In re Guardianship of Swartz

[Cite as In re Guardianship of Swartz, 196 Ohio App.3d 348, 2011-Ohio-4179.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
In re Guardianship of Swartz;
Swartz et al., Case No. 2-10-40
Appellants;
Wildermuth, OPINION
Appellee.
Appeal from Auglaize County Common Pleas Court
Probate Division
Trial Court No. 2009 GDN 00027
Judgment Reversed and Cause Remanded
Date of Decision: August 22, 2011
APPEARANCES:
John S. Compton, for appellant, Dorothy M. Swartz.
Joan K. Clellan, pro se.
James L. Thieman, for appellee, Joyce Wildermuth.
Case No. 2-10-40
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
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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 SENDER NO MAIL RECEPTACLE UNABLE TO
FORWARD.” Service was perfected on Joan on December 19, 2009, by certified mail.
{¶ 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.
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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
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17, 2009, and intends that Florida be her state of residence; that service has never been
perfected on her as required by R.C. 2111.04; that she has never waived service; and that
she has not returned or had any contacts with the state of Ohio since March 17, 2009, five
and a half months before the application for guardianship was filed. Further, through her
affidavit, Dorothy testified that she has not been a resident of Auglaize County since
November 13, 2007, and that she has never been adjudged mentally incompetent.
{¶ 8} On May 28, 2010, Dorothy filed a motion for summary judgment pursuant
to Civ.R. 56 for lack of personal or subject-matter jurisdiction. On September 7, 2010,
the probate court denied Dorothy’s motion for summary judgment, finding:
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
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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.
Assignment of Error No. I
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
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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 R.C. 2111.04 requires that service of process upon the person for whom
appointment is sought must be done by personal service. Dorothy asserts that at no time
did the court ever find that personal service had been perfected in accordance with the
statute. We agree.
{¶ 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
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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 R.C.
2111.04 involves the probate court’s proper application of law. Thus, our standard of
review is de novo. In re Guardianship of Baker, 5th Dist. No. 07CA00065, 2008-Ohio-
5079, ¶36.
{¶ 16} R.C. 2111.04(A)(2) requires:
In the appointment of a 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 Civ.R. 4.1(B), which requires:
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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, R.C. 2111.04(A) prohibits probate courts from appointing a
guardian of the person or the estate until at least seven days after the probate court has
caused written notice to be served on the person for whom appointment is sought.
{¶ 19} In interpreting R.C. 2111.04(A), Ohio courts have held that a probate court
is without jurisdiction to appoint a guardian until the statutorily required time period after
which personal service must be perfected upon the alleged incompetent expires. In re
Guardianship of Corless (1981), 2 Ohio App.3d 92, 93, citing In re Guardianship of
Reynolds (1956), 103 Ohio App. 102, 106.
{¶ 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. Civ.R. 4.1. R.C. 2111.04 mandates that the
person for whom guardianship is sought must be personally served, a requirement that
cannot be waived. A thorough review of the record reveals that personal service was
never perfected on Dorothy.
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{¶ 21} In August 2009, Joyce filed the application for appointment of guardianship
over Dorothy as an alleged incompetent, listing Dorothy’s address as the Wapakoneta
address. The notice of the application was sent via regular mail to that address. Not only
is this insufficient, as regular mail does not constitute personal service, but Dorothy had
not lived at that address for two years.1 When Dorothy was finally located in Florida,
personal service was still never perfected on her. The record reveals that the notice of the
final hearing on Joyce’s application, scheduled for December 4, 2010, was mailed via
regular U.S. mail to Dorothy on October 4, 2010. The record is devoid of any indication
that Dorothy was ever served personally, even after she was located in Florida.
{¶ 22} Because of the probate court’s failure to perfect service on Dorothy in
accordance with R.C. 2111.04(B)(1), the probate court was without jurisdiction to find
Dorothy incompetent or appoint a guardian. The probate court, therefore, should have
dismissed the case.
{¶ 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
1
Prior to the filing in Auglaize County, Joyce filed an application for guardianship in Franklin County, asserting
that Dorothy was living in Franklin County with Joan and her husband. Pursuant to Joyce’s own affidavit, that case
was dismissed for failure to locate and serve Dorothy.
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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. R.C.
2111.04(C).
{¶ 25} Because service over Dorothy was never perfected in accordance with R.C.
2111.04, and because neither constructive service nor waiver of service satisfies the due-
process requirement of notice in this case, we sustain Dorothy’s first assignment of error.
{¶ 26} Accordingly, Dorothy’s other assignments of error raised on appeal are
moot. App.R. 12(A)(1)(c). However, this court is compelled to address these issues in
the interest of judicial efficiency.
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,
2
This ignores Dorothy’s affidavit, which states that she had not been living in Franklin County since March 17,
2009. Joan was served December 19, 2009, by certified mail.
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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 Civ.R. 56(C) in that they were not based on personal knowledge, were not
statements made under oath, or were not supported by affidavits. Joyce argues, therefore,
that the probate court did not err when it denied her motion for summary judgment and,
further, that it did not abuse its discretion in appointing Joyce as guardian over Dorothy.
{¶ 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 (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); R.C. 2111.02. Both residency and legal settlement require, at a
minimum, that “the proposed ward actually dwell in the county seeking to exercise its
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jurisdictional power over the appointment of a guardian.” Id., citing In re Guardianship
of Rawlins (June 8, 1983), Marion App. No. 9-82-47.
{¶ 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 daughter knew where Dorothy was until she was located in Florida, in addition to
the probate court’s own statements regarding its concern for Dorothy’s whereabouts, we
find that Joyce failed to meet her burden and that there was insufficient evidence to
establish that Dorothy’s residence or legal settlement was in fact in Auglaize County.3
{¶ 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
3
Rather, the record reflects that the trial court was more focused on whether Dorothy was incompetent, and if she
was found to be incompetent, then her residency in Florida would be rendered involuntary and she would still have
been a resident in Auglaize County. This analysis is misplaced, as the probate court first should have located
Dorothy and then analyzed her incompetency. We also note that Joyce had previously alleged in her application for
guardianship filed in Franklin County that Dorothy was a resident of Franklin County.
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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. The record also reveals that 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, the record
indicates that 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, ¶ 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
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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.
{¶ 35} In the present case, Joan’s status as next of kin, without at the very least
alleging an interest adverse to Dorothy’s or having been aggrieved by the order, fails to
establish party status. Her representation of a witness in the case or her purported
representation of her mother are also wholly insufficient to establish party status.
Further, her brief argues the same substantive and procedural issues as Dorothy’s brief,
which in itself establishes that Joan’s interests are aligned with, not adverse to,
Dorothy’s. Because Joan is not a party to the proceedings, her notice of appeal must be
dismissed, and her assignments of error need not be addressed.
{¶ 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.
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WILLAMOWSKI, J., concurs in judgment only.
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