Rico-Perez v. Rico-Perez, 98-2172.

• Decision Date: 23 June 1999
• Docket Number: No. 98-2172.,98-2172.
• Citation: 734 So.2d 1177
• Parties: Manuel J. RICO-PEREZ, individually and as the Natural Father of and on Behalf of his Minor Child, Andres Manuel Rico-Perez, Appellant, v. Juliana RICO-PEREZ, Appellee.
• Court: Florida District Court of Appeals

734 So.2d 1177

Manuel J. RICO-PEREZ, individually and as the Natural Father of and on Behalf of his Minor Child, Andres Manuel Rico-Perez, Appellant, v. Juliana RICO-PEREZ, Appellee.

No. 98-2172.

District Court of Appeal of Florida, Third District.

June 23, 1999.

Linda L. Carroll, Miami, for appellant.

Frank A. Abrams, for appellee.

Before SCHWARTZ, C.J., and NESBITT, and JORGENSON, JJ.

NESBITT, Judge.

Post dissolution of marriage, Manuel Rico Perez claimed his monthly child support payments of $6,750 were being misused and sought appointment of a guardian of his minor son's property in the probate division. His ex-wife, the boy's mother, Juliana Rico-Perez, in a combined Answer, Affirmative Defenses, and Motion to Transfer to Family Division, denied the money was being misapplied, stated that she had no objection to a guardian being appointed at father's expense, and stated that she was filing a petition for upward modification. Juliana filed a separate Motion to Transfer Guardianship action to the Family Division after she filed a petition for an increase in child support.

Juliana thereafter filed a Motion to Dismiss for Lack of Jurisdiction and/or Sworn Motion for Summary Judgment with respect to the guardianship proceedings, arguing that as primary residential parent she had already been determined to be the proper individual to deal with the funds of this child. She also filed a supplement to her Motion to Dismiss, arguing that the probate court had no jurisdiction over the matter and that the guardianship petition should be dismissed. The circuit court judge in the Probate Division entered an Order on Jurisdiction, granting Juliana's motion, dismissing the guardianship petition without prejudice and concluding the matter should be decided by the family court which retained jurisdiction at the time of dissolution. Because we conclude that the matter should have been initiated in the family court, we affirm the order under review.

The father in this case alleged that since the couple's June 15, 1995, Final Judgment of Dissolution, which had adopted the parties' "Agreement on Shared Parenting, Visitation and Child Support", the mother had been using the monthly $6750 to pay her mortgage payments, her clothing and entertainment expenses and all her credit card bills. He argued that under Finley v. Scott, 707 So.2d 1112 (Fla.1998), guardianship proceedings in the probate division were appropriate to determine if child support payments were being properly used for the minor. We agree with the proposition that guardianship proceedings are appropriate where sums over and above the amounts being used for the child's benefit are accruing each month. However as we read Finley, where a factual scenario presents itself such as in the instant case, the objecting party should first go to the family court which retained jurisdiction over the case, and request an accounting. At that point the complaining party would be obligated to demonstrate to the court that no agreement between the parties precluded such a request and demonstrate that the facts warranted the accounting sought. We caution that there is no reason a properly structured order for accounting of the child's expenses should become an intrusion into the wife's records. See Bacardi v. Bacardi, 727 So.2d 1137 (Fla. 3d DCA 1999)

(holding that in light of extremely general language of marital settlement agreement regarding child support, trial judge abused her...