Merit Decision: Divorce Court’s Sua Sponte Appointment of Guardian Ad Litem for Adult Party Both Immediately Appealable and Wrong. Thomasson v. Thomasson
“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.”
Justice Fischer, majority opinion
“The dissent ignores the practical reality of this strange scenario. This case does not present a law-school hypothetical devoid of consequence.”
Chief Justice O’Connor, separate concurrence
“In none of the scenarios suggested by the majority would Thomasson be foreclosed from remedying potential harm after final judgment… That this may be a hard case does not make it one in which we should abandon the constitutional limits on our authority.”
Justice DeWine, dissent
On June 27, 2018, the Supreme Court of Ohio handed down a merit decision in Thomasson v. Thomasson, Slip Opinion No. 2018-Ohio-2417. In a 6-1 opinion written by Justice Fischer, the Court held that a trial court’s order appointing a guardian ad litem (“GAL”) for an adult in a divorce is a final appealable order, and that the order issued in this case violated the due process rights of Carol Thomasson, the party for whom the GAL was appointed, and must be vacated. Chief Justice O’Connor concurred and wrote a separate opinion addressing the dissent. Justice Kennedy concurred in judgment only, with an opinion. Sixth District Court of Appeals Judge Mark Pietrykowski, who sat for then-Justice O’Neill, joined the majority opinion. Justice DeWine dissented. The case was argued November 21, 2017.
Charles Thomasson (“Charles”) filed for divorce from Carol Thomasson (“Carol”) in Cuyahoga County Domestic Relations Court. Two days before the trial was to start, the domestic relations judge sua sponte, pursuant to Civ. R. 75(B)(2), issued an order appointing a guardian ad litem (“GAL”) for Carol, requiring each party to deposit $1000 with the clerk to secure payment of the GAL’s fees. The trial court did not hold a hearing or make any finding of incompetency before appointing the GAL.
Carol appealed, arguing that Civ. R. 75(B)(2) does not apply to adults and that it is improper to appoint a GAL for an adult without first having a hearing and a finding of incompetency. Charles joined in Carol’s position.
The Eighth District Court of Appeals dismissed Carol Thomasson’s appeal due to a lack of a final appealable order, pursuant to R.C. 2505.02(B).
Key Statutes and Precedent
Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law…”)
Ohio Constitution, Article IV, Section 3(B)(2) (Ohio’s courts of appeals have jurisdiction to “review and affirm, modify, or reverse judgments or final orders.”)
R.C. 2505.02(B)(2) (A final order is one that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment.)
Civ. R. 17(B) Minors or incompetent persons.
(“Whenever a minor or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the minor or incompetent person. If a minor or incompetent person does not have a duly appointed representative the minor may sue by a next friend or defend by a guardian ad litem. When a minor or incompetent person is not otherwise represented in an action the court shall appoint a guardian ad litem or shall make such other order as it deems proper for the protection of such minor or incompetent person.”)
Civ. R. 75(B)(2) (“When it is essential to protect the interests of a child, the court may join the child of the parties as a party defendant and appoint a guardian ad litem and legal counsel, if necessary, for the child and tax the costs.”)
State v. Ladd, 139 Vt. 642 (1981) (“The retention of a guardian ad litem for a competent adult seriously impinges upon [a person]’s rights to due process guaranteed by the United States Constitution.”)
Russell v. Mercy Hosp. 15 Ohio St.3d 37, 39, (1984) (“in the civil context, the grant of a motion to disqualify counsel * * * constitutes a final appealable order under R.C. 2505.02”.)
Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 616 N.E.2d 181 (1993) (“To prevail in contending that an order affects a substantial right, ‘appellants must demonstrate that in the absence of immediate review of the order they will be denied effective relief in the future.’”)
Cleveland Clinic Found. v. Levin, 2008-Ohio-6197 (An order posing irreparable harm—in this case, the loss of confidentiality—can constitute a final, appealable order.)
Wilhelm-Kissinger v. Kissinger, 2011-Ohio-2317 (The denial of a motion to disqualify counsel in a divorce proceeding is not a final, appealable order.)
This was a final appealable order, because it was issued during a special proceeding and affected a substantial right. Carol won’t get appropriate relief is she has to wait to appeal. And her due process rights were violated for having a GAL appointed with no notice or opportunity to be heard on the issue of her competency. While the holding is short and sweet, everyone who wrote in this case gets way down in the weeds, which this post will not. If you love that sort of thing, by all means read the opinion yourself.
Authority to Appoint a GAL
The trial court order appointing a GAL cited Civ.R.75(B)(2) as authority to do so. But that rule does not apply to adults. So that was just plain wrong.
There is no rule that allows for the appointment of a GAL for a competent adult. But one can be appointed for an incompetent one pursuant to Civ. R. 17(B).
Final Appealable Order
This case involves the category of orders under R.C. 2505.02(B) that “affect a substantial right made in a special proceeding.” Divorce is a special proceeding, so that prong is met. And in 1998, the legislature amended R.C. 2505.02 to provide a definition of “substantial right,” which is “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.” Whether an order appointing a GAL for an adult without an adjudication of incompetency affects a substantial right is an issue of first impression in Ohio. Looking to other jurisdictions, the majority concludes that it clearly is a due process violation. A person has the right to notice and a hearing before any such adjudication. So a substantial right has been implicated here.
There is still one more step. Why is immediate review necessary? Under existing precedent, an order which affects a substantial right is one which, if not immediately appealable, “would foreclose appropriate relief in the future.” The court finds that is the case here:
“If left undisturbed, the trial court’s order treating Carol as though she had been adjudicated incompetent would deprive her of autonomy during negotiations,” wrote Fischer, noting that a settlement could be negotiated in her divorce without her agreement. “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,” Fischer added. Divorce and property division is very personal. Carol’s preferences and decision-making processes could conflict with those of the GAL. Liquidated assets could not be “unliquidated.”
Justice Fischer, though, made it clear that this holding was “narrow” and “limited” and that immediate appellate review was required “under these unique facts.”
Chief Justice O’Connor’s Separate Concurrence
The Chief wrote separately to respond to Justice DeWine’s dissent, which posits that the majority decision is outside its constitutional jurisdiction. She first reiterates that the appointment of a GAL for a competent adult in a divorce proceeding when no party requested this is contrary to law. Then she moves on to why this is a final appealable order subject to immediate review.
O’Connor emphasizes the impact on Carol if she were unable to appeal at once. For one thing, Carol’s interests, as she sees them, would not necessarily be represented by the GAL, and could, in fact, diverge. Her autonomy to represent her own interests as she sees fit should prevail because she was never determined to be incompetent. Any appeal while represented by a GAL would turn on whether the GAL acted adversely to her best interests as the GAL, not she, perceived them. She’s been ordered to pay for part of the services of the GAL, in addition to paying her own lawyer. And if an appeals court eventually decides the appointment of the GAL was not proper, the whole case has to start over.
“Judicial restraint is a constant guiding principle in the exercise of our duty as jurists. But using judicial restraint as an excuse for refusing to act when it is necessary is just as dangerous to the role of the judiciary as is judicial activism. Here, quite frankly, we should do our jobs,” O’Connor wrote, in concluding that the majority recognized the unique facts of the case and applied the law narrowly and fairly.
Justice Kennedy’s Concurrence in Judgment Only
Justice Kennedy agrees that the order appointing the GAL in this case was final and appealable, but does not think the court needed to determine whether Carol’s due process rights were violated to resolve the case. Instead of a constitutional violation, Kennedy, who used to be a domestic relations judge, hangs her hat on R.C. 3109.01, which states that “all persons of the age of eighteen years or more, who are under no legal disability, are capable of contracting and are of full age for all purposes.” That includes the right of a person to make her own decisions in a divorce case. So, a trial court’s order appointing a GAL in a divorce case without a finding of legal disability prejudices the spouse’s statutory legal autonomy.
“The focus of the statutory language is on the prejudice to the substantial right resulting from the trial court’s order—whether the right is affected by the order—not the effect of the order on the outcome of the divorce action. It is beyond question that Carol’s legal autonomy is prejudiced by the order, and being able to relitigate the action after final judgment and the decree of divorce is entered would never rectify this prejudice,” wrote Kennedy.
No one joined Justice Kennedy’s position.
Justice DeWine’s Dissent
Justice DeWine wrote a dissent, which was also a solo job.
DeWine agrees that a divorce action is a special proceeding. But is a substantial right affected? Only if an immediate appeal is necessary to protect that right; only if the effect of the court’s order is irreversible. He gives some examples of those that would qualify—ordering the release of confidential information, an order compelling the medication of a defendant to restore competency–and many that would not—the denial of a motion to disqualify counsel, the denial of an agency’s motion to modify temporary custody to permanent custody, an order transferring a case from juvenile to adult court, an order which would make litigation more costly.
DeWine would find that the unavailability of an immediate appeal in this case would not foreclose Carol from an appropriate remedy. He thinks waiting until a final judgment would just return the matter to the point where the GAL was appointed, and that should be no problem to Carol. He doesn’t think the majority presented any compelling reason why any harm could not be corrected on appeal after final judgment. Analogizing to the provisional remedy exception in R.C. 2505.02(B)(4), he notes the distinction between the order itself and the harm caused by the order, noting that the irreversible nature of the order itself is not good enough. He does not believe Carol can show that any damage done by the GAL’s acts cannot be rectified.
DeWine also offers refutations of both of the concurring opinions. He is especially critical of the majority’s attempt to distinguish an order appointing a GAL from so many other domestic relations non-final orders like interim custody orders, temporary support orders, orders to produce financial statements—and a number of others. In short, he finds this a result-driven case “at the expense of our final-order jurisprudence” in order to fix right away what happened below.
Here’s some of what I wrote after argument:
“If this case makes it to the merits, it’s a no brainer. Thomasson will win, hands down. Chief Justice O’Connor telegraphed as much when she said she didn’t know why the trial judge used Civil Rule 75(B), which is usually for children, and, a bit later, more explicitly, when she said, “and the argument you’re making about the lack of notice, and lack of a hearing and due process –I’m not going to presume to pre-rule on it, but those are pretty solid arguments.” No question that that the trial court just can’t do what it did.
“But, it looks like this one may get hung up on not being a final appealable order, and I think that would be unfair. Justice DeWine emphatically sees the case that way, and several of the other justices clearly see this as a problem. There’s no question that this was a special proceeding. The hang up is with the “affecting a substantial right.”
“Most interlocutory orders are not final and appealable, but there is something about this one that I think should be. It seems particularly unfair for a person to have her decision-making taken away from her, without notice, an opportunity to be heard, or a finding of incompetency, and have to wait to go through an entire trial first before getting it corrected. Isn’t self-determination a substantial right? I hope the Court will really drill down on this.”
And drill down, they did. I think the majority called this exactly right. Most of the oral argument time in the case was spent with Justice DeWine tussling with Carol’s lawyer over the final appealable order issue, but in the end, he persuaded no one. I compliment Justice Fischer on a very well written opinion. And he made it very clear that this was a unique and narrow situation, but an important one, backing up on the right of self-determination. And I agree with the Chief’s pragmatic take on this case, which she telegraphed at oral argument.
I can’t see how the constitutional due process implications can be ignored or disregarded in this case. I confess to having difficulty with Justice Kennedy’s reluctance to recognize that. I also question her fondness for Webster’s Third International Dictionary, which she tends to cite in her opinions when common understanding is good enough. In this case, at one point, it was to help us understand the meaning of “all” and “purposes.” To me, that’s a bit much. And as for Justice DeWine’s dissent—while it’s extremely well written, I think he misses the point of the self-determination aspect of this matter and its need to be addressed immediately, and that later just won’t do.