Submitted November 21, 2017
from the Court of Appeals for Cuyahoga County, No. 104579.
Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A.
Cruz, for appellant.
1} Appellant, Carol J. Thomasson
("Carol"), has asked us to reverse a judgment of
the Eighth District Court of Appeals and hold that the trial
court's order appointing a guardian ad litem
("GAL") to act on her behalf in her divorce case is
a final, appealable order under R.C. 2505.02(B)(2). Carol has
also asked us to conclude that the order violates her
due-process rights and that it should be vacated as a result.
2} In the case at bar, the Cuyahoga County Court of
Common Pleas, Domestic Relations Division, issued an order
appointing a GAL to represent Carol without providing her
with prior notice or an opportunity to be heard on the issue.
The order was issued during a special proceeding and affects
a substantial right, and Carol will not be provided adequate
relief if she is not permitted to immediately appeal the
order. Therefore, the order is a final, appealable order
under R.C. 2505.02(B)(2), and we reverse the judgment of the
court of appeals. Further, the lack of proper process
violated Carol's due-process rights, and we therefore
vacate the trial court's order and remand the case to the
trial court for further proceedings.
3} Carol and appellee, Charles W. Thomasson
("Charles"), were married in 1985. On January 15,
2015, Charles filed for divorce in the Cuyahoga County
domestic-relations court. On June 7, 2016, the court issued
an order sua sponte appointing a GAL on behalf of Carol
pursuant to Civ.R. 75(B)(2) and requiring Charles and Carol
to deposit $1, 000 each with the clerk of courts as security
for the payment of the GAL's fee.
4} Carol appealed and argued that Civ.R. 75(B)(2)
does not provide authority to a trial court to appoint a GAL
for an adult and that the appointment of a GAL to act on
behalf of an adult is proper only after a hearing and a
finding that the adult is incompetent. Charles filed a
single-page brief in which he "join[ed] in"
5} The court of appeals sua sponte dismissed the
appeal, concluding that an order appointing a GAL for an
adult is not a final, appealable order under R.C. 2505.02(B).
6} Carol filed a jurisdictional appeal in this court
presenting three propositions of law. We accepted jurisdiction
over the appeal. 149 Ohio St.3d 1417, 2017-Ohio-4038, 75
7} In her third proposition of law, Carol presents
arguments related to the threshold question whether the trial
court's order appointing a GAL to represent her is a
final, appealable order. In her first and second propositions
of law, Carol presents arguments challenging the order on its
merits. Accordingly, we address the third proposition of law
Civ.R. 75(B)(2) and 17(B)
8} The trial court's order cites Civ.R. 75(B)(2)
as authority for appointing a GAL to represent Carol. Courts
of appeals have found that an order issued pursuant to Civ.R.
75(B)(2) is not a final, appealable order. See, e.g.,
Davis v. Lewis, 10th Dist. Franklin Nos. 98AP-661 and
98AP-1284, 1999 WL 77221, *2 (Feb. 18, 1999). But Civ.R.
75(B)(2) does not apply to adults; instead, the rule permits
the trial judge presiding over a divorce proceeding to join a
"child" of the divorcing parties as a party
defendant and permits the trial court to appoint a GAL
"for the child." Therefore, Civ.R. 75(B)(2) does
not apply to this case, and caselaw on the appealability of
orders properly relying on that rule is not relevant to this
9} Neither the lower courts nor the parties have
cited any rule that permits a trial court to appoint a GAL
for a competent adult. However, under Civ.R. 17(B),
"[w]hen a minor or incompetent person is not otherwise
represented in an action the court shall appoint a guardian
ad litem or shall make such other order as it deems proper
for the protection of such minor or incompetent person."
Carol is not a minor child; thus, the only reasonable
interpretation of the trial court's order is that the
court found it necessary to appoint a GAL for Carol because
the court determined that she is an incompetent person who
does not otherwise have an appropriate representative.
Final, Appealable Order
10} Ohio's courts of appeals have jurisdiction
"to review and affirm, modify, or reverse judgments or
final orders." Article IV, Section 3(B)(2), Ohio
Constitution. R.C. 2505.02(B) sets forth several types of
final, appealable orders. The present appeal involves the
category defined in R.C. 2505.02(B)(2), which provides that
an "order that affects a substantial right made in a
special proceeding" is a final, appealable order. This
court has held that an order affects a substantial right for
purposes of R.C. 2505.02(B)(2) only if "in the absence
of immediate review of the order [the appellant] will be
denied effective relief in the future." Bell v. Mt.
Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181
11} Thus, to demonstrate that the trial court's
order appointing a GAL for her is a final, appealable order,
Carol must show (1) that the order was made in a special
proceeding, (2) that the order affects a substantial right,
and (3) that she would not be able to effectively protect her
substantial right without immediate review.
12} R.C. 2505.02(A)(2) defines "special
proceeding" as "an action or proceeding that is
specially created by statute and that prior to 1853 was not
denoted as an action at law or a suit in equity." As we
have previously stated, divorce, a statutory matter that did
not exist at common law, qualifies as a special proceeding.
Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90,
2011-Ohio-2317, 950 N.E.2d 516, ¶ 6. Carol was provided
a GAL for her divorce proceeding; the order appointing the
GAL was, therefore, made during a special proceeding.
13} In 1998, the legislature amended R.C. 2505.02
and provided a definition of "substantial right."
Sub.H.B. No. 394, 147 Ohio Laws, Part II, 3277. R.C.
2505.02(A)(1) defines "substantial right" as
"a right that the United States Constitution, the Ohio
Constitution, a statute, the common law, or a rule of
procedure entitles a person to enforce or protect."
Carol argues that the trial court's order violates her
"right to procedural due process" and that
"due process is a substantial right that the United
States Constitution entitles a person to enforce and/or
14} In support of this argument, Carol asserts that
before appointing the GAL, the trial court did not provide
the parties with notice or the chance to be heard regarding
the appointment. These assertions are supported by the
record. The record does not reflect that the parties were
notified that the court was considering appointing a GAL for
Carol, and the record includes no evidence from which we
could conclude that Carol was provided any opportunity to be
heard prior to the appointment of the GAL.
15} Ohio courts have not previously addressed
whether an order appointing a GAL to represent an adult
without an adjudication that the adult is incompetent-that
is, without a hearing on the matter and prior to any notice
to the adult-violates the adult's right to due process.
Several other state courts have addressed similar situations.
Those courts have concluded that such an appointment is
improper, many specifically holding that the improper
appointment violates due-process protections.
16} In In re Joann E., 104 Cal.App.4th 347,
128 Cal.Rptr.2d 189 (2002), the California Court of Appeal
reviewed a lower court's order appointing a GAL to act on
behalf of a grandmother who was attempting to retain custody
of her minor grandchild. The reviewing court found that the
lower court's order violated the grandmother's right
to due process because the court had failed to provide prior
notice and hold a competency hearing. Id. at 349.
17} In State v. Ladd, 139 Vt. 642, 644, 433
A.2d 294 (1981), the Supreme Court of Vermont held that a
lower court's decision not to remove a GAL for an adult
defendant who was determined to be competent "seriously
impinge[d] upon the defendant's rights to due process
guaranteed by the United States Constitution."
18} In J.H. v. Ada S. McKinley Community Servs.,
Inc., 369 Ill.App.3d 803, 861 N.E.2d 320 (2006), an
Illinois Court of Appeals cited the federal Due Process
Clause when determining that two former foster children
should not have been appointed a GAL after they had become
adults because they had not been adjudicated incompetent.
Id. at 816, citing Ladd at 644.
19} And in Graham v. Graham, 40 Wash.2d 64,
240 P.2d 564 (1952), the Supreme Court of Washington issued a
writ of prohibition to prevent a lower court from appointing
a GAL for an adult without providing the adult a hearing and
the opportunity to be heard. The supreme court did not cite
the Due Process Clause, but the court's reasoning clearly
expresses due-process concerns:
The interposition of a guardian ad litem could very well
substitute his judgment, inclinations and intelligence for an
alleged incompetent's; furthermore, the retention of
legal counsel or the employment of a different attorney could
be determined solely by the guardian ad litem, subject, of
course, to some direction and control by the court, and the
latter might be open to some question. In any event the
changes which might result from the appointment of a guardian
ad litem are of such significance as to be permitted only
after a full, fair hearing and an opportunity to be heard is
accorded to an alleged incompetent.
Id. at 68.
20} We agree with the determinations and reasoning
of these several courts. When a GAL is appointed by a court
to represent an adult, that adult loses some autonomy in
directing the litigation. It violates an adult's right to
due process to treat the adult as an incompetent and to
deprive that adult of his or her autonomy without an
adjudication that the adult is incompetent and without prior
notice and an opportunity to be heard on the issue of his or
21} The trial court's order treated Carol as
though she had been adjudicated incompetent and appointed a
GAL to represent her interests, but the order was not
preceded by an adjudication of incompetency, prior notice,
and any opportunity to be heard on the issue. This lack of
process violates Carol's right to due process and,
therefore, implicates a "substantial right" as
defined in R.C. 2505.02(A)(1).
Effective Protection Requires Immediate Review
22} In Bell, 67 Ohio St.3d 60, 616 N.E.2d
181, which preceded the 1998 amendments to R.C. 2505.02 that
provided a statutory definition of "substantial
right," this court decided that an "order which
affects a substantial right has been perceived to be one
which, if not immediately appealable, would foreclose
appropriate relief in the future." Id. at 63,
citing Union Camp Corp., Harchem Div. v. Whitman, 54
Ohio St.2d 159, 162, 375 N.E.2d 417 (1978); State v.
Collins, 24 Ohio St.2d 107, 110, 265 N.E.2d 261 (1970);
Morris v. Invest. Life Ins. Co. of Am., 6 Ohio St.2d
185, 189, 217 N.E.2d 202 (1966); and In re Estate of
Wyckoff 166 Ohio St. 354, 359, 142 N.E.2d 660 (1957). In
Bell, the court held that an order directing a party
to submit materials requested in discovery for in camera
inspection was not a final, appealable order. Bell
at 65. The court noted, however, that if the trial court
ordered, after in camera inspection, that some documents that
were alleged to have been privileged should be disclosed,
that order would be appealable. Id. at 64.
23} Subsequent to the 1998 amendments to R.C.
2505.02, this court has continued to cite Bell for
the proposition that an order affects a substantial right
only if an immediate appeal is necessary to protect the
interests of the appealing party. See, e.g.,
Wilhelm-Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317,
950 N.E.2d 516, at ¶ 7.
24} In Wilhelm-Kissinger, this court
determined that an order denying a motion to disqualify
opposing counsel in a divorce proceeding was not a final,
appealable order under R.C. 2505.02(B)(2). Id. at
¶ 12. The court distinguished an order denying a motion
to disqualify counsel from an order granting such a motion.
The court noted that "an order granting disqualification
immediately and definitely affects the party it deprives of
chosen counsel; the purpose of appealing such an order is to
prevent the removal itself." Id. at ¶ 9.
The court also noted that the granting of a motion to
disqualify counsel has a permanent effect because it is
unlikely to be revisited by the trial court. Id. at
¶ 10. Similarly, in State ex rel. McGinty v. Eighth
Dist. Court of Appeals,142 Ohio St.3d 100,
2015-Ohio-937, 28 N.E.3d 88, ¶ 27, this court held that
an order denying a criminal defendant's motion to
disqualify the prosecuting attorney was not a final,
appealable order. The court noted that allowing ...