15 de May de 2019
As an introduction, let us think of the following hypothesis: the custody of the child was established to one of the parents, the other parent, who does not have custody, the obligation to provide child support at a certain value established in court.
If the food handler suspects that the amounts provided in child support are not being properly allocated to the child, what measures should he take?
As we all know, dialogue is always the best way to reach agreement on both sides. However, when this dialogue is possible or when it has been done, but without an agreement, there is a need to bring the matter to the attention of the judiciary, with the possibility of being asked in court to report on food. However, there are divergent positions on this possibility.
In cases in which this action occurs, it would be requested the rendering of accounts to verify if the amounts of the alimony are being used or not for the benefit of the fed. But for some scholars, this request would be impossible, since the foods were unrepeatable, that is, they could not be returned.
Seconds Maria Berenice Dias: “the nourisher has no legal relationship with the guardian of the fed. Because the amounts are intended for the child and not the custodian and is exercising family power, he can not answer for credit that does not belong to him. Thus, striking the passive illegitimacy of those who are fired. Then, lack of procedural interest of the author, since the food paid is unrepeatable. Thus, all the hypotheses configurating the lack of action are present. If all this were not enough, there is no reason to expect that the parent who exercises family power will periodically come to terms in an accounting manner when he performs on his own account, which is not his alone. “
For her, the recipients are the children, and the duty to support and care for the offspring remains with both parents. The accountability action, therefore, would not have a satisfactory result, since, even if it were eventually proved that the amounts are not being used well, it would be necessary to propose another action for any alteration of alimony, taking into account the possibility of and the need of the children for the establishment of value.
In the same vein, a recent decision of the STJ (Resp. 1,637,378) of February 2019 came out, in which the Minister of the case argued that: “Allowing accountability actions would mean encouraging endless and often unfounded actions about possible food misappropriation, an alternative that is not plausible and ineffective in Family Law. “
The orientation in these cases is that, if there is suspicion that the value is not being properly addressed to the children, an action is proposed aiming at altering the amount of food, in which an investigation or social study may be carried out to verify all circumstances and, where appropriate, the value of the food may be altered, adjusting it to the situation of those involved.
In any case, if there is still an interest in making the request for accountability, it is important to note that, in these cases, considering the unrepeatability of the food, the intended action will have a more personal than patrimonial character, since it is not intended values, but rather to check whether they were properly destined for the purposes proposed.
On the other hand, there are those who understand that the hypotheses in which the accountability may be required are diverse, since each case must be analyzed according to its particularities, even because the debtor of the obligation (food) has the right to supervise, pursuant to articles 1589 and 1583 of the Civil Code.
Because of the different positions, in case you are going through this situation, it is important that you seek the assistance of lawyers to be better advised according to your case. Our office works in this area and we are at your disposal to best serve you.
Contact phone: (31)3721-4232 ou (31) 98710-4232
Dr. Athos Feitas Fernandes Souza – OAB/MG 176.707
Dr. Giovanni Bittencourt de Souza – OAB/MB 176.984
Fonte Bibliográfica: BERENICE, Maria. Manual de Direito das Famílias