[Cite as In re Guardianship of Sauber, 2017-Ohio-1317.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
IN THE MATTER OF THE
GUARDIANSHIP OF: CASE NO. 13-16-37
THOMAS SAUBER
OPINION
[THOMAS SAUBER - APPELLANT]
IN THE MATTER OF THE
GUARDIANSHIP OF: CASE NO. 13-16-38
THOMAS SAUBER
OPINION
[THOMAS SAUBER - APPELLANT]
Appeals from Seneca County Common Pleas Court
Probate Division
Trial Court Nos. 20162020 and 20162023
Judgments Affirmed
Date of Decision: April 10, 2017
APPEARANCES:
James W. Fruth for Appellant
Randall C. Schwartz for Appellee
Lisa A. Miller for Appellee, GAL
Case No. 13-16-37, 13-16-38
SHAW, J.
{¶1} Thomas Sauber (“Sauber”) brings these appeals from the December 9,
2016, judgments of the Seneca County Common Pleas Court, Probate Division,
finding that Thomas was an incompetent person pursuant to R.C. 2111.01(D). On
appeal, Sauber argues that the trial court’s determination that he was incompetent
was against the manifest weight of the evidence.
Facts and Procedural History
{¶2} On August 9, 2016, Patricia Sauber, Sauber’s wife of over 48 years,
filed an “Application for Appointment of Guardian of Alleged Incompetent,”
seeking to have Sauber declared incompetent on the basis of “dementia” and
“senility.”1 (Doc. No. 1). Patricia sought to be the guardian of Sauber’s person and
his estate. At the time that Patricia filed her application, Sauber was 86 years old
and was living in St. Catherine’s nursing home in Fostoria. Patricia, who was 80
years old, still resided in her home in Fostoria.
{¶3} Along with her application, Patricia filed a “Statement of Expert
Evaluation” from Roy Harvey, M.D. According to Harvey’s evaluation, Harvey
had been Sauber’s doctor for 10 years. Harvey indicated that Sauber had dementia,
which was progressing, that Sauber usually did not recognize his children, that
Sauber could not dress himself, and that Sauber had become more hostile to others
1
Patricia’s application was assigned as trial court case number 20162020, which corresponds to appellate
case 13-16-37.
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Case No. 13-16-37, 13-16-38
over time. Harvey’s evaluation indicated that Sauber needed help to walk, but he
could feed himself. Harvey indicated that he noticed impairment of Sauber’s
orientation, his motor behavior, his thought processes, his “affect,” his memory, his
concentration and comprehension, and his judgment. (Doc. No. 4).
{¶4} Harvey stated that Sauber was “terribly senile” and that he would
continue to get worse. (Doc. No. 4). Harvey specifically stated that Sauber “has
deteriorated more each year with respect to memory, behavior, and judgment. He
gave money away to whomever would ask him for it, instead of paying bills. He
now does not even recognize a son who used to be his favorite. He has become
more oppositional and aggressive.” (Id.) Ultimately, Harvey opined that a
guardianship should be established.
{¶5} The trial court ordered an investigation into the matter and also
appointed a Guardian ad Litem for Sauber. The trial court’s investigator first met
with Sauber on August 26, 2016. The investigator indicated that Sauber did not
want a guardian and that he did not want his wife to be his guardian because she
kept all his money. Sauber further told the investigator that he did not want his
daughter to be his guardian. After the interview, the investigator opined that a
guardianship was necessary and that there were no less restrictive measures in this
matter.
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Case No. 13-16-37, 13-16-38
{¶6} On September 26, 2016, a hearing was held wherein many of Sauber’s
family members were present. At the hearing, Sauber’s counsel stated that he
wanted an independent medical evaluation. Before the hearing concluded, the court
indicated to the family members present that if anyone else desired to be considered
as guardian, they would have to file to do so.
{¶7} On October 4, 2016, Judith Hartley, one of Sauber’s children, filed an
application to be appointed as guardian of Sauber, the alleged incompetent.2
{¶8} On November 17, 2016, the court investigator met with Sauber a second
time. During the second meeting Sauber again asserted that he did not want a
guardian at all and that he did not want his daughter to be his guardian. This time,
however, Sauber indicated that if he had to have a guardian he wanted his wife
Patricia to be his guardian. Sauber told the investigator that Patricia had spoken
with him about the matter. The investigator still recommended that a guardianship
was necessary.
{¶9} On November 19, 2016, the independent medical evaluation of Sauber
was completed by Jeremy J. Mashburn, D.O. Mashburn’s report stated that he spent
approximately 60 minutes on the “initial evaluation.” (Doc. No. 74). As for
Mashburn’s findings, Mashburn indicated that Sauber had “mild vascular
dementia,” that Sauber had impairment with his orientation, his motor behavior, and
2
Judith’s application was assigned a separate case number in the trial court, specifically 20162023, which
corresponds to appellate case 13-16-38.
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Case No. 13-16-37, 13-16-38
his memory, but Mashburn did not detect other issues such as with Sauber’s speech
and thought processes. Mashburn also indicated that he felt Sauber had intact short
and long term memory. (Id.) Mashburn did note that Sauber was unsteady when
standing and ambulating.
{¶10} Mashburn concluded that he believed the guardianship should be
denied as Sauber was capable of caring for the activities of daily living with the
assistance of the nursing staff at St. Catherine’s. Mashburn opined that Sauber was
capable of making decisions regarding his medical treatments, his diet, his finances,
and his property.
{¶11} On November 30, 2016, a hearing was held on the applications for
guardianship. At the hearing, Sauber and his wife Patricia each gave testimony
related specifically to Sauber’s alleged incompetence pursuant to R.C. 2111.01(D).
After hearing testimony on this issue, and considering the medical records, the trial
court found Sauber incompetent. The trial court then heard testimony from Patricia,
Judith Hartley, and the GAL regarding who should be named as Sauber’s guardian.
Thereafter, the trial court designated Judith, Sauber’s daughter, as his guardian.
{¶12} On December 9, 2016, the trial court filed its final judgment entries on
the matter declaring Sauber incompetent and noting that Judith had been appointed
as guardian for Sauber. As Judith’s application was granted, Patricia’s was denied.
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Case No. 13-16-37, 13-16-38
It is from the judgment declaring Sauber incompetent that he appeals, asserting the
following assignment of error for our review.
Assignment of Error
The Seneca County Probate Court’s decision to declare appellant
incompetent and to appoint a Guardian for appellant was
contrary to the manifest weight of the evidence.
{¶13} In his assignment of error, Sauber argues that the trial court’s
determination that he was incompetent pursuant to R.C. 2111.01(D) was against the
manifest weight of the evidence. Specifically, he contends that he demonstrated at
the final hearing that he was able to answer specific questions posed to him, that
there was no indication he had done anything reckless, particularly with regard to
his finances, and that he was able to feed himself. Sauber also argues that a
guardianship was not the least restrictive method available.3
{¶14} “In a guardianship hearing, the issue is whether the individual is
‘presently incompetent and in need of a guardian.’ ” In re Al Bani, 9th Dist. Summit
No. 27348, 2014–Ohio–5783, ¶ 22, quoting In re Guardianship of Thomas, 148
Ohio App.3d 11, 20 (10th Dist.2002). The definition of incompetent for purposes
of guardianship includes, “any person who is so mentally impaired as a result of
mental or physical illness or disability * * * that the person is incapable of taking
proper care of the person’s self or property * * *.” R.C. 2111.01(D).
3
Sauber only challenges the trial court’s competency determination on appeal. He does not challenge the
trial court’s decision designating his daughter as guardian rather than Patricia. Similarly, Patricia did not
appeal the trial court’s determination. Therefore, we have not considered the issue and will not address it.
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Case No. 13-16-37, 13-16-38
{¶15} Incompetency must be established by “clear and convincing
evidence.” R.C. 2111.02(C)(3). “Clear and convincing evidence is that measure or
degree of proof which is more than a mere ‘preponderance of the evidence,’ but not
to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal
cases, and which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469 (1954). When reviewing an issue that required proof by clear and convincing
evidence, “a reviewing court will examine the record to determine whether the trier
of facts had sufficient evidence before it to satisfy the requisite degree of proof.”
Id. at 477.
{¶16} In determining whether the trial court’s determination was against the
manifest weight of the evidence, we weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses and determine whether, in
resolving conflicts in the evidence, the court clearly lost its way and created such a
manifest miscarriage of justice that its decision must be reversed and a new hearing
ordered. See Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 20. In
doing so, we accord deference to the trial court’s decision because the trial court
had the opportunity to observe the witnesses’ demeanor, gestures, and voice
inflections, which cannot be conveyed through the written record. In re S.G., 3d
Dist. Defiance No. 4-16-13, 2016-Ohio-8403, ¶ 67, citing In re S.D., 5th Dist. Stark
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Case No. 13-16-37, 13-16-38
No. 2016CA00124, 2016–Ohio–7057, ¶ 20, citing Miller v. Miller, 37 Ohio St.3d
71 (1988).
{¶17} At the final hearing in this case, Sauber testified regarding his own
competency. In his testimony he knew his name, where he was at, and the month.
He did not know his lawyer’s name, or the name of the judge. He could vaguely
describe the President of the United States’ appearance, but could not name him.
He could not name where he lived, stating that he thought it was “St. Jennifer” in
Fostoria. (November 30, 2016, Tr. at 14). He did not know all the medications he
was taking or all of his illnesses. Sauber also did not recall having his evaluation
done by Dr. Harvey. He did recognize his wife and his daughter but he could not
name all of his children. In addition, he did not remember the mother of one of his
children, Mark.
{¶18} Patricia Sauber testified that she was concerned with Sauber’s health
changes. She testified that he kept getting confused and was doing a lot of falling.
She testified that Sauber was not capable of caring for himself and that he did not
care for himself in the nursing home. She testified that Sauber “sunsets” and has
moments where he’s “not really altogether there.” (Id. at 27).
{¶19} At the conclusion of the testimony related to incompetency, the trial
court took note of the evaluations filed by Dr. Harvey and Dr. Mashburn. The
evaluation of Dr. Harvey, which was described previously, indicated that Sauber did
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Case No. 13-16-37, 13-16-38
need a guardian, that he had dementia, that he had been declining and would
continue to do so. While Dr. Mashburn opined otherwise, Dr. Harvey had been
working with Sauber for a decade and was thus far more familiar with his declining
condition. Moreover, though Sauber argues that he was able to answer some
questions at the final hearing capably, there were others that he could not, which
were specifically noted by the trial court in its entry on the matter. All these reasons
support the trial court’s judgment.
{¶20} Furthermore, although Sauber argues that there could have been a less
restrictive alternative to a guardianship, the trial court found otherwise and it is
supported in that it appeared in the record that Sauber essentially already did not
handle his own finances and his primary care seemed to be handled by St.
Catherine’s.
{¶21} Based on the evaluation of Dr. Harvey, the testimony at the hearing,
and the trial court’s ability to observe Sauber in the courtroom and his responses to
specific questions, we cannot find that the trial court’s determination is against the
weight of the evidence.4 Therefore, Sauber sole assignment of error is overruled.
4
In the GAL’s brief to this court, she indicates that Sauber was unaware that he had urinated on himself
during the final hearing and that during the lunch break he had to be taken to change his clothing. While the
trial court may potentially have been aware of this, it is actually not contained anywhere in the record and
thus we will not consider it.
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Case No. 13-16-37, 13-16-38
Conclusion
{¶22} For the foregoing reasons, Sauber’s assignment of error is overruled
and the judgments of the Seneca County Common Pleas Court, Probate Division,
are affirmed.
Judgments Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
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