[Cite as In re Anderson, 2013-Ohio-2012.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
IN THE MATTER OF THE :
GUARDIANSHIP OF : C.A. CASE NO. 25367
LEE ROSE ANDERSON : T.C. NO. 11GRD34
: (Civil appeal from Common
Pleas Court Probate Division)
:
:
..........
OPINION
Rendered on the 17th day of May , 2013.
..........
SUSAN M. BRASIER, Atty. Reg. No. 0039733, 30 Wyoming Street, Dayton, Ohio 45409
Attorney for Appellants Beverly Rochow and Adam R. Webber
CYNTHIA M. ROSE, Atty. Reg. No. 0084906, P. O. Box 129, Xenia, Ohio 45385
Attorney for Appellee Joseph Anderson
..........
DONOVAN, J.
{¶ 1} Petitioner-appellants Beverly Rochow and Adam R. Webber (hereinafter
collectively referred to as “Appellants”), appeal a decision of the Montgomery County Court
2
of Common Pleas, Probate Division, overruling their objections and adopting the decision of
the magistrate which appointed the guardianship of the person and the estate of Lee Rose
Anderson (hereinafter “Lee Rose”) to her son, petitioner-appellee, Joseph W. Anderson
(hereinafter “Joseph”).
{¶ 2} The judgment entry and decision adopting the decision of the magistrate was
issued by the trial court on August 15, 2012. On September 10, 2012, the Appellants filed a
timely notice of appeal with this Court.
{¶ 3} Lee Rose is a woman in her mid-eighties who has been diagnosed with a
high degree of dementia associated with Alzheimer’s Disease. Lee Rose has three adult
children, Beverly Rochow, Joseph Anderson, and Karen Supper. Lee Rose’s husband,
Hurstle Anderson, passed away in April, 2009. The record establishes that Lee Rose began
experiencing dementia at some point in 2005 or 2006 and is now incompetent. All parties
involved agree that Lee Rose is completely dependent on others for her well-being and care.1
{¶ 4} On February 24, 2011, Rochow filed an application to be appointed the
guardian of Lee Rose’s person. On the same day, Webber, an attorney associated with
Rochow, filed an application to be appointed guardian of Lee Rose’s estate. On March 21,
2011, Joseph and Karen filed an objection to Rochow and Webber’s applications for the
guardianship of Lee Rose. Joseph filed his own application to be appointed the guardian of
1
The record contains the report of Dr. Jan R. Froelich [no relation to a
judge of this court], who evaluated Lee Rose on March 1, 2010, and found her to
be incompetent. All of the parties attached the report of Dr. Froelich to their
applications for guardianship as evidence of Lee Rose’s inability to care for
herself or her estate.
3
Lee Rose’s person and estate on April 12, 2011.
{¶ 5} A trial was held before the magistrate on June 27, 2011, in order to
determine who would be best suited to manage the guardianship of Lee Rose’s person and
estate. A supplemental hearing was held before the magistrate on March 26, 2012, during
which the parties submitted additional arguments with respect to their respective
applications for guardianship.
{¶ 6} On April 25, 2012, the magistrate filed his findings of facts and conclusions
of law wherein he appointed Joseph guardian of the person and estate of Lee Rose. The
Appellants filed objections to the magistrate’s decision on May 11, 2012. Specifically, the
Appellants argued that Joseph was unfit to care and provide for the needs of Lee Rose.
Additionally, the Appellants assert that Joseph exhibited extremely questionable financial
judgment and was, therefore, incapable of managing his mother’s estate.
{¶ 7} On August 15, 2012, the trial court issued its decision denying the
Appellants’ objections and adopting the decision of the magistrate. Essentially, the trial
court found that the Appellants had failed to adduce any evidence which affirmatively
established that Joseph was unfit to manage the person and estate of Lee Rose.
Accordingly, the trial court held that Joseph “[was] a suitable and appropriate person to be
appointed guardian” of Lee Rose.
{¶ 8} It is from this judgment that Rochow and Webber now appeal.2
{¶ 9} Because all of the Appellants’ assignments of error are interrelated, they will
be addressed together as follows:
2
We note that Joseph failed to file a responsive brief in the instant appeal.
[Cite as In re Anderson, 2013-Ohio-2012.]
{¶ 10} “THE LOWER COURT ERRED IN FINDING THAT JOSEPH
ANDERSON, AND NOT BEVERLY ROCHOW, WOULD MAKE A SUITABLE
GUARDIAN OF THE PERSON.”
{¶ 11} “JOSEPH ANDERSON’S SIGNIFICANT FINANCIAL CONFLICTS OF
INTEREST AUTOMATICALLY DISQUALIFY HIM AS GUARDIAN, AND HIS
APPOINTMENT CONSTITUTES AN ABUSE OF DISCRETION.”
{¶ 12} “THE LOWER COURT ERRED IN FINDING THAT ADAM R.
WEBBER’S [sic] WAS NOT BETTER QUALIFIED TO SERVE AS GUARDIAN OF LEE
ROSE’S ESTATE.”
{¶ 13} In their first assignment, the Appellants contend that the trial court erred
when it appointed Joseph the guardianship of the person of Lee Rose. Specifically, the
Appellants argue that Joseph is not a suitable candidate for the guardianship because he
allegedly physically mistreated Lee Rose on at least one occasion, restricts her visitation
with Rochow and other relatives, and has allowed his step-daughter, Lacey Antrim, to move
into Lee Rose’s residence and live with her. The Appellants note that in 2010 Joseph was
convicted of disorderly conduct and discharge of a firearm, both charges arising out of the
same incident. As a result of these incidents, Joseph was placed under a civil protection
order to stay away from his wife. Evidence was adduced that he violated the order twice
and was placed on house arrest for fifty-two days. Additionally, the Appellants assert that
Joseph threatened to kill Rochow, and that he also threatened to leave Ohio with Lee Rose if
Rochow attempted to be made guardian of Lee Rose.
{¶ 14} Pursuant to Civ. R. 53(D)(3)(b), a party who disagrees with a magistrate’s
proposed decision must file objections to said decision. Claims of trial court error must be
5
based on the actions taken by the trial court, itself, rather than the magistrate’s findings or
proposed decision. When reviewing objections to a magistrate’s decision, the trial court is
not required to follow or accept the findings or recommendations of its magistrate. Breece v.
Breece, 2d Dist. Darke No. 99-CA-1491, 1999 WL 999759 (Nov. 5, 1999); Seagraves v.
Seagraves, 2d Dist. Montgomery Nos. 15047 and 15069, 1995 WL 559970 (Aug. 25, 1995).
In accordance with Civ. R. 53, the trial court must conduct an independent review of the
facts and conclusions contained in the magistrate’s report and enter its own judgment.
Dayton v. Whiting, 110 Ohio App.3d 115, 118, 673 N.E.2d 671 (2d Dist.1996). Thus, the
trial court’s standard of review of a magistrate’s decision is de novo.
{¶ 15} R.C. 2111.02(A) provides that “[w]hen found necessary, the probate court
on its own motion or on application by any interested party shall appoint *** a guardian of
the person, the estate, or both, of a minor or incompetent[.]” Regarding the appointment of
a guardian, the probate court is required to act in the best interest of the ward. In re Estate of
Bednarczuk, 80 Ohio App.3d 548, 551, 609 N.E.2d 1310 (12th Dist.1992); R.C. 2111.50(C).
The probate court’s ruling regarding the appointment of a guardian will not be reversed
absent an abuse of discretion if it is supported by competent, credible evidence. In re
Guardianship of Miller, 187 Ohio App.3d 445, 2010-Ohio-2159, 932 N.E.2d 420 (3d Dist.).
{¶ 16} An “abuse of discretion” standard is the appellate standard of review.
When an appellate court reviews a trial court’s adoption of a magistrate’s report for an abuse
of discretion, such a determination will only be reversed where it appears that the trial
court’s actions were arbitrary or unreasonable. Proctor v. Proctor , 48 Ohio App.3d 55,
60-61, 548 N.E.2d 287 (3d Dist. 1988). Presumptions of validity and deference to a trial
6
court as an independent fact-finder are embodied in the abuse of discretion standard.
Whiting, supra.
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. (Citation omitted.) It is to be
expected that most instances of abuse of discretion will result in decisions
that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were it
deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would
support a contrary result. AAAA Enterprises, Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597
(1990).
{¶ 17} Guardianship of the Person of Lee Rose
{¶ 18} Upon review, we find that the trial court did not abuse its discretion when it
appointed Joseph the guardian of the person of Lee Rose. Although Joseph testified that he
grabbed his mother by the arm on one occasion, the record establishes that this is the only
time physical contact like this occurred. Joseph testified that on the occasion in question,
Lee Rose was seated in the backyard in a very agitated state. Joseph testified that Lee Rose
was “cussing” and “mean.” Joseph testified that he said he “got a little ornery with her,
too,” and grabbed her arm in an attempt to get her up and bring her inside in order to calm
7
her down. When Joseph tried to pull her up, Lee Rose “brought the chair with her”
because, unbeknownst to him, she had grabbed the chair with her other hand. Joseph
testified that it was an isolated incident and with the help of Lacey, who has nursing training
and was a home health aid in the past, he has learned how to better assist Lee Rose and
understand her condition.
{¶ 19} Lee Rose needs around-the-clock attention and care, which Joseph has
arranged using a combination of trained caregivers, family help, and community programs.
After Hurstle Anderson passed away, Joseph and Karen Supper cleaned and repaired Lee
Rose’s home in order to make it habitable for her. The repairs took approximately two
months, during which time Lee Rose lived with and was cared for by Joseph and his family.
{¶ 20} After the repairs were complete, Joseph arranged for Lacey and her family to
move into Lee Rose’s residence so that she would have a caregiver on site. In order to
spend time with his mother and provide Lacey a brief respite, Joseph testified that he
arranged for Lee Rose to spend Wednesdays and weekends at his residence. Joseph also
arranged for Lee Rose to attend daycare five days a week so that she has some social
interaction with people her own age.
{¶ 21} Rochow testified that Joseph does not allow her to visit Lee Rose unless she
is at daycare. Conversely, Joseph, Lacey and Karen testified that Rochow never visits Lee
Rose’s or Joseph’s residence when her mother is home. Moreover, Joseph and Karen
testified that Beverly routinely fails to visit Lee Rose and also becomes unavailable for long
periods of time when no one is able to reach her. Joseph denied that he ever threatened
Rochow, nor did he threaten to leave the state with Lee Rose if Rochow applied for the
8
guardianship. Other than stating that she would rearrange her work schedule and allow Lee
Rose to come live at her residence, Rochow adduced no evidence that she would do a better
job than Joseph at providing stable care and assistance for her mother. Although the
Appellants place great emphasis on Joseph’s legal troubles, we note that all of the activity
involves his wife, Susan, not his mother. In our view, the record clearly establishes that he
has gone to great lengths to provide for Lee Rose’s care and maintenance. Moreover, upon
hearing the testimony of the witnesses, it is clear that the magistrate found Joseph to be more
credible than Rochow and accordingly gave his testimony more weight. Therefore, we find
that the trial court did not abuse its discretion when it adopted the magistrate’s
recommendation that it was in Lee Rose’s best interest to be under the guardianship of
Joseph and remain in her current situation.
{¶ 22} The Appellants’ first assignment is overruled.
{¶ 23} Guardianship of the Estate of Lee Rose
{¶ 24} In their second and third assignments, the Appellants argue that in light of
his own personal financial issues and alleged misuse of Lee Rose’s funds, the trial court
abused its discretion when it adopted the decision of the magistrate appointing Joseph to be
the guardian of his mother’s estate. The Appellants also assert that the trial court erred by
failing to find that Attorney Webber was better qualified to serve as the guardian of Lee
Rose’s estate.
{¶ 25} Initially, we note that a guardian of the estate is responsible for the
management of the ward’s property. In re Guardianship of Santrucek, 120 Ohio St.3d 67,
2008-Ohio-4915, 896 N.E.2d 683, ¶ 2. The guardian must manage the estate for the best
9
interests of the ward, pay just debts, defend suits against the ward, and institute suits on
behalf of the ward. R.C. 2111.14.
{¶ 26} In the instant case, competent, credible evidence supported the probate
court’s decision that it was in Lee Rose’s best interest to appoint Joseph as guardian of her
estate because of his long-time care and support of Lee Rose and because no credible
evidence was adduced that Joseph misspent any of her money.
{¶ 27} The Appellants accuse Joseph of misappropriation, self-dealing, and
“numerous breaches of fiduciary duty” in regards to expenditures and management of Lee
Rose’s money. The Appellants point out that financial records establish that Joseph spent
approximately $114,000.00 of Lee Rose’s money during an eight or nine month period.
Moreover, Joseph testified that he used his mother’s money to pay off his phone bills and
credit cards. Joseph, however, testified that he felt justified in doing so because he uses his
phone and credit cards at times to pay for the care and support of Lee Rose. Joseph further
testified that he used a substantial portion of Lee Rose’s money to maintain and repair her
residence, put a new roof on her house, pre-pay her funeral expenses, pay for nursing home
stays, and pay for her adult daycare. For example, Joseph testified that he attempted to
place Lee Rose in a nursing home approximately four times. Joseph further testified that
each stay lasted three to four days and cost approximately one thousand dollars per visit.
The Appellants were unable to adduce any evidence that Joseph used the funds from Lee
Rose’s estate for anything other than items and issues directly relating to her continued care
and support, and the magistrate clearly credited Joseph’s testimony in this regard.
{¶ 28} The Appellants also assert that Joseph misused the Power of Attorney (POA)
10
granted him by Lee Rose to improperly deny Rochow a portion of their mother’s assets upon
her death. Specifically, on October 26, 2009, Lee Rose signed a deed transferrable upon her
death of her residence over to Joseph and his sister, Karen. Rochow’s name was not put on
the deed. Thus, upon Lee Rose’s passing, only Joseph and Karen will be entitled to the
residence or any funds from its sale. Rochow also complains that Joseph improperly used
his POA to make himself the joint and survivor owner of Lee Rose’s financial accounts.
The record establishes, however, that sometime prior to 2005, Lee Rose and Hurstle
Anderson bought Rochow both a house titled only in her name and a car. Morever, Rochow
failed to establish that any of Lee Rose’s money was misspent or misappropriated by Joseph.
We note that the trial court stated in its decision adopting the decision of the magistrate that
it will monitor any future expenditures made by Joseph from Lee Rose’s accounts. Thus,
we cannot find that the trial court abused its discretion in holding that it was in Lee Rose’s
best interests for Joseph to be appointed guardian of her estate.
{¶ 29} Lastly, we find the trial court did not err by failing to appoint Attorney
Webber as the guardian of Lee Rose’s estate. The Appellants assert that Webber’s
knowledge and past experience as a court-appointed guardian qualifies him to be appointed
guardian of the estate of Lee Rose. As well qualified as Webber may be, the record
establishes that Joseph, her son, has been handling the estate of Lee Rose since 2007 when
he assumed full responsibility for her care and support. No evidence exists in the record
which demonstrates that any of Lee Rose’s funds were misspent or misappropriated at any
time. Accordingly, we cannot find that the probate court abused its discretion in concluding
that it is in Lee Rose’s best interest for Joseph to be appointed guardian of her estate, and not
11
Webber, regardless of his expertise in such matters.
{¶ 30} The Appellants’ second and third assignments of error are overruled.
{¶ 31} All of the Appellants’ assignments of error having been overruled, the
judgment of the probate court is affirmed.
..........
FROELICH, J. and HALL, J., concur.
Copies mailed to:
Susan M. Brasier
Cynthia M. Rose
Hon. Alice O. McCollum