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Appeals court blasts judge’s order to make woman, 80, leave condo

More than a year after a Palm Beach County judge ordered Lois Zelman out of a Palm Beach condo she shared with her husband, an appeals court on Wednesday blasted the jurist for falling for “legal hocus pocus” and violating the 80-year-old woman’s rights.

Attorney Jeffrey Fisher, who represents Lois Zelman in the ugly court battle launched by her stepchildren, applauded the ruling by the West Palm Beach-based 4th District Court of Appeal. It means Lois Zelman, not her three adult stepchildren, will get the roughly $10 million her husband, Martin Zelman, promised her when they negotiated a prenuptial agreement before getting married 15 years ago, he said.

Theoretically, it also sets the stage for Lois to be reunited with her husband. But, Fisher said, the ruling may come too late for such a storybook ending.

Having slipped further into dementia since then-Palm Beach County Circuit Judge Diana Lewis kicked Lois out of the couple’s condo, Martin Zelman may no longer recognize his wife, Fisher said. A reunion could be too traumatic for the 87-year-old former Long Island businessman who made a fortune in real estate. According to a psychologist who examined Martin last year, abrupt changes — like when his wife was forced from their home — compound his confusion.

“As for her life with Martin, I don’t know if it can be repaired,” Fisher said. “When he had his mental faculties, I’m sure she was the person he wanted.”

Now, he said, he just doesn’t know.

But, he said, the ruling is a moral and financial victory for Lois and could help others who marry spouses with adult children from prior marriages who don’t like the prenuptial agreements negotiated by their parents.

Claiming Lois was abusing his father, Robert Zelman last year filed a petition in probate court, asking that Martin be declared incompetent and that guardians be appointed to handle his affairs.

Instead of allowing Lois and Robert to be on equal footing, Lewis ruled that Lois was not a party to the proceedings. That meant her lawyer couldn’t fully represent her views about what was best for her husband before Lewis appointed Robert and his sister, who both live in New York, to be Martin’s guardians.

That, Judge Robert Gross wrote for the three-judge appellate panel, gave Robert “a decided advantage” and resulted in “fundamental error” by Lewis, who lost a re-election bid last August.

Instead of focusing on Martin’s mental abilities, Lewis spent an inordinate amount of time hearing about the financial ramifications of allowing the couple to divorce, Gross also wrote.

Under their prenuptial agreement, if Martin died while he and Lois were still married, Lois would get roughly $10 million. If Martin divorced Lois, she could get nothing. However, Martin had to file the divorce. If it was done by a guardian, Lois would still get the money. Further, under a little-known Florida divorce law, there is a three-year waiting period in cases where one of the spouses has been declared mentally unfit.

In what Gross said appeared to be an effort to get around the prenuptial agreement and the obscure Florida law, Lewis declared Martin partially incompetent. While stripping him of the ability to marry, drive, work or manage property, she said Martin could continue to file lawsuits.

That meant he could file for divorce from Lois. And, days after Lewis signed the order, a divorce petition was filed on Martin’s behalf.

“In the effort to navigate the legal implications of prenuptial agreements and, perhaps, (the waiting-period law), the focus of the hearing veered away from the best interest of the ward,” Gross wrote of Lewis’ ruling.

The appeals court decision, coupled with an earlier decision by Palm Beach County Circuit Judge Charles Burton, means the legal battle is all but over for Lois, Fisher said.

After hearing Martin struggle to remember what year it was, the names of his children or who was president, Burton in July ruled the octogenarian wasn’t competent enough to seek a divorce. He sent the case back to probate court for further hearings on Martin’s mental state.

Fisher said he will return to probate court to ask that an independent guardian be appointed to oversee Martin and that all of Lois’ rights to share in her husband’s wealth be restored.

Attorney Peter Sachs, who represents Martin’s children, said he is still reviewing the decision. At its core, itn smply says Lois was denied due process, he said.

“It seems we’re back to square one in the guardianship process,” Sachs said. “It’s really a convoluted situation and it’s unfortunate. Hopefully, we can resolve this without putting people through any more pain and litigation and expense.”

Gross suggested the new judge look at the case with an open mind, uncluttered by Lewis’ decision. “We note that the judgment here was infected by legal hocus pocus, containing findings so unsupported by the record as to be clearly erroneous,” he wrote.

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