Oral Argument Preview: Can a Court Sua Sponte Appoint a Guardian Ad Litem for an Adult in a Divorce Case Without a Hearing? Charles W. Thomasson v. Carol J. Thomasson.

Read an analysis of the oral argument here.

On November 21, 2017, the Supreme Court of Ohio will hear oral argument in the case of Charles W. Thomasson v. Carol J. Thomasson, 2016-1629. At issue in this case is whether a trial court can sua sponte appoint a guardian ad litem for an adult in a divorce case without a hearing to determine the adult’s competency.  Judge Mark L. Pietrykowski, of the Sixth District Court of Appeals, has been assigned to sit for Justice O’Neill on this case.

Case Background

Charles W. Thomasson filed for divorce in the Domestic Relations Court in Cuyahoga County on January 16, 2015. Carol J. Thomasson (“Thomasson”) filed her Answer and Counterclaim on March 4, 2015.

Trial was scheduled to begin on June 8, 2016. However, on June 6, 2016, the trial court, on its own motion and pursuant to Civ. R. 75(B)(2), by entry ordered the appointment of attorney Jacob A.H. Kronenberg as guardian ad litem (“GAL”) to act on Thomasson’s behalf. This order was to remain in effect until either the court discharged the GAL or the court granted a final order in the case.

The trial court did not hold a hearing or make any finding of incompetency before appointing the GAL.  Nor did the trial court offer any reason for its decision to appoint the GAL. In response to the trial court’s decision, Thomasson appealed to the Eighth District Court of Appeals on June 8, 2016.  On July 8, 2016, the trial court agreed to grant a stay of the order appointing the GAL pending the appeal.

On August 4, 2016, Kronenberg, the appointed GAL, filed a motion requesting joinder as a party. Both Thomasson and Mr. Thomasson opposed the GAL’s joinder. Ultimately, the GAL’s motion was dismissed as moot.

On September 22, 2016, the Eighth District Court of Appeals dismissed Thomasson’s appeal due to a lack of a final appealable order, and vacated the stay of the order appointing the GAL.  Thomasson appealed to the Supreme Court.

Mr. Thomasson did not oppose his wife’s memorandum in support of jurisdiction, and filed no brief in response to hers. Since Mr. Thomasson didn’t file a brief, under Supreme Court rules, he will not be allowed to argue.  The GAL sought leave to intervene on behalf of Thomasson, but his motion was denied by the Court.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices Kennedy, French, O’Neill, and Fischer

No: Justices O’Donnell and DeWine

Key Precedent

Fourteenth Amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)

R.C. 2307.15 (“When the insanity of a party is not manifest to the court, and the fact of insanity is disputed by a party or an attorney in the action, the court may try the question, or impanel a jury to try it.”)

R.C. 2505.02(2) (A final order is one that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment.)

Civ. R. 17(B) Minors or incompetent persons.

(“Whenever a minor or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the minor or incompetent person. If a minor or incompetent person does not have a duly appointed representative the minor may sue by a next friend or defend by a guardian ad litem. When 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.”)

Civ. R. 75(B)(2) (“When it is essential to protect the interests of a child, the court may join the child of the parties as a party defendant and appoint a guardian ad litem and legal counsel, if necessary, for the child and tax the costs.”)

City of Columbus v. Tripplett, 10th Dist. Franklin No. 00AP-339, 2000 (Evidence of treatment for anxiety and depression is not adequate for a trial court to reasonably question the competence of party.)

J.H. v. Ada S. McKinely Community Service, Inc., 369 Ill. App.3d 803 (2006) (“‘Nevertheless, guardians ad litem, though appointed to protect and assist a party, do substitute their judgment and decisions for the decisionmaking that the party otherwise would exercise in a proceeding and curtail the party’s autonomy and freedom in that respect.’” (Citation omitted))

Thomasson’s Argument

Under Ohio law, an adult is presumed to be competent. Ohio law requires that an adult party must be found incompetent before a GAL can be appointed. In order to appoint a GAL for an adult in a divorce proceeding, a court must provide notice, and conduct a hearing.

Thomasson was represented by counsel, so she did not need a GAL as an unrepresented party.  While appointment of a GAL for an adult in a divorce has been found by some courts to be an acceptable practice, a hearing is required to determine the question of mental competence. While incompetency has various meanings in various contexts, the court has never defined “incompetency” in the context of Civ. R. 17 (B). Guidance is needed on this issue.

When a party’s competency is in question, R.C. 2307.15 requires a court either to try the issue or impanel a jury to do so. That is the minimum due process required.  Here, at no point was Thomasson’s sanity questioned by any court, either party, or counsel. Further, the trial court failed to give Thomasson notice or conduct a hearing prior to appointing the GAL. Without notice, Thomasson was prevented from refuting the trial court’s decision. Further, the appointment of a GAL hinders Thomasson’s right to represent her own interests in her case, thus violating her right to due process.

Lacking any Ohio precedent, Thomasson asks the Court to consider the decisions of other states on this question.  Courts in Washington, Illinois, and Vermont have found that there is a due process concern when a GAL has the power to supersede the decisions of the party he or she represents.

Thomasson also disagrees with the appellate court’s decision that the appointment of a GAL was not a final appealable order, arguing that such a decision is contrary to R.C. 2505.02(B). Thomasson distinguished her case from those cited by the appellate court because those cases concerned the appointment of a GAL for a minor child rather than an adult party to the litigation.

The appointment of a GAL is appealable because it is “an order that effects a substantial right made in a special proceeding . . .” The constitutional right to due process is a substantial right. And a divorce is a special proceeding. Therefore, the appointment of a GAL falls within the meaning of R.C. 2505.05(B)(2).

Finally, Civ. R. 75(B)(2) cannot permit a trial court to appoint a GAL for an adult because the rule specifically applies to children.

In this case, the trial court far exceeded its authority, and violated Thomasson’s right to due process.

Thomasson’s Proposed Proposition of Law No. 1

A trial court must make a finding of incompetency and conduct an evidentiary hearing concerning a party’s competency prior to appointing a guardian ad litem to act on behalf of an adult party.

Thomasson’s Proposed Proposition of Law No. 2

The trial court’s appointment of a guardian ad litem, sua sponte, to act on behalf of an adult party, without notice or hearing constitutes a violation of that individual’s substantive right to procedural due process.

Thomasson’s Proposed Proposition of Law No. 3

The appointment of a guardian ad litem to act on behalf of an adult party in a divorce action is a final appealable order within the meaning of Ohio Revised Code §2505.02.

Thomasson’s Proposed Proposition of Law No. 4

A trial court may not appoint a guardian ad litem to act on behalf of an adult party in divorce proceedings pursuant to Civ. R. 75(B)(2).

Student Contributor: Mark Tassone

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