HANNAH M. KRUMHOLZ, APPELLANT,
v.
IN RE: GUARDIANSHIP OF H.K., APPELLEE

Fla. 3d DCA | 2013-05-15
No. 3D12-2047
Before ROTHENBERG, EMAS and LOGUE, JJ.
114 So. 3d 341 Florida District Court of Appeal, Third District (2013) Positive Treatment
Cited by 2 cases

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Holding

The appellate court reversed the order of total incapacity and plenary guardianship because the order lacked sufficient findings of fact and the original judge was unavailable to make them.


Headnotes

[1] An order determining a person totally incapacitated must contain specific findings of fact demonstrating the individual's lack of capacity to care for themselves or their…

[2] A successor judge cannot perform the ministerial act of preparing findings of fact for an incapacitated person order when the original judge is unavailable or precluded f…

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Facts & Procedural History

Following a hearing, the trial court entered a form order finding the appellant totally incapacitated and appointing a plenary guardian. The appellate…

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Opinion of the Court
EMAS, J.

EMAS, J.

Hannah M. Krumholz appeals an order determining her totally incapacitated and appointing a plenary guardian to act on her behalf. For the reasons that follow, we reverse and remand with directions to hold a new adjudicatory hearing.

On May 24, 2011, Krumholz’s niece, Rhoda Rosen (“Rosen”), filed a petition to determine that Krumholz was incapacitated. The court appointed Rosen, and professional guardian Vicki Brail, as temporary co-guardians and entered an order summoning an examining committee to make recommendations regarding Krum-holz’s alleged incapacity.

An eight-hour adjudicatory hearing was held over the course of two days, at which twelve witnesses testified both in support of, and in opposition to, the petition. Following the presentation of the testimony and other evidence (which included thirty-nine exhibits), the trial court entered a three-page order determining Krumholz totally incapacitated. The order stated there were no reasonable alternatives to guardianship, and that no alternatives would sufficiently address her problems and needs, and appointed Brail as Krum-holz’s plenary guardian. The order was, by and large, a form order which provided a blank space to be filled in by the trial court. In that blank space, the court indicated that Krumholz suffered from inca-pacities of the following nature and scope: “Imminent danger that the physical or mental health or safety will be seriously impaired. She suffers from dementia, memory loss and amnestic cognitive impairment and delusions.” There were no other individualized findings of fact contained in the order. Krumholz appealed.

Following oral argument, this court entered an order relinquishing jurisdiction for ninety days to permit the trial court judge to make the requisite findings of fact pursuant to section 744.331(6)(c), Florida Statutes (2012),1 and directing the parties to provide a status report within sixty days.

The parties submitted status reports, indicating that Judge Arthur Rothenberg, the original trial judge who presided over the hearing and who rendered the order, has since retired from active judicial service. Further, Judge Rothenberg now serves as a private mediator, and in that capacity participates in all matters heard in the probate division of the Eleventh Judicial Circuit, including guardianships. Therefore, even if Judge Rothenberg was willing, on a volunteer basis, to prepare an order containing findings of facts as directed by this court in its order relinquishing jurisdiction, he would be prohibited from doing so under Florida’s Code of Judicial *343Conduct. See Canon 5F(2), Code of Judicial Conduct (2012) (providing in part that “[a] senior judge who provides mediation services shall not preside over the same type of case the judge mediates in the circuit where the mediation services are provided.... ”).2

Because the order under review fails to contain sufficient findings of fact as required by section 774.331(6)(c), and the original trial judge is no longer available, or is otherwise precluded from preparing findings of fact in compliance with this Court’s order relinquishing jurisdiction,3 we are constrained to reverse the order below and remand this cause for a new adjudicatory hearing before a successor judge.4

Reversed and remanded for further proceedings consistent with this opinion.


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Citator

Cited By

  • Mignott v. Garfield Mignott, 337 So. 3d 408 (Fla. 3d DCA 2021)
    …vidence, we cannot agree that the preparation of an order making the requisite findings of facts is a ‘ministerial act’ that could be performed by a successor judge merely upon a review of the hearing transcripts.” Krumholz v. Guardianship of H.K., 114 So. 3d 341, 343 n.4. (Fla. 3d DCA 2013).…
  • Klock v. Citibank, N.A. (Fla. 3d DCA 2021)
    …disqualification of the entire firm. The current judge who will be tasked with making the ultimate determinations of fact abused his discretion in not conducting an evidentiary hearing under these circumstances. See Krumholz v. Guardianship of HK, 114 So. 3d 341, 343 n.4 (Fla. 3d DCA 2013) (citing Alvord v. Alvord, 572 So. 2d 925, 926 (Fla. 3d DCA 1990); Moore v. Dep't of Health & Rehab. Servs., 664 So. 2d 1137, 1139 (Fla. 5th DCA 1995)). A trial judge may not rely on the record of an evidentiary hearing be…

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