Jeffrey Skatoff Prevails in Guardianship Appeal
Weiser v. Weiser, 2014 Fla. App. LEXIS 5156 (Fla. Dist. Ct. App. 4th Dist. Apr. 9, 2014)
In Weiser v Weiser, the trial court ordered the guardian of her mother to return assets to the guardianship estate. At the hearing, the trial court took issue with the way large amounts of money were spent on items and doctors that seemed to be of questionable benefit to the mother.
On appeal, the guardian argued that she had not been given proper notice as to what the subject of the hearing was going to be. The appellate court held that the argument had not been properly preserved for appeal. It is basic law that notice and procedural defects must be raised at a hearing or they are normally treated as having been waived. The court then explained that reversal on an issue not properly preserved for appeal is only proper if the trial court’s ruling constitutes fundamental error.
In reviewing the record, the appellate court explained as follows.
Upon review of the record, we conclude there was no fundamental error. Appellant was clearly put on notice that the issue of the $15,200 would be discussed at the hearing (as the transfer of these funds was specifically referenced in the Amended Motion to Ratify Distributions and Other Relief). The request for relief asked for approval of the expenditures and “any other relief the court deems appropriate and just.” Taube noted at the beginning of the hearing that the $15,200 was one of the two “items that were of concern to the auditor.” The attorney for one of the appellees stated that his client believed Appellant used all or a portion of the $15,200 for her own benefit and not the benefit of the ward. Although Appellant was an active participant in the hearing, neither she nor her attorney specifically objected to the ruling with respect to the $15,200. Appellant was on notice and given an opportunity to be heard. There was no due process violation; consequently, there was no fundamental error.
The appeal was handled in part by Jeffrey Skatoff.
