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Thomasson v. Thomasson

Supreme Court of Ohio

June 27, 2018

Thomasson, Appellant,
v.
Thomasson, Appellee.

          Submitted November 21, 2017

          Appeal 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.

          Fischer, J.

         {¶ 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.

         I. BACKGROUND

         {¶ 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" Carol's brief.

         {¶ 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.[1] We accepted jurisdiction over the appeal. 149 Ohio St.3d 1417, 2017-Ohio-4038, 75 N.E.3d 236.

         II. ANALYSIS

         {¶ 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 first.

         A. 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 appeal.

         {¶ 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.

         B. 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 (1993).

         {¶ 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.

         1. Special Proceeding

         {¶ 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.

         2. Substantial Right

         {¶ 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 protect."

         {¶ 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 her competency.

         {¶ 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).

         3. 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, ΒΆ 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 ...


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