Borden v. Guardianship of Borden-Moore

• Decision Date: 17 May 2002
• Docket Number: No. 5D01-816.,5D01-816.
• Court: Florida District Court of Appeals
• Parties: Sandra Gail BORDEN, Appellant, v. GUARDIANSHIP OF Elsa Marie BORDEN-MOORE, etc., Appellee.

818 So.2d 604

Sandra Gail BORDEN, Appellant, v. GUARDIANSHIP OF Elsa Marie BORDEN-MOORE, etc., Appellee.

No. 5D01-816.

District Court of Appeal of Florida, Fifth District.

May 17, 2002.

Carol E. Donahue of Donahue & Isenhart, P.A., Winter Park, and Clayton Daniel Simmons of Stenstrom, McIntosh, Colbert, Whigham & Simmons, P. A., Sanford, for Appellant.

John M. McCormick, Orlando, for Appellee, Elsa Marie Borden-Moore.

Roy D. Wasson, Miami, for Appellee, Randall M. Moore.

ORFINGER, R. B., J.

Sandra Gail Borden ("Sandra") appeals the dismissal of her petitions to determine incapacity of her 81 year-old mother, Elsa Marie Borden-Moore ("Elsa") and for the appointment of a guardian in the event that Elsa was determined to be incapacitated. Because we conclude that the trial court improperly dismissed the incapacity proceedings, we reverse.

Elsa was widowed after being married to Gail Borden for 49 years. After Gail Borden's death, Elsa and Randall Moore ("Randall"), who had been the financial advisor of Gail Borden's extensive brokerage account, became romantically involved. Despite their considerable age difference (Randall being 49 and Elsa being 76), Randall and Elsa were married in 1995, and had been married for five years when the incapacity proceedings were filed.

After Sandra filed her petitions, the trial court entered temporary orders on December 5, 2000:(1) appointing Sandra as Elsa's emergency temporary guardian; (2) appointing an examining committee; (3) appointing Ian Gilden, an attorney, to represent Elsa; (4) freezing Elsa's assets; and (5) enjoining Randall from having any contact with Elsa or interfering with her care or assets. The next day, Randall filed an emergency petition asking the court to set aside its order that he have no contact with Elsa. The trial court held an emergency hearing on Randall's petition on December 7, 2000. The hearing was not recorded, no examining reports were considered because the examining committee had not yet completed the required examinations, and Elsa's court-appointed attorney did not participate because he was not notified of the hearing.¹ At the conclusion of the hearing, the trial court not only granted Randall the relief he sought, but found that Elsa was competent, and dismissed the incapacity proceedings.

On appeal, Sandra first contends that she was denied due process when the court dismissed the incapacity proceedings following the December 7, 2000 hearing when no motion to dismiss had been filed or set for hearing.² We agree. The trial court should not have dismissed Sandra's petitions without first providing her with proper notice that dismissal would be considered. See Rainey v. Guardianship of Mackey, 773 So.2d 118 (Fla. 4th DCA 2000)

. Because notice implicates both rules of procedure and due process concerns, we consider both.

Florida Probate Rule 5.042 requires "reasonable" notice of any matter to be heard by the court.³ This court considered what constitutes "reasonable" notice in Anderson v. Sun Trust Bank/North, 679 So.2d 307 (Fla. 5th DCA 1996), and concluded that four days notice of a hearing was insufficient for an award of guardianship fees and costs. Id. at 308. See also Montgomery v. Cribb, 484 So.2d 73, 74 (Fla. 2d DCA 1986)

(two days notice for a hearing on a motion to strike a claim against an estate based upon summary judgment was inadequate). "While there are no hard and fast rules about how many days constitute a `reasonable time,' the party served with notice must have actual notice and time to prepare." Crepage v. City of Lauderhill, 774 So.2d 61, 64 (Fla. 4th DCA 2000) (quoting Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996)). Courts do not hesitate to find notice violations when important interests are at stake. See, e.g., Crepage (24-hour notice of adversarial preliminary hearing violated claimant's procedural due process rights).

The right to reasonable notice also implicates constitutional due process concerns. As the supreme court said recently:

The basic due process guarantee of the Florida Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Art. I, § 9, Fla. Const. The Fifth Amendment to the United States Constitution guarantees the same. As this Court explained in Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla.1991), "[p]rocedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue." Procedural due process requires both fair notice and a real opportunity to be heard. See id. As the United States Supreme Court explained, the notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (citations omitted). Further the opportunity to be heard must be "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); accord Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)

(stating that procedural due process under the Fourteenth Amendment of the United States Constitution guarantees notice and an opportunity to be heard at a meaningful time and in a meaningful manner).

The specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding. See Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997)

; see also Mullane, 339 U.S. at 313,

70 S.Ct. 652,

94 L.Ed. 865 (stating that notice and opportunity for hearing need only be appropriate to the nature of the case). As the Supreme Court has explained, due process, "unlike some legal rules, is not a technical concept with a fixed content unrelated to time, place and circumstances." Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Instead, "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001).

Here, Sandra had no notice, reasonable or otherwise, that dismissal of the incapacity proceedings would be considered by the court at the December 7, 2000 hearing. Randall's emergency petition did not seek to have the incapacity and guardianship petitions dismissed; instead, he sought only to have the temporary order keeping him from Elsa vacated.⁴ Accordingly, the court, in hearing Randall's petition at the December 7, 2000 emergency hearing, was confronted only with the issue of whether the December 5, 2000 temporary order enjoining Randall from having any contact with Elsa should be vacated; not whether the incapacity and guardianship proceedings should be dismissed. If these matters were to be considered by the court at the December 7, 2000 hearing, both Sandra and Elsa's court-appointed attorney were entitled to reasonable notice. See Murphy v. Ridgard, 757 So.2d 607, 608 (Fla. 5th DCA 2000)

(father's due-process rights to notice and an opportunity to be heard on visitation modification petition were abridged by summary denial of his petition because no motion seeking summary adjudication of petition was filed, and father never had opportunity to present evidence at a properly noticed hearing); Gelato v. Basch, 658 So.2d 664-65 (Fla. 4th DCA 1995) (mother's due process rights were violated where temporary change of custody was ordered at hearing which concerned only mother's motion to allow her fiancé to move into her house with the children).

Reasonable notice prior to the dismissal of her petitions was necessary to allow Sandra the opportunity to show good cause why the court should not dismiss the action. See In re Gechtman, 719 So.2d 960, 962 (Fla. 4th DCA 1998)

(providing that the party objecting to the termination of the guardianship must show good cause as to why the court should not terminate the guardianship and establish that the best interest and welfare of the ward would be served by disallowing termination). Without notice that dismissal was being considered, Sandra was denied her right to oppose dismissal.

Sandra next argues that the trial court erred when it dismissed the incapacity petitions three days after they were filed, without notice to Elsa's court-appointed attorney. Attorney John McCormick attended the December 7, 2000 hearing, allegedly on Elsa's behalf, although he had not been substituted as attorney of record for Elsa's court-appointed attorney. Florida Rule of Judicial...