Opinion
No. 84-602.
February 5, 1985.
Appeal from the Circuit Court, Dade County, Mario Goderich, J.
Adkins Hardy and Milton Adkins, Coral Gables, for appellant.
Eleanor Levingston Schockett, Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.
We conclude that the order on the report of the general master, which modified the final judgment of marriage dissolution, should be affirmed in all respects, save one. We agree with the husband, Matthew Wayne Theisen, that the $1,100, which he is required to pay to the wife, Mary Danese Theisen, by the trial court's order approving the master's report, must be used by the wife only to pay those medical expenses of the children found to be owing by the husband under the final judgment. The order under review is therefore reversed insofar as it allows the wife discretionary use of any portion of these monies for general child support because such an order is contrary to the final judgment and amounts to modification of a provision of the final judgment which was neither requested by nor the subject of any pleadings of either party. See Avery v. Avery, 314 So.2d 198, 201 (Fla. 1st DCA 1975), modified on other grounds, 327 So.2d 55 (Fla. 1st DCA 1976), and authorities collected.
We agree with the wife, however, that this $1,100 payment in no way satisfies, in whole or in part, the husband's obligation to set up a $2,500 trust account for the benefit of the children at age eighteen as required by the final judgment. The husband has yet to set up this account and may be required to do so by further order of the court. See Golden v. Golden, 356 So.2d 1274, 1275 (Fla. 3d DCA 1978); Smithwick v. Smithwick, 343 So.2d 945, 947 (Fla. 3d DCA 1977); Feder v. Feder, 291 So.2d 641, 642-43 (Fla. 3d DCA 1974).
In all other respects we are unpersuaded that the trial court in any way abused its discretion in entering the order approving in part the general master's report. We think there was substantial competent evidence in the record for the trial court's rulings in this respect on the remaining points complained of on both the main appeal and cross appeal. We further find that no error of law was made in any of these rulings. See Dushoff v. Dushoff, 442 So.2d 361, 362 (Fla. 1st DCA 1983); Grobleski v. Grobleski, 408 So.2d 693, 694 (Fla. 2d DCA 1982); Diaco v. Diaco, 363 So.2d 183, 185 (Fla. 2d DCA 1978); Simon v. Simon, 155 So.2d 849, 850 (Fla. 3d DCA 1963).
The order under appeal is, therefore, affirmed in all respects, save one, on both the main appeal and the cross appeal. The subject trial court order is reversed insofar as it approves the general master's report allowing the wife to use the $1,100 payment from the husband for purposes other than to pay for the children's medical expenses. The cause is remanded to the trial court with directions that the order under review be so modified. This partial affirmance and partial reversal shall be without prejudice to the wife to seek further enforcement of the trust account provisions of the final judgment of marriage dissolution herein.
Affirmed in part; reversed in part.