In re Guardianship of Stephens
| Decision Date | 28 September 2007 |
| Docket Number | No. 2D06-4227.,2D06-4227. |
| Citation | 965 So.2d 847 |
| Court | Florida District Court of Appeals |
| Parties | In re GUARDIANSHIP OF Sallie B. STEPHENS, an incapacitated person. Jabessa Major and David Stephens, Appellants, v. Joe Ellen Rowe, court-appointed guardian of the property of Sallie B. Stephens, an incapacitated person; Lutheran Services Florida, Inc., court-appointed guardian of the person of Sallie B. Stephens, an incapacitated person; Frannie Scaglione; Fredrick Stephens; Steward "Stud" Stephens; John A. Stephens, Jr.; Eunice S. Gipson; April Anderson; and Steve B. Stephens, Appellees. |
Carl R. Hayes, Tampa, for Appellants.
Wallace B. Anderson, Jr., Tampa, for Appellee Joe Ellen Rowe.
No appearance for remaining Appellees.
Appellants Jabessa Major and David Stephens1 appeal a final order of the probate court adopting the Report and Recommendation of the General Magistrate, which recommended that Lutheran Services Florida, Inc., be appointed guardian of the property and person of their mother (the Ward). We affirm but write to address why the order of appointment of a nonrelative of the Ward as guardian, as recommended in the Report, was appropriate even though there was at least one family member willing to serve as guardian of the Ward. We have jurisdiction to review this final order. See Fla. R.App. P. 9.030(b)(1)(A).
Jabessa and David, two of the Ward's nine adult children, argue that the probate court erred in appointing a "public guardian"2 because it should have appointed a family member as guardian. They argue that the probate court erred by: (1) rejecting Jabessa and David's exceptions to the Magistrate's Report and Recommendation and (2) not reopening the matter to consider their petition for guardianship, even though that petition was filed fifty-five days after the final hearing held to determine their mother's incapacity and guardianship and ten days after the Magistrate issued his Report and Recommendation.
Section 744.312(1), Florida Statutes (2006), styled "Considerations in appointment of guardian," provides that "the court may appoint any person[3] who is fit and proper and qualified to act as guardian, whether related to the ward or not." (Emphasis added.) Section 744.312(2) adds:
The court shall give preference to the appointment of a person who:
(a) Is related by blood or marriage to the ward;
(b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
(c) Has the capacity to manage the financial resources involved; or
(d) Has the ability to meet the requirements of the law and the unique needs of the individual case.
(Emphasis added.) While the wishes of the ward shall be considered in appointing a guardian, they are not controlling. § 744.312(3)(a); Ahlman v. Wolf, 413 So.2d 787, 788 (Fla. 3d DCA 1982).
We review a probate court's determination regarding the appointment of a guardian under an abuse of discretion standard. See Wilson v. Robinson, 917 So.2d 312, 313 (Fla. 5th DCA 2005). The trial court's adoption and ratification of a general magistrate's report and recommendation is also reviewed under an abuse of discretion standard. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). Because the appointment of a guardian is a discretionary act of the trial court, we review it for reasonableness; the trial court's determination "must be supported by logic and justification for the result, founded on substantial competent evidence." In re Guardianship of Sitter, 779 So.2d 346, 348 (Fla. 2d DCA 2000) (citing Canakaris, 382 So.2d at 1203). In other words, an appellate court will not find an abuse of discretion unless "no reasonable person would take the view adopted by the trial court." Wilson, 917 So.2d at 313 (citing Canakaris, 382 So.2d at 1203); Treloar v. Smith, 791 So.2d 1195, 1197 (Fla. 5th DCA 2001).
In Treloar, as in this case, the probate court appointed a professional guardian of the person and property. 791 So.2d at 1196. On appeal, the ward's son argued that the trial court erred in denying his petition for appointment as guardian. Id. The appellate court rejected the son's argument, holding that while section 744.312(2)(a) gave the next of kin first consideration, it did not mandate that a next of kin be appointed guardian. Id. at 1197. The statute specifically provides that the court may appoint a person who is qualified, whether related to the ward or not. Id. The Treloar court held that the record contained competent evidence to support the trial court's decision to appoint a nonrelative as guardian. Id. We find this logic persuasive because it places the emphasis, as do three of the four statutory factors, on a guardian's qualifications, which is clearly paramount to the ward's best interests.
In this case, one of the Ward's daughters, Frannie Scaglione, filed the original petition for appointment of guardian on October 21, 2003, seeking to be appointed as plenary guardian of her mother. Frannie filed an amended petition on January 16, 2004. On October 21, 2004, David agreed to this amended petition. There is no record evidence that David ever withdrew his consent to Frannie's petition. In fact, he was apparently "surprised and distressed" to learn on the first day of the final hearing that Frannie no longer wished to be the guardian.
On November 7, 2005, the Magistrate held a pretrial conference and issued an order setting a final hearing on December 12, 2005, to determine incapacity and guardianship. That order was timely mailed to Jabessa and to Henry Noble, the attorney of record for David. More important, the order noted that there were "no competing petitions for the appointment of a guardian." Moreover, based on representations made at the pretrial hearing, the order appropriately required the attorneys, including David's counsel of record, to inform the court in writing within ten days if anyone would be contesting the incapacity or guardianship petitions. The record does not reflect any such documents being filed.
Thereafter, a final hearing took place. At the beginning of the hearing, on December 12, 2005, only one petition for guardianship was pending—daughter Frannie's. The parties were unable to complete the hearing in one day, and the hearing was reconvened on February 9, 2006. On December 19, 2005, between the first and second hearing dates, son Fredrick4 filed his own petition for guardianship. Notably, Fredrick and David were represented by the same attorney.
Over a period of two days, the Magistrate heard extensive testimony from numerous family members. David was present at both hearings and testified. He expressed an interest only to "help as guardian." While David's "offer" was not elaborated upon, as explained below, it is apparent from the Magistrate's Report and Recommendation that the Magistrate considered David's testimony.
Jabessa was subpoenaed to appear at the final hearing but failed to do so, allegedly because she was ill on both days of the final hearing. She never expressed any interest, orally or in writing or qualified or unqualified, in being appointed guardian. We also note that the Ward was represented by court-appointed counsel who waived her physical appearance at the final hearing. The Ward nevertheless appeared by telephone on the first day of the hearing and confirmed that she did not want to be present at the hearing.5
Apparently, the main cause of disagreement at the hearing was who would act as guardian as opposed to whether the Ward was incapacitated. On March 24, 2006, the Magistrate issued a Report and Recommendation, finding the Ward to be incapacitated. The Magistrate then recommended that Lutheran Services be appointed guardian of the property6 and of the person.7
On April 4, 2006, David and three of his siblings and the Ward filed handwritten exceptions to the Magistrate's Report and Recommendation.8 This document for the first time alleged that the Ward wanted David to be appointed guardian. However, as is required, the Magistrate's Report and Recommendation had already adequately considered the Ward's wishes. The Magistrate specifically found:
Even if that had been proven true by clear and convincing evidence [that the Ward did not want "any outsiders involved in her affairs"], the undersigned would still find that having a neutral, third-party guardian, and not a family member, would be in the Ward's best interest. That would be the best way to ensure that the guardian is looking out only for the Ward and making decisions that are truly in her best interests and not ones that may be clouded by a family member's competing self-interest . . . .[9]
Thus it is apparent to us that the Magistrate considered the hearsay assertion that the Ward wished to have David appointed as guardian. Moreover, regardless of the accuracy of this assertion, the Ward's wishes here would not trump the need for a qualified, neutral guardian, which was the driving force compelling the court's appointment decision. On April 5, 2006, David and Jabessa filed a petition to be appointed their mother's co-guardians. However, there is no record evidence that they set, or even tried to set, their petition for hearing as required by section 744.3371(1).
Thereafter, the record reflects that a hearing was held on April 26, 2006, to address the exceptions filed by the siblings, but the record on appeal does not contain a transcript of that hearing. On May 8, 2006, the probate court issued its order adopting the Magistrate's Report and Recommendation and rejecting the exceptions. Notably, the probate court's five-page order thoroughly analyzed the exceptions and held that the Magistrate's findings were supported by substantial, competent evidence. Our independent review of the record on appeal supports the trial court's assessment. Neither Jabessa nor David moved for rehearing or reconsideration of the probate court's order nor...
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