Posted on September 27, 2015

In Zelman v. Zelman, 2015 Fla. App. LEXIS 9961 (Fla. 4th DCA 2015), the Fourth DCA reversed a trial court on due process grounds, finding that the trial court granted relief not requested in the pleadings and also that Appellants due process rights were violated because she was not afforded a meaningful opportunity to he heard at the guardianship proceedings. In the subject case, Robert Zelman (“Appellee”) filed petitions with the probate court seeking an appointment for a guardian of his 85-year-old father, Martin Zelman, due to his alleged incapacitation. He alleged diminished capacity of his father and that his father’s wife, Lois Zelman, (“Appellant”) was taking advantage of Martin’s diminished capacity and isolating him from his children, to take control of his assets. Appellant prevented Martin from removing three million dollars which he had accidentally deposited in their joint bank account.

The trial court found that Martin was incapacitated and that limited guardians of person and property were needed. The trial court also sua sponte ordered that the three million dollars deposited into the couple’s joint bank account be removed and placed in Martin’s solely-owned revocable trust. Appellant appealed this order. Upon appeal, the Fourth DCA reversed the trial court’s Order finding that Lois’ due process rights were violated. Specifically, the court cited Vollmer v. Key Dev Props, Inc., 966 So. 2d 1022, 1027 (Fla 2d DCA 2007) for the proposition that the constitutional guarantee of due process requires that each litigant be given a full and fair opportunity to be heard. At its core, the Court noted that due process envisions “a law that hears before it condemns, proceeds upon inquiry, and renders judgment only after proper consideration of issues advanced by adversarial parties.” Scull v. State, 569 So. 2d 1251, 1252 (Fla. 1990) (citing State ex. rel. Munch v. Davis, 143 Fla. 236, 196 So. 491, 494 (Fla. 1940)). Further, the Fourth DCA pointed out that that courts deciding matters not noticed for hearing and not the subject of appropriate pleadings conflicts with due process principles.

Based on such precedent, the Fourth DCA found that the trial proceedings in this case were the “antithesis of due process” because none of the parties petitions referenced the three million dollars, nor did they request action be taken upon it and no parties ever requested such a remedy prior to the trial judge made her sua sponte ruling. The only issues which had been set for determination by the trial court involved Martin’s alleged incapacity and who should be appointed guardian. Evidence of the three million dollar transfer was presented to show why Martin needed a guardian of his person. The fact that Martin “misplaced” three million demonstrated his inability to manage his assets. However, such evidence did not justify the immediate transfer of the funds—especially after proceedings where, according to the trial judge, Appellant was not even a party. Appellant did not have sufficient prior notice that the money in the joint account was at risk, therefore her due process was violated. Further, her due process was violated because Appellant was not permitted to call witnesses and submit evidence at the hearing and her ability to cross examine witnesses was severely curtailed. Therefore, the Fourth DCA reversed the trial court’s order compelling the transfer of three million dollars from Martin and Appellant’s joint account to Martin’s Revocable Trust.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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