENSON, COPE and LEVY, JJ.

JORGENSON, Judge.

Paul and Evelyn Burden appeal an order denying their motion to dismiss a petition for accounting, to vacate the order granting the petition, and to discharge the guardian ad litem appointed on behalf of their minor child, Adam. We affirm.

The Burdens brought a medical malpractice action in the United States District Court for the Southern District of Florida, seeking damages individually and as next friends of Adam. The government conceded that the failure of Air Force physicians to recognize and to diagnose properly Adam's diabetes was negligent and that such negligence was the proximate cause of Adam's brain damage and resulting cerebral palsy. ¹

After a non-jury trial on the issue of damages, the trial court entered two awards, one in favor of Adam, the other in favor of the Burdens. Adam was awarded the sum of $1,000,000 as compensation for "past pain and suffering, loss of earning capacity and special damages upon attaining the age of 18 years." The trial court specifically noted that the amount did not include "support care," the substantial portion of which would be reimbursable to the parents until Adam reached the age of eighteen. The Burdens were awarded the sum of $1,500,000 "for all past and future medical, hospital, nursing services, and all educational and other expenditures on behalf of Adam and the loss of companionship [the parents] suffered and will suffer." ² Judgment was entered accordingly.

The United States government paid the judgments. The Burdens thereafter filed a petition in the probate division of the circuit court for Dade County seeking appointment as joint guardians of Adam's property. The petition described Adam's property as the net proceeds of the $1,000,000 award. The probate court appointed Northern Trust Bank of Florida, N.A., as guardian of the property. Two weeks after the net proceeds were distributed to the corporate fiduciary, the probate court appointed a guardian ad litem for Adam pursuant to Florida Rule of Probate and Guardianship Procedure 5.120, Florida Rule of Civil Procedure 1.210(b), and section 744.387, Florida Statutes (1987). In his report to the court, the guardian ad litem expressed his concern that the Burdens' award of $1,500,000 was undifferentiated. The guardian recommended that an allocation be made between that portion of the award compensating the parents for their claim of loss of support and services and that portion which should be held in trust and used to defray the increased medical and support expenses incurred during Adam's minority. Nothing in the record indicates that any action was taken regarding an allocation. The guardian subsequently filed a petition for an accounting, requesting that the probate court order the Burdens, as natural and legal guardians of Adam, to account for the funds held on their son's behalf for medical care and support. The probate court granted the petition, whereupon the Burdens sought to have the order vacated, the petition dismissed, and the guardian ad litem discharged on the ground that the probate court lacked both personal jurisdiction of Adam and the Burdens and subject matter jurisdiction of the Burdens' award. The order of the probate court denying the Burdens' motion is the subject of this appeal.

In considering the Burdens' challenge of the appointment of the guardian ad litem, we are mindful that the federal trial court which presided during the Burdens' litigation has cogently observed that guardianship law generally is not within the federal courts' area of skill but "has historically been peculiarly within the expertise of the state courts." Comas v. Southern Bell Tel. & Tel. Co., 657 F.Supp. 117, 118 (S.D.Fla.1987). Further, "although jurisdiction vests in [the federal district court] as the trial judge, the primary responsibility for the welfare of the minor is that of the guardianship judge." Id. at 117. See also Phillips v. Nationwide Mut. Ins. Co., 347 So.2d 465 (Fla. 2d DCA 1977) (circuit court has inherent jurisdiction and right to protect minors and their property); art. V, § 5, Fla. Const.; ch. 744, Fla.Stat. (1987). The role of a guardian ad litem is to defend the interests of the individual he represents. Fla. R.P. & G.P. 5.120(a). Appointment of a guardian ad litem is mandated where the interest of the guardian is adverse to that of the ward, § 744.391, Fla.Stat. (1987), no less so when a natural guardian is involved. Accordingly, we affirm that portion of the trial court's order denying the Burdens' motion to discharge the guardian ad litem.

We find that the probate court has personal jurisdiction of the parents in this action. The Burdens affirmatively sought the court's jurisdiction to administer the guardianship of Adam's property. By petitioning the probate court to be appointed joint guardians of the property, the Burdens submitted themselves to the court's jurisdiction. They cannot now be heard to allege lack of personal jurisdiction. See Palm Beach Towers, Inc. v. Korn, 400 So.2d 110 (Fla. 4th DCA 1981) (general rule that plaintiff, in bringing action, subjects himself to jurisdiction of court and to subsequent lawful orders entered regarding subject matter of action); see also Glass v. Layton, 140 Fla. 522, 192 So. 330 (1937) (by bringing partition action, plaintiff subjected herself to jurisdiction of court); Brasch v. Brasch, 109 So.2d 584 (Fla. 3d DCA) cert. dismissed sub nom. High v. Brasch, 114 So.2d 796 (Fla.1959).

The Burdens' assertion that the probate court lacked personal jurisdiction over Adam on the ground of nonresidency is similarly without merit. While it is true that Adam has never been a resident of or domiciled in Florida, section 744.308(1), Florida Statutes (1987), expressly provides for the guardianship of a nonresident incompetent. Junco v. Suarez-Solis, 294 So.2d 334 (Fla. 3d DCA 1974), does not support the Burdens' jurisdictional argument. Junco involved a misplaced attempt to establish a guardianship for a nonresident minor who had no real or personal property within Florida. By contrast, Adam has substantial assets located in this state.

The Burdens concede that the probate court has subject matter jurisdiction over the $1,000,000 award to Adam but contend that the award of $1,500,000 "was not made to or for the minor child, it was not made to the parents for the minor child, but was in the form of compensation to the parents." It has long been the rule in Florida

that the parent, or guardian, of an unemancipated minor child, injured by the tortious act of another, has a cause of action in his own name for medical, hospital, and related expenditures, indirect economic losses such as income lost by the parent in caring for the child, and for the loss of the child's companionship, society, and services, including personal services to the parent and income which the child might earn for the direct and indirect benefit of the parent.

Yordon v. Savage, 279 So.2d 844, 846 (Fla.1973) (citing Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (1926)); see also Youngblood v. Taylor, 89 So.2d 503 (Fla.1956) (parents' right of action for recovery of loss of child's services and medical expenses is independent of child's right of action arising from same tortious incident); Tucker v. Shelby Mut. Ins. Co., 343 So.2d 1357 (Fla. 1st DCA 1977) (same); City Stores Co. v. Langer, 308 So.2d 621 (Fla. 3d DCA), rev. dismissed, 312 So.2d 758 (Fla.1975) (same). The existence of an independent right of action derives from the parents' common law duty to support and maintain their child during minority. See State v. Winters, 346 So.2d 991 (Fla.1977) (parent has duty to provide child with food, clothing, shelter, and medical treatment); Albert v. Albert, 415 So.2d 818 (Fla. 2d DCA 1982) (obligation of support based upon parentage), rev. denied, 424 So.2d 760 (Fla.1983); Cronebaugh v. Van Dyke, 415 So.2d 738 (Fla. 5th DCA 1982) (parental duty to support minor child is created by law and obligation of support cannot be bargained or stipulated away), rev. denied, 426 So.2d 25 (Fla.1983). Child support itself, however, "is a right that belongs to the child." Cronebaugh, 415 So.2d at 741. Just as "[p]rovisions in dissolution settlement agreements ... are not the basis for the right to child support[,]" id., the recovery of an award of damages in favor of the parents of an injured child does not create parental ownership of that award. ³ As Adam's parents, the Burdens bear a heavy responsibility in rearing

a child born with substantial mental or physical defects. True, such a child is still the child of the parents, not the [tortfeasor] ... and ordinarily should be supported by the parents. Still, the special medical and educational expenses, beyond normal rearing costs, associated with raising such a child are often staggering, creating great financial drain upon the parents.

Ramey v. Fassoulas, 414 So.2d 198, 201 (Fla. 3d DCA 1982), approved, 450 So.2d 822 (Fla.1984). We have recognized that parents are responsible for normal child-rearing expenses and that funds received on behalf of the ward should be treated as guardianship funds to be drawn upon with court approval for those extraordinary expenses which the ward may require. Ash v. Coconut Grove Bank, 443 So.2d 437 (Fla. 3d DCA 1984).

It is those special medical and educational expenses of raising Adam to majority, as opposed to normal rearing costs, that occasioned the now-contested award. The undifferentiated award detailed the prospective...