In re Guardianship of Swartz
Joan K. Clellan, pro se.
James L. Thieman, for appellee, Joyce Wildermuth.
ROGERS, Presiding Judge.
{¶ 1} Appellant Dorothy Swartz appeals the final order of the Court of Common Pleas of Auglaize County, Probate Division, finding her incompetent and appointing appellee, Joyce Wildermuth, as guardian of her person and estate. Swartz takes issue with the denial of her motion for summary judgment for lack of personal jurisdiction. Finding that the probate court should have dismissed the application for guardianship for lack of proper service, we reverse the judgment of the probate court.
{¶ 2} Appellant Joan Clellan, an attorney licensed in the state of Ohio, also filed an appeal of the foregoing judgment of the Court of Common Pleas of Auglaize County, Probate Division, arguing that the probate court abused its discretion by not dismissing the case for lack of proper service upon and lack of personal jurisdiction over Dorothy, that the probate court‘s finding of incompetence was against the manifest weight of the evidence, and that the probate court abused its discretion in awarding guardianship to an unsuitable and unqualified person. Finding that Joan does not have standing to file an appeal in this proceeding, we dismiss her appeal.
{¶ 3} On August 27, 2009, Joyce, daughter of Dorothy, filed an application for appointment of guardian of Dorothy Swartz, alleged incompetent, in Auglaize County, alleging that Dorothy resided or had legal settlement in Auglaize County and listing Dorothy‘s address as 13399 Santa Fe Line Rd., Wapakoneta, Ohio 45895 (“Wapakoneta address“). With the application, Joyce filed an affidavit in lieu of an expert evaluation and an exhibit explaining that she had previously filed a guardianship action in Franklin County, but that that action was dismissed for failure to obtain service on Dorothy.
{¶ 4} A hearing was scheduled for December 4, 2009, and notice was mailed to Joan (Dorothy‘s daughter, who held Dorothy‘s power of attorney at that time and who was a licensed attorney), Joyce, Dorothy, and attorney James Thieman. On November 24, 2009, Joan was served with a subpoena to appear at the hearing. Neither Joan nor Dorothy appeared at the hearing. Joyce was appointed temporary guardian for Dorothy Swartz, and a second hearing was scheduled for January 8, 2010. The judgment entry was sent to Joan, Dorothy, and Joyce by regular mail. Joan‘s was returned to the court marked “RETURN TO SEND-ER
{¶ 5} The probate court held a second hearing on January 8, 2010. The judgment entry reflects that Joyce and Joan were present, but not Dorothy. In its journal entry filed January 11, 2010, the probate court stated:
[T]he Court has become concerned about the whereabouts, health, and safety of Dorothy Mae Swartz. * * * The last persons to have any custody or control over Mrs. Swartz was [sic] her daughter, Joan Clellan and her husband. Mrs. Clellan has testified that she did not know where her mother now is and that the last time she saw her she left with a female, distant relative, of Ms. Clellans [sic] father and a Mexican male. She claims that she does not know where her mother is or what has become of her.
The probate court then ordered that all powers of attorney be temporarily voided until further order of the court.
{¶ 6} On February 24, 2010, Joyce filed a motion for emergency guardianship of Dorothy. In her memorandum in support, Joyce stated that a joint investigation on behalf of the Auglaize County Sheriff‘s Department, the Franklin County Sheriff‘s Department, and the Charlotte County, Florida Sheriff‘s Department revealed that Dorothy had been residing in Port Charlotte, Florida, since March 17, 2009. The motion also stated that Dorothy had lived in Auglaize County her entire life, was taken to Franklin County by Joan, and then released by Joan to unknown people to be taken to Florida. The probate court granted Joyce‘s motion, appointing her as emergency guardian for 72 hours, which the court later extended. The probate court scheduled a hearing on the application for guardianship for March 30, 2010.
{¶ 7} Notice of the March 30, 2010 hearing was sent by certified mail and by regular mail to Dorothy at her address in Port Charlotte, Florida on March 1, 2010. The certified mailing was returned March 27, 2010. The regular mailing was returned March 26, 2010, marked “UNDELIVERABLE AS ADDRESSED UNABLE TO FORWARD.” On March 25, 2010, attorney John Compton filed a notice of limited appearance along with an affidavit by Dorothy, challenging the probate court‘s jurisdiction. Specifically, Dorothy asserts that she had not been a resident of the state of Ohio for any time pertinent to the guardianship matter; that she has been a resident of the state of Florida since March 17, 2009, and intends that Florida be her state of residence; that service has never been perfected on her as required by
{¶ 8} On May 28, 2010, Dorothy filed a motion for summary judgment pursuant to
The [a]ffidavits that have been presented essentially present no new information to the court that would convince the court that Mrs. Swartz is anything other than a resident of Auglaize County and that she has been served or constructively served. Mrs. Swartz still is part owner in real estate in Auglaize County, may have been involuntarily removed from Auglaize County and has been constructively served at a minimum, by virtue of service upon her purported power of attorney.
(Emphasis added.)
{¶ 9} The probate court scheduled the matter for a final hearing on the guardianship application for December 7, 2010. The docket reflects that copies of this judgment entry setting the matter for a final hearing were sent by regular mail to Dorothy and her attorney. Dorothy‘s attorney was present in a limited capacity to challenge jurisdiction at this hearing. After the hearing, the probate court found that Dorothy is incompetent by reason of dementia, that she is incapable of taking proper care of herself and her property, and that a guardianship is necessary. The probate court also found that “all persons who were entitled to notice of the hearing thereon were given or waived notice thereof.” Ultimately, the probate court appointed Joyce guardian of Dorothy‘s person and estate.
{¶ 10} On December 27, 2010, Dorothy filed a notice of appeal, asserting the following assignments of error for our review.
Assignment of Error No. I
The court erred in finding that it had jurisdiction over the appellant on the following basis, “She has been served or constructively served” in this action.
Assignment of Error No. II
The court erred in finding that the appellant was a resident of Auglaize County and or had legal settlement therein at all times pertinent to this action.
Assignment of Error No. III
The court‘s judgment is not sustained by the evidence and is against the manifest weight of the evidence.
{¶ 11} Joan asserts the following assignments of error for our review.
The probate court abused its discretion by not dismissing this case when it acknowledged that appellant Swartz had not been served with notice of appellee‘s application for guardianship; in finding that notice had been waived by appellant; in finding that appellant is a resident of Auglaize County or has legal settlement therein and has been constructively served through a voided power of attorney.
Assignment of Error No. II
The probate court erred by finding appellant Swartz incompetent against the manifest weight of the evidence.
Assignment of Error No. III
The probate court abused its discretion by making guardian an unsuitable and unqualified person.
{¶ 12} We will address Dorothy‘s assignments of error first.
Dorothy‘s Assignment of Error No. I
{¶ 13} In her first assignment of error, Dorothy asserts that the probate court erred as a matter of law in finding that it had perfected service upon her as required by law. She argues that
{¶ 14} Joyce contends that the probate court did not err in denying the motion for summary judgment, as Dorothy did not present any evidence in support of her motion that was properly before the court. Further, Joyce argues that the December 7, 2010 judgment entry reflects the probate court‘s finding that Dorothy was served or had waived service, and in the absence of the hearing transcript of December 7, 2010, this court must presume that the probate court‘s findings are valid. We disagree.
{¶ 15} The issue of whether service was properly perfected pursuant to
{¶ 16}
In the appointment of the guardian of an incompetent, notice shall be served:
(a)(i) Upon the person for whom appointment is sought by personal service, by a probate court investigator, or in the manner provided in (A)(2)(a)(ii) of this section. * * * (ii) If the person for whom appointment is sought is a resident of, or has a legal settlement in, the county in which the court has jurisdiction, but is absent from that county, the probate court may designate, by order, a temporary probate court investigator * * * to make the personal service of the notice described in division (A)(2)(a)(i) of this section upon the person for whom appointment is sought.
* * *
(C) Notice may not be waived by the person for whom the appointment is sought.
(Emphasis added.)
{¶ 17} Personal service is defined in
When process issued from * * * a court of common pleas or a county court is to be served personally, the clerk of the court shall deliver the process and sufficient copies of the process and complaint, or other document to be served, to the sheriff of the county in which the party to be served resides or may be found * * *. The person serving process shall locate the person to be served and shall tender a copy of the process and accompanying documents to the person to be served.
{¶ 18} Further,
{¶ 19} In interpreting
{¶ 20} To perfect personal service, either the sheriff or another person appointed by the court must locate the person to be served and tender a copy of the process and accompanying documents to that person.
{¶ 21} In August 2009, Joyce filed the application for appointment of guardianship over Dorothy as an alleged incompetent, listing Dorothy‘s address as the
{¶ 22} Because of the probate court‘s failure to perfect service on Dorothy in accordance with
{¶ 23} Further, the probate court erred by finding that Dorothy had been “constructively served, at a minimum, by virtue of service upon her purported power of attorney.” The probate court found that because Joan, the daughter with whom Dorothy was living for some time in Franklin County, was served by certified mail, Dorothy was constructively served.2 In Corless, the Twelfth District Court of Appeals held that the probate court was without jurisdiction to appoint a guardian or issue a finding of incompetency, as the alleged incompetent‘s custodian was personally served, not the alleged incompetent. Similarly, in the instant case, the probate court erred in finding that Dorothy was constructively served by virtue of the service on her attorney-in-fact.
{¶ 24} Moreover, the probate court‘s judgment entry on December 7, 2010, was contrary to law in that the probate court held that “[t]he court further finds that all persons who were entitled to notice of the hearing thereon were given or waived notice thereof * * *.” A person over whom guardianship is sought cannot waive service.
{¶ 25} Because service over Dorothy was never perfected in accordance with
Dorothy‘s Assignments of Error Nos. II and III
{¶ 27} Due to the nature of Dorothy‘s second and third assignments of error, we elect to address them together. Dorothy argues that the court‘s judgment was erroneous, as Joyce provided insufficient evidence to establish that Dorothy lived in Auglaize County. Specifically, Dorothy asserts that the only basis for the probate court‘s finding of residency was that she is part owner of real estate in Auglaize County and may have been involuntarily removed from that location. Further, Dorothy argues that the evidence overwhelmingly supports the fact that she is a resident of the state of Florida.
{¶ 28} Joyce contends that the probate court did not err in its finding, as Dorothy did not properly provide the probate court with evidence. Specifically, Joyce argues that the documents Dorothy provided in support of her motion for summary judgment failed to comply with
{¶ 29} In guardianship proceedings, the burden is on the applicant to establish residency or legal settlement of the proposed ward. Cf. LeSueur v. Robinson (1988), 53 Ohio App.3d 9, 12-13, 557 N.E.2d 796 (for the proposition that the party asserting a change in domicile bears the burden of proving that the domicile has changed when the ward/testator was originally domiciled in the county in which the proceedings were initially filed but subsequently moved);
{¶ 30} In this case, the record reflects no evidence to establish that Dorothy‘s residence or legal settlement was in Auglaize County, as Dorothy was neither present in nor dwelled in Auglaize County at any point in time during the guardianship proceeding. The only documentation provided by Joyce to establish Dorothy‘s residence was her application for appointment of a guardian, in which she asserts that Dorothy lived at the Wapakoneta address. Had Dorothy been properly served at that address, residency would not have been an issue. However, in light of the evidence that establishes that service was not perfected on Dorothy, that Dorothy was not located in Auglaize County, and that neither
{¶ 31} Accordingly, the trial court erred in finding Dorothy incompetent and appointing a guardian without first finding that she resided in or had legal settlement in Auglaize County. Therefore, Dorothy‘s second and third assignments of error are well taken.
Joan‘s Assignments of Error
{¶ 32} Notwithstanding the resolution of Dorothy‘s assignments of error, this court is compelled to address Joan‘s standing to file an appeal.
{¶ 33} Attorney John Compton filed a notice of appearance for Dorothy on March 25, 2010. Joan appears in this proceeding as next of kin of Dorothy Swartz and as attorney for Stella Townsend (a witness and Joan‘s mother-in-law). Joan claims also to represent her mother, Dorothy Swartz. However, Joan did not file a notice of appearance as counsel for her mother or even as co-counsel with John Compton. Joan, however, filed her merit brief and argued at oral arguments on behalf of herself as next of kin as well as on behalf of her mother. Notwithstanding the ethical implications of her appearance and purported representation, we hold that Joan does not have standing to file an appeal according to In re Guardianship of Santrucek, and we dismiss her notice of appeal.
{¶ 34} In Santrucek, the Ohio Supreme Court held that in a guardianship proceeding, in order to have standing to appeal the decision of a probate court, the person seeking to appeal must have been a party to those proceedings. 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, ¶ 14. The Supreme Court stated that mere relation to the party for whom guardianship is sought is insufficient to confer party status. Id. Because of the nonadversarial nature of guardianship proceedings, one seeking to appeal must either (1) have an interest adverse to the ward‘s or (2) have otherwise been aggrieved in some manner by the order. Id. at ¶ 5. In order to establish party status in guardianship proceedings, one may, inter alia, file an application for appointment of a guardian or file a motion to intervene. Id. at ¶ 10.
{¶ 36} Having found that Joan is without standing to file an appeal, we dismiss her appeal. Having found error prejudicial to appellant Dorothy Swartz herein, as the application for guardianship should have been dismissed, we reverse and remand this case to the probate court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
PRESTON, J., concurs.
WILLAMOWSKI, J., concurs in judgment only.