Fernandez v. Guardianship Of Elsa Maria Fernandez, 3D09-1000.
| Decision Date | 02 June 2010 |
| Docket Number | No. 3D09-1000.,3D09-1000. |
| Parties | Nancy FERNANDEZ, Appellant,v.GUARDIANSHIP OF Elsa Maria FERNANDEZ, Appellee. |
| Court | Florida District Court of Appeals |
Stratton & Feinstein, and Douglas D. Stratton and Alicia Almansa Roman, for appellant.
De la O, Marko, Magolnick & Leyton and Miguel M. de la O, Miami, for appellee.
Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
This is an appeal of an order denying a verified petition to determine incapacity. We remand for a new trial.
Nancy Fernandez, the daughter, filed a verified petition to determine incapacity of her mother, Elsa Maria Fernandez. The court appointed an examining committee. Two members of the examining committee recommended a limited guardianship and the third member concluded that no guardianship was necessary.
The matter came before the trial court for an evidentiary hearing. The mother and daughter were present and each was represented by counsel. Other witnesses were also present and testified. The trial court denied the petition and the daughter has appealed.
The daughter contends that the trial court failed to follow proper trial procedure. We conclude that the daughter's argument is well taken.
We surmise that the trial court, acting from the best of motives, decided that the hearing would proceed more expeditiously if the trial court conducted the examination of witnesses instead of allowing counsel to do so. The trial court swore the witnesses and denied the daughter's request to invoke the rule of exclusion of witnesses. The court called and questioned the witnesses, affording almost no opportunity for examination or cross-examination by the parties. There were no opening or closing statements.
Respectfully, this was not proper procedure. The Florida Probate Rules provide that in adversary proceedings, “the proceedings, as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern....” Fla. Prob. R. 5.025(d)(2). See generally In re Guardianship of King, 862 So.2d 869, 870-71 (Fla. 2d DCA 2003); The Florida Bar Litigation Under Florida Probate Code § 1.6 (7th ed. 2009); 28 Fla. Jur. 2d Guardian and Ward, § 35 (updated Feb. 2010). “The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.” § 744.331(5)(a), Fla. Stat. (2008).
As this was an evidentiary hearing in a contested proceeding, the matter should have been tried as is customary in a bench trial. The parties should have been given an opportunity to make opening and closing statements. Each party should have been given an opportunity to present evidence, call and question witnesses, and cross-examine the other side's witnesses. When the guardian ad litem gave her report, cross-examination by the parties should have been allowed.
At the start of the hearing, the daughter invoked the rule of exclusion of witnesses. The trial court denied that request. The request should have been granted. The Evidence Code provides:
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...request to invoke the rule of sequestration during the adjudicatory hearing in an incapacity case. See Fernandez v. Guardianship of Fernandez, 36 So.3d 175 (Fla. 3d DCA 2010). It does not escape us that the guardianship statute requires the examining committee members' reports to be filed w......