In re Guardianship of Bernie
2019 Ohio 334
Ohio Ct. App.2019Background
- William A. Bernie (Bill) contracted encephalitis, suffered severe cognitive and adaptive-function impairments, and required 24-hour care; he previously appointed family members as powers of attorney.
- Competing guardianship applications were filed by Howard Bernie (brother) and Marlene Penny Manes (Penny), Bill’s long-term romantic partner; the probate court appointed Howard as guardian.
- Howard, with family agreement, moved Bill from a nursing facility to a senior apartment in Butler County rather than to Bill’s Florida home, prompting conflict with Penny.
- Howard suspended Penny’s visitation with Bill; Penny moved in probate court to remove Howard or require him to show cause for denying visitation, alleging violations of court Superintendence Rules and that Bill’s rights and relationships were being improperly affected.
- The probate court held an evidentiary hearing, found Howard acted in Bill’s best interests and in good faith, and denied Penny’s motion; Penny appealed the denial.
Issues
| Issue | Plaintiff's Argument (Penny) | Defendant's Argument (Howard) | Held |
|---|---|---|---|
| Whether the probate court failed to issue sufficient findings of fact and conclusions of law under Civ.R. 52 | Court did not cite facts/evidence or separately state conclusions, depriving Penny of meaningful appellate review | Court’s written decision and referenced evaluator findings provided adequate factual findings and legal conclusions for review | Findings/conclusions were sufficient; assignment overruled |
| Whether the order denying Penny’s motion is a final appealable order | Order is not final because probate court retained continuing jurisdiction and scheduled further hearings | The denial of Penny’s specific motion is a final appealable order; prior motions to remand were denied | Order is final and appeal may proceed |
| Whether violations of the Ohio Rules of Superintendence (Sup.R.) require reversal or removal of guardian | Howard violated Sup.R. duties (e.g., Sup.R. 66.09(E)) and should be removed | Sup.R. are administrative housekeeping rules without force of law; no reversible error and no proven violations in record | Sup.R. violations are not grounds for appellate reversal; no violation shown |
| Whether the probate court focused improperly on legal rights of interested parties instead of specific guardian actions affecting the ward | Court allegedly looked at whether Penny had legal rights rather than examining Howard’s conduct regarding Bill’s rights | Court considered evidence (evaluator, testimony) and concluded Howard acted in Bill’s best interests and suspended visits for valid reasons | Court properly applied law to facts; no reversible error shown |
Key Cases Cited
- Werden v. Crawford, 70 Ohio St.2d 122 (Ohio 1982) (Civ.R. 52 findings aid appellate review and must provide an adequate basis for challenge)
- State v. Gettys, 49 Ohio App.2d 241 (Ohio Ct. App. 1976) (rules of superintendence are administrative housekeeping rules and do not create individual rights)