2D06-4227 / Major v. Rowe

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State: Florida

Court: Florida Southern District Court

Docket No: 2D06-4227

Case Date: 09/28/2007

Plaintiff: 2D06-4227 / Major

Defendant: Rowe

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
In re Guardianship of Sallie B. Stephens,        )
an incapacitated person.                         )
                                                 )
                                                 )
JABESSA MAJOR and DAVID                          )
STEPHENS,                                        )
)
Appellants,                                      )
)
v.                                               )   Case No. 2D06-4227
)
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.                                       )
)
Opinion filed September 28, 2007.
Appeal from the Circuit Court for
Hillsborough County; Susan Sexton, Judge.
Carl R. Hayes, Tampa, for Appellants.

Wallace B. Anderson, Jr., Tampa, for
Appellee Joe Ellen Rowe.
No appearance for remaining Appellees.
VILLANTI, Judge.
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
1    Because many of the parties involved in this appeal have the same last name,
we will refer to each sibling by his or her first name.
2    The term "public guardian" as used by Jabessa and David is a misnomer.   The
guardian appointed by the probate court was a professional guardian, typically chosen
from a list of available professionals who are paid for their services from guardianship
funds or who serve without compensation when funds are unavailable.   The term "public
guardian" connotes the concept of a state-funded agency, which may be appointed to
represent destitute wards in certain limited instances not relevant to this appeal.   See §§
744.701-.715, Fla. Stat. (2006).
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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
3    The reference to "person" in this context includes individuals or corporate
entities that typically represent wards when no qualified family members are available or
willing to serve as guardian.   See § 1.01(3), Fla. Stat. (2006).
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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 justifi-
cation 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 reason-
able 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
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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 com-
peting 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
4    Throughout the record, this sibling's name appears as "Fredrick" and
"Frederick."   We will refer to him as "Fredrick."
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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
5    Further, the siblings' exceptions to the Report and Recommendation indicate
that one of the Ward's sons claimed that when the Ward was asked if she wanted to
appear at the hearing, the Ward said, "No! I don't want anything to do with it!"   (R. 309)
6    The property of the Ward includes real estate, Social Security income, auto-
mobiles, bank accounts, and a family business named "Big John Alabama Bar-B-Que
Inc."   That family business alone allegedly generates one million dollars per year.
7    For reasons not clear from this record, prior to the issuance of letters of
guardianship, Lutheran Services "resigned" as guardian of the Ward's property.   There-
after, the actual guardian appointments were split—the court appointed Lutheran Ser-
vices as guardian of the person and "independently" appointed Jo Ellen Rowe to act as
guardian of the property.   The Appellants do not argue any lack of notice concerning
Rowe's appointment, qualifications, or the Magistrate's initial recommendation that
Lutheran Services be appointed dual guardian.   Conceivably, if important, these issues
were addressed at the untranscribed hearing where the probate court heard the
exceptions to the Magistrate's Report.
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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 docu-
ment 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 appoint-
ment 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).
8    Jabessa's name was included in the signature lines of the exceptions, along
with the names of six of her siblings; however, neither she nor two of the siblings listed
signed the document.   Two additional siblings (John and Frannie) were not listed.
9    We would further note that the appointment of a professional guardian in this
case is even more appropriate because such guardians, unlike family members, adhere
to objective, national standards under the auspices of the National Guardianship Asso-
ciation, available at http://www.guardianship.org/pdf/standards.pdf.   Family members,
regardless of their good intentions, are not required to adhere to these standards nor do
they generally have prior guardian training or experience.
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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 con-
tain 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 otherwise contested the qualifications of the appointed guardian on any basis
other than its nonrelative status.
Having reviewed the record, and under the circumstances of this case, it is
clear that the trial court did not abuse its discretion in appointing nonfamily members as
guardians of the Ward and her property.   The Magistrate was presented with evidence
that the family was "dysfunctional," that the siblings were unable to get along and
cooperate with each other to care for their mother, and that there were serious conflicts
about how the family business should be run, inclusive of the Ward's assets and money
in general.   Some of the siblings had made choices which could be in conflict with and
affect the Ward's financial stability, such as, for example, setting up an irrevocable trust
containing questionable terms.   Some of the siblings had created "alliances" to the
exclusion of other siblings.   They were unable to come together on simple issues,
including the core issue concerning their mother's care.   As evidenced by this appeal,
they could not even agree on the designation of a guardian.   In view of family dynamics,
appointing one of the siblings as a guardian for any purpose would clearly not be in the
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Ward's best interests.   Additionally, because there was substantial, competent evidence
supporting the probate court's rejection of the Appellants' exceptions and the court's
adoption of the Magistrate's Report and Recommendation, we are compelled to affirm.
While we recognize that family members, if otherwise qualified, are
generally entitled to preference in appointment as guardian over strangers, that pre-
ference can be overcome if they, intentionally or unintentionally, engage in conduct
detrimental to a ward's best interests.   Moreover, even when a family member has acted
with the best interests of the ward in mind, there may well be instances where it would
not be an abuse of discretion for the probate court to nevertheless appoint a nonfamily
member guardian.   Here, but for the trial court's wise exercise of discretion and refusal
to consider solely the first statutory preference favoring family members, the Ward's
estate would likely be jeopardized or, at the very least, suffer financially by family
infighting that would necessitate numerous future hearings on even the most mundane
of matters.   As recognized by the probate court, appointing a family member guardian
would create a "tug-of-war" over the Ward and her property.   This would not have been
in keeping with the Ward's best interests—the polestar in any guardianship proceeding.
See Miller v. Goodell, 958 So. 2d 952, 954 (Fla. 4th DCA 2007).
We also realize that family members would naturally believe they should
be "entitled" to appointment.   However, in the guardianship arena, the legislature has
rightly determined that such expectations are not binding on the court.   Thus any
"preference" for family applies only within certain discretionary bounds.   The
guardianship statute does not confer upon certain family members an absolute and
automatic right to be appointed guardians.   See In re Guardianship of R.N.B., 429 So.
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2d 796, 797 (Fla. 4th DCA 1983) ("Indeed, the statute provides that the court may
appoint any person 'who is qualified to act as guardian, whether related to the ward or
not.' " (quoting section 744.312(1), Fla. Stat. (1981))).   The best interests of the Ward—
which include choosing a qualified guardian for the Ward—come first.   Family member
preference in and of itself is secondary, regardless of how well qualified the family
members are.
Finally, we also note that the probate court here had no sua sponte duty to
determine that an additional, competing petition for appointment of coguardians was
filed subsequent to the Magistrate's Report and Recommendation.   Jabessa and David
cite no authority for this proposition, and under the facts and procedural history of this
matter, we discern none.   Not only was this latter petition filed untimely, but no
interested party ever notified the court of its existence, set it for hearing, or moved to
postpone the court's ruling until the petition was considered.   Having reviewed and
rejected the Appellants' claimed errors contained in their exceptions to the Magistrate's
Report and Recommendation, it nevertheless appears that the belated request to be
appointed guardians was implicitly considered and overruled by the Magistrate and the
probate court.   Regardless, it was not an abuse of discretion for the probate court not to
otherwise consider this untimely petition.
Affirmed.
CANADY and LaROSE, JJ., Concur.
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