VERA SAPROUNOVA HOPF, COMPLETE HEALTH OF TAMPA BAY, P.A. AND INTEGRATIVE WELLNESS & BEAUTHY, INC. v. ROBERT KASZUBA, POLMED, P.A., RK CLEARWATER PROPERTIES, INC. AND BRIDGET HEPTNER ( 2023 )

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
VERA SAPROUNOVA HOPF,
Petitioner,
v.
ROBERT KASZUBA; POLMED P.A., a Florida corporation;
RK CLEARWATER PROPERTIES, INC., a Florida corporation;
BRIDGET HEPTNER, Guardian ad litem; COMPLETE HEALTH
OF TAMPA BAY, P.A., a Florida professional corporation; and
INTEGRATIVE WELLNESS & BEAUTY, INC., a Florida corporation,
Respondents.
No. 2D23-1009
December 20, 2023
Petition for Writ of Certiorari to the Circuit Court for Pinellas County;
Frederick L. Pollack, Judge.
Michael A. Nedelman of Nedelman Legal Group PLLC, Delray Beach; and
Robert J. Moraitis and Peter M. Raimondi of Moraitis & Raimondi, LLP,
Fort Lauderdale, for Petitioner.
Jason Valkenburg of Valkenburg Law Group, P.A., Tampa, for
Respondent Robert Kaszuba.
No appearance for remaining Respondents.
SILBERMAN, Judge.
Vera Saprounova Hopf (the Wife) seeks certiorari review of the trial
court's order denying her motion to discharge the guardian ad litem
(GAL) appointed by stipulation to represent the parties' minor child.
Because the Wife failed to establish irreparable harm, we dismiss the
petition.
The Wife and Robert Kaszuba (the Husband) were married in 2011
and have one minor child together. The Wife filed her petition for
dissolution of marriage and other relief in 2019. Later that year, the
parties filed a joint stipulation for entry of an order appointing a GAL to
represent their child's interests throughout the proceedings. In 2022,
the Wife filed a motion to discharge the GAL and for other related relief.
The trial court held a two-day hearing on the Wife's motion and denied it
after finding that the Wife failed to establish bias or prejudice on the part
of the GAL. The Wife then filed her petition for writ of certiorari with this
court.
In her petition, the Wife argues that the trial court erred by
applying the wrong legal standard for determining whether the GAL
should have been discharged and that, even if the trial court applied the
correct standard, the GAL violated the Wife's due process rights resulting
in prejudice. The crux of the Wife's argument rests on the GAL's failure
to provide notice of the interviews she conducted while performing her
investigatory duties. While the GAL did fail to provide notice, we
conclude that any harm resulting therefrom is curable and could be
corrected on appeal.
Section 61.403(1), Florida Statutes (2022), provides that a GAL
"may investigate the allegations of the pleadings affecting the child, and,
after proper notice to interested parties to the litigation and subject to
conditions set by the court, may interview the child, witnesses, or any
other person having information concerning the welfare of the child."
Here, the GAL did not provide notice to the parties as to whom she was
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interviewing. However, she testified at the hearing that the parties, on
their intake forms, provided her with the names of the individuals they
each wished for her to interview. The parties' attorneys asked her "to
expedite as many witness interviews as possible to get [her] report out to
them for their court hearing."
A party seeking certiorari relief must establish "(1) a departure from
the essential requirements of the law, (2) resulting in material injury for
the remainder of the case (3) that cannot be corrected on postjudgment
appeal." Halsey v. Hoffman, 362 So. 3d 274, 276 (Fla. 2d DCA 2023)
(quoting Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011)). "The
second and third elements are jurisdictional, and this court must first
analyze the jurisdictional elements before it can consider whether the
lower tribunal departed from the essential requirements of law." Plantz
v. John, 170 So. 3d 822, 824 (Fla. 2d DCA 2015) (citing Williams, 62 So.
3d at 1132). "If the petitioner fails to satisfy the jurisdictional elements,
this court dismisses the petition rather than denying it." Id. (citing
Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649
(Fla. 2d DCA 1995)).
The trial court relied upon two cases in making its decision,
Bouchard v. Bouchard, 300 So. 3d 334 (Fla. 2d DCA 2020), and O'Neill v.
O'Neill, 812 So. 2d 448 (Fla. 5th DCA 2002). In Bouchard, this court
stated that "[t]o disqualify an agreed-upon guardian, 'the facts must be
egregious, and the burden heavy. To do otherwise would invite any
litigant who anticipates even a mildly unfavorable report by a guardian to
seek the guardian's removal.' " 300 So. 3d at 337 (quoting O'Neill, 812
So. 2d at 450). "The court must find that there is 'bias or prejudice on the
part of the guardian ad litem.' " Id. (emphasis added) (quoting O'Neill, 812
So. 2d at 450).
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In O'Neill, like here, the trial court held a two-day hearing on a
father's motion for disqualification of a GAL. 812 So. 2d at 450. Also
like here, that "dissolution and custody case was highly contentious,"
and the parties stipulated to entry of an order appointing a GAL to
represent their children's interests. Id. In O'Neill, the trial court relied
upon a Wisconsin case, Woodman v. Woodman, 324 N.W.2d 297 (Wis. Ct.
App. 1982) (unpublished opinion), when it determined that, although an
appropriate set of egregious facts could lead to the disqualification of a
GAL appointed by stipulation, the evidence there did not support
disqualification. Id. at 450-51.
The father in O'Neill then "appeal[ed] the order denying his motion
for disqualification" of the GAL. Id. at 450 (emphasis added). The Fifth
District determined that competent, substantial evidence supported the
trial court's findings and that the trial court did not abuse its discretion
in denying the motion for disqualification. Id. at 451. Further, the court
determined that the trial court did not apply an incorrect legal standard
in deciding whether the GAL should be disqualified by requiring the
movant to establish bias or prejudice on behalf of the GAL. Id.
In Bouchard, this court applied O'Neill when it granted the wife's
petition for writ of certiorari. 300 So. 3d at 337-38. The trial court
granted the husband's motion to disqualify and remove the agreed-upon
GAL without conducting a hearing. Id. at 336. The trial court found that
a "dispute over the payment of the Guardian Ad Litem fees ha[d]
poisoned the necessary relationship between the Husband and the
Guardian Ad Litem." Id.
In considering the wife's petition for writ of certiorari, we recognized
that the disqualification of a GAL appointed by stipulation must only
occur when the facts are egregious. Id. at 337 (citing O'Neill, 812 So. 2d
4at 450). We reiterated that "[t]he court must find that there is 'bias or
prejudice on the part of the guardian ad litem.' " Id. (emphasis added)
(quoting O'Neill, 812 So. 2d at 450). While we recognized that the fee
payment dispute may have supported a determination that the GAL was
biased or prejudiced, we concluded that the trial court departed from the
essential requirements of the law by discharging the GAL without
conducting a hearing on the husband's motion and by applying the
wrong legal standard. Id. at 337-38.
Here, at the conclusion of the hearing, the trial court expressed
concern that the GAL did not provide notice to the parties before
conducting witness interviews, as required by statute. However, the
court found Bouchard and O'Neill "to be highly persuasive and, candidly,
controlling in many ways and directly on point." The trial court provided
an extensive analysis of both Bouchard and O'Neill and noted the
similarities and differences between those cases and the facts here.
The court recognized that unlike in O'Neill and Bouchard, the GAL
here has been serving in her role for over three years and has produced
seven different reports, including a full report as well as interim or
supplemental reports. It also found that the Wife had not met her
burden to present competent, substantial evidence "that this particular
guardian ad litem has demonstrated a bias or prejudice to the parties, to
either one of them individually." Further, the court found as follows:
[T]he parties are clearly now on notice as to whom the G.A.L.
has spoken with and the parties can cure any defects and/or
concerns they may have with any remarks of the individuals
disclosed in the G.A.L.'s reports by deposing, or calling those
individuals, as witnesses in order to discern and potentially
support any requests to bolster, impeach, credit, discredit,
strengthen, or reduce the weight which ultimately may be
given [by] the Court in consideration of the G.A.L.'s reports
and recommendations at the contested final hearing, when or
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if there is one. As such, the parties have not suffered any
irreparable harm by the G.A.L.'s failure to provide the
advance notice of interviews of witnesses in her prior reports.
We agree with the trial court's analysis. And we distinguish
McBride v. McBride, 195 So. 602 (Fla. 1940), cited by the Wife in support
of her argument that the trial court erred by denying her motion. In
McBride, the appellee was appointed as guardian of the appellant's
estate. Id. at 603. The appellant moved for the guardian's discharge
based on neglect and failure to perform his statutory duty to deposit and
invest funds. Id. The supreme court determined that the guardian was
properly discharged as guardian of the estate because he "was guilty of
neglect, misbehavior and failure in the performance of his duties in the
management of his ward's estate." Id. at 604.
As an initial distinction, there is no indication that the guardian of
the estate in McBride was appointed by stipulation of the parties.
Further, that case dealt with a guardian of an estate and not a GAL.
Both Bouchard and O'Neill stand for the proposition that discharging an
agreed-upon GAL must be done only under an egregious set of facts and
when bias or prejudice on the part of the GAL is shown. See Bouchard,
300 So. 3d at 337; O'Neill, 812 So. 2d at 450.
Here, the trial court correctly found that the Wife failed to establish
the required bias or prejudice on the part of the GAL. While the GAL
failed to provide advance notice to the parties of the interviews she was
conducting during her investigation, the trial court properly determined
that the parties may cure any defects or concerns by deposing the
witnesses or calling any of them to testify at the final hearing. Because
the Wife has failed to show irreparable harm, she is not entitled to
certiorari relief. As a result, we dismiss her petition.
Dismissed.
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MORRIS and BLACK, JJ., Concur.
Opinion subject to revision prior to official publication.
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