       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             LOIS ZELMAN,
                               Appellant,

                                    v.

 MARTIN ZELMAN, ROBERT ZELMAN, individually and as co-guardian
of the property of Martin Zelman, LISA HELD, individually and as limited
 guardian of the person of Martin Zelman, and CURTIS ROGERS, as co-
                guardian of the property of Martin Zelman,
                                Appellees.

                             Nos. 4D14-1851
                             and 4D14-1887

                           [September 2, 2015]

   Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Diana Lewis, Judge; L.T. Case Nos.
502014GA000107XXXXMB and 502014MH00455XXXXNB.

    Philip M. Burlington and Nichole J. Segal of Burlington & Rockenbach,
P.A., and J. Grier Pressly III of Pressly & Pressly, P.A., West Palm Beach,
for appellant.

  Matthew Triggs and Jessica Zietz of Proskauer Rose, LLP, Boca Raton,
and Patricia K. Allen of Patricia K. Allen, P.A., West Palm Beach, for
appellee, Martin Zelman.

   Jane Kreusler-Walsh and Rebecca Mercier Vargas of Kreusler-Walsh,
Compiani & Vargas, P.A., West Palm Beach, Peter A. Sachs of Jones,
Foster, Johnston & Stubbs, P.A., West Palm Beach, and Michael W.
Connors of Michael W. Connors, P.A., North Palm Beach, for appellees,
Robert Zelman, individually and as co-guardian of the property of Martin
Zelman, Lisa Held, individually, and as limited guardian of the person of
Martin Zelman, and Curtis Rogers, as co-guardian of the property of
Martin Zelman.

GROSS, J.
   In a guardianship proceeding, the denial of due process to the wife of
the proposed ward requires reversal of an order determining incapacity
and orders appointing limited guardians of person and property.

                          Factual Background

   On March 17, 2014, appellee Robert Zelman filed petitions with the
probate court relating to the alleged incapacity of his 85-year-old father,
Martin. Among these petitions were (1) a petition to determine Martin’s
incapacity and (2) a petition for appointment of a plenary guardian for
Martin’s person and property. Each petition listed Martin’s “next of kin”
as including his three children—Robert, Lisa Held, and Pamela
Sonnenblick—and Martin’s wife of thirteen years, appellant Lois Zelman.
Each petition also contained unsavory allegations about Lois.

   The petition to determine incapacity asserted Martin was incapacitated
due to “dementia, confusion and [serious short term] memory loss.” Both
petitions cited concrete examples of Martin’s incapacity. The petition
accused Lois of trying to control Martin and his assets through mental
abuse, neglect, and isolating him from his children. As a result, the
petitions alleged that Martin was in need of a plenary guardian. Due to
his long-time working relationship with his father, Robert proposed
himself as guardian of Martin’s person and property. Alternatively, Robert
suggested the appointment of his sister, Lisa; Martin’s long-time
accountant; or a professional guardian.

   After the appointment of emergency temporary guardians of person and
property, Martin’s granddaughter testified at a status conference that Lois
had manipulated Martin into signing a durable power of attorney, a
healthcare proxy, and other documents that favored Lois. Lois briefly
denied these claims and said that she and Martin had a loving
relationship. The trial judge expressed her belief that Martin was “a
vulnerable adult [who] is being preyed upon,” but declined to separate the
couple “unless there’s imminent danger.”

                      The Guardian’s Injunction

   The day after the status conference, Martin’s guardian of person moved
for an emergency temporary injunction requiring Lois to vacate Martin’s
apartment. The motion alleged that “Lois ha[d] continued to harass,
manipulate and unduly influence” Martin. Affidavits from Martin’s
accountant and the manager of Martin’s real estate properties supported
the motion. Lois responded with affidavits and witnesses who explained
that she and Martin were happily married and supportive of each other.

                                   -2-
Following a hearing, the trial judge ruled that, for Martin’s safety, it would
be best if Martin and Lois were separated. Pursuant to the order, Lois
moved into another unit she owned in the same condominium complex.

        The Incapacity and Guardian Appointment Hearings

   With the appointment of emergency temporary guardians, the next
stage in the guardianship proceeding was to determine whether Martin
was incapacitated and, if so, to identify an appropriate level of guardian
assistance. Lois filed an answer and affirmative defenses to Robert’s initial
petitions and a counter-petition for appointment of a plenary guardian. In
her answer, Lois denied that Martin was incapacitated and asserted that
there were alternatives to guardianship such as a durable power of
attorney, the designation of a health care surrogate, and twenty-four hour
caregivers. If, however, the trial court were to find Martin incapacitated
and in need of a guardian, Lois contended that she—rather than Martin’s
children—should be his limited or plenary guardian. The trial court
ultimately set the incapacity and guardianship determination for an April
21, 2014 hearing.

    In the interim, Lois discharged her counsel and hired J. Grier Pressly
III. At an April 15 hearing, Pressly moved for a continuance on the belief
“there [we]re external forces at work pushing for divorce.” Pressly also
averred he needed more time to prepare witnesses, as he was new to the
case. Martin’s court-appointed attorney opposed the continuance and
insisted that Martin was not waiving his right to a hearing within 14 days
of the filing of his capacity evaluations. The trial court denied the
continuance.

    Two days before the April 21 hearing, Lois filed an amended answer,
affirmative defenses, and counter-petition for appointment of plenary
guardian. The main differences between this pleading and her previous
one were that Lois now agreed that Martin was incapacitated and she
sought the appointment of a neutral guardian, rather than herself.

   The next day, Martin’s counsel filed a motion to strike Lois’s amended
pleading as untimely filed. One of this lawyer’s assertions was that
although Lois was an interested person, she was not a party to the
incapacity or the appointment of guardian proceedings. The lawyer
contended that she, as Martin’s attorney, and Robert were the only proper
parties; she argued that Lois’s participation was limited to being present
and testifying.



                                     -3-
   At the outset of the incapacity hearing, Martin’s counsel reminded the
court of the motion to strike Lois’s amended pleading. She argued there
were “only two real parties” to the proceeding—Robert, the petitioner, and
Martin, the alleged incapacitated person. The trial court told everyone to
consider the amended pleading “stricken” such that they would proceed
solely on Robert’s petition. The court apparently ignored Lois’s original
pleadings.

                          Martin’s Incapacitation

    The parties stipulated to the admission of the three-member examining
committee’s reports on Martin’s capacity. The reports conflicted. One
doctor found a mild cognitive impairment and that Martin exhibited a
“significant risk of being financially taken advantage of by others.” She
recommended a limited guardianship.           A second doctor found no
incapacity at all. The third member of the committee found Martin to be
incapacitated to the point that he needed a plenary guardian.

   At the hearing, Lois’s counsel, Pressly, asked if he could call one of the
doctors as a witness to further examine her recommendation. The trial
court denied the request, stating Pressly would not be calling any
witnesses.

   To resolve the examining committee’s impasse, Martin’s attorney asked
a fourth expert, Dr. Stephen Alexander, to provide an opinion. Dr.
Alexander met with Martin twice. At the first meeting, Martin appeared
totally incapacitated and confused, attributable, in Dr. Alexander’s
opinion, to the disruption, confusion, and stress caused by his wife’s
recent exodus from his residence.

   Martin demonstrated a significant lack of memory regarding simple
facts, such as his age, his birthdate, and even Lois’s name. At times
during the meeting, Martin became agitated and confused and “[h]is
performance . . . deteriorate[d] rapidly” to the point he would “start[] to
give . . . wildly incorrect information.” For this reason, Dr. Alexander did
not believe Martin was competent to sue or be sued, to enter into contracts,
or retain any of his rights.

   By contrast, two weeks later at the second meeting, Martin was
“substantially improved, appearing calm and capable of handling himself.”
Dr. Alexander credited Martin’s improvement to “continuity” and “stability”
in that the disruption caused by Lois’s ouster had subsided and Martin
was comfortable in his current settings. By the second meeting, Martin
did not appear to be incapacitated, providing the doctor insight as to why

                                    -4-
the three-member committee reports were so different. Because Martin’s
swings in capacity left him susceptible to manipulation, Dr. Alexander
recommended some type of limited guardianship. Dr. Alexander would
not trust Martin, while in his confused state, to make important financial
decisions, to read and analyze a legal contract, or to strategize with his
lawyers in any litigation.

                      Guardian Appointment Hearing

    The bulk of the hearing pertained to who should be appointed guardian.
In this context, Lisa Held testified regarding her qualifications to continue
serving as Martin’s guardian of person. On cross-examination, Lois’s
counsel began asking questions outside the scope of direct relating to
Martin’s marital residences. When Robert’s counsel objected, Lois’s
counsel informed the court that if scope was an issue he would “just call
[Lisa] as part of [his] case.” Martin’s counsel responded that Lois “doesn’t
have a case” and that her counsel was “not going to be calling witnesses.”
The trial court did not immediately rule on the objection, but told Lois’s
counsel to “speed it up.”

   Along similar lines, Robert explained to the judge why he was qualified
to be guardian of property. Robert also testified that Martin has confided
in him that he wants to divorce Lois, leading Robert to believe Martin could
not be protected from Lois if she remains his wife. For this reason, Robert
was in favor of Martin divorcing Lois. During cross-examination, Lois’s
counsel wished to extract testimony in rebuttal, but the trial court stopped
him, saying “There is no rebuttal by you.”

                            The Potential Divorce

    Much of the hearing focused on the practical ramifications of a
Martin/Lois divorce. Robert called attorney David Pratt to testify about
Martin’s finances. Martin’s attorney questioned Pratt regarding the
contents of Martin and Lois’s “heavily negotiated” amended prenuptial
agreement, inquiring specifically about “what the financial outcome would
be if Martin . . . died remaining married to Lois and if Martin . . . was able
to file for dissolution.”

    Pratt’s testimony had nothing to do with Martin’s incapacity and
everything to do about Martin’s money and how a divorce would impact
who would get the money upon Martin’s death. The short and fast is that
if Martin died married to Lois, she would receive $6 million. If Martin and
Lois divorced, the money would elude her grasp. However, a dissolution
brought by a guardian, and not Martin himself, would not count as a

                                     -5-
“divorce,” so Lois would retain the right to the funds upon Martin’s death.
Essentially, a separation of Lois from Martin’s money required Martin
himself—and not his guardian—to bring a dissolution action.

   Following this testimony, Lois’s counsel attempted to introduce exhibits
through Pratt. The trial judge prevented him from introducing evidence,
since Lois was merely an “interested person” and not a party.

   Martin’s counsel called Dr. Alexander who testified that Martin
understood the “concept of divorce and wanted to get a divorce.” In
response to an objection, Martin’s counsel sought to navigate a path
through the guardianship that would sink any claim Lois might have to
Martin’s money. In closing, Martin’s counsel argued that it would be
inequitable not to preserve Martin’s right to contract, to sue and be sued,
“at least to the extent of being able to initiate a dissolution action,” to keep
Martin from “substantial [financial] harm,” from “prenuptial and
postnuptial agreements [which] do not consider a dissolution proceeding
a termination under the document if initiated by a guardian.”

                         The Trial Court’s Ruling

   The trial court ordered a limited guardianship, removing Martin’s rights
to marry, apply for government benefits, have a driver’s license, work, and
manage or gift property. Martin retained his rights to vote, contract, and
sue and defend lawsuits. The Court appointed Lisa to serve as the
guardian of Martin’s person and Robert and a professional guardian to
serve as co-guardians of Martin’s property. The trial court later ordered
that $3 million be removed from a marital account and returned to
Martin’s revocable trust. We reversed that order in Zelman v. Zelman, 40
Fla. L. Weekly D1544 (Fla. 4th DCA July 1, 2015).

 The violation of Lois’s due process rights was fundamental error
             that requires new guardianship hearings

    Though bifurcated in the briefs, the main issue on appeal boils down
to whether the trial court erred in determining that, as an “interested
person,” Lois lacked standing to call witnesses and present evidence; and,
if so, whether such infringement violated her due process right to be heard.
Lois asserts that, as Martin’s spouse, due process required that she had
the right to participate fully in the guardianship proceeding. Robert
responds that as an “interested person,” Lois received all the process to
which she was entitled.



                                      -6-
   In general, “[p]rocedural due process serves as a vehicle to ensure fair
treatment through the proper administration of justice where substantive
rights are at issue.” Dep’t of Law Enforcement v. Real Prop., 588 So. 2d
957, 960 (Fla. 1991). As we explained in a recent opinion involving the
same parties:

      “[T]he constitutional guarantee of due process requires that
      each litigant be given a full and fair opportunity to be heard.”
      Vollmer v. Key Dev. Props., Inc., 966 So. 2d 1022, 1027 (Fla.
      2d DCA 2007) (citations omitted). At its core, 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, 196 So. 491, 494 (Fla. 1940)).

Zelman, 40 Fla. L. Weekly at D1545.

   “When a court fails to give one party the opportunity to present
witnesses or testify on his or her own behalf, the court has violated that
party’s fundamental right to procedural due process.” Douglas v. Johnson,
65 So. 3d 605, 607 (Fla. 2d DCA 2011); see also Sanchez v. City of W. Palm
Beach, 149 So. 3d 92, 97 (Fla. 4th DCA 2014) (“‘Due process requires that
a party be given the opportunity to be heard and to testify and call
witnesses on his behalf . . . , and the denial of this right is fundamental
error.’” (quoting Pope v. Pope, 901 So. 2d 352, 353 (Fla. 1st DCA 2005)).

    The question here is whether an “interested person” in this
guardianship case is entitled to the same level of due process that the law
allows a “party” to a lawsuit. Guardianship law has incorporated
traditional notions of standing that require a direct and articulable stake
in a controversy that would be affected by the outcome of litigation.
“[G]uardianship proceedings must comport with constitutional notions of
substantial justice and fair play.” In re Guardianship of King, 862 So. 2d
869, 871 (Fla. 2d DCA 2003) (quoting Joan L. O’Sullivan, “Role of the
Attorney for the Alleged Incapacitated Person,” 31 Stetson L.Rev. 687, 702,
706 (2002)).      In the guardianship setting, a person’s standing to
“participate” in a proceeding depends on whether he or she qualifies as an
“interested person.” See In re Guardianship of Trost, 100 So. 3d 1205,
1210 (Fla. 2d DCA 2012).         Stated generally, “[s]tanding depends on
whether a party has a sufficient stake in a justiciable controversy, with a
legally cognizable interest which would be affected by the outcome of the
litigation.” Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2005).


                                    -7-
   The Supreme Court has characterized standing to sue as a “direct and
articulable stake in the outcome of a controversy.” Brown v. Firestone, 382
So. 2d 654, 662 (Fla. 1980). By statutorily defining an “interested person”
as including any person “who may reasonably be expected to be affected
by the outcome of the proceeding,” the Florida Probate Code, through
section 731.201(21), Florida Statutes (2014), sought to “incorporate[] the
general standing principles.” Hayes v. Guardianship of Thompson, 952 So.
2d 498, 507-08 (Fla. 2006).

   Here, Lois was an interested person entitled to notice. A person is
“interested”—and thus has standing to participate in a specific
guardianship proceeding—where he or she is entitled to notice of the
proceeding or is authorized to file an objection. See id. As next of kin,
Lois was “entitled to notice of the petition to determine incapacity and to
appoint a guardian.” Bivins v. Rogers, 147 So. 3d 549, 550 (Fla. 4th DCA
2014) (citing §§ 744.102(14), 744.331(1), 744.3371(1), Fla. Stat. (2012)).
Therefore, she had standing to “participate” in the underlying hearings.
See Hayes, 952 So. 2d at 506.

    And where a person has both standing and notice, a right to due
process is triggered to insure that participation is meaningful. Indeed,
“[t]he right to due process of law must be respected in guardianship
proceedings.” Shappell v. Guardianship of Naybar, 876 So. 2d 690, 691
(Fla. 2d DCA 2004). As our Supreme Court has explained:

      In observing due process of law, the opportunity to be heard
      must be full and fair, not merely colorable or illusive. Fair
      notice and a reasonable opportunity to be heard shall be given
      interested parties before a judgment or decree is rendered.
      Due process of law means a course of legal proceedings
      according to those rules and principles which have been
      established in our system of jurisprudence for the protection
      and enforcement of private rights.

Ryan’s Furniture Exch. v. McNair, 162 So. 483, 487 (Fla. 1935) (internal
citations omitted).

   The level of participation necessary to satisfy due process in this case
turns on the extent of Lois’s interest in the outcome of the proceedings.
Her interest here was extensive. The Zelman family sought relief within
the guardianship that directly impacted Lois’s marriage, the marital home,
and her finances. Martin’s lawyer plainly argued for the trial judge to craft
an order designed to minimize Lois’s financial position. Also, as Martin’s
wife, she was entitled to be heard in the guardianship hearing on the issue

                                    -8-
of what was in his best interest. Cf. In re Ray, 109 N.W. 496, 497 (Neb.
1906) (“It would be an absurdity to say that the next of kin have no interest
in the proceedings and that they should be denied the privilege of
appearing on behalf of their kindred. Ray’s children were heirs apparent,
and as such had an interest which would entitle them to appear and be
heard.”).

    For these reasons, Lois should have been permitted to fully participate
in the guardianship proceeding—to call witnesses, cross-examine
witnesses, testify, and make argument to the court. “The right to be heard
at an evidentiary hearing includes more than simply being allowed to be
present and to speak. Instead, the right to be heard includes the right to
introduce evidence at a meaningful time and in a meaningful manner.”
Vollmer v. Key Dev. Props., Inc., 966 So. 2d 1022, 1027 (Fla. 2d DCA 2007)
(internal citations and quotations omitted); see also Begens v. Begens, 617
So. 2d 360, 361 (Fla. 4th DCA 1993) (“An opportunity to be heard includes
the right to present evidence bearing on the issues.”); Pettry v. Pettry, 706
So. 2d 107, 108 (Fla. 5th DCA 1998) (“Due process requires that a party
be given the opportunity to be heard and to testify and call witnesses on
his behalf, and the denial of this right is fundamental error.” (internal
citation omitted)).

    As Lois points out, a contrary view poses an important question: why
should Robert have a greater opportunity to be heard over other kin by
virtue of his status as petitioner? A privileged status as a “party” in a
guardianship should not be determined by a race to the courthouse. The
whole purpose of a guardianship proceeding is to protect the ward’s
interests. See Romano v. Olshen, 153 So. 3d 912, 917-18 (Fla. 4th DCA
2014).

    “Next of kin” and “interested persons” are permitted to participate in
incapacity and appointment of guardian determinations because usually
they are well situated to act in the ward’s best interest. Often, family
members are on the same side and they work together on the ward’s
behalf. But here, Lois and Robert had diametrically different views on
what was in Martin’s best interest, not unusual where the children of a
first marriage have a pecuniary interest contrary to that of a spouse who
came later. Through the guardianship proceedings, both sides should
have been heard; but the trial judge’s ruling gave Robert’s side a decided
advantage.

  The due process infirmities here resulted in fundamental error. See
Weiser v. Weiser, 132 So. 3d 309, 311 (Fla. 4th DCA 2014) (“The denial of
due process rights, including the opportunity to be heard, to testify, and

                                    -9-
to present evidence, is fundamental error.”). Therefore, the underlying
orders are reversed and the case is remanded for new hearings.

   Because the original trial judge is no longer on the bench, the case will
have to be retried before a new judge. We note that the judgment here was
infected by legal hocus pocus, containing findings so unsupported by the
record as to be clearly erroneous. Without delving into detail, the
judgment found Martin not competent to marry—not a particularly high
threshold—or to manage property or make gifts but determined that he
was fully able to handle a lawsuit that involves complex financial issues.
In the effort to navigate the legal implications of prenuptial agreements
and, perhaps, section 61.052(1)(b), Florida Statutes (2014),1 the focus of
the hearing veered away from the best interest of the ward.

   Reversed and remanded.

MAY, J., and HERSCH, RICHARD L., Associate Judge, concur.

                             *         *        *

   Not final until disposition of timely filed motion for rehearing.




1Section 61.052(1)(b) provides that “no dissolution shall be allowed unless the
party alleged to be incapacitated shall have been adjudged incapacitated
according to the provisions of s. 744.331 for a preceding period of at least 3
years.”

                                     - 10 -
