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Divorce—A trial court’s order appointing a guardian ad litem to represent an adult
in a divorce case is a final, appealable order under R.C. 2505.02(B)(2)
when adult has not been adjudicated incompetent subsequent to providing
parties with notice and opportunity to be heard on issue of adult’s
competency—Court of appeals’ judgment reversed, trial court’s order
appointing guardian ad litem vacated, and cause remanded to trial court.
(No. 2016-1629—Submitted November 21, 2017—Decided June 27, 2018.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 104579.

 

{¶ 1} Appellant, Carol J. Thomasson (“Carol”), has asked us to reverse a
judgment of the Eighth District Court of Appeals and hold that the trial court’s order
appointing a guardian ad litem (“GAL”) to act on her behalf in her divorce case is
SUPREME COURT OF OHIO
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a final, appealable order under R.C. 2505.02(B)(2). Carol has also asked us to
conclude that the order violates her due-process rights and that it should be vacated
as a result.
{¶ 2} In the case at bar, the Cuyahoga County Court of Common Pleas,
Domestic Relations Division, issued an order appointing a GAL to represent Carol
without providing her with prior notice or an opportunity to be heard on the issue.
The order was issued during a special proceeding and affects a substantial right,
and Carol will not be provided adequate relief if she is not permitted to immediately
appeal the order. Therefore, the order is a final, appealable order under R.C.
2505.02(B)(2), and we reverse the judgment of the court of appeals. Further, the
lack of proper process violated Carol’s due-process rights, and we therefore vacate
the trial court’s order and remand the case to the trial court for further proceedings

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{¶ 11} Thus, to demonstrate that the trial court’s order appointing a GAL
for her is a final, appealable order, Carol must show (1) that the order was made in
a special proceeding, (2) that the order affects a substantial right, and (3) that she
would not be able to effectively protect her substantial right without immediate
review.

 

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{¶ 13} In 1998, the legislature amended R.C. 2505.02 and provided a
definition of “substantial right.” Sub.H.B. No. 394, 147 Ohio Laws, Part II, 3277.
R.C. 2505.02(A)(1) defines “substantial right” as “a right that the United States
Constitution, the Ohio Constitution, a statute, the common law, or a rule of
procedure entitles a person to enforce or protect.” Carol argues that the trial court’s
order violates her “right to procedural due process” and that “due process is a
substantial right that the United States Constitution entitles a person to enforce
and/or protect.”
{¶ 14} In support of this argument, Carol asserts that before appointing the
GAL, the trial court did not provide the parties with notice or the chance to be heard
regarding the appointment. These assertions are supported by the record. The
record does not reflect that the parties were notified that the court was considering
appointing a GAL for Carol, and the record includes no evidence from which we
could conclude that Carol was provided any opportunity to be heard prior to the
appointment of the GAL.
{¶ 15} Ohio courts have not previously addressed whether an order
appointing a GAL to represent an adult without an adjudication that the adult is
incompetent—that is, without a hearing on the matter and prior to any notice to the
adult—violates the adult’s right to due process. Several other state courts have
addressed similar situations. Those courts have concluded that such an
appointment is improper, many specifically holding that the improper appointment
violates due-process protections.
{¶ 16} In In re Joann E., 104 Cal.App.4th 347, 128 Cal.Rptr.2d 189 (2002),
the California Court of Appeal reviewed a lower court’s order appointing a GAL to
act on behalf of a grandmother who was attempting to retain custody of her minor
grandchild. The reviewing court found that the lower court’s order violated thegrandmother’s right to due process because the court had failed to provide prior
notice and hold a competency hearing. Id. at 349.
{¶ 17} In State v. Ladd, 139 Vt. 642, 644, 433 A.2d 294 (1981), the
Supreme Court of Vermont held that a lower court’s decision not to remove a GAL
for an adult defendant who was determined to be competent “seriously impinge[d]
upon the defendant’s rights to due process guaranteed by the United States
Constitution.”
{¶ 18} In J.H. v. Ada S. McKinley Community Servs., Inc., 369 Ill.App.3d
803, 861 N.E.2d 320 (2006), an Illinois Court of Appeals cited the federal Due
Process Clause when determining that two former foster children should not have
been appointed a GAL after they had become adults because they had not been
adjudicated incompetent. Id. at 816, citing Ladd at 644.
{¶ 19} And in Graham v. Graham, 40 Wash.2d 64, 240 P.2d 564 (1952),
the Supreme Court of Washington issued a writ of prohibition to prevent a lower
court from appointing a GAL for an adult without providing the adult a hearing and
the opportunity to be heard. The supreme court did not cite the Due Process Clause,
but the court’s reasoning clearly expresses due-process concerns:
The interposition of a guardian ad litem could very well substitute
his judgment, inclinations and intelligence for an alleged
incompetent’s; furthermore, the retention of legal counsel or the
employment of a different attorney could be determined solely by
the guardian ad litem, subject, of course, to some direction and
control by the court, and the latter might be open to some question.
In any event the changes which might result from the appointment
of a guardian ad litem are of such significance as to be permitted
only after a full, fair hearing and an opportunity to be heard is
accorded to an alleged incompetent.Id. at 68.
{¶ 20} We agree with the determinations and reasoning of these several
courts. When a GAL is appointed by a court to represent an adult, that adult loses
some autonomy in directing the litigation. It violates an adult’s right to due process
to treat the adult as an incompetent and to deprive that adult of his or her autonomy
without an adjudication that the adult is incompetent and without prior notice and
an opportunity to be heard on the issue of his or her competency.
{¶ 21} The trial court’s order treated Carol as though she had been
adjudicated incompetent and appointed a GAL to represent her interests, but the
order was not preceded by an adjudication of incompetency, prior notice, and any
opportunity to be heard on the issue. This lack of process violates Carol’s right to
due process and, therefore, implicates a “substantial right” as defined in R.C.
2505.02(A)(1).

 

{¶ 24} In Wilhelm-Kissinger, this court determined that an order denying a
motion to disqualify opposing counsel in a divorce proceeding was not a final,
appealable order under R.C. 2505.02(B)(2). Id. at ¶ 12. The court distinguished an
order denying a motion to disqualify counsel from an order granting such a motion.
The court noted that “an order granting disqualification immediately and definitely
affects the party it deprives of chosen counsel; the purpose of appealing such an
order is to prevent the removal itself.” Id. at ¶ 9. The court also noted that the
granting of a motion to disqualify counsel has a permanent effect because it is
unlikely to be revisited by the trial court. Id. at ¶ 10. Similarly, in State ex rel.
McGinty v. Eighth Dist. Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28
N.E.3d 88, ¶ 27, this court held that an order denying a criminal defendant’s motion
to disqualify the prosecuting attorney was not a final, appealable order. The court
noted that allowing an interlocutory appeal in such circumstances would enable a
criminal defendant to get “an automatic, months-long delay in his or her
prosecution by moving to disqualify the prosecutor and then appealing the resulting
denial.” Id. at ¶ 25.

{¶ 26} Finally, in Blackburn v. Ward, 4th Dist. Scioto No. 05CA3014,
2006-Ohio-406, ¶ 13, the Fourth District held that a probate court’s determination
that certain assets belonged to one party and not another was a final, appealable
order, despite other issues in the case remaining before the court. The Fourth
District reasoned that the assets, which included a farm and personal property,
could be liquidated easily and that the appellants, even if successful in a future
appeal, would not be able to recover assets that were previously liquidated.

{¶ 27} These cases are instructive. In the case at bar, similar to the situation
described by this court in Wilhelm-Kissinger regarding disqualification of chosen
counsel, the trial court’s order appointing a GAL to represent Carol, if left
undisturbed, would have an immediate effect; Carol’s autonomy would be
immediately diminished because she would be treated as though she had been
adjudicated incompetent and as a result, her judgment, inclinations, and intelligence
would be replaced, at least to some extent, by those of the GAL. Additionally, and
again analogous to this court’s reasoning in Wilhelm-Kissinger, since Carol was not
actually adjudicated to be incompetent, it is hard to understand how the trial court
could revisit a nonexistent adjudication

Here, the court’s order sua sponte appointing a GAL to
represent Carol without prior notice and an adjudication of incompetency was
entirely beyond Carol’s control. In such circumstances, any delay caused by an
immediate appeal should not be attributed to Carol

{¶ 30} In addition, negotiation often involves tactics and a careful and
selective exchange of information. The tactics used and information revealed by
Carol’s GAL could not be clawed back—much in the same way that the revelation
of confidential information cannot be undone. Thus, as in Cleveland Clinic Found.
and Sahady, confidential information could be exchanged during negotiations and
Carol would not have full control over the dissemination of that information. An
appeal after final judgment could not undo the damage that she would suffer in such
a situation.

{¶ 34} For these reasons, we set forth the narrow and limited holding that
under R.C. 2505.02(B)(2), a trial court’s order appointing a GAL to represent an
adult in a divorce case is a final, appealable order when that adult has not been
adjudicated incompetent subsequent to providing the parties with notice and an
opportunity to be heard on the issue of the adult’s competency. In this unique case,
the order appointing a GAL to represent Carol is a final, appealable order.