Romano v. Olshen

153 So. 3d 912, 2014 WL 940700
CourtDistrict Court of Appeal of Florida
DecidedMarch 12, 2014
DocketNos. 4D12-451, 4D12-2466, 4D13-1083
StatusPublished
Cited by8 cases

This text of 153 So. 3d 912 (Romano v. Olshen) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Romano v. Olshen, 153 So. 3d 912, 2014 WL 940700 (Fla. Ct. App. 2014).

Opinion

GROSS, J.

This consolidated appeal centers upon the attempts of a guardian and his attorneys to recover guardianship administration fees from a joint investment account held by a ward and his spouse that was part of a guardianship estate. We affirm the orders authorizing the guardian to access the account after the death of the ward and reverse the order that barred access to the account. .

Jack Olshen (“the Ward”) and his wife Irene were married in 2004, when the Ward was in his mid-seventies and Irene was 10 years his junior. In January 2010, the Ward sold Olshen Overseas, Inc., the business he had owned and operated for forty years, receiving approximately $1,800,000.00 in net proceeds. Within thirty days of closing, the funds were deposited into a joint brokerage account at Oppenheimer & Co. (“Oppenheimer Account”),2 entitled: “Jack Olshen & Irene Olshen JTWROS” — an acronym for joint tenants with right of survivorship. Under Oppenheimer’s policy, withdrawal from the account required both owners’ signatures.

In September 2010, the 81-year-old Ward filed for dissolution of marriage in the circuit court. To prevent Irene from depleting his assets, the Ward also obtained a temporary injunction freezing the parties’ marital assets. Irene responded to the .lawsuit by counter-petitioning for dissolution and filing verified petitions seeking (1) to determine the Ward’s mental incapacity and (2) to appoint an emer[914]*914gency temporary guardian. In her petitions, Irene made, indirect reference to the Oppenheimer Account, stating that the property “subject to guardianship” exceeded $1,400,000.00.3

Finding the Ward incapacitated due to dementia, the trial court appointed a “professional guardian,”4 appellant Anthony Romano (“Guardian”), to serve as guardian of the Ward’s person and property. In addition, the trial court modified the temporary injunction to lift the freeze placed upon the Oppenheimer Account. A significant legal effect of the guardianship was to stay the dissolution proceeding for “at least 3 years.” § 61.052(l)(b), Fla. Stat. (2012).5

The Accumulation of Fees

Shortly after his appointment, the Guardian filed a verified inventory of the guardianship estate, which listed the Oppenheimer Account as the estate’s primary asset. The Oppenheimer Account comprised 89% of the $1,454,903.03 net value of the guardianship estate.

On May 27, 2011, the Guardian petitioned for instructions regarding whether divorce proceedings should be abated for three years on account of the Ward’s incapacity. Recognizing the ramifications of an abatement, Irene filed an urgent motion in the divorce court seeking to stay proceedings pending a determination of the validity of a 2004 prenuptial agreement and an accompanying 2008 amendment, both of which, she claimed, were triggered by the Ward’s dissolution petition.

Following a hearing, the trial court ordered the dissolution proceeding abated for a period of three years, pursuant to section 61.052. As a residual effect, Irene’s motion regarding the prenuptial agreement was placed on indeterminate hold. Shortly thereafter, the trial court denied a second motion from Irené, which sought to compel a settlement of the claim involving the prenuptial agreement in accordance with section 744.387, Florida Statutes (2012).

The Attempts to Access the Oppenheimer Account

With the Ward’s estate mired in dispute, the Guardian and his attorneys accumulated fees beyond the Ward’s tangible non-Oppenheimer Account assets. For example, appellee David Howard Goldberg, P.L., obtained an order awarding $53,051.55 in fees for the services performed for the Guardian from February 1, 2011, through March 31, 2011. Since the Ward’s uncontested assets were insufficient to satisfy this amount, the trial court reserved ruling on the source of payment.

To resolve the question of payment, the Guardian filed the following three petitions, which sought to transfer funds from the Oppenheimer Account to cover outstanding fees and expenses:

(1) Petition For Order Authorizing Transfer Of Funds From Oppenheimer & Co. To Restricted Depository at Gibraltar Bank For Additional Payments [915]*915to Limited Guardian Of Person and Property (4/21/2011).
(2) Petition For Order Authorizing Transfer Of Funds From Oppenheimer & Co. To Restricted Depository At Gibraltar Bank For Periodic Payments To Limited Guardian Of Person And Property (4/27/2011, Amended 7/5/2011).
(3) Petition to Compel The Withdrawal Of Funds From Oppenheimer Account To Pay Court-Approved Retainers Of Guardian’s Counsel (5/26/2011).

Furthermore, on July 8, 2011, when the Ward’s liquid assets dipped to $15,000, the Guardian obtained another temporary injunction freezing the Oppenheimer Account pending the dispute’s resolution.

Irene’s response to the petitions was to attempt to block all access to the Oppenheimer Account by the Guardian on behalf of the Ward. Irene filed an omnibus objection to the Oppenheimer Account “being accessed for any purpose” until the court determined “the validity and application of the parties’ Prenuptial Agreement.” Enforcement of the prenuptial agreement as Irene desired would have left the Ward insolvent. Within her objection, Irene described the Oppenheimer Account as being “held as joint tenants with right of surviv-orship.”

The Budgetary Hearing

By August 2011, the Ward’s health had deteriorated significantly. On August 4, the trial court conducted a hearing to resolve, among other things, the Guardian’s petitions to access the Oppenheimer Account and a petition to approve an amended budget. Although not elaborated upon in detail, the trial court denied the Guardian’s petitions as they pertained to “the withdrawal of funds from the Oppenheimer Account to pay the court appointed retainers of [the] guardian’s counsel” and directed the parties to act with urgency in setting a hearing on the budgetary matter. In so doing, the trial court remarked:

Just from [Irene’s] point of view, regardless of her legal position she would be misguided if she thought I wasn’t going to allow th[e Oppenheimer Account to pay for [the Ward’s] necessities, pending the determination of what I’ll be determining about the account.

At the August 11, 2011 budgetary hearing, the Guardian testified that the Ward was in critical condition and required 24-hour nursing care, at a cost of about $11,000 per month. Finding that such costs were necessary for the Ward’s well-being, and that there were insufficient funds in the Ward’s unrestricted accounts to cover such expenses, the trial court orally ordered that this amount be withdrawn from the Oppenheimer Account along with $6,000 per month for Irene’s expenses. A written order was never entered. Less than a week later, on August 16, 2011, the Ward died.

Case No. 4D12-451

On September 19, 2011, the Guardian filed a petition seeking “use of the- Oppenheimer Account to pay guardianship administration expenses, and other expenses,6

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Cite This Page — Counsel Stack

Bluebook (online)
153 So. 3d 912, 2014 WL 940700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romano-v-olshen-fladistctapp-2014.