In re Guardianship of Pierce

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[Cite as In re Guardianship of Pierce, 2003-Ohio-3997.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY : IN THE MATTER OF: : The Guardianship of : HUNTER CHASE-TYLER PIERCE. : Case No. 03CA2712 : : DECISION AND JUDGMENT ENTRY : : Released 7/22/03 ___________________________________________________________ APPEARANCES: Melody L. Steely, Steely Law Office, Circleville, Ohio, for Appellant Rekia M. Pierce. Robert C. Hess, Chillicothe, Ohio, for Appellees Glen I. Pierce and Debra S. Pierce. ___________________________________________________________ Harsha, J. {¶1} Rekia M. Pierce appeals the probate court's creation of a guardianship over her son, Hunter Chase-Tyler Pierce, in favor of Glen I. and Debra S. Pierce and the court's denial of her Motion for a New Trial concerning that entry. Initially, she contends that the probate court lacked jurisdiction to establish the guardianship because her son was the subject of a neglect/dependency action that was filed in juvenile court prior to the issuance of the letters of guardianship. Because we conclude that each court had concurrent jurisdiction, the mere filing of the neglect/dependency complaint in juvenile court prior to the probate court's entry of guardianship does not divest the probate court of jurisdiction. However, we conclude that the trial court's denial of the Motion for a New Trial was an abuse of discretion. Appellant was entitled to notice of the guardianship hearing where the trial court continued the original hearing for Appellant to retain counsel. record demonstrates that the trial court's finding The that Appellant received actual notice of the rescheduled hearing date was unreasonable. Therefore, we reverse the court's denial of Appellant's Motion for a New Trial. In July 2002, Appellees filed an Application for {¶2} Appointment of Guardian of Minor in the Ross County Court of Common Pleas, Probate Division, seeking guardianship over Mr. Pierce's grandson and Mrs. Pierce's step-grandson, Hunter. Along with the application, Appellees filed a Waiver of Notice and Consent signed by Appellant and Jon Fisher, Hunter's father, agreeing to Appellees as guardians of Hunter. hearing for September hearing notice to 3, 2002 Appellant, and the appointment of The court scheduled a sent Appellees, copies and Mr. of the Fisher. The notice that was sent to Appellant was returned to the court marked "attempted not known." Nonetheless, Appellant and Mr. Fisher appeared at {¶3} the guardianship hearing and indicated that they no longer consented to the appointment of Appellees as guardians of Hunter. Based on their statements, the court continued the hearing for approximately thirty days so Appellant and Mr. Fisher could retain counsel. Following this initial hearing, Hunter became the {¶4} subject of a neglect/dependency complaint filed in the Ross County Court of Common Pleas, Juvenile Division. Apparently, both the probate court and the juvenile court scheduled hearings for October 4, 2002. The probate court hearing was scheduled for 8:00 a.m. and the juvenile court hearing was scheduled for 9:00 a.m. On {¶5} failed to October appear probate court. for 4, 2002, the Appellant 8:00 a.m. and hearing Mr. Fisher before the That court approved Appellees' guardianship application based on Appellant's and Mr. Fisher's original consent to the guardianship. Appellant did, however, appear for the 9:00 a.m. juvenile court hearing where she learned that the probate request for guardianship. court had granted Appellees' Apparently, the juvenile court then dismissed the dependency and neglect actions based on the grant of guardianship over Hunter to Appellees. {¶6} On October 9, 2002, Appellant filed a Motion for New Trial under Civ.R. 59 with the probate court. In her motion, Appellant asserted that, although she was aware of the 9:00 a.m. hearing before the juvenile court, she had not received notice of the 8:00 a.m. guardianship hearing in the probate court. Appellant asserted that Appellees had a history of removing Appellant's mail from her mailbox and she believed they had removed her hearing notice. {¶7} hearing In to February address 2003, the Appellant's probate Motion for court a held New a Trial. Appellant testified that she received notice of the October 4, 2002, 9:00 a.m. hearing in the juvenile court, but never received notice of the 8:00 a.m. hearing in the probate court on the same date. Appellant further testified that, had she known of the guardianship hearing, she would have appeared and that she did not consent to the appointment of Appellees as guardians of Hunter. Appellant stated that she has observed Appellants removing mail from her mailbox and that they admitted their actions when confronted. {¶8} On cross-examination, Appellant testified that she learned of the September 3, 2002 probate hearing from her attorney, Cherita Stout, and that Appellant filled out the paperwork that same morning so that Ms. Stout would be approved as her attorney. Appellant testified that she did not inform Ms. Stout that the probate court had granted a continuance hearing. because Ms. Stout had been present at the On redirect examination, Appellant testified that she was not sure that Ms. Stout was representing her on September 3, 2002 and could not recall the exact date Ms. Stout was retained.1 {¶9} received Jon Fisher notice of then the testified hearing in that the he also probate never court on October 4, 2002. {¶10} In testified sending response that the notices to Appellant's probate to court Appellant. motion, was Mr. Mr. having Pierce Pierce problems spoke to Appellant and she told him to pick up the notice relating to the October 4th hearing and bring it to her. testified that he delivered the notice of Mr. Pierce the probate hearing to Appellant prior to the hearing date. {¶11} Mrs. Pierce testified that she was with her husband when he removed the hearing notice from Appellant's mailbox and delivered it to her. the notice, she handed it to After Appellant opened Mrs. Pierce identical to the notice Appellees received. 1 It appears from our review of the the events incident to her initial with those incident to her initial The transcript of the September 3, and it was Mrs. Pierce record that Appellant was confusing appearance in the juvenile action appearance in the probate action. 2002 hearing clearly reflects that further testified that she had never removed any other types of mail from Appellant's mailbox. {¶12} Following the hearing, the probate court allowed Appellant and Appellees supporting their to respective file written positions as to arguments the motion. Subsequently, the court issued a journal entry overruling Appellant's motion. Specifically, the court found that Appellant and Mr. Fisher appeared at the initial hearing on September 3, 2002 Appellant had and secured requested counsel a prior continuance, to the that September hearing but that counsel was unable to appear,2 and that the court had granted the requested continuance. The court then found that Appellant had "waived her right to notice and further had actual notice of the pendency of the guardianship proceedings for which she had already secured legal representation." irregularity, misconduct Therefore, or good the cause court found justifying a no new trial. {¶13} Appellant appeals the probate court's decisions, citing the following errors: "Assignment of Error No. 1: Appellant did not have counsel at that time and that Ms. Stout was not present. 2 The trial court's finding that Appellant had secured counsel prior to the September 3, 2002 hearing is not supported by the transcript from that hearing or the journal entry granting Appellant and Fisher's request for a continuance of the September hearing "in order to engage counsel * * *." Presumably, the court based this finding on the confusing testimony of Appellant at the motion hearing. The trial court erred by minor child based Appellant's appointing upon a guardian Appellant's for written consent after having actual knowledge that Appellant and the natural consent. abused father of Assignment its discretion of the child Error by had denying their 2: No. withdrawn The court Appellant trial a new trial after hearing evidence that she did not receive notice of the October 4, 2002 hearing. Assignment of Error No. 3: The trial court abused its discretion by denying Appellant a new trial even though Appellant appeared personally within one hour after the scheduled hearing and wished to contest the appointment of a guardian. No. 4: Assignment of Error The probate court lacked jurisdiction to appoint a guardian for a child about whom a complaint was pending in juvenile court alleging that the child was abused and/or dependent." Because Appellant's final assignment of error raises a jurisdictional question, we consider that assigned error first. {¶14} In her fourth assignment of error, Appellant argues that the trial court lacked jurisdiction to appoint a guardian for Hunter in October 2002 because a complaint alleging that Hunter was a neglected or dependant child was pending in the juvenile court at that time. Essentially, Appellant contends that the filing of the action in juvenile court divested the probate court of jurisdiction. {¶15} Under R.C. 2101.24(A)(1)(e), the probate court has exclusive jurisdiction to appoint and remove guardians. That jurisdiction attaches in any given case whenever application is made for the appointment of a guardian. In re Clendenning (1945), 145 Ohio St. 82, 89, 60 N.E.2d 676, citing Shroyer v. Richmond (1866), 16 Ohio St. 455. Therefore, the jurisdiction of the probate court attached in July 2002, when Appellees filed the initial application for guardianship. {¶16} Under R.C. 2151.23(A)(1), the juvenile court has exclusive original jurisdiction "[c]oncerning any child who on or about the date specified in the complaint * * * is alleged * * * to be * * * a delinquent, unruly, abused, neglected, juvenile or dependent court's child jurisdiction * * *." attaches Therefore, at the time the a complaint is filed alleging that a child is delinquent, unruly, abused, neglected or dependent. In this case, a complaint was filed on September 13, 2002,3 alleging that Hunter 3 was neglected and/or dependent. Therefore, the The parties apparently do not dispute that the complaint was filed sometime between September 3 and October 4, 2002. We accept Appellant's statement that the complaint was filed on September 13, 2002 for ease of discussion. For our purposes, the date of filing of juvenile court obtained jurisdiction over Hunter on September 13, 2002. {¶17} In In re Poling, 64 Ohio St.3d 211, 1992-Ohio144, 594 N.E.2d 589, the Supreme Court of Ohio was asked to decide whether consider the a juvenile question of court custody has of jurisdiction dependent to children where custody had previously been determined and granted by another court under a divorce decree. The Court concluded that, although a court which renders a custody decision in a divorce case has continuing jurisdiction to modify that decision, the juvenile court also has jurisdiction to make custody awards related to children who are properly subject to its jurisdiction. Court concluded 64 Ohio St.3d at 215. that the two courts The Supreme had concurrent jurisdiction and, therefore, the juvenile court's custody award was Likewise, not we void for conclude lack that of the jurisdiction. probate court Id. and the juvenile court had concurrent jurisdiction over Hunter at the time the probate court issued the letters of guardianship. {¶18} Appellant has directed this Court to In re Brinegar (1959), 160 N.E.2d 589, to support her contention that once the juvenile court assumed jurisdiction over the juvenile complaint is irrelevant so long as it occurred prior to Hunter based action, the on the probate filing court of the lacked neglect/dependency jurisdiction letters of guardianship over Hunter. to grant However, Brinegar is clearly distinguishable. {¶19} In Brinegar, the Butler County Probate Court concluded that it was without jurisdiction to grant letters of guardianship over a minor because the juvenile court had previously placed that child in the permanent custody of the county children's services department. The court held that "once a Common Pleas Court has made an order affecting custody of children, that said order is continuing and that said Court retains jurisdiction." Id. at 591. Unlike in Brinegar, here there is no evidence in the record that the juvenile court made a permanent custody determination such that it was vested with sole jurisdiction over Hunter. {¶20} Therefore, we conclude that the probate court retained jurisdiction over Hunter in the absence of the juvenile court order adjudicating him a neglected and/or dependent child and a dispositional order establishing a custodial placement. Appellant's fourth assignment of error is overruled. {¶21} However, we do find merit in Appellant's second assignment of error as we conclude that the trial court the probate court's entry of guardianship. should have granted Appellant's Motion for a New Trial under Civ.R. 59(A)(1). {¶22} Under Civ.R. 59(A), "[a] new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: (1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial; * * * In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown." {¶23} The purpose of Civ.R. 59(A) is to empower the trial court to prevent a miscarriage of justice. Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 448, 659 N.E.2d denial of discretion. 1242. a We motion will for not new reverse trial a absent trial an court's abuse of Shark v. Norfolk & W. Ry. Co. (1995), 72 Ohio St.3d 307, 649 N.E.2d 1219; Taylor v. Ross (1948), 150 Ohio St. 448, 83 N.E.2d 222. that a court's ruling An abuse of discretion implies is unreasonable, arbitrary or unconscionable; it is more than a mere error in judgment. Richard v. Seidner (1996), 76 Ohio St.3d 149, 666 N.E.2d 1134; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. {¶24} The term "irregularity" in the context of a motion for a new trial is historically described as "very comprehensive," whereby a and party, a departure "with no from fault on the his due proceeding part, has been deprived of some right or benefit otherwise available to him." Sherwin-Williams Co. v. Globe Rutgers Fire Ins. Co. (1912), 20 Ohio C.C.(N.S.) 151. {¶25} We conclude that the court abused its discretion in denying Appellant's motion for a new trial. First, we conclude that the court's determination that Appellant had actual notice of the guardianship hearing on October 4, 2002 is unreasonable. Appellant testified that she did not receive notice and, although Appellees testified that they provided the notice to Appellant, there is clearly confusion as to which notice was provided given that there were two separate hearing dates in the probate action and at least two hearings in the juvenile action. Moreover, it seems illogical that Appellant would appear for the 9:00 a.m. hearing but not the 8:00 a.m. hearing on the same day involving the same issues if she received notice of both hearings. {¶26} Further, we find the court's conclusion that Appellant waived her right to notice is not supported by the record. Appellant appeared before the court on September 3, 2002 and indicated her objection appointment of Appellees as guardians of Hunter. point, the court granted retain a continuance counsel to to the At that specifically represent her at so Appellant could the hearing. However, in ruling on Appellant's motion for a new trial, the court found that she had waived her right to notice of the new hearing date. However, her waiver of notice applied to the initial hearing, where she in fact appeared and indicated consent. It defies hearing date so that logic an she to wanted grant a interested to withdraw continuance party may her of a obtain representation for that hearing but then determine that the same party waived her right to notice of that continued hearing based upon an earlier, but subsequently withdrawn, waiver. For these reasons, we sustain Appellant's second assignment of error. {¶27} Because assignment of we have error, sustained Appellant's Appellant's assignments of error are rendered moot. This matter is remanded to the trial first and second third App.R. 12(A)(c). court for further action consistent with this opinion. JUDGMENT REVERSED AND CAUSE REMANDED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED and that Appellant recover of Appellees costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court, Probate Division, to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Evans, P.J. & Abele, J.: Concur in Judgment and Opinion. For the Court BY: _______________________ William H. Harsha, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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