“But you just keep telling me why it’s (the trial court decision’s) wrong—tell me why it’s a final order?”
Justice DeWine, to Carol Thomasson’s counsel
“Does the appointment of the GAL preclude your representation of your client?”
Justice O’Donnell, to Carol Thomasson’s counsel
On November 21, 2017, the Supreme Court of Ohio heard 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. Also at issue is whether there is a final appealable order in this case. Judge Mark L. Pietrykowski, of the Sixth District Court of Appeals, sat for Justice O’Neill on this case.
Two days before the trial in the divorce case between Charles and Carol Thomasson was set to begin, the Domestic Relations judge in Cuyahoga County sua sponte, and, according to the court’s entry, pursuant to Civ. R. 75(B)(2), ordered the appointment of a guardian ad litem (“GAL”) for Carol Thomasson (“Thomasson”). 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. The trial court agreed to grant a stay of the order appointing the GAL pending the appeal.
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.
Charles 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 was not permitted to argue.
Read the oral argument preview of the case here.
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(B)(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.”)
Russell v. Mercy Hosp. 15 Ohio St.3d 37, 39, (1984) (“in the civil context, the grant of a motion to disqualify counsel * * * constitutes a final appealable order under R.C. 2505.02”).
Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 616 N.E.2d 181 (1993) (“To prevail in contending that an order affects a substantial right, ‘appellants must demonstrate that in the absence of immediate review of the order they will be denied effective relief in the future.’”)
Wilhelm-Kissinger v. Kissinger, 2011-Ohio-2317 (The denial of a motion to disqualify counsel in a divorce proceeding is not a final, appealable order.
At Oral Argument
Joseph G. Stafford, Stafford Law Co. L.P.A., Cleveland, for Appellant Carol Thomasson
Appointing a Guardian Ad Litem in this case without notice or an opportunity to be heard was wrong, and is a final appealable order. Thomasson was deprived of her most fundamental right—to be heard, to put on the testimony that she desires, and to call the witnesses that she believes are important. If a GAL is appointed, it would be up to that individual to make those determinations. A GAL could also fire the lawyer Thomasson chose to represent her, thus affecting her right to be represented by the counsel of her choice. A GAL could settle the divorce case without Thomasson’s approval.
To do this correctly, there must be a competency hearing, at which the person or entity challenging Thomasson’s competency would have the burden of proving that she was incompetent and incapable of understanding the nature of her divorce proceedings. Thomasson would have the right to call witnesses, present a defense, and then if she would lose that hearing, the court would set up the parameters for the appointment of a guardian. None of this happened. While Thomasson was under a conservatorship, that was strictly to help her with her financial affairs, and she did not object to that.
The divorce court judge erred fundamentally by citing Civ.R. 75(B)(2) in her order. That rule only applies to the appointment of a GAL for children. So that is just plain wrong. Any guardian for an adult must be appointed pursuant to Civ. R. 17(B). That requires notice, the opportunity to be heard, and an actual finding of incompetency, none of which occurred in this case.
If this is not a final appealable order, Thomasson’s voice would be stifled, and there would be nothing in the record on appeal to show what her choices would have been.
What Was On Their Minds
Final Appealable Order
A substantial part of the oral argument was a back and forth between counsel and Justice DeWine about whether there was a final appealable order in this case. At one point, DeWine commented that “one of us is really missing something here.”
Why is this a final order, asked Justice DeWine? Must the Court overrule Bell v. Mt. Sinai, our decision about what a substantial right means? That case says that a substantial right is affected only if the party seeking review will be denied effective relief in the future, meaning that there can’t be an appeal later on that corrects the issues. Aren’t there orders all the time in divorce cases that do things like what happened in this case that cannot be appealed until the end? He noted that the Court has already held, in Wilhelm-Kissinger v. Kissinger, that the denial of a motion to disqualify counsel in a divorce case was not a final order because it could be remedied on appeal, asking, why is this any different? Why isn’t this something than can be vindicated on appeal? He asked Thomasson’s counsel why he, the lawyer, couldn’t argue later on appeal just what he was arguing before the Court now—that a GAL should not have been appointed, and if he prevailed, his client would get a new trial without a GAL.
What is the substantive right affected here, asked Justice Fischer?
Chief Justice O’Connor later commented that the fact that Thomasson didn’t have a hearing, and the fact that 75(B) doesn’t apply to adults, was “fodder for an appeal,” but if the trial court got it wrong, and there is a final appealable order, then the appellate court can correct it.
Is the incompetency issue before us, or is only the finality issue before us, asked Justice O’Donnell? (answer: both)
How Thomasson Would Be Affected by Appointment of a GAL
Would Thomasson be precluded from calling witnesses on her behalf, asked Chief Justice O’Connor? Where does counsel see that the role of the GAL is to preclude him (the lawyer) from presenting witnesses at trial?
Can a GAL settle the case without the client’s permission, asked Justice Fischer? By what authority? Under Civil Rule 75(B)?
Guardian v. Guardian Ad Litem
Chief Justice O’Connor noted that there’s a difference between a guardian and a GAL, commenting that a domestic relations court does not have the ability to appoint a guardian, who stands in the shoes of and instead of the individual. Later, she commented that the two jobs are different, and that the role of a GAL is not to do the lawyer’s job, nor to muzzle the client. She also commented twice that she did not know why it was a GAL that was used.
What the Trial Court Did and Why
In appointing the GAL, did the trial court address the issue of who would pay for the GAL, asked Justice O’Donnell? Who was to make the deposit with the clerk? Did anyone move for the appointment of a guardian? What was the precipitating determination that would have led the court to have done something like this? (answer: nothing.) Has it ever been determined in either juvenile or domestic court, where guardians have been appointed pursuant to the proper rule, that that is a final appealable order?
Has this happened anywhere before, asked Chief Justice O’Connor?
Was there an objection to this on the record, asked Justice French? Doesn’t the record indicate that Thomasson was under a conservatorship?
Was this appeal opposed by the Husband in this case, asked Justice O’Donnell? (answer: he did not file a brief.)
If the court were to agree with Thomasson’s position, what would the proceeding look like, asked Justice French? What evidentiary standard would be used?
How it Looks From the Bleachers
To Professor Emerita Bettman
If this case makes it to the merits, it’s a no brainer. Thomasson will win, hands down. Chief Justice O’Connor telegraphed as much when she said she didn’t know why the trial judge used Civil Rule 75(B), which is usually for children, and, a bit later, more explicitly, when she said, “and the argument you’re making about the lack of notice, and lack of a hearing and due process –I’m not going to presume to pre-rule on it, but those are pretty solid arguments.” No question that that the trial court just can’t do what it did.
But, it looks like this one may get hung up on not being a final appealable order, and I think that would be unfair. Justice DeWine emphatically sees the case that way, and several of the other justices clearly see this as a problem. There’s no question that this was a special proceeding. The hang up is with the “affecting a substantial right.”
Most interlocutory orders are not final and appealable, but there is something about this one that I think should be. I think Mr. Stafford missed an opportunity when Justice DeWine discussed the Court’s decision in Wilhelm-Kissinger. While the Court held in that case that the denial of a motion to disqualify counsel is not a final appealable order, the Court has also previously held that the granting of a motion to disqualify counsel is immediately appealable, because it “typically imposes a permanent effect because it is unlikely to be reconsidered as a trial progresses” Isn’t the appointment of a GAL without notice or hearing more akin to that? It seems particularly unfair for a person to have her decision-making taken away from her, without notice, an opportunity to be heard, or a finding of incompetency, and have to wait to go through an entire trial first before getting it corrected. Isn’t self-determination a substantial right? I hope the Court will really drill down on this.
One more thing. Many people think that getting a chance to argue with no one on the other side is easy, or a walk-away. It isn’t. Watching this one is a good example of why. The attention of all seven justices focuses unrelentingly on one person.
To Student Contributor Mark Tassone
Admittedly, I expected the bench to allow Thomasson’s counsel to use the podium as a bit of a soap box. However, counsel found significant resistance from Justice DeWine on the question of whether a final appealable order existed in this case. The Chief Justice then used her questions as more of an opportunity to opine on the difference between a “guardian” and a “guardian ad litem”. Justice French did open a door for counsel to discuss his stance and concerns on the case. In my view, counsel’s strongest arguments fell on the fact that the guardian ad litem could settle the proceeding without Thomasson’s consent. Nevertheless, I am doubtful, after viewing oral argument, that the Court will address Thomasson’s true issue. Instead, I think this Court will use its decision to discuss or, perhaps, clarify what a final appealable order is and how, in this case, a final appealable order was lacking.