Blechman v. Dely
138 So. 3d 1110
| Fla. Dist. Ct. App. | 2014Background
- Decedent Bertram Blechman died in 2011; appellant (his son) was appointed personal representative and trustee of a revocable living trust that received the residuary estate.
- A 2010 trust amendment granted Arlene Roogow (who lived with decedent) certain benefits, including staying in the residence and $5,000/month for maintenance.
- November 2011: trial court ordered the personal representative to comply with the will and trust provisions after Roogow moved to compel payment.
- July 2012: Roogow moved for an order to show cause alleging appellant failed to comply; court issued an order to show cause and scheduled a hearing.
- At the hearing (appellant absent but represented), the court orally found appellant in indirect contempt and later entered a written order removing him as personal representative and finding him guilty of indirect criminal contempt.
- Appellant appealed, arguing the court violated due process by failing to follow Florida Rule of Criminal Procedure 3.840 for criminal contempt and Florida Probate Rule 5.440 for removal of a personal representative.
Issues
| Issue | Plaintiff's Argument (Roogow) | Defendant's Argument (Blechman) | Held |
|---|---|---|---|
| Whether contempt finding was civil or criminal | Requested criminal contempt; court can punish to vindicate authority | Contempt functioned as civil because it related to compliance with estate duties | Court held the order was criminal contempt (trial court labeled it criminal and imposed punishment) |
| Whether Rule 3.840 procedures were followed for indirect criminal contempt | No specific defense asserted on procedure; relied on court's contempt power | Rule 3.840 requires strict compliance; order to show cause lacked essential factual allegations and didn't state contempt type | Reversed: court violated Rule 3.840; order to show cause deficient and proceedings fundamental error |
| Whether removal of personal representative complied with probate removal procedures | Sought removal at hearing as remedy for contempt | Removal requires petition and procedures under Probate Rule 5.440 and due process; removal is drastic and needs notice/evidentiary hearing | Reversed: removal ordered without petition, notice, or evidentiary hearing; violated Probate Rule 5.440 and due process |
| Appropriate remedy on appeal | Maintain removal and contempt order | Vacate contempt order and reinstate appellant as personal representative; remand for proper procedures if warranted | Court reversed and remanded with instruction to vacate contempt order and reinstate appellant as personal representative |
Key Cases Cited
- Weiser v. Weiser, 132 So.3d 309 (Fla. 4th DCA 2014) (denial of due process is fundamental error)
- Hagerman v. Hagerman, 751 So.2d 152 (Fla. 2d DCA 2000) (failure to comply with rule 3.840 is fundamental error)
- Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985) (distinguishing purposes of civil and criminal contempt)
- Lanza v. Lanza, 804 So.2d 408 (Fla. 4th DCA 2001) (civil contempt orders must contain a specific purge provision)
- Fiore v. Athineos, 9 So.3d 1291 (Fla. 4th DCA 2009) (strict compliance with Rule 3.840 required in indirect criminal contempt)
- Grant v. State, 464 So.2d 650 (Fla. 4th DCA 1985) (order to show cause must state facts constituting contempt and its nature)
- In re Murphy's Estate, 336 So.2d 697 (Fla. 4th DCA 1976) (removal of a personal representative is drastic and reserved for endangering administration)
- Lezcano v. Estate of Hidalgo, 88 So.3d 306 (Fla. 3d DCA 2012) (removal without notice or evidentiary hearing violates due process)