MICHAEL MILLER AND CONSTANCE FANNING, APPELLANTS,
v.
MERRILY GOODELL, MARGARET B. LIBBEY AND MICHAEL J. SWAN, APPELLEES
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This appeal concerns whether a trial court properly exercised personal jurisdiction over Audrey Miller in a guardianship proceeding and whether it erred in declining to honor her preneed guardianship declaration naming her sister as guardian. The appellate court affirmed the trial court's appointment of a professional guardian attorney, finding jurisdiction was proper and the trial court did not abuse its discretion in overcoming the rebuttable presumption favoring the preneed guardian.
The trial court properly exercised personal jurisdiction over Audrey because she consented to jurisdiction through her attorney. The trial court did not abuse its discretion in appointing the professional guardian instead of Fanning, as the rebuttable presumption created by the preneed declaration was overcome and appointing Fanning was contrary to Audrey's best interests.
[1] A court has personal jurisdiction over a respondent in a guardianship proceeding when the respondent, through counsel, consents to the court's jurisdiction.
[2] A respondent may consent to personal jurisdiction, thereby waiving any objection to the court's legal authority over them.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Personal jurisdiction is a personal right, and a respondent may consent to personal jurisdiction.”
Establishes the legal principle allowing Audrey to waive any objection to personal jurisdiction through consent.
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Join FLexlaw to unlock all legal intelligenceAudrey Miller's daughter, Merrily Goodell, petitioned to have Audrey declared incapacitated and to be appointed her guardian. Audrey's sister, Constan…
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PER CURIAM.
This is an appeal from two final orders of the trial court finding Audrey Miller totally incapacitated and appointing Michael J. Swan, Esquire (Swan), as plenary guardian of the person and property of Audrey. Appellants raise numerous points on appeal. We affirm on all points and choose to discuss two issues which constitute the crux of the appeal. The first is whether the trial court had personal jurisdiction over Audrey Miller. The second is whether the trial court should have honored Audrey’s preneed Guardianship Declaration appointing her sister, Constance Fanning (Fanning), as her guardian of person and property, instead of attorney Swan.
Merrily Goodell, Audrey’s daughter, filed a petition seeking to have Audrey declared incapacitated and to be appointed Audrey’s guardian. Margaret Libbey (Libbey) was appointed temporary guardian, and Swan served as Libbey’s attorney. Audrey’s sister, Fanning, filed a petition seeking to be appointed Audrey’s guardian. The trial court denied Fanning’s petition and appointed Swan as guardian. Appellants argue that the trial court did not have personal jurisdiction over Audrey, that it violated her right to due process, and it erred when it did not honor Audrey’s preneed Guardianship Declaration.
Personal jurisdiction refers to whether a particular court has legal authority over the respondent or defendant. See Borden v. East-European Ins. Co., 921 So. 2d 587, 591 (Fla.2006). Personal jurisdiction is a personal right, and a respondent may consent to personal jurisdiction. See Babcock v. Whatmore, 707 So. 2d 702, 704 (Fla.1998).
A review of the record reflects that Gary Kovacs, Esquire, the attorney representing Audrey, consulted with her and obtained her agreement to consent to the jurisdiction of the court. Audrey’s temporary guardian also consented to the jurisdiction of the court. Therefore the trial court did not err in concluding that it had personal jurisdiction over Audrey in order to resolve this guardianship matter. In addition to challenging the trial court’s jurisdiction, appellants contend the trial court erred in refusing to appoint Fanning as Audrey’s plenary guardian because Audrey had executed a preneed guardian declaration naming Fanning as Audrey’s alternate preneed guardian. This argument fails for the following reasons: (1) Audrey and her attorneys agreed to the appointment of a neutral professional guardian; and (2) the trial judge determined that the rebuttable presumption that Fanning is entitled to serve as guardian had been overcome,' and that it is not in Audrey’s best interests for Fanning to be appointed plenary guardian.
Appellants contend the standard of review on this issue is de novo. However, the appellate courts have consistently held the standard of review in guardianship proceedings is abuse of discretion. See, e.g., In re Guardianship of Sapp, 868 So. 2d 687 (Fla. 2d DCA 2004); In re Guardianship of Schiavo, 851 So. 2d 182, 186 (Fla. 2d DCA 2003), rev. denied, 855 So. 2d 621 (Fla.2003). This discretion is abused when no reasonable person would take the view adopted by the trial court. Wilson v. Robinson, 917 So. 2d 312 (Fla. 5th DCA 2005) (citing Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla.1980)).
In this case appellants have failed to establish the trial court abused its discretion. Section 744.3045(4), Florida Statutes (2005), provides in pertinent part: “Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.” The trial judge considered the evidence presented but found the rebuttable presumption of the appointment of the designated preneed guardian had been overcome. In conjunction with finding the rebuttable presumption had been overcome, the trial court also considered the application of section 744.312(4), Florida Statutes (2005), which provides:
If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.
The trial court specifically found that it was contrary to Audrey’s best interests to appoint Fanning as plenary guardian of the person and property.
Affirmed.
STEVENSON, C.J., HAZOURI and MAY, JJ., concur.
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In re Guardianship OF Sallie B. Stephens v. Rowe, 965 So. 2d 847 (Fla. 2d DCA 2007)…he 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 (Pla. 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…
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Marianne Magill Acuna & Marilyn Magill v. Dresner, 41 So. 3d 997 (Fla. 3d DCA 2010)…97) (holding that designated preneed guardian unqualified to serve as guardian where conflict of interest existed). An appellate court reviews a probate court’s appointment of a guardian under an abuse of discretion standard. See Miller v. Goodell, 958 So. 2d 952 (Fla. 4th DCA 2007); Treloar v. Smith, 791 So. 2d 1195 (Fla. 5th DCA 2001); Ahlman v. Wolf 413 So. 2d 787 (Fla. 3d DCA 1982). Accordingly, where the ward has designated a preneed guardian in a written declaration, as Shirley did in this case, the re…
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Koshenina v. Buvens, 130 So. 3d 276 (Fla. 1st DCA 2014)…ble presumption of James’s entitlement to serve as his wife’s preneed guardian could' only be overcome by a specific, factually-supportable finding that appointing James was “contrary to the best interests of’ his wife. See, e.g., Miller v. Goodell, 958 So. 2d 952 (Fla. 4th DCA 2007) (rebuttable presumption that ward’s sister, who was designated as alternate preneed guardian, was entitled to serve as guardian was overcome with trial court finding that appointment was contrary to ward’s best interest.) Instead…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Borden v. East-European Ins. Co., 921 So. 2d 587 (Fla. 2006)
- Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998)
- In re Guardianship OF Sara H. Sapp. Lee O'Hare & Lynn Atherton v. Lalai Hamric, 868 So. 2d 687 (Fla. 2d DCA 2004)
- In re Guardianship OF Theresa Marie Schiavo v. Schiavo, 851 So. 2d 182 (Fla. 2d DCA 2003)
- Wilson v. Bambi Robinson, 917 So. 2d 312 (Fla. 5th DCA 2005)