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King v. Craig

Court of Appeals of Ohio, Ninth District

July 15, 2013

DAVID C. KING Appellant
v.
LAURA J. CRAIG (fka KING) Appellee

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 02-DR-0958

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

PETER T. CAHOON, Attorney at Law, for Appellee.

LESLIE S. GRASKE, Guardian Ad Litem.

DECISION AND JOURNAL ENTRY

BETH WHITMORE, Judge.

{¶1} Appellant, David King, appeals the order of the Medina County Court of Common Pleas, Domestic Relations Division, that denied his motion to remove the guardian ad litem. This Court affirms.

I

{¶2} Mr. King is divorced from Laura King, now known as Laura Craig, and they are the parents of two children. Since their divorce in 2004, Mr. King and Ms. Craig have constantly litigated issues regarding the care and custody of the children. This Court has previously explained the extent of the post-decree litigation, and we need not do so again except to note that it has been extensive, costly, time consuming, and hostile. See generally King v. King, 9th Dist. Medina Nos. 11CA0006-M, 11CA0023-M, 11CA0069-M, 2012-Ohio-5219, ¶ 2-13. See also King v. King, 9th Dist. Medina No. 11CA0109-M, 2012-Ohio-5926. Our discussion of the facts of this case is limited to the issue at hand.

(¶3} On April 7, 2010, with the consent of the parties, the trial court appointed attorney Leslie Graske as guardian ad litem in anticipation of determining numerous issues related to parenting time. On June 8-9, 2010, the guardian ad litem participated in a hearing regarding the pending motions. Within two weeks, Mr. King objected to her performance. On July 2, 2010, he filed his first motion to terminate the guardian ad litem's services. The trial court denied that motion. On August 27, 2010, the trial court entered an interim order regarding parenting time that continued the appointment. The relationship between Mr. King and the guardian ad litem became increasingly contentious, and while Mr. King filed several subsequent motions to remove her, he subsequently withdrew them. On August 16, 2011, Mr. King moved the trial court for "removal or replacement" of the guardian ad litem, alleging that she had "fail[ed] to faithfully discharge her duty." The trial court conducted a hearing on the motion on October 13, 2011, and in an order journalized on the same date, the trial court commented on the continuing nature of the guardian ad litem's role in this case despite resolution of pending motions. On May 31, 2012, the trial court denied Mr. King's motion. Mr. King filed this appeal.

II

Assignment of Error

THE DOMESTIC RELATIONS COURT ERRED AND ABUSED ITS DISCRETION BY DENYING PLAINTIFF-FATHER'S MOTION TO TERMINATE THE GUARDIAN AD LITEM.

{¶4} Mr. King's assignment of error argues that because the evidence presented in support of his motion demonstrated that the guardian ad litem did not faithfully discharge her duties, the trial court abused its discretion by denying his motion to discharge her. We do not agree.

{¶5} Before addressing the merits of Mr. King's assignment of error, this Court must consider whether the denial of his motion is a final appealable order. Under R.C. 2505.02(B)(2), which is applicable in this case, an order is final and appealable if it "affects a substantial right * * * in a special proceeding." Divorce is a "special proceeding" within the meaning of R.C. 2505.02(A)(2). State ex rel Papp v. James, 69 Ohio St.3d 373, 379 (1994). A guardian ad litem who is appointed in a domestic relations case must discharge her duties with "independence, objectivity, and fairness" and without conflicts of interest. See Sup.R. 48 (D). Guardians ad litem are subject to removal for failure to perform their duties in this manner. See e.g. R.C. 2307.14 ("The court shall require a guardian ad litem * * * faithfully to discharge the guardian ad litem's * * * duty, and upon failure to do so, may remove the guardian ad litem * * * and appoint another.") When a party to a domestic case has alleged violations of a guardian ad litem's duties under Sup.R. 48(D), it may implicate a substantial right. Nonetheless, an order must "affect" a substantial right in order to be immediately appealable. See R.C. 2505.02(B)(2). In other words, an order is ...


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