Thomasson v. Thomasson (Slip Opinion)
106 N.E.3d 1239
Ohio2018Background
- Carol J. Thomasson and Charles Thomasson divorced; two days before trial the domestic-relations court sua sponte appointed a guardian ad litem (GAL) to represent Carol and ordered each party to deposit fees.
- The appointment cited Civ.R. 75(B)(2), a rule that authorizes GALs for children, not competent adults.
- The trial court made no contemporaneous adjudication of incompetency, gave no prior notice to Carol, and held no hearing on her competency.
- Carol appealed; the court of appeals dismissed for lack of a final, appealable order.
- The Ohio Supreme Court accepted jurisdiction to decide (1) whether the GAL appointment is a final, appealable order under R.C. 2505.02(B)(2), and (2) whether the appointment without notice/hearing violated due process.
- The Court held the order was immediately appealable, found the lack of process violated due process, vacated the GAL appointment, reversed the court of appeals, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Thomasson) | Defendant's Argument (Charles) | Held |
|---|---|---|---|
| Whether the trial court's appointment of a GAL for an adult is a final, appealable order under R.C. 2505.02(B)(2) | The appointment affects her substantial rights in a special proceeding and cannot be remedied after final judgment, so it is immediately appealable | Joined in Carol's brief but lower court said such GAL appointments are not final, appealable orders when made under Civ.R. 75(B)(2) | The order is a final, appealable order where a GAL is appointed for an adult without an adjudication of incompetency following notice and an opportunity to be heard |
| Whether Civ.R.75(B)(2) authorized appointment of a GAL for a competent adult | Civ.R.75(B)(2) does not apply to adults; appointment was unauthorized | Trial court relied on Civ.R.75(B)(2) | Civ.R.75(B)(2) applies to children only; the appointment effectively treated Carol as incompetent and thus should have been under Civ.R.17(B) with an incompetency adjudication |
| Whether appointment without adjudication, notice, or hearing violated procedural due process | Court deprived Carol of autonomy and procedural protections; appointment without notice/hearing is improper | (No substantive defense brief beyond joining) | Appointment without adjudication of incompetency and without prior notice and hearing violated Carol's due-process rights; GAL appointment vacated |
| Remedy and scope of relief | Immediate appeal and vacation of appointment; remand for proceedings consistent with due process | (Not argued) | Vacated the GAL appointment, reversed court of appeals, remanded to trial court for further proceedings (including providing notice/hearing if court proceeds) |
Key Cases Cited
- Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60 (1993) (order affects a substantial right only if immediate review is needed to avoid denial of effective relief)
- Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90 (2011) (distinguishes orders that permanently deprive a party of chosen counsel and discusses final-order analysis in domestic relations)
- Cleveland Clinic Found. v. Levin, 120 Ohio St.3d 1210 (2008) (protective-order denial immediately appealable where confidentiality loss would be irretrievable)
- In re Joann E., 104 Cal.App.4th 347 (2002) (appointment of GAL for an adult without notice/hearing violates due process)
- J.H. v. Ada S. McKinley Community Servs., Inc., 369 Ill.App.3d 803 (2006) (federal Due Process cited in refusing GAL appointment for adults without adjudication)
- State v. Ladd, 433 A.2d 294 (Vt. 1981) (appointment/removal of GAL for a competent adult implicated due-process rights)