[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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