In re VanDyke
- Reporters:
- ,
- Before:
- Hall, Grady, Donovan
Rendered on the 16th day of March, 2012.
MARY K.C. SOTER, Atty. Reg. #0007696, 5518 North Main Street, Dayton, Ohio 45415-3455 Attorney for Appellant
CHRISTOPHER F. COWAN, Atty. Reg. #0018232, Cowan & Hilgeman, 12 West Monument Avenue, Suite 100, Dayton, Ohio 45402-1172 Attorney for Appellee
DEPARTMENT OF VETERANS AFFAIRS, 1240 East Ninth Street, Cleveland, Ohio 44199 Appellee, pro se
THE OHIO CASUALTY INSURANCE COMPANY, 5540 Far Hills Avenue, Dayton, Ohio 45402 Appellee, pro se
{¶ 1} Mary K.C. Soter appeals from the trial court‘s entry removing her as guardian of the estate of Fred Van Dyke, who is legally incompetent.
{¶ 2} Soter advances five assignments of error on appeal. First, she contends the trial court erred in removing her as guardian where her actions had benefitted Van Dyke‘s estate. Second, she claims the trial court erred in removing her because doing so ignored Van Dyke‘s wishes. Third, she asserts that the trial court erred in basing its removal decision on facts not in the record. Fourth, she argues that the Montgomery County Probate Court‘s procedure for removing a guardian is defective. Fifth, she maintains that the trial court erred in failing to follow
{¶ 3} The record reflects that the trial court appointed Soter as guardian of Van Dyke‘s person and estate in 2008. Van Dyke was eighty-three years old at the time. Soter had served as his attorney for many years, and he expressed happiness about her appointment. Thereafter, on October 30, 2009, Soter applied for an extension of time to file an accounting. The trial court granted the motion and gave her until December 4, 2009, to file. (Doc. #12). Soter failed to meet that deadline. On January 4, 2010, the trial court noted that the accounting still had not been filed. It ordered her to file the accounting by February 8, 2010, or to appear for a show-cause hearing on that date. (Doc. #13-14). Soter neither filed the accounting nor appeared as ordered. As a result, on February 11, 2010, the trial court imposed a fine and gave Soter thirty days to submit the accounting. (Id. at 15). Nearly eight months later, Soter still had not done so. On October 4, 2010, the trial court noted that fact and ordered her to appear for a show-cause hearing on November 29, 2010. (Doc. #16). Soter submitted an accounting on that date, but the court rejected it. The court found
{¶ 4} Thereafter, on March 23, 2011, the magistrate filed Soter‘s accounting. (Doc. #25). The next day, the magistrate filed a decision recommending Soter‘s removal as guardian of Van Dyke‘s estate. After reciting her history of failing to submit an accounting, the magistrate noted that the accounting submitted on November 29, 2010, had been rejected because “the Account did not balance and all the funds were not accurately accounted for.” With regard to Soter‘s more recent updated accounting, the magistrate stated:
The court has had the opportunity to review the Account in great detail. The Account is closer to being accurate but still does not balance. Additionally, the vouchers and account information [are] insufficient to verify the income and expenditures. The court is left with no option other than to remove Ms. Soter as guardian of the estate of Fred Van Dyke and to appoint a lawyer guardian of the estate to provide the court with an accurate accounting for Mr. Van Dyke‘s assets.
(Doc. #26 at 2).
{¶ 5} Soter filed objections to the magistrate‘s decision. (Doc. #28).
{¶ 6} We begin our analysis with a review of
{¶ 7} In her first two assignments of error, Soter contends the trial court erred in removing her from her fiduciary role as guardian of Van Dyke‘s estate, pursuant to
{¶ 8} In support, Soter asserts that the value of Van Dyke‘s estate increased under her guardianship. She further maintains that she provided many valuable services to him, including serving as his attorney for thirty-five years, representing him in a lawsuit, having his property taxes reduced, and having his VA benefits increased. Although she admits that her most recent accounting did not balance, Soter stresses that Van Dyke‘s
{¶ 9} Upon review, we find the foregoing arguments to be without merit. As an initial matter, we note that many of Soter‘s factual allegations are not supported by the record, which lacks a transcript of the January 24, 2011 hearing before the magistrate. In overruling Soter‘s objections, the trial court pointed out her failure to file a transcript and limited its review to issues of law.
{¶ 10} In any event, regardless of the work Soter may have performed on Van Dyke‘s behalf and his apparent fondness for her, we find no abuse of discretion in the trial court‘s removal of her as guardian of the estate. The trial court‘s reasoning was that the guardian had “consistently failed to fulfill her fiduciary duties to [Van Dyke] and the court by failing to submit a timely and accurate account of the guardianship fund.” (Doc. #29 at 5-6).
{¶ 11} Under
{¶ 12} As set forth above, Soter first sought an extension of time to file her accounting on October 30, 2009. Thereafter, deadlines were repeatedly missed and the guardian
{¶ 13} Soter reasons on appeal that the magistrate necessarily found the updated accounting to be “in order” because he filed it on March 23, 2011. Therefore, she contends her removal was improper. We disagree. When filing the new accounting, the magistrate stressed that it still did not balance and that Soter had provided insufficient information to verify the income and expenditures. The statute permits removal for failure to file a “true and just account,” not any account. The observations of the magistrate demonstrate that he did not believe the accounting was “in order” even though it was filed. As a result, the magistrate recommended Soter‘s removal on March 24, 2011. The trial court then overruled her objections and removed her three months later on June 23, 2011.
{¶ 14} On the record before us, we believe Soter received the requisite notice that she faced removal, and the trial court had discretion to remove her under
contrary conclusion. “The probate court need not find that the guardian‘s action amounted to
{¶ 15} In her third assignment of error, Soter challenges the trial court‘s finding that certain “vouchers and account information” she provided were “insufficient to verify the income and expenditures.” Soter contends she never was told she needed to submit additional verifying information.
{¶ 16} This assignment of error lacks merit for at least two reasons. First, when reviewing Soter‘s updated accounting, the magistrate found that “the vouchers and account information [are] insufficient to verify the income and expenditures.” (Doc. #26 at 2). In her objections, Soter did not challenge this finding. (Doc. #28). Therefore, she cannot now complain about the trial court adopting the same finding when overruling her objections. See Civ.R. 53(D)(3)(b)(iv). Second, the trial court was not obligated to tell Soter what verifying information was required. That topic is addressed in
{¶ 17} In her fourth assignment of error, Soter argues that the Montgomery County Probate Court‘s procedure for removing guardians is defective. Specifically, she complains that proposed accountings are not file-stamped when they are submitted for
{¶ 18} Once again, Soter‘s assignment of error lacks merit for at least two reasons. First, in her objections to the magistrate‘s ruling, she did not raise any alleged defect in the procedure employed by the Montgomery County Probate Court. Therefore, she cannot raise the issue on appeal. See Civ.R. 53(D)(3)(b)(iv). Second, Soter‘s argument is unpersuasive on its merits. There is no question in this case that she submitted an accounting on November 29, 2010, and January 24, 2011. In his decision, the magistrate expressly acknowledged receiving both submissions. (Doc. #26 at 2). The trial court did likewise. (Doc. #29 at 3). Because there is no dispute that Soter submitted the two accountings, her alleged inability to prove that fact is a non-issue. The fourth assignment of error is overruled.
{¶ 19} In her fifth assignment of error, Soter contends the trial court erred in failing to follow
{¶ 20} We disagree. In our resolution of Soter‘s first and second assignments
{¶ 21} The judgment of the Montgomery County Probate Court is affirmed.
GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mary K.C. Soter
Christopher F. Cowan
Dept. Of Veterans Affairs
The Ohio Casualty Ins. Co.
Hon. Alice O. McCollum