[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Thomasson v. Thomasson, Slip Opinion No. 2018-Ohio-2417.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2018-OHIO-2417
              THOMASSON, APPELLANT, v. THOMASSON, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Thomasson v. Thomasson, Slip Opinion No. 2018-Ohio-2417.]
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.
                                 _________________
        FISCHER, J.
        {¶ 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




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.
                                I. BACKGROUND
        {¶ 3} Carol and appellee, Charles W. Thomasson (“Charles”), were married
in 1985. On January 15, 2015, Charles filed for divorce in the Cuyahoga County
domestic-relations court. On June 7, 2016, the court issued an order sua sponte
appointing a GAL on behalf of Carol pursuant to Civ.R. 75(B)(2) and requiring
Charles and Carol to deposit $1,000 each with the clerk of courts as security for the
payment of the GAL’s fee.
        {¶ 4} Carol appealed and argued that Civ.R. 75(B)(2) does not provide
authority to a trial court to appoint a GAL for an adult and that the appointment of
a GAL to act on behalf of an adult is proper only after a hearing and a finding that
the adult is incompetent. Charles filed a single-page brief in which he “join[ed] in”
Carol’s brief.
        {¶ 5} The court of appeals sua sponte dismissed the appeal, concluding that
an order appointing a GAL for an adult is not a final, appealable order under R.C.
2505.02(B).




                                          2
                                     January Term, 2018




          {¶ 6} Carol filed a jurisdictional appeal in this court presenting three
propositions of law.1 We accepted jurisdiction over the appeal. 149 Ohio St.3d
1417, 2017-Ohio-4038, 75 N.E.3d 236.
                                       II. ANALYSIS
          {¶ 7} In her third proposition of law, Carol presents arguments related to
the threshold question whether the trial court’s order appointing a GAL to represent
her is a final, appealable order. In her first and second propositions of law, Carol
presents arguments challenging the order on its merits. Accordingly, we address
the third proposition of law first.
                               A. Civ.R. 75(B)(2) and 17(B)
          {¶ 8} The trial court’s order cites Civ.R. 75(B)(2) as authority for
appointing a GAL to represent Carol. Courts of appeals have found that an order
issued pursuant to Civ.R. 75(B)(2) is not a final, appealable order. See, e.g., Davis
v. Lewis, 10th Dist. Franklin Nos. 98AP-661 and 98AP-1284, 1999 WL 77221, *2
(Feb. 18, 1999). But Civ.R. 75(B)(2) does not apply to adults; instead, the rule
permits the trial judge presiding over a divorce proceeding to join a “child” of the
divorcing parties as a party defendant and permits the trial court to appoint a GAL
“for the child.” Therefore, Civ.R. 75(B)(2) does not apply to this case, and caselaw
on the appealability of orders properly relying on that rule is not relevant to this
appeal.
          {¶ 9} Neither the lower courts nor the parties have cited any rule that
permits a trial court to appoint a GAL for a competent adult. However, under
Civ.R. 17(B), “[w]hen 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



1
  Notably, in her brief, Carol renumbered the three propositions of law accepted by this court and
added a fourth proposition. The additional proposition of law is stricken, and no arguments raised
in support of it will be considered. (For ease of analysis, our numbering of the propositions of law
reflects Carol’s jurisdictional memorandum, not her brief.)




                                                 3
                              SUPREME COURT OF OHIO




order as it deems proper for the protection of such minor or incompetent person.”
Carol is not a minor child; thus, the only reasonable interpretation of the trial court’s
order is that the court found it necessary to appoint a GAL for Carol because the
court determined that she is an incompetent person who does not otherwise have an
appropriate representative.
                            B. Final, Appealable Order
          {¶ 10} Ohio’s courts of appeals have jurisdiction “to review and affirm,
modify, or reverse judgments or final orders.” Article IV, Section 3(B)(2), Ohio
Constitution. R.C. 2505.02(B) sets forth several types of final, appealable orders.
The present appeal involves the category defined in R.C. 2505.02(B)(2), which
provides that an “order that affects a substantial right made in a special proceeding”
is a final, appealable order. This court has held that an order affects a substantial
right for purposes of R.C. 2505.02(B)(2) only if “in the absence of immediate
review of the order [the appellant] will be denied effective relief in the future.” Bell
v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).
          {¶ 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.
                                1. Special Proceeding
          {¶ 12} R.C. 2505.02(A)(2) defines “special proceeding” as “an action or
proceeding that is specially created by statute and that prior to 1853 was not denoted
as an action at law or a suit in equity.” As we have previously stated, divorce, a
statutory matter that did not exist at common law, qualifies as a special proceeding.
Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d
516, ¶ 6. Carol was provided a GAL for her divorce proceeding; the order
appointing the GAL was, therefore, made during a special proceeding.




                                           4
                                January Term, 2018




                                2. Substantial Right
       {¶ 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 the




                                          5
                            SUPREME COURT OF OHIO




grandmother’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.




                                        6
                                January Term, 2018




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).
                 3. Effective Protection Requires Immediate Review
        {¶ 22} In Bell, 67 Ohio St.3d 60, 616 N.E.2d 181, which preceded the 1998
amendments to R.C. 2505.02 that provided a statutory definition of “substantial
right,” this court decided that an “order which affects a substantial right has been
perceived to be one which, if not immediately appealable, would foreclose
appropriate relief in the future.” Id. at 63, citing Union Camp Corp., Harchem Div.
v. Whitman, 54 Ohio St.2d 159, 162, 375 N.E.2d 417 (1978); State v. Collins, 24
Ohio St.2d 107, 110, 265 N.E.2d 261 (1970); Morris v. Invest. Life Ins. Co. of Am.,
6 Ohio St.2d 185, 189, 217 N.E.2d 202 (1966); and In re Estate of Wyckoff, 166
Ohio St. 354, 359, 142 N.E.2d 660 (1957). In Bell, the court held that an order
directing a party to submit materials requested in discovery for in camera inspection
was not a final, appealable order. Bell at 65. The court noted, however, that if the
trial court ordered, after in camera inspection, that some documents that were




                                          7
                             SUPREME COURT OF OHIO




alleged to have been privileged should be disclosed, that order would be appealable.
Id. at 64.
        {¶ 23} Subsequent to the 1998 amendments to R.C. 2505.02, this court has
continued to cite Bell for the proposition that an order affects a substantial right
only if an immediate appeal is necessary to protect the interests of the appealing
party. See, e.g., Wilhelm-Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950
N.E.2d 516, at ¶ 7.
        {¶ 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.
        {¶ 25} In Cleveland Clinic Found. v. Levin, 120 Ohio St.3d 1210, 2008-
Ohio-6197, 898 N.E.2d 589, ¶ 13, this court held that the Board of Tax Appeals’
decision to deny a motion for a protective order, creating the possibility that
confidential information could be provided to an opposing party and introduced as
evidence, was a final, appealable order because an appeal in the ordinary course




                                         8
                                January Term, 2018




would not adequately remedy the irretrievable loss of confidentiality. Similarly, in
State v. Sahady, 8th Dist. Cuyahoga No. 83247, 2004-Ohio-3481, ¶ 18-19, the
Eighth District Court of Appeals determined that the granting of a criminal
defendant’s motion for interrogatories was a final, appealable order because the
information revealed from those interrogatories could be privileged and could not
be clawed back once revealed. The court noted that a successful appeal after final
judgment would not provide an effective remedy to the state.
       {¶ 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.
       {¶ 28} The concerns this court expressed in McGinty are not raised here
because there is no reason to believe that Carol is intentionally delaying the
progress of the litigation.    A criminal defendant’s motion to disqualify the
prosecutor and subsequent appeal of a denial of that motion are entirely within the




                                            9
                             SUPREME COURT OF OHIO




control of the defendant. 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.
        {¶ 29} Divorce settlements often involve negotiation and agreement
regarding the distribution of marital assets. If left undisturbed, the trial court’s
order treating Carol as though she had been adjudicated incompetent would deprive
her of autonomy during negotiations. Indeed, a settlement could be negotiated
without Carol’s independent agreement. Moreover, settlements can include a
waiver of the right to appeal. See, e.g., Shareholders of Paul-Ann Corp. v.
Dissolution of Paul-Ann, 10th Dist. Franklin No. 99AP-828, 2000 WL 726790, *3
(June 6, 2000).
        {¶ 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.
        {¶ 31} Finally, during divorce proceedings, there are ongoing financial
concerns; the level of spousal support may change and some marital assets may be
liquidated by agreement. As the Fourth District noted in Blackburn, liquidated
assets generally cannot be recovered. The preferences of former spouses dividing
the assets accumulated during a 30-year marriage could be extremely peculiar to
those parties, and there will almost certainly be marital property that has particular
value to one or both parties for sentimental or personal reasons. Should Carol’s
GAL focus on monetary value alone, ignoring other considerations that might form




                                         10
                                January Term, 2018




part of Carol’s decision-making process, a future appeal would not protect Carol’s
interests because previously liquidated assets could never be “un-liquidated.”
       {¶ 32} While some of the consequences that Carol could suffer as a result
of the unavailability of immediate review are potential rather than certain injuries,
the immediate effect of, or lack of remedy for, these injuries dictates the need for
immediate review. Further, this court has previously held that potential injuries
that cannot be remedied are sufficient to meet even the Bell standard. Cleveland
Clinic Found., 120 Ohio St.3d 1210, 2008-Ohio-6197, 898 N.E.2d 589, at ¶ 13
(interim order immediately appealable in light of “possibility that confidentiality
may be irretrievably lost”); see also Blackburn, 2006-Ohio-406, at ¶ 13 (order
immediately appealable because administrator “could easily liquidate” assets).
       {¶ 33} Moreover, as this court stated in Russell v. Mercy Hosp., 15 Ohio
St.3d 37, 42, 472 N.E.2d 695 (1984), there are occasions on which judicial economy
tips the balance in favor of immediate review. Requiring Carol to wait to appeal
until after the divorce proceedings have concluded would require the appellate court
to construct a hypothetical proceeding to determine prejudice based on speculation
as to how Carol’s decisions might have differed from the decisions made by the
GAL. In this case, however, the lack of process is readily apparent on the face of
the record.    Under these unique facts, immediate review requires minimal
expenditure of resources by the appellate court.
       {¶ 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.




                                         11
                             SUPREME COURT OF OHIO




                              C. Merits of the Order
       {¶ 35} Our determination that the trial court’s order appointing a GAL to
represent Carol is immediately appealable necessarily required the determination
that the lack of process violated Carol’s right to due process. Because we have
made this determination, it is unnecessary to remand the case to the court of appeals
for that court to re-examine this same issue.
       {¶ 36} As noted above, Civ.R. 75(B)(2) does not provide the trial court with
the authority to appoint a GAL to represent Carol. And Civ.R. 17(B) permits the
trial court to appoint a GAL to represent an adult only when the court has
adjudicated the adult to be incompetent. As Carol argues in her first and second
propositions of law, it violates her right to due process for a court to appoint a GAL
to represent an adult without an incompetency adjudication made subsequent to
providing that adult proper notice and the opportunity to be heard on the issue.
                               III. CONCLUSION
       {¶ 37} For the foregoing reasons, the trial court’s order is a final, appealable
order and the order is vacated. We reverse the judgment of the court of appeals and
remand the case to the trial court for further proceedings.
                                                                  Judgment reversed
                                                                and cause remanded.
       O’DONNELL, FRENCH, and PIETRYKOWSKI, JJ., concur.
       O’CONNOR, C.J., concurs, with an opinion.
       KENNEDY, J., concurs in judgment only, with an opinion.
       DEWINE, J., dissents, with an opinion.
       MARK L. PIETRYKOWSKI, J., of the Sixth District Court of Appeals, sitting
for O’NEILL, J.
                               _________________




                                         12
                                       January Term, 2018




         O’CONNOR, C.J., concurring.
         {¶ 38} I concur in the court’s decision to reverse the judgment of the court
of appeals and in the majority’s holding that the trial court’s order appointing a
guardian ad litem (“GAL”) to represent appellant, Carol Thomasson, is a final,
appealable order. I write separately to respond to the dissenting opinion.
         {¶ 39} The dissent suggests that the majority has stepped outside the
constitutional limits on our authority. I disagree. The appointment of a GAL for a
competent adult in this divorce proceeding—when neither party requested it—is
clearly without basis in the law. The trial court’s order immediately deprived
Thomasson of her autonomy and presumes that she cannot represent her own best
interests. Delaying her right to appeal until after final judgment would deny her
effective relief. Because the order affects Thomasson’s substantial right to due
process in this divorce proceeding, it is a final order pursuant to the definition
codified by the General Assembly in R.C. 2505.02(B)(2)2 and is subject to
immediate appellate review.
         {¶ 40} This is not a routine case in which the trial court properly held a
competency hearing, determined that a party was incompetent, and appointed a
GAL. Here, two days before the scheduled trial, the court sua sponte appointed a
GAL on behalf of Thomasson without a demonstrated basis for doing so. The
dissent ignores the practical reality of this strange scenario. This case does not
present a law-school hypothetical devoid of consequence. The decision to appoint
a GAL when one has not been shown to be necessary has both personal and social


2
  The General Assembly has classified seven types of orders as final orders. R.C. 2505.02(B). Much
of the dissent’s focus is on a different standard for a final order—that set forth in R.C.
2505.02(B)(4)—rather than the standard that is at issue here. R.C. 2505.02(B)(4) states that an order
is a final order if it grants or denies a provisional remedy and (a) in effect determines the action and
prevents judgment in favor of the appealing party with respect to the provisional remedy and (b)
precludes a meaningful or effective remedy for the appealing party by an appeal following final
judgment. The only question before us is whether the order here meets the standard set forth in R.C.
2505.02(B)(2) in that the order affects a substantial right and was made in a special proceeding.




                                                  13
                              SUPREME COURT OF OHIO




consequences, not to mention the legal ramifications. The task before us requires
that we understand the impact on Thomasson should she be unable to immediately
appeal.
          {¶ 41} In this proceeding, the mere appointment of the GAL fundamentally
affects Thomasson’s due-process rights, and having to bear this burden through the
divorce proceeding to final judgment and then on appeal would preclude effective
relief. The GAL would not necessarily represent Thomasson’s interests as she
perceives them. For example, when a court appoints a GAL for a child, the GAL
must represent the child’s best interest even when the representation is inconsistent
with the child’s wishes. Sup.R. 48(D)(1). If the trial court’s order were left
undisturbed, then throughout the proceeding, Thomasson would have a burden that
no competent adult in a divorce proceeding has—she would have to advocate for
her interests in opposition to not just her spouse but also her GAL whenever the
GAL’s perceptions of her best interests diverged from her own.
          {¶ 42} Not important, says the dissent, because “[t]he appointment of the
GAL could be revisited if he acted inimically to Thomasson’s interests,” dissenting
opinion at ¶ 78. But Thomasson’s interests in whose eyes? Thomasson’s autonomy
to represent her interests as she defines them should be respected because she has
not been determined to be incompetent. The inquiry on appeal would be whether
the GAL acted adversely to her best interests as the GAL perceived them, not
whether Thomasson could prove that the GAL acted inimically to her interests as
she perceives them.
          {¶ 43} Even if her own perception of her best interests aligned with the
GAL’s perception of her best interests, Thomasson would be denied effective relief
by having to wait to appeal until after final judgment. Through the divorce
proceeding and through appeal, Thomasson would bear partial responsibility for
compensating the GAL for his services in addition to total responsibility for
compensating her lawyer for his services, including the lawyer’s efforts ensuring




                                         14
                                January Term, 2018




that the GAL does not take a position that Thomasson believed was adverse to her
interests. There is no guarantee that if successful on appeal after final judgment,
Thomasson would be refunded, or would be permitted to withhold, her portion of
the GAL’s expenses even though there was no basis for the GAL’s appointment.
       {¶ 44} And what a remarkable waste of judicial resources that would be.
After final judgment, should an appellate court conclude that the GAL’s
appointment was not proper as we do here, the entire proceeding would have to
start anew. As the dissent recognizes, the case would commence again at the point
when the GAL was appointed.
       {¶ 45} If the law were as rigid as the dissent suggests, the role of the courts
would be extraneous. 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. The majority has
recognized the unique facts of this case and applied the law fairly, and narrowly, to
those facts. Given the responsibility of this court to interpret and apply the law, the
majority today correctly determines that the trial court’s order appointing a GAL
for Thomasson is a final, appealable order that should be vacated.
                                _________________
       KENNEDY, J., concurring in judgment only.
       {¶ 46} I agree with the majority that the trial court’s order appointing a
guardian ad litem to represent appellant, Carol Thomasson, is a final, appealable
order pursuant to R.C. 2505.02(B)(2). I write separately, however, because we
need not determine whether the trial court’s order affects Carol’s constitutional
right to due process in order to resolve this case. See State v. Talty, 103 Ohio St.3d
177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9 (this court considers constitutional
issues only when absolutely necessary). Instead, R.C. 3109.01 provides Carol a




                                          15
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substantial right that is affected by the trial court’s order appointing a guardian ad
litem in the divorce action. Therefore, I concur in judgment only.
       {¶ 47} The primary goal of statutory construction is to give effect to the
legislature’s intent. Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-
Ohio-7432, 71 N.E.3d 974, ¶ 20. To determine the intent of the legislature, we first
look to the plain language of the statute. State ex rel. Burrows v. Indus. Comm., 78
Ohio St.3d 78, 81, 676 N.E.2d 519 (1997). “When the statutory language is plain
and unambiguous, and conveys a clear and definite meaning, we must rely on what
the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio
St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of
Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). “Where a
statute defines terms used therein, such definition controls in the application of the
statute * * *.” Good Samaritan Hosp. of Dayton v. Porterfield, 29 Ohio St.2d 25,
30, 278 N.E.2d 26 (1972), citing Terteling Bros. v. Glander, 151 Ohio St. 236, 85
N.E.2d 379 (1949), and Woman’s Internatl. Bowling Congress, Inc. v. Porterfield,
25 Ohio St.2d 271, 267 N.E.2d 781 (1971). When the statute does not define the
words used in the statute, we give them their usual and ordinary meaning.
Brecksville v. Cook, 75 Ohio St.3d 53, 56, 661 N.E.2d 706 (1996).
       {¶ 48} To determine whether the trial court’s order appointing a guardian
ad litem to represent Carol is a final, appealable order, we must begin with R.C.
2505.02(B)(2), which provides that a final order is “[a]n order that affects a
substantial right made in a special proceeding.” The definition of “substantial
right” originated at common law. See Armstrong v. Herancourt Brewing Co., 53
Ohio St. 467, 42 N.E. 425 (1895), paragraphs one and two of the syllabus (a
“substantial right” is a legal right protected and enforced by law); State v. Collins,
24 Ohio St.2d 107, 110, 265 N.E.2d 261 (1970) (a pretrial order suppressing
evidence affects the “substantial right to the diligent prosecution of those accused
of crime”). However, the General Assembly displaced this body of common law




                                         16
                                January Term, 2018




by enacting a statutory definition of “substantial right” in 1998. See Am.Sub.H.B.
No. 394, 147 Ohio Laws, Part II, 3277; Morris v. Morris, 148 Ohio St.3d 138, 2016-
Ohio-5002, 69 N.E.3d 664, ¶ 51. “Substantial right” is defined 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.” R.C. 2505.02(A)(1).
       {¶ 49} We have stated previously that an “order which affects a substantial
right has been perceived to be one which, if not immediately appealable, would
foreclose appropriate relief in the future.” Bell v. Mt. Sinai Med. Ctr., 67 Ohio
St.3d 60, 63, 616 N.E.2d 181 (1993), citing Union Camp Corp., Harchem Div. v.
Whitman, 54 Ohio St.2d 159, 162, 375 N.E.2d 417 (1978), State v. Collins, 24 Ohio
St.2d 107, 110, 265 N.E.2d 261 (1970), Morris v. Invest. Life Ins. Co. of Am., 6
Ohio St.2d 185, 189, 217 N.E.2d 202 (1966), and In re Estate of Wyckoff, 166 Ohio
St. 354, 359, 142 N.E.2d 660 (1957). However, neither Bell nor the decisions cited
in it discuss the plain and ordinary meaning of “affect,” which should be the starting
point of our construction of the statute. See Cook, 75 Ohio St.3d at 56, 661 N.E.2d
706. In the absence of a statutory definition, we rely on the dictionary definition to
accord a term its common, everyday meaning. Stewart v. Vivian, 151 Ohio St.3d
574, 2017-Ohio-7526, 91 N.E.3d 716, ¶ 25-26.
       {¶ 50} Collins highlights the problem that results from failing to begin
statutory interpretation with the plain and ordinary meaning of statutory terms. In
Collins, the issue presented was whether the state, in a criminal case, may appeal a
trial court’s pretrial order sustaining the defendant’s motion to suppress evidence.
Collins at 107. To resolve the issue, the Collins court had to consider whether the
order was “ ‘an order affecting a substantial right.’ ” Id. at 109, quoting R.C.
2505.02. In determining that it was, the court noted:


       The [state] represented in oral argument that the deprivation of the
       use of the evidence suppressed below rendered it virtually




                                         17
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       impossible for the state to obtain a conviction, and that without that
       evidence the prosecution would be terminated. Society has a most
       substantial right to the diligent prosecution of those accused of
       crime, and where prosecution is irretrievably foreclosed through the
       suppression of evidence, that right is clearly and adversely affected.


(Emphasis added.) Id. at 109-110.
       {¶ 51} The Bell court latched onto the “foreclosed” language in Collins
without consideration of its context and imposed as a requirement of R.C.
2505.02(B) that “if not immediately appealable, [the order] would foreclose
appropriate relief in the future.” Bell at 63. In other words, the Collins court’s
reference to the decisive effect of a suppression order in a criminal case—the
potential denial of societal justice—has been allowed in Bell and Bell’s progeny to
expand beyond its original context in Collins.
        {¶ 52} Therefore, I believe that we should reexamine our holding in Bell
and I diverge from applying it here. Applying our traditional rules of statutory
construction, the word “affect” is not defined in the statute. Webster’s Third New
International Dictionary defines “affect” as “to produce a material influence upon
or alteration in” or “to have a detrimental influence on.” Webster’s Third New
International Dictionary 35 (2002). Similarly, Black’s Law Dictionary defines
“affect” as “[t]o act upon; influence; change; enlarge or abridge; often used in the
sense of acting injuriously upon persons and things.” Black’s Law Dictionary 57
(6th Ed.1990). Therefore, an order that is issued in a special proceeding and that
materially or detrimentally influences a substantial right is a final, appealable order
pursuant to R.C. 2505.02(B)(2).
       {¶ 53} Relevant here is R.C. 3109.01, which provides that “[a]ll 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.” Therefore, absent a legal disability,




                                          18
                                January Term, 2018




a person 18 years old or older is to be treated as a responsible adult in all respects.
See Klever v. Canton Sachsenheim, Inc., 86 Ohio St.3d 419, 423, 715 N.E.2d 536
(1999), citing Winters v. Silver Fox Bar, 71 Haw. 524, 531-532, 797 P.2d 51 (1990).
       {¶ 54} The legislature has not defined “legal disability” for purposes of
R.C. Chapter 3109, but it has provided a definition in R.C. 2131.02; while that
definition is not controlling here, it does provide guidance. R.C. 2313.02(B) states
that “[l]egal disability” includes “[p]ersons of unsound mind.” “ ‘Of unsound
mind’ includes all forms of derangement or intellectual disability.” R.C. 1.02(C).
While the legislature has not defined the phrase “all purposes” used in R.C.
3109.01, “all” is defined as “every” or “any whatever,” Webster’s at 54, and we
have stated that the term “any” in a phrase envelopes “every” example of the subject
described, State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995,
¶ 33; accord Wachendorf v. Shaver, 149 Ohio St. 231, 240, 78 N.E.2d 370 (1948).
Therefore, as used in R.C. 3109.01, the word “all” is expansive, not limiting.
“Purpose” is defined as “something that one sets before himself as an object to be
attained.” Webster’s at 1847. Consequently, the General Assembly’s use of the
phrase “for all purposes” in R.C. 3109.01 is broad and encompasses the right of a
person to direct her personal affairs, including being the decision-maker during the
course of her divorce proceedings.
       {¶ 55} A guardian ad litem has the duty to represent the best interest of the
ward, which may be inconsistent with the wishes of the ward. Sup.R. 48(D)(1).
However, the legal right to adult status provided by R.C. 3109.01 is enforced and
protected by law. See, e.g., Castle v. Castle, 15 Ohio St.3d 279, 282, 473 N.E.2d
803 (1984) (termination of parental support); Mominee v. Scherbarth, 28 Ohio
St.3d 270, 275, 503 N.E.2d 717 (1986) (ability to sue); Muller v. CES Credit Union,
161 Ohio App.3d 771, 2005-Ohio-3251, 832 N.E.2d 80, ¶ 22 (5th Dist.) (ability to
void contracts upon reaching majority).         Therefore, R.C. 3109.01 creates a
substantial right. In appointing the guardian ad litem for Carol without a finding of




                                          19
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legal disability, the trial court stripped Carol of her ability to direct her legal affairs
according to her wishes, a right guaranteed by R.C. 3109.01.
        {¶ 56} Further, the trial court’s order detrimentally influenced this
substantial right. Carol’s legal right to be the decision-maker in her own divorce
proceedings—extremely personal litigation, see Scott v. Scott, 45 So.2d 878, 879
(Fla.1950) (recognizing “strictly personal and volitional nature” of right to maintain
divorce action)—has been denied her, see In re Irvine’s Guardianship, 72 Ohio
App. 329, 331, 51 N.E.2d 907 (5th Dist.1943) (order refusing to remove guardian
is final, appealable order because otherwise, ward would be denied ability to
exercise substantial right). This is especially true given that the General Assembly
has allowed the parties in a divorce proceeding the ability to jointly direct the
division of assets and decide parenting matters, see R.C. 3015.171(F)(8) and
3105.10(B)(1); see also R.C. 3105.10(B)(2) (providing for judicial enforcement of
parties’ separation agreement); Greiner v. Greiner, 61 Ohio App.2d 88, 95, 399
N.E.2d 571 (8th Dist.1979) (separation agreement entered into by parties in divorce
proceeding is valid and enforceable), and has provided that the parties may convert
a divorce action into an action for dissolution of marriage, see R.C. 3105.08.
        {¶ 57} The dissent contends that for an immediate appeal to be available to
Carol, she “needs to show that any damage done by the [guardian ad litem]’s acts
could not be rectified”—that is, that she would “be foreclosed from remedying
potential harm after final judgment.” Dissenting opinion at ¶ 82. However, this
analysis focuses on whether there are prejudicial effects of the order. 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. See Morris v. Invest. Life Ins. Co. of Am., 6 Ohio St.2d 185, 188-89, 217




                                            20
                                 January Term, 2018




N.E.2d 202 (1966) (trial court’s order according litigant whose property rights were
being litigated a status less than that of a party was an order affecting a substantial
right).
          {¶ 58} The dissent also contends that this interpretation of R.C.
2505.02(B)(2) would eviscerate the constitutional “final order” requirement and
postulates as to various orders in a divorce proceeding that may fall within this
interpretation: “an interim custody order, a temporary support order, an order
requiring the production of documents, or an order requiring that a child be
interviewed by the judge in chambers.”          Dissenting opinion at ¶ 84.       This
postulating, however, is unwarranted.
          {¶ 59} To begin with, as explained above, the plain-language definition of
“affect” requires that an order materially or detrimentally influence a substantial
right of the appellant, not that the order merely influence a right. The dissent fails
to identify any substantial right that may be affected by an order to produce
documents (different from what has already been recognized, see Burnham v.
Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 30 (lead
opinion)). It is difficult to conceive of a substantial right that may be affected by
an order requiring a child to be interviewed in camera given that the legislature has
statutorily provided domestic-relations courts with the discretionary power to
interview a child in camera to assist in “determining the child’s best interest for
purposes of making its allocation of the parental rights and responsibilities,” R.C.
3109.04(B)(1).
          {¶ 60} And while a substantial right may be at issue with respect to child-
custody and child- and spousal-support orders, the dissent fails to demonstrate how
temporary orders—orders that by their very nature remain subject to a final ruling
by the court—affect a substantial right. Temporary orders merely preserve the
status quo in order to facilitate the needs of the family. Alteno v. Alteno, 11th Dist.
Trumbull No. 2000-T-0078, 2002 WL 99538, *6 (Jan. 25, 2002); Ward v. Ward,




                                          21
                              SUPREME COURT OF OHIO




10th Dist. Franklin No. 99AP-66, 2000 WL 552186, *5 (May 4, 2000). The
General Assembly has crafted a statutory framework to actualize the specialized
work of domestic-relations courts and has prescribed or authorized that temporary
orders be issued and that those orders remain in effect only until final orders are
issued. See R.C. 3125.59 (temporary support orders); R.C. 3105.18(B) (temporary
spousal support); R.C. 3109.043 and 3109.04(A) (temporary allocation of parental
rights and responsibilities until final award). The Rules of Civil Procedure were
enacted in accord with these statutes and aid in the administration of justice in
domestic-relations courts.     To that end, the rules authorize the issuance of
temporary orders, see Civ.R. 75(N), and prohibit domestic-relations courts from
entering a final judgment until all custody and support issues are “finally
determined,” Civ.R. 75(F)(2). Therefore, the General Assembly has mandated, and
this court has recognized, that temporary orders issued during the pendency of a
domestic-relations action are, by their very nature, not final. The order to appoint
a guardian ad litem for Carol in this case stands in stark contrast as the order is
neither authorized by the Revised Code or the Rules of Civil Procedure, nor is it of
a temporary nature.
        {¶ 61} R.C. 3109.01 guarantees all persons 18 years old or older who are
under no legal disability the right to direct all their personal affairs, including their
own divorce litigation. It is a statutory right that a person is entitled to enforce or
protect. A trial court’s order appointing a guardian ad litem to represent a spouse
in a divorce proceeding without a finding of legal disability prejudices the spouse’s
legal autonomy guaranteed by R.C. 3109.01 and is a final, appealable order
pursuant to R.C. 2505.02(B)(2).
        {¶ 62} Therefore, I concur in judgment only.
                                 _________________




                                           22
                                January Term, 2018




       DEWINE, J., dissenting.
       {¶ 63} The majority is eager to decide this case now. I understand that. If
we had jurisdiction to do so, I would like to decide it today as well. But under our
Constitution and precedent, we lack jurisdiction. Though it may be temporarily
inconvenient, I would adhere to the bounds placed on our authority rather than
succumb to the temptation to expand those boundaries for the expediency of
immediately deciding this one case.
            Our Constitution Allows Review of Only Final Orders
       {¶ 64} Our Constitution provides that courts of appeals “shall have such
jurisdiction as may be provided by law” to review “final orders” issued by inferior
courts. Ohio Constitution, Article IV, Section 3(B)(2).
       {¶ 65} The “provided by law” part of the constitutional grant is
accomplished primarily through R.C. 2505.02(B), which defines “final order” by
identifying seven categories of orders as final. Relevant here is R.C. 2505.02(B)(2),
which includes as a “final order” “[a]n order that affects a substantial right made in
a special proceeding.”
       {¶ 66} The majority is correct that a divorce action is a special proceeding.
The question is whether the trial court’s order appointing a guardian ad litem
(“GAL”) for Carol Thomasson “affects a substantial right.”
    An Order Affects a Substantial Right Only If an Immediate Appeal Is
                         Necessary to Protect that Right
       {¶ 67} In Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181
(1993), we held that “[a]n order which affects a substantial right has been perceived
to be one which, if not immediately appealable, would foreclose appropriate relief
in the future.” In other words, as we later explained in Wilhelm-Kissinger v.
Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 10, the effect of
the order is “irreversible.” The critical question in determining whether an order




                                         23
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affects a “substantial right” is whether “an immediate appeal is necessary to protect
the right effectively.” Id. at ¶ 7.
        {¶ 68} The definition we adopted in Bell is consistent with longstanding
principles that generally limit appellate review to final decisions in order to avoid
“the debilitating effect on judicial administration caused by piecemeal appellate
disposition of what is, in practical consequence, but a single controversy,” Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 40 L.E.2d 732 (1974). We
have found such considerations central to determining whether the special-
proceeding prong of the Constitution’s final-order requirement has been met. Prior
to Bell, we furthered these interests through a test that defined “special proceeding”
by balancing “the harm to the ‘prompt and orderly disposition of litigation,’ and the
consequent waste of judicial resources, resulting from the allowance of an appeal,
with the need for immediate review because appeal after final judgment is not
practicable.” Amato v. Gen. Motors Corp., 67 Ohio St.2d 253, 258, 423 N.E.2d
452 (1981), quoting State v. Thomas, 61 Ohio St.2d 254, 258, 400 N.E.2d 897
(1980). We overruled Amato and adopted a bright-line definition of “special
proceeding” in Polikoff v. Adam, 67 Ohio St.3d 100, 616 N.E.2d 213 (1993),
syllabus (now embodied in R.C. 2505.02(A)(2)). While we scuttled Amato’s test
in Polikoff, in Bell—decided the same day as Polikoff—we made clear that an order
affects a substantial right only if the unavailability of immediate appeal would
preclude effective relief in the future.
                     The Limited Need for Immediate Appeal
        {¶ 69} Only in the most limited circumstances have we found an immediate
interlocutory appeal to be necessary to protect a substantial right. Thus, in Wilhelm-
Kissinger at ¶ 11, we determined that the denial of a husband’s motion to disqualify
his wife’s counsel in divorce proceedings was not a final order. We explained that
there was no substantial right to disqualify opposing counsel and, germane to our
discussion here, that the trial court’s order “lacks a * * * permanent effect,” id. at




                                           24
                                   January Term, 2018




¶ 10. In other words, the effect of the court’s order was not irreversible. Nor is the
denial of an agency’s motion to modify temporary custody of a child to permanent
custody irreversible: “While the agency must wait longer for the final outcome of
the neglect and dependency action, the continuation of temporary custody does not
foreclose appropriate relief in the future.” In re Adams, 115 Ohio St.3d 86, 2007-
Ohio-4840, 873 N.E.2d 886, ¶ 44. Such an order, therefore, is not a final order
under R.C. 2505.02(B)(2).
           {¶ 70} On the other hand, we have concluded that the denial of a protective
order in a tax-appeal case was a final order because, we reasoned, the release of
confidential information would have “no remedy.” Cleveland Clinic Found. v.
Levin, 120 Ohio St.3d 1210, 2008-Ohio-6197, 898 N.E.2d 589, ¶ 12.                  Once
disclosed, the confidentiality of the information would be “irretrievably lost.” Id.
at ¶ 13.
           {¶ 71} Further guidance is provided by cases decided under R.C.
2505.02(B)(4), which includes as final orders certain provisional remedies. As with
an order in a special proceeding, an order granting or denying a provisional remedy
is not a final order unless “[t]he appealing party would not be afforded a meaningful
or effective remedy by an appeal following final judgment.”                         R.C.
2505.02(B)(4)(b).
           {¶ 72} We recently explained that when “determining whether appeal after
final judgment would afford a meaningful or effective remedy, we consider whether
there is a harm such that appeal after final judgment would not ‘ “rectify the
damage.” ’ ” In re D.H., 152 Ohio St.3d 310, 2018-Ohio-17, 95 N.E.3d 389, ¶ 18,
quoting State v. Muncie, 91 Ohio St.3d 440, 451, 746 N.E.2d 1092 (2001), quoting
Gibson-Myers & Assocs., Inc. v. Pearce, 9th Dist. Summit No. 19358, 1999 WL
980562, *2 (Oct. 27, 1999).
           {¶ 73} In In re D.H., we applied the rule to determine that a juvenile court’s
order transferring jurisdiction of a case to adult court was not final. The effect of




                                             25
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the order, if wrong, could be rectified or reversed following final judgment. Id. at
¶ 19. Our decision in In re D.H. can be contrasted with that in Muncie, in which
we concluded that an order compelling the medication of a defendant to restore
competency was a final order, Muncie at 452. The effects of the medication, once
administered, could not be reversed. “ ‘[T]he proverbial bell cannot be unrung.’ ”
Id. at 451, quoting Gibson-Myers & Assocs. at *2.
       {¶ 74} Other decisions under R.C. 2505.02(B)(4) accentuate the limited
circumstances in which a party would be foreclosed from effective relief by having
to wait to appeal until final judgment. The passage of time will not render a future
appeal ineffective. In re D.H. at ¶ 19. Nor will the potential for high litigation
costs. Gardner v. Ford, 1st Dist. Hamilton No. C-150018, 2015-Ohio-4242, ¶ 8.
But “an order enforcing a grand-jury subpoena and ordering production of allegedly
privileged information is a final order pursuant to R.C. 2505.02(B)(4).” In re
Grand Jury Proceeding of John Doe, 150 Ohio St.3d 398, 2016-Ohio-8001, 82
N.E.3d 1115, ¶ 23.
     The Unavailability of Immediate Appeal Here Would Not Foreclose
                               Appropriate Relief
       {¶ 75} Thomasson does not suggest why she would be foreclosed from
relief from any harm visited upon her by the court’s appointment of a GAL if she
must wait until final judgment before she may appeal. Her analysis stops with the
identification of the substantial right involved—her right to due process. But there
is no reason that any harm could not be remedied on appeal in the ordinary course.
The general rule is that upon reversal and remand to the trial court, proceedings
commence at the point when the error occurred. Armstrong v. Marathon Oil Co.,
32 Ohio St.3d 397, 418, 513 N.E.2d 776 (1987); accord Montgomery Cty. Commrs.
v. Carey, 1 Ohio St. 463 (1853), paragraph one of the syllabus. Thus, if Thomasson
were ultimately successful on appeal from final judgment in challenging the




                                        26
                                 January Term, 2018




appointment of the GAL, the matter would be returned to the trial court for
proceedings that would commence at the point when the GAL was appointed.
        {¶ 76} Nor does the majority present a compelling explanation of why any
harm could not be corrected on appeal after final judgment. Indeed, the majority
cites four cases to support its conclusion that a procedurally improper appointment
of a guardian violates constitutional due-process guarantees. But in each of these
cases, the harm was remedied without resort to an interlocutory appeal—in three,
by way of an appeal after final judgment, see In re Joann E., 104 Cal.App.4th 347,
128 Cal.Rptr.2d 189 (2002); State v. Ladd, 139 Vt. 642, 644, 433 A.2d 294 (1981);
J.H. v. Ada S. McKinley Community Servs., Inc., 369 Ill.App.3d 803, 861 N.E.2d
320 (2006).
        {¶ 77} Instead of explaining why any harm could not be corrected on appeal
after final judgment, the majority offers only conjecture and a few out-of-context
lines cherry-picked from our caselaw. For instance, the majority cites Wilhelm-
Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, in support of its
position that the order appointing a GAL for Thomasson is final because it “would
have an immediate effect.” Majority opinion at ¶ 27. Of course it would. But the
question here isn’t whether the order has an immediate effect. Rather, we must
determine whether that immediate effect would be irreversible. Moreover, our
discussion in Wilhelm-Kissinger about the immediacy of the order’s effect was not
in regard to whether the order affected a substantial right but whether there was a
substantial right involved at all:


        [A]n 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. By contrast,
        an order denying disqualification, standing alone, affects no right




                                         27
                             SUPREME COURT OF OHIO




       held by the unsuccessful movant because there is no substantial right
       to disqualify opposing counsel.


Wilhelm-Kissinger at ¶ 9.
       {¶ 78} The majority also cites Wilhelm-Kissinger to suggest that the trial
court’s order appointing a GAL must be immediately appealable because the order
could not be revisited in the midst of proceedings. But a closer reading of the
decision results in the opposite conclusion. In Wilhelm-Kissinger, we distinguished
between an order granting a motion to disqualify counsel (a final order) and one
denying such a motion (not a final order). In the former case, we reasoned, the
decision would not likely be revisited, presumably because counsel, once
disqualified, would no longer be participating. In contrast, the denial of a motion
to disqualify could be reconsidered during the proceedings and counsel could be
removed. Contrary to the majority’s suggestion, the court’s order appointing a
GAL in this case is closer in kind to the denial of a motion to disqualify counsel.
The appointment of the GAL could be revisited if he acted inimically to
Thomasson’s interests.
       {¶ 79} The majority speculates about other problems that could arise due to
the appointment of a GAL for Thomasson. It frets, “[A] settlement could be
negotiated without Carol’s independent agreement. Moreover, settlements can
include a waiver of the right to appeal.” Majority opinion at ¶ 29. Left unexplained
by the majority is why, if Thomasson successfully challenged the appointment of
the GAL following final judgment, any actions taken by the GAL against her
interest would not also be subject to reversal.
       {¶ 80} Continuing its litany of potential problems brought on by the
appointment of a GAL, the majority suggests that “[t]he 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.” Id. at ¶ 30.




                                         28
                                January Term, 2018




Exactly what tactics used and information revealed is not explained. Presumably,
any “tactics used” by the GAL could be replaced by different tactics upon remand
following a successful appeal upon final judgment.           And any confidential
information would be subject to the same rules that apply to confidential
information in other cases.
       {¶ 81} Anticipating criticism about the speculative nature of its concerns,
the majority points to language in Cleveland Clinic, 120 Ohio St.3d 1210, 2008-
Ohio-6197, 898 N.E.2d 589, at ¶ 13, in which we discussed “the possibility that
confidentiality may be irretrievably lost” and concluded that the possibility made
future appeal ineffective. But there we were confronted with actual confidential
information that was the subject of a protective order. Here, we are left with little
more than concerns imagined by the majority.
       {¶ 82} In short, the majority fails to consider the real question—if
Thomasson were made to wait to appeal, would she be foreclosed from an
appropriate remedy? In the context of the provisional-remedy exception found in
R.C. 2505.02(B)(4), we have distinguished between the order itself and the harm
caused by the order: “[T]he irreversible nature of the order alone does not satisfy
R.C. 2505.02(B)(4)(b), which requires consideration of whether an appeal after
judgment can rectify the damage of an erroneous trial court ruling.” Burnham v.
Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 21 (lead
opinion). Likewise, Thomasson needs to show that any damage done by the GAL’s
acts could not be rectified. In none of the scenarios suggested by the majority would
Thomasson be foreclosed from remedying potential harm after final judgment.
       {¶ 83} The two concurring opinions fare no better in their attempt to justify
the court’s action today. While the majority opinion at least makes an effort to
distinguish Bell, the first concurring opinion chooses to pretend that line of
precedent doesn’t exist. Instead, that opinion offers a full-throated policy argument
for why this case MUST be decided now. The opinion says that if the decision




                                         29
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were reversed on appeal after final judgment, there would be a “waste of judicial
resources,” concurring opinion of O’Connor, C.J., at ¶ 44; never mind that that
argument can be made in every case in which an immediate appeal is sought. (One
must question whether judicial resources are being conserved here: presumably on
remand, the domestic-relations court could simply hold a hearing and again appoint
a GAL, likely starting another round of appeals.) The opinion implores that this is
not a “routine case” or a “law-school hypothetical devoid of consequence,” id. at
¶ 40, criticizes this dissent for ignoring the “practical reality,” id., and demands that
we “do our jobs,” id. at ¶ 45. I agree with that last part. We should do our jobs.
And fundamental to doing our jobs is following the law. Even in hard cases.
        {¶ 84} The opinion concurring in judgment only is similarly unpersuasive.
Tacitly acknowledging that the majority’s result cannot be reconciled with our
holdings in Bell and its progeny, the opinion would have us “reexamine” and
“diverge” from our holding in Bell. Concurring opinion of Kennedy, J., at ¶ 52.
The opinion maintains that R.C. 2505.02(B)(2) does not require determining
whether an adequate remedy would exist after final judgment. Instead, any “order
that is issued in a special proceeding and that materially or detrimentally influences
a substantial right is a final, appealable order.” Concurring opinion of Kennedy, J.,
at ¶ 52. But if such a view were to carry the day, the constitutional “final order”
requirement would be eviscerated in any action that constituted a “special
proceeding.” Think about the various orders that might be issued in a divorce
proceeding: an interim custody order, a temporary support order, an order requiring
the production of documents, or an order requiring that a child be interviewed by
the judge in chambers—to name just a few. Under the opinion, it does not matter
whether the harm done could be rectified upon appeal at the end of the case; all of
these orders would be immediately appealable. Talk about a recipe for a never-
ending divorce. What would be most special about special proceedings is that they
could drag on forever.




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       {¶ 85} The opinion downplays the impact its new rule would have on our
final-order requirement by attempting to distinguish an order appointing a GAL
from other domestic-relations orders. But its effort falls short. Any number of
domestic-relations orders made contrary to a party’s interest could be said to
“detrimentally influence” a right that falls within the broad definition of
“substantial right”—that 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,” R.C. 2505.02(A)(1). For example, our civil rules provide the
procedure for the production of a party’s documents. See Civ.R. 26. An order to
produce financial statements in a divorce proceeding could be detrimental—that is,
harmful—to the rights protected by the civil rules. Likewise, an order involving a
child could detrimentally affect a parent’s right to raise her child—a right we have
recognized as “ ‘essential’ ” and as a “ ‘basic civil right,’ ” In re Murray, 52 Ohio
St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405 U.S. 645,
651, 92 S.Ct. 1208, 31 L.E.2d 551 (1972).
       {¶ 86} That our civil rules and statutes provide that some domestic-relations
orders are temporary does not change the analysis. Our rules also provide for the
appointment of a GAL in domestic-relations cases, see Civ.R. 17(B). And like
temporary custody, see R.C. 3109.043, or temporary spousal support, see R.C.
3105.18(B), a GAL’s appointment is only for the duration of the case, see State ex
rel. Robinson v. Cuyahoga Cty. Court of Common Pleas, 75 Ohio St.3d 431, 662
N.E.2d 798 (1996). Just because we may conclude that the trial court did not follow
the proper procedures in appointing the GAL does not render the order immediately
appealable.
       {¶ 87} Rather than meaningfully distinguishing other domestic-relations
orders from the one here, the opinion concurring in judgment only lays bare the
problem common to the paths suggested by the majority and concurring opinions:
the desired result drives the analysis at the expense of our final-order jurisprudence.




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The paths are tempting: gloss over the Constitution’s final-order requirement so we
can immediately fix what happened below. But to bite that apple does more damage
than good. As Judge Adams explained in a passage quoted by the United States
Supreme Court:


        “[I]t would seem to us to be a disservice to the Court, to litigants in
       general and to the idea of speedy justice if we were to succumb to
       enticing suggestions to abandon the deeply-held distaste for
       piecemeal litigation in every instance of temptation. Moreover, to
       find appealability in those close cases where the merits of the dispute
       may attract the deep interest of the court would lead, eventually, to
       a lack of principled adjudication or perhaps the ultimate
       devitalization of the finality rule * * *.”


Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440, 105 S.Ct. 2757, 86 L.Ed.2d
340 (1985), quoting Bachowski v. Usery, 545 F.2d 363, 373-374 (3d Cir.1976).
That this may be a hard case does not make it one in which we should abandon the
constitutional limits on our authority.
                                     Conclusion
       {¶ 88} Because Thomasson can demonstrate no irreversible harm
occasioned by the appointment of a GAL, we should require that her appeal await
final judgment. I respectfully dissent.
                                _________________
       Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A. Cruz, for
appellant.
                                _________________




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