Blechman v. Dely

Blechman v. Dely, --- So.3d --- (2014), 2014 WL 1908813

Robert Blechman, as personal representative of his father's estate, was found in contempt and was removed as personal representative.  He appealed the trial court's decision, arguing that the court violated his due process rights by holding him in contempt without complying with Florida Rule of Criminal Procedure 3.840 and by removing him as personal representative without  complying with Florida Probate Rule 5.440.

The decedent left to appellee a devise of $5,000 per month to pay for the maintenance of a residence.  When the personal representative failed to make those payments, she filed a motion to compel payment, and the trial court granted that motion. requiring him to make the payments to the appellee, as well as fund the residuary bequests in the decedent's will.  Before the trial court entered its order, the personal representative explained that the estate's expenses and limited liquidity left him unable to fund the residuary bequests, but the court denied his motion.

Months later, appellee filed a motion to show cause, alleging that the personal representative had failed to comply with the court order.  She asked the court to issue an order to show cause why the personal representative should not be held in indirect criminal contempt for failing to comply with the order.  The personal representative again responded that the estate had limited liquidity and all of the estate's liquid assets were necessary to complete the estate's administration.

The trial court issued an order to show cause.  The personal representative did not appear, but he was represented by counsel.  Appellee asked the trial court to remove the personal representative.  The trial court orally found him in civil contempt, and said he could purge the contempt by filing an accounting and handing over the reins of the estate to a new personal representative.  In its written order, the trial court removed the personal representative, found him guilty of indirect criminal contempt, ordered him to provide an accounting and deliver the records of the estate to a new personal representative.

Due Process

The personal representative argued that the trial court's order violated his due process rights by failing to comply with the procedures set forth in Florida Rule of Criminal Procedure 3.840.  Appellee argued that Rule 3.840 did not apply, since the court found he had committed indirect civil contempt.  The Court agreed that the order was one of criminal and not civil contempt, because while civil contempt is used to obtain compliance with a court order, criminal contempt is used to punish.  The Court found that removing the personal representative was a punishment, since once the personal representative was removed, he was incapable of complying with the court order.   

Under Rule 3.840, an order to show cause must state the essential facts constituting the criminal contempt charged.  Since the order did not set forth the "essential facts" and did not state whether the contempt was civil or criminal, it did not comply with Rule 3.840.

Proper Notice for Removal

The Court also found that the personal representative did not receive proper notice before being removed as required by Florida Statutes § 733.504(3).  Since no petition for removal was filed, and the removal was ordered without notice or evidentiary hearing, the trial court did not comply with the requirements of due process.

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