In re Martin , 2010 Ohio 3155 ( 2010 )

[Cite as In re Martin, 2010-Ohio-3155.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF THE ) CASE NO. 09 MA 117
GUARDIANSHIP OF: )
)
DOMINIC L. MARTIN ) OPINION
)
)
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Probate Division, of Mahoning
County, Ohio
Case No. 09 GI 28
JUDGMENT: Affirmed.
APPEARANCES:
For Appellant: Atty. David Betras
6630 Seville Drive
Canfield, Ohio 44406
For Appellee: Atty. James B. Dietz
City Centre One, Suite 300
100 Federal Plaza East
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: June 29, 2010
WAITE, J.
{¶1} Appellant Rose Savich filed an application to become the guardian of
the person of her brother Dominic L. Martin. A competing prior application had been
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filed by Angela Gilliland, another sister of the incompetent ward. The Mahoning
County Court of Common Pleas, Probate Division, did not appoint either sister as
guardian. Instead, the court appointed Family Services Agency as guardian of the
person. Appellant argues on appeal that she was prevented from engaging in
discovery by the issuance of a discovery protective order; that she should have been
appointed guardian because she was nominated as guardian in a durable power of
attorney; and that the court’s decision was against the manifest weight of the
evidence. Dominic Martin died shortly after Appellant’s brief was filed in this appeal.
The death of the ward terminated the guardianship, and any issues regarding the
guardianship of the person of Mr. Martin are now moot. Appellant’s arguments are
overruled and the judgment of the trial court affirmed.
History of the Case
{¶2} At the time of the initial probate court proceedings in this case, Dominic
L. Martin was 77 years old. Dominic was a veteran of the Korean War. He was living
in Veteran’s Administration (“VA”) housing in Brecksville, Ohio, and in other VA
approved facilities in northeastern Ohio. After returning from the war, he developed
mental health problems that required regular ongoing treatment. He received
injections every other week for 30 years to control his mental health problems,
including schizophrenia. He had also been in and out of VA hospitals and nursing
homes over the past decade. He was declared a legal incompetent many years ago
by the VA in administrative proceedings, but there had been no judicial determination
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of competency prior to these proceedings. The VA had also appointed guardians to
manage his finances.
{¶3} Dominic had two sisters, Rose Savich (age 78) and Angela Gilliland
(age 76), and two brothers, Frank Martin and Tony Martin, all of whom live in
Mahoning County. Rose Savich had been Dominic’s “legal custodian” and “payee”
(using VA terminology) from sometime in the year 2000 until July 2003, when
Attorney Robert L. Christian took over the duties.
{¶4} The VA had uncovered some problems with the way Rose Savich was
accounting for Dominic’s income and expenses. The VA refused to allow Rose
Savich to continue managing Dominic’s finances. The VA appointed Attorney
Christian as the legal custodian. The record indicates that the VA was paying for Mr.
Martin’s nursing home care and medical bills. Mr. Martin also received his pension
as well as disability benefits. In addition, Dominic had approximately $160,000 in
savings. Dominic received a special VA benefit called “aid and assistance” that
Attorney Christian described as “very unusual.” (Tr., p. 24.) Rose Savich herself had
been receiving between $350 and $800 per month from the VA to reimburse her for
costs related to visiting and caring for Dominic.
{¶5} Attorney Christian pointed out that the VA is not required to abide by
rulings outside of the VA regarding guardianships and payees. The VA had already
decided that Rose Savich was not suitable as a legal custodian for Dominic.
{¶6} A hearing was held before a magistrate on April 7, 2009, but due to
failure of service on some of the parties, it was continued.
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{¶7} On April 17, 2009, Appellant filed a notice of deposition of Angela
Gilliland. On April 27, 2009, Angela Gilliland filed a motion for protective order to
prevent the deposition from taking place. The motion was sustained on April 29,
2009. Appellant filed a response and a motion to vacate the protective order on May
11, 2009. The motion to vacate was overruled as part of the court’s later ruling on
Appellant’s objections to the May 26, 2009, magistrate’s decision.
{¶8} The April 7, 2009, hearing was continued to May 11, 2009. At the
hearing, the parties agreed that Dominic was incompetent and needed a guardian.
The parties agreed that Attorney Robert L. Christian would be suitable as guardian of
the estate. Appellant and Angela Gilliland proceeded to hearing on their applications
to become guardian of the person.
{¶9} Rose and her children (Nancy Savich and Susan Savich) testified that
Rose had been the primary caretaker of Dominic for decades, and that other relatives
ignored and neglected him. Rose’s testimony indicated considerable enmity with her
sister Angela. Rose was confused about bills she submitted to the VA when she was
legal custodian and payee of Dominic. She was reluctant to admit that there were
nursing homes in Mahoning County that would be acceptable to the VA. She
seemed determined to place Dominic in a facility near Columbus so that Rose’s
children, rather than other relatives, could be near him.
{¶10} Angela testified that she tried to become Dominic’s guardian many
years earlier but was opposed by Appellant. Angela used to pay all of his bills, but
this task was gradually taken over by Appellant. In the autumn of 2008 Angela
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discovered that Appellant was not paying Dominic’s bills or caring for him properly.
Angela felt guilty about Dominic’s living conditions, so she filed an application to
become his guardian. Angela believes Appellant lied to her about Dominic’s care
and finances. She testified that she talked with Dominic’s nurses every day and was
prepared to take every step necessary to care for her ailing brother.
{¶11} Frank Martin, Dominic’s brother, testified that he took care of Dominic:
he gave him his medication, took care of his house and yard, and drove him
everywhere he needed to go, including to Brecksville every two weeks for 30 years to
receive injections. He testified that he did not apply to be his guardian because he
thought it was more proper for his older sisters to do it. He testified that Rose wanted
to isolate Dominic from the rest of the family. (Tr., p. 90.) He testified that Rose
“brainwashed” Dominic and wanted to isolate him in Columbus so that the rest of
family could not easily visit him. He stated that the only information he received
about Dominic in recent years was from Angela. He recommended that Angela be
appointed guardian.
{¶12} The magistrate issued a decision on May 26, 2009. The magistrate
found by clear and convincing evidence that Dominic Martin was incompetent and in
need of a guardian. The magistrate found that there were many disputes and
disagreements between the competing family members that were detrimental to the
ward. The magistrate appointed Family Services Agency as the guardian of the
person and Attorney Robert Christian as guardian of the estate. On June 9, 2009,
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Appellant filed objections to the magistrate’s decision. On July 18, 2009, the probate
judge overruled the objections. This timely appeal was filed on July 7, 2009.
{¶13} The only brief filed in this appeal was filed by Appellant Rose Savich on
September 14, 2009. On October 21, 2009, Dominic’s guardian Karla Edwards filed
a motion to terminate the guardianship along with a copy of Dominic’s death
certificate. Dominic died on September 27, 2009. The trial court filed a judgment
entry on October 22, 2009, terminating the guardianship of the person of Dominic
Martin.
ASSIGNMENTS OF ERROR
{¶14} “The Trial Court erred in not vacating its Protective Order dated April
29, 2009 and erred in prohibiting Rose Savich from engaging in any discovery prior to
the hearing on the guardianship application.”
{¶15} “The Trial Court erred in appointing Family Service Agency as Guardian
of the person when Rose Savich was nominated as guardian in a General Power of
Attorney executed by Dominic L. Martin.”
{¶16} “The Trial Court’s decision in denying the Application of Rose Savich as
Guardian of the Person was in error for the reason that such decision was contrary to
the manifest weight of the evidence.”
{¶17} Appellant contends that she should have been appointed guardian of
the person of her brother, Mr. Dominic Martin. The record shows that Mr. Dominic
Martin is now deceased. The death certificate and notice of death are part of the
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record. Thus, the issue on appeal is moot because the guardianship ended upon the
death of the ward.
{¶18} “Upon the death of the ward, the guardianship terminated.” William
Hicks, M.D., Inc. v. Duke (Nov. 4, 1997), 10th Dist. No. 97APG06-797, *1. “Death of
the ward terminates all duties and powers upon the part of the guardian.” Simpson v.
Holmes (1922), 106 Ohio St. 437, 140 N.E. 395, paragraph one of the syllabus. “It is
well-settled that the death of the ward terminates any guardianship proceedings by
operation of law. The guardian's duties and powers end upon the ward's death.” In
re Guardianship of Mogul (April 30, 2002), 11th Dist. No.2001-T-0083, *2. “According
to longstanding decisions of the Ohio Supreme Court, the death of the ward
terminates, by operation of law, any guardianship proceeding and the personal
representative of the deceased then takes over the former incompetent's affairs.”
(Emphasis omitted.) In Matter of Guardianship of Ward (Sept. 29, 1986), 12th Dist.
No. CA86-02-004, *2.
{¶19} The issue in this appeal is whether the probate court correctly
appointed Family Services Agency rather than Appellant as guardian of the person of
Dominic Martin. On Mr. Martin’s death on September 27, 2009, the guardianship
ceased and there is nothing left to decide regarding who should be his guardian. Any
arguments that Appellant could make with respect to the court’s appointment of a
guardian of the person of Dominic Martin are addressed to a moot issue and cannot
constitute a basis for relief on appeal.
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{¶20} Even if the issue was not moot, Appellant’s arguments do not raise any
reversible error in this matter. First, the trial court concluded that guardianship
proceedings were expedited, non-adversarial proceedings and that depositions are
not normally a part of such proceedings. The trial court was essentially correct that
guardianships are non-adversarial proceedings to which many of the usual rules of
procedure and evidence do not apply. In re Guardianship of Thomas, 148 Ohio
App.3d 11, 2002-Ohio-1037, 771 N.E.2d 882; In re Guardianship of Stancin, 10th
Dist. No. 02AP-637, 2003-Ohio-1106. The purpose of guardianship hearings is to
gather information in order to determine the best interests of the prospective ward. In
re Estate of Bednarczuk (1992), 80 Ohio App.3d 548, 553, 609 N.E.2d 1310. The
probate court has plenary power over guardianship proceedings, including the power
to appoint guardians on the court’s own motion, and to proceed ex parte. R.C.
2111.02. Thus, the very nature of the proceeding weighed against Appellant’s
attempt to conduct a deposition.
{¶21} Second, the record indicates that Angela Gilliland filed a Civ.R. 26(C)
motion for protective order to prevent the deposition from taking place, and any error
in granting that motion is reviewed only for abuse of discretion. Med. Mut. of Ohio v.
Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶23. Civ.R.
26(C) allows a party or interested person to motion the court for a protective order to
prevent “annoyance, embarrassment, oppression, or undue burden or expense”. It
was certainly within the trial court’s discretion to grant a protective order prohibiting
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the deposition when it was clear that both applicants for the guardianship would be
testifying at trial, and when time was of the essence in the appointment process.
{¶22} With respect to Appellant being named in a general power of attorney
as a reason to appoint her as guardian, the court determined that the power of
attorney was not properly executed and was not binding on the court. R.C. 2111.121
allows any person to nominate another person in a durable power of attorney to be
guardian of the person, estate or both. Nevertheless, to be a valid nomination, the
durable power of attorney must be executed as prescribed in the guardianship
statutes. R.C. 2111.121(A) states: “To be effective as a nomination, the writing shall
be signed by the person making the nomination in the presence of two witnesses;
signed by the witnesses; contain, immediately prior to their signatures, an attestation
of the witnesses that the person making the nomination signed the writing in their
presence; and be acknowledged by the person making the nomination before a
notary public.” Appellant’s general power of attorney was neither signed nor
acknowledged in the presence of a notary. Thus, it was not a valid nomination of a
guardian under the statute.
{¶23} That said, if the power of attorney had been valid, the court was still not
bound by it. A person nominated in a properly executed power of attorney must also
be examined by the court. The court will determine “if the person nominated is
competent, suitable, and willing to accept the appointment.” R.C. 2111.121(B).
Thus, it would have been within the probate court’s discretion to reject Appellant as
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the guardian even if she had been properly nominated in a power of attorney. In re
Guardianship of Hafner (Nov. 24, 1993), 9th Dist. No. 16073.
{¶24} With respect to the question regarding the manifest weight of the
evidence, the record reflects that Appellant was not the proper person to be
Dominic’s guardian. The antipathy between Appellant and her other family members
was made very clear at the magistrate’s hearing. Appellant had already been
rejected by the VA as Dominic’s legal custodian. Rose’s testimony at the
guardianship hearing showed that she was not necessarily acting in the best
interests of Dominic but in serving the needs of her own children when finding a
nursing home for Dominic. Rose and Angela both revealed their ill will toward one
another at the hearing. The trial court concluded that these family squabbles were
detrimental to Dominic, thus requiring a more neutral guardian instead of a family
member. A trial court's decision will not be reversed as being against the manifest
weight of the evidence if some competent, credible evidence supports it. C.E. Morris
Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus.
Furthermore, a probate court’s decision to appoint a guardian is only reviewed for
abuse of discretion. In re Guardianship of Schneider, 156 Ohio App.3d 469, 2004-
Ohio-1378, 806 N.E.2d 610, ¶16. The record supports the trial court’s judgment in
appointing a non-family member as guardian, and there was no abuse of discretion in
this case. All three of Appellant’s assignments of error are overruled.
{¶25} In conclusion, we overrule Appellant’s arguments in this appeal
because they relate to the guardianship of the person over a ward that died after this
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appeal was filed. The guardianship has terminated and there is no relief that can be
granted with respect to anyone who formerly wished to become the guardian of the
person. Even if we would consider the merits of Appellant’s arguments, none are
supported by the record, nor do they indicate any abuse of discretion on the part of
the trial court. The judgment of the trial court is hereby affirmed.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.