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DeVaughn v. DeVaughn3/26/2003
Cheryl Ann DeVaughn Castille, the mother of Russell L. DeVaughn ("Rusty"), deceased, appeals an order appointing Michael L. DeVaughn, Rusty's uncle, personal representative of Rusty's estate. We agree that the trial court abused its discretion in making the appointment and reverse the order.
ISSUE
At issue in this case is whether the trial court abused its discretion when it appointed the uncle personal representative, thus giving him control of an expected wrongful death action arising out of Rusty's death. Rusty, a nineteen-year-old, was sitting on a lawn chair when he was fatally hit by a vehicle involved in a high-speed police chase in Seminole County. The uncle raised Rusty from the time Rusty was a young child, and the mother had no involvement with Rusty since he was four years old. The mother is preferred for appointment as personal representative under section 733.301(1)(b), Florida Statutes.
FACTS
Rusty was born in 1981. In 1983, after a police raid on their home, the mother and father, Mark DeVaughn, who were not at home when the raid occurred, signed a document purporting to make the uncle guardian of Rusty and his brother. Apparently, physical custody was transferred to the uncle at that time. A year or two later, apparently, the parents moved to Jacksonville, Florida, leaving Rusty with the uncle in Washington State. At some point, the uncle brought Rusty's brother from Washington to the parents in Jacksonville. He returned to Washington, where Rusty apparently remained. Some time thereafter, the uncle and Mary J. Hodge, the woman with whom he lived, moved with Rusty to Florida, stopping in Jacksonville where the parents lived, and then going on to Sanford, where they settled. In 1986 or 1987, the uncle picked up one of Rusty's sisters, who was born in February 1985, from a laundry in Jacksonville and brought her to Sanford. The uncle's understanding was that the mother could not handle the child. At some point, the father announced to the uncle that he was leaving Rusty's mother, and the father moved to Sanford. Rusty lived in the uncle's household, while his brother and sister lived with the father. Within a year, the father and Rusty's sister and brother moved to Ohio. In October 1986, the mother obtained an ex parte judgment of divorce in Jacksonville. The judgment gave custody to the father and stated that the mother did not know the whereabouts of the father and children. At the probate hearing below, the mother told the court that she had assumed the children were with the husband.
The uncle, a project manager for a construction company, had lived in Sanford since late 1985 or early 1986, and had been in and out of Sanford visiting relatives in previous years. He thought he should be personal representative because he raised Rusty and had, in his mind, been Rusty's "real" parent. He testified that he would never refer to Rusty as anything other than his son and explained that this was why he indicated on the death certificate that he was Rusty's father.
The mother testified that she had last seen Rusty when he was four years old. She testified that she tried to locate her son in the intervening years, but was unable to do so. The mother testified that she learned of Rusty's death from the father, who she said, was a fugitive from justice. She did not attend Rusty's funeral. She testified that she could not reach the uncle because she did not have his telephone number, but was later able to reach county authorities. She learned of the administration of the estate from a notice sent by the uncle's attorney. Regarding her qualifications to be personal representative, the mother testified that following an investigatio
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