Borck v. Borck

• Decision Date: 20 July 2005
• Docket Number: No. 4D05-340.,4D05-340.
• Citation: 906 So.2d 1209
• Parties: Judith L. BORCK; Kimberly Borck Pollard; Amity L. Borck; James L. Borck, Jr.; Susan B. Paulsson; Joel C. Karp & Gary Clayton, co-trustees the Chester E. Borck Revocable Trust; and Joel C. Karp, individually and for the benefit of BA-CEB Associates, a Delaware limited partnership, B.C.D. Associates, a Delaware Limited partnership, ASB CEB Administrative Trust, the Borck Family Foundation, a Connecticut non-stock corporation, Kimamijay Associates, a Delaware limited partnership, Chesterb Associates, LLC, a Delaware limited liability company, Petitioners, v. Abbie S. BORCK, Respondent.
• Court: Florida District Court of Appeals

906 So.2d 1209

Judith L. BORCK; Kimberly Borck Pollard; Amity L. Borck; James L. Borck, Jr.; Susan B. Paulsson; Joel C. Karp & Gary Clayton, co-trustees the Chester E. Borck Revocable Trust; and Joel C. Karp, individually and for the benefit of BA-CEB Associates, a Delaware limited partnership, B.C.D. Associates, a Delaware Limited partnership, ASB CEB Administrative Trust, the Borck Family Foundation, a Connecticut non-stock corporation, Kimamijay Associates, a Delaware limited partnership, Chesterb Associates, LLC, a Delaware limited liability company, Petitioners, v. Abbie S. BORCK, Respondent.

No. 4D05-340.

District Court of Appeal of Florida, Fourth District.

July 20, 2005.

Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and Michael W. Connors of Michael W. Connors, P.A., North Palm Beach, for petitioners.

Jody H. Oliver of Gary, Dytrych & Ryan, P.A., North Palm Beach, for respondent Abbie S. Borck.

John P. Morrissey of Boyes & Farina, P.A., West Palm Beach, for respondent Chester E. Borck.

PER CURIAM.

Petitioners, who include family members of Chester Borck, as well as various entities in which family members hold some interest, seek a writ of certiorari to quash an order of the trial court requiring them to produce financial information, including their tax returns, in connection with two competing petitions to appoint a guardian of Mr. Borck. Because the order requires the production of private financial information from these non-party petitioners, we grant the petition.

Chester Borck is ninety-one years old and is a wealthy man. His first wife is deceased, but he has a daughter, Judith, and several grandchildren. For the past ten years he has been married to Abbie, his second wife, who is in her eighties. Chester's businesses were located in Connecticut and Joel Karp, a Connecticut attorney, has managed his financial affairs. In March 2004, Karp and Chester's longtime assistant, Susan Paulsson, initiated a guardianship proceeding and petitioned for appointment of an emergency guardian for Chester. Chester is legally blind and hearing impaired. He also suffers memory deficits, probably resulting from Alzheimer's disease. He needs assistance with all of his major daily activities. The petition alleged that Abbie was interfering with the nursing staff's ability to care for Chester and verbally abusing him. Based upon the petition, the court appointed Deborah Barfield as an emergency temporary guardian of the person only. The court also appointed an attorney to represent Chester.

Following appointment of the emergency guardian of the person, Karp and Paulsson petitioned to have Chester's daughter, Judith, and Chester's grandson, James, appointed as co-guardians of the property. The petition also asked that the temporary guardian, Barfield, be appointed permanent guardian of the person. Abbie filed a competing petition requesting that she be appointed guardian of both the person and property of Chester.

Both petitions allege that one-half interests in two condominiums are the only property subject to the guardianship, as the remainder of Mr. Borck's substantial assets reside in a revocable trust of which Karp is a co-trustee with Mr. Borck. The trust, which apparently was in existence before the marriage of Chester and Abbie, provides that Abbie will receive interest income on $5,000,000 after Chester's death, but not less than $250,000 per year. In their pre-nuptial agreement, Chester also provided that Abbie would have the right to reside in their Lost Tree Village home for a period of one year after Chester's death, with all expenses to be paid by Chester's estate.

During the last five years, very substantial amounts have been transferred from the trust to various family members and corporations. The status of the trust assets thus is the core of the dispute in the trial court. Abbie alleges that a question exists as to whether these are gifts, and, if so, whether gift taxes were paid or remain a liability of the trust assets. As her attorney said at the hearing,

[Abbie's] in better health than him, he's got a provision for her in his trust, which is substantial, she is used to a Lost Tree lifestyle. . . . And what's going to happen is that these transfers weren't correct, and the gift tax liabilities or state tax liabilities eat up what's left, I'm going to have a woman who's not got an independent means of support, who needs to see what happened here.

The parties agreed to conduct mediation on the petition for appointment of the guardian, which was held in May 2004. The mediator's report states that they agreed to continue mediating.

As a result of that mediation, however, Mr. Karp, on behalf of the trust, agreed to produce documents for a CPA to review, the type and extent of which are at the source of the dispute. In a motion to enforce the "agreement," Abbie's counsel noted the substantial decreases in the assets of the trust account and explained that the mediation was continued pending an "audit" of the Borck assets, unlimited in its scope. The trustee had agreed to pay the cost of the CPA review. However, upon receipt of the auditor's engagement letter, which requested a retainer of $10,000, the trustee refused to sign the letter, contending that the audit was limited to the trust assets and did not extend to various other entities and persons to whom trust assets were transferred. Attached to the motion were the handwritten notes from mediation that state "Jody [Abbie's counsel] and Jack [Karp] agree to CPA to go to Connecticut to analyze books and records-no limitations."

At the non-evidentiary...