In re Guardianship of Schwarzbach , 2017 Ohio 7299 ( 2017 )

[Cite as In re Guardianship of Schwarzbach, 2017-Ohio-7299.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
No. 16AP-670
Guardianship of Franz Schwarzbach, : (Prob. No. 574161)
(Appellant). : (REGULAR CALENDAR)
D E C I S I O N
Rendered on August 22, 2017
On brief: Brunner Quinn, Rick L. Brunner, and Patrick M.
Quinn, for appellant. Argued: Rick L. Brunner.
On brief: Thomas Taneff Co., LPA, Thomas Taneff, and
Taylor Sayers, guardian of appellant. Argued: Taylor
Sayers.
On brief: Kincaid, Randall & Craine, and S. Brewster
Randall, II, for appellee.
APPEAL from the Franklin County Court of Common Pleas,
Probate Division
SADLER, J.
{¶ 1} Appellant, Franz Schwarzbach, appeals from a judgment of the Franklin
County Court of Common Pleas, Probate Division, overruling his objections to a
magistrate's decision and appointing a guardian of the person and estate based on a
finding that Schwarzbach is incompetent.
I. GENERAL FACTS AND PROCEDURAL HISTORY
{¶ 2} This matter began with an application filed on August 19, 2015, by appellee,
Maria Starr, and Lois Starr-Schram in the probate court seeking to be appointed
guardians of the person and estate, respectively, of Schwarzbach. The applicants
generally expressed concern over Schwarzbach's alleged mental deterioration that
No. 16AP-670 2
accelerated with the passing of his wife in 2011. Starr is Schwarzbach's daughter, and
Starr-Schram is Starr's mother-in-law. Through counsel, Schwarzbach opposed the
appointment of a guardian, asserting that he was fully competent and capable of
managing his own business and personal affairs. Although both Starr and Starr-Schram
continued to be represented in the case through counsel, Starr-Schram eventually stepped
aside from personal appointment as guardian, and the trial court chose to appoint
attorney Thomas Taneff as guardian in its final judgment.
{¶ 3} The evidence established that Schwarzbach was born in 1942 and came to
the United States from his native Germany at the age of 18. His proficiency in the English
language was a point of contention in proceedings before the magistrate. Initially
employed as a welder, Schwarzbach soon entered a long and apparently prosperous career
operating central Ohio adult nightclubs. At the time of guardianship proceedings,
Schwarzbach remained in partnership with one Robert Hetzel, although the formal
business arrangement between the two men was unclear. It appeared that Schwarzbach
had recently conveyed some of his business interests to third parties, again on terms that
are difficult to clarify.
{¶ 4} Schwarzbach and his late wife Elizabeth had three children, Maria, Thomas,
and Franz Jr., now deceased. Schwarzbach lives in a home on Lakewood Drive in
Minerva Park, lately shared with a 25-year-old companion named Brittany Valenzuela,
formerly a dancer in one of his clubs. Schwarzbach's son, Thomas, lives across the street
in another house owned by Schwarzbach; they have a contentious relationship, in part
because of Valenzuela's appearance in Schwarzbach's life.
{¶ 5} Proceedings commenced before a magistrate in the probate court on
September 3 and October 20, 2015. An agreed entry filed on September 3, 2015 reflected
a limited agreement between the parties to maintain Schwarzbach's finances in an
approximate status quo. This agreed entry limited all expenditures from Schwarzbach's
assets except for living and operating expenses paid from his personal PNC bank account,
with a stated balance of $60,000. The parties executed a further agreed entry on
November 16, 2015 authorizing an additional payment from other accounts in the amount
of $17,112.07 for Schwarzbach's taxes.
No. 16AP-670 3
{¶ 6} On February 20, 2016, Schwarzbach's current counsel on appeal began
representation in the matter and filed a request pursuant to Rule 88 of the Ohio Rules of
Superintendence stating that Schwarzbach required the services of an interpreter for
further proceedings.
{¶ 7} On March 31, 2016, Schwarzbach's new counsel requested a transfer of
funds from the protected financial accounts into the PNC bank account for additional
living expenses, including attorney fees and costs for the guardianship proceedings,
litigation costs for a Northern District of Illinois case in which the same counsel
represented a corporation partially owned by Schwarzbach, and a $40,000 lease buyout
for Schwarzbach's Porsche SUV. The funds transfer request also cites the need to pay for
interpreter services and to pay real estate taxes. The magistrate denied some aspects of
this request by order filed April 13, 2016 after a status conference before the magistrate
held on March 31, 2016. Specifically with respect to attorney fees, the magistrate noted
that fees could only be approved and paid pursuant to Loc.R. 71.5 of the Franklin County
Court of Common Pleas, Probate Division, after establishment of a guardianship. The
magistrate further noted that counsel had not itemized and substantiated fees, or even
produced a fee agreement, for either the guardianship proceedings or the federal civil
litigation. The magistrate approved translation services for future courtroom proceedings
and deferred consideration of translation costs for out-of-court services on the same
terms as for attorney fees. The magistrate authorized payment of taxes but denied
authorization to purchase the Porsche SUV at lease term.
{¶ 8} Schwarzbach filed a motion to set aside the magistrate's order, and on
May 3, 2016, the court by judgment entry upheld the magistrate's order with some
modifications with respect to attorney fees, authorizing transfer of $20,000 into the PNC
account for payment of fees, and noting that fees in the guardianship proceedings would
remain subject to approval under local rule. Schwarzbach attempted to appeal that order
to this court, and we dismissed for lack of a final, appealable order. In the Matter of the
Guardianship of Schwarzbach, 10th Dist. No. 16AP-415 (Aug. 18, 2016) (journal entry of
dismissal). Schwarzbach then unsuccessfully moved for reconsideration in the trial court
on the fee issue.
No. 16AP-670 4
{¶ 9} A three-day substantive hearing on the merits before the magistrate then
took place on October 20, 2015, May 5, and May 13, 2016. On May 27, 2016, the
magistrate issued her report recommending that Schwarzbach be found incompetent and
that a guardian be appointed for his person and estate. The magistrate preferred
appointment of an independent third-party guardian, selecting attorney Taneff.
{¶ 10} Schwarzbach filed objections to the magistrate's decision, supported by
transcripts from the October 20, 2015 and May 13, 2016 hearing dates but omitting
transcripts from the May 5, 2016 hearing date; although transcripts from all three days
had been timely requested by Schwarzbach, the May 5 transcript was not timely filed with
the objections. By decision and judgment entry rendered September 20, 2016, a visiting
judge of the probate court overruled all objections, adopted the magistrate's decision in
full, and confirmed appointment of attorney Taneff as guardian of Schwarzbach's person
and estate.
{¶ 11} On November 8, 2016, Schwarzbach filed with this court a motion to correct
the record, seeking to supplement the record on appeal with information establishing that
Schwarzbach's live-in housekeeper, Valenzuela, had been removed from the home. This
filing properly belongs before the trial court in support of further post-judgment
proceedings and will not be considered as part of the record on appeal. Appellate review
is limited to the record as it existed at the time the trial court rendered its judgment.
Franks v. Rankin, 10th Dist. No. 11AP-962, 2012-Ohio-1920, ¶ 73.
II. ASSIGNMENTS OF ERROR
{¶ 12} Schwarzbach brings the following four assignments of error on appeal:
[1.] The trial court erred in adopting the factual findings of
the magistrate.
[2.] The trial court erred in appointing a guardian.
[3.] The trial court erred in presuming [Schwarzbach] to be
incompetent, and accordingly refusing to permit him to pay
his attorney's fees and expenses incurred in opposing the
guardianship.
[4.] The trial court erred in restricting [Schwarzbach's] ability
to engage and pay for the costs of a foreign language
interpreter.
No. 16AP-670 5
{¶ 13} Briefs have been filed on behalf of attorney Taneff as guardian and Starr as
applicant for a guardianship.
III. STANDARD OF REVIEW ON APPEAL
{¶ 14} The standard of review on appeal from a trial court judgment that adopts a
magistrate's decision varies with the nature of the issues that were (1) preserved for
review through objections before the trial court and (2) raised on appeal by assignment of
error. In this case, the substantive standard is abuse of discretion: "Selection of a
guardian is within the discretion of the probate court, subject to statutory restrictions;
and that selection will be reversed on appellate review only if it represents an abuse of
discretion." In re Guardianship of Duffy, 10th Dist. No. 88AP-600 (Mar. 16, 1989); In re
Guardianship of Cohodes, 10th Dist. No. 14AP-318, 2015-Ohio-2532, ¶ 17. Due to a
probate court's broad authority to manage guardianships and settle accounts, the
standard of review on appeal of a guardianship decision is abuse of discretion. In re
Austin, 10th Dist. No. 15AP-821, 2016-Ohio-667, ¶ 21-22; In re Weingart, 8th Dist. No.
79489 (Jan. 17, 2002) (a judge must make all guardianship decisions in the best interest
of the ward, and the standard of review for such decisions is abuse of discretion). An
abuse of discretion "connotes more than an error of law or judgment; it implies that the
court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore,
5 Ohio St. 3d 217, 219 (1983).
A. First Assignment of Error
{¶ 15} Schwarzbach's first assignment of error asserts the trial court improperly
declined to consider any of the transcripts submitted in support of the objections. The
trial court concluded the objections presented a weight-of-the-evidence challenge to the
magistrate's decision and a party objecting to a decision on this basis "has a duty to file a
full and complete transcript of the proceedings. * * * When a movant fails to file a
complete transcript, the trial court is limited to accepting the fact finder's determination
of fact based on the evidence, and may only review for errors in applying these facts to
relevant law." (Sept. 20, 2016 Decision at 2.)
{¶ 16} Schwarzbach concedes on appeal that he filed transcripts of the October 20,
2015 and May 13, 2016 hearings before the magistrate in support of objections, but did
No. 16AP-670 6
not file the transcript from the May 5, 2016 hearing until doing so in conjunction with his
notice of appeal to this court filed on September 22, 2016, two days after the trial court's
final judgment. The May 5, 2016 hearing consisted primarily of testimony from lay
witnesses called by and supporting Schwarzbach's competence, and in his memorandum
in support of his objections before the trial court, Schwarzbach repeatedly quoted and
referred to this testimony. Schwarzbach does not argue that the trial court should
necessarily have considered the evidence contained in the absent transcript, but asserts
on appeal that the trial court should have at least referred to the partial transcripts
furnished by Schwarzbach in support of objections. For this proposition, Schwarzbach
cites Pallone v. Pallone, 10th Dist. No. 15AP-779, 2016-Ohio-7066, ¶ 15, quoting In re
Estate of Kelch, 2d Dist. No. 24915, 2012-Ohio-5214, ¶ 21, citing State Farm Mut. Auto.
Ins. Co. v. Fox, 182 Ohio App. 3d 17, 2009-Ohio-1965, ¶ 13 (2d Dist.) (" 'Generally, if only a
partial transcript has been submitted, a trial court abuses its discretion by adopting an
objected-to factual finding without reviewing the partial transcript.' ").
{¶ 17} Schwarzbach alternatively argues on appeal that the trial court abused its
discretion because it knew that supplemental portions of the transcript had been ordered,
but the court did not wait for submission of the complete transcript before rendering its
decision. Gruger v. Diversified Air Sys., Inc., 7th Dist. No. 05-MA-103, 2006-Ohio-3568,
¶ 16, 19.
{¶ 18} Civ.R. 53(D)(3)(b)(iii) provides as follows:
An objection to a factual finding, whether or not specifically
designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii),
shall be supported by a transcript of all the evidence
submitted to the magistrate relevant to that finding or an
affidavit of that evidence if a transcript is not available. With
leave of court, alternative technology or manner of reviewing
the relevant evidence may be considered. The objecting party
shall file the transcript or affidavit with the court within thirty
days after filing objections unless the court extends the time
in writing for preparation of the transcript or other good
cause. If a party files timely objections prior to the date on
which a transcript is prepared, the party may seek leave of
court to supplement the objections.
No. 16AP-670 7
It is undisputed that Schwarzbach did not file the entire transcript of relevant evidence for
the court's consideration when addressing his objections to the magistrate's decision. The
baseline principle of law requires the court to review partial transcripts only to determine
whether the portions of the transcripts submitted are sufficient for the court to resolve the
objections. Pallone at ¶ 17. "Generally, if only a partial transcript has been submitted, a
trial court abuses its discretion by adopting an objected-to factual finding without
reviewing the partial transcript." Estate of Kelch at ¶ 21. Nonetheless, "there is no abuse
of discretion if it is evident from the face of the record the partial transcript is not all the
relevant evidence." Id.
{¶ 19} In the present case, it is clear that the partial transcript filed by
Schwarzbach does not contain all the relevant evidence to address the objections. The
objections were largely based on manifest-weight grounds regarding Schwarzbach's
mental competence. There were three days of testimony on this issue generally, and
Schwarzbach only filed transcripts from two of those three days. Because Schwarzbach
did not file the complete transcript necessary for review of his manifest-weight
arguments, the trial court appropriately limited its review to accepting the magistrate's
determination of fact based on the evidence and only review the magistrate's decision for
error in applying the relevant law to those facts. Hamilton v. Hamilton, 10th Dist. No.
14AP-1061, 2016-Ohio-5900; Hipple v. Hipple, 7th Dist. No. 06 CO 07, 2007-Ohio-4524,
¶ 26.
{¶ 20} Nor did the trial court abuse its discretion in accepting that Schwarzbach
intended to file only two days worth of transcripts and proceeding to complete and enter
its decision. Civ.R. 53(D)(3)(b)(iii) provides that relevant evidence will be filed within 30
days of filing objections; nothing in that rule or any other authority requires the trial court
to inquire about further filings of materials or extend the 30-day deadline in the absence
of any explicit requests to do so from the concerned party.
{¶ 21} Schwarzbach's first assignment of error is accordingly overruled.
B. Second Assignment of Error
{¶ 22} Schwarzbach's second assignment of error contends that the trial court
erred in appointing a guardian. This is essentially a manifest-weight challenge to the
magistrate and trial court's conclusions regarding the evidence. "Judgments supported by
No. 16AP-670 8
some competent, credible evidence going to all the essential elements of the case will not
be reversed by a reviewing court as being against the manifest weight of the evidence."
C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279 (1978), syllabus. "The phrase
'some competent, credible evidence' in C.E. Morris presupposes evidentiary weighing by
an appellate court to determine whether the evidence is competent and credible." Eastley
v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 15. " 'Weight of the evidence
concerns "the inclination of the greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other. * * * Weight is not a question of
mathematics, but depends on its effect in inducing belief." ' " (Emphasis omitted.) Id. at
¶ 12, quoting State v. Thompkins, 78 Ohio St. 3d 380, 387 (1997), quoting Black's Law
Dictionary 1594 (6th Ed.1990). Thus, in reviewing a judgment under the manifest-weight
standard, a court of appeals weighs the evidence and all reasonable inferences, considers
the credibility of witnesses, and determines whether in resolving conflicts in the evidence,
the finder of fact clearly lost its way. Eastley at ¶ 20. In so applying the standard, the
court of appeals "must always be mindful of the presumption in favor of the finder of
fact." Id. at ¶ 21.
{¶ 23} R.C. 2111.02(A) provides for appointment of a guardian of the person, the
estate, or both of an "incompetent" person. In turn, "incompetent" is defined as "[a]ny
person who is so mentally impaired, as a result of a mental or physical illness or disability,
as a result of intellectual disability,"1 or "as a result of chronic substance abuse, that the
person is incapable of taking proper care of the person's self or property." R.C.
2111.01(D). The applicant for a guardianship bears the burden of proving incompetence
by clear and convincing evidence. R.C. 2111.02(C)(3). "Clear and convincing evidence is
that measure or degree of proof which will produce in the mind of the trier of facts a firm
belief or conviction as to the allegations sought to be established. It is intermediate, being
more than a mere preponderance, but not to the extent of such certainty as is required
beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal."
(Emphasis sic.) Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Because the trial court
properly disregarded the incomplete transcripts in this matter, the question on review
1 Prior to amendment effective July 13, 2016, the statute used the term "mental retardation." H.B. No. 158.
No. 16AP-670 9
before this court is whether, based on the four corners of the magistrate's decision, the
facts as accepted therein supported the magistrate's conclusion that Schwarzbach was no
longer competent to handle his own affairs. Hightower v. Hightower, 10th Dist. No.
16AP-182, 2016-Ohio-7870, ¶ 8.
{¶ 24} The magistrate assessed testimony from various witnesses, reaching
different conclusions as to the weight and credibility of each. With respect to
Schwarzbach's own testimony, the magistrate noted that Schwarzbach's testimony
indicated that his relationship with his two surviving children was strained. He resented
the fact that his son, Thomas, lived without paying rent in a home owned by Schwarzbach.
The magistrate described Schwarzbach's testimony as "rambling" and often dominated by
grievances against his children and other associates. (Decision at 20.) The magistrate
noted that Schwarzbach projected a very dominating, "bullish" personality and that with
his recent decline, he was unaccustomed to loss of control over his own affairs,
compounded by the fact that one of his businesses had closed and another was sold.
(Decision at 20.) Schwarzbach was reluctant to rely on his children, whom he considered
spendthrift and incompetent. Schwarzbach gave inconsistent testimony regarding the
extent to which he could rely on Valenzuela and the amount of work she was able to
furnish as a housekeeper. In summary, the magistrate concluded that "Schwarzbach's
testimony is informative of his opinions but not probative of cognitive capacity and
competency." (Decision at 20.)
{¶ 25} The magistrate also assessed the testimony of Schwarzbach's late son Franz
Jr.'s long-term girlfriend of 15 years, Lenora Darling. Darling had remained close to the
Schwarzbach family after Franz Jr.'s death and provided cleaning services in
Schwarzbach's home for pay. Schwarzbach typically paid her by check, although Darling
would fill in most of the check according to Schwarzbach's calculation of the amount owed
due to his hand tremors. Darling also went to the house two or three times a week to do
yard work, but this ended in July 2015 after Valenzuela had moved in due to Valenzuela's
objections. Darling noted that over four years between Elizabeth Schwarzbach's death
and July 2015, Schwarzbach's health deteriorated and he became forgetful. Darling
testified that she found Schwarzbach's medication pills lying on the floor and that
Schwarzbach would be unclear what the medication was for and whether he had taken it.
No. 16AP-670 10
Darling also observed several times Schwarzbach outside his home, partially or nearly
entirely undressed. Darling considered that Valenzuela did not treat Schwarzbach well,
and Schwarzbach when speaking to her alone would confide that he wished Valenzuela
would leave.
{¶ 26} The magistrate considered the testimony of Thomas Schwarzbach. Thomas
testified that his father always spoke English, only occasionally interspersing curse words
in German. Thomas mowed the lawn for his father's house due to his proximity and
conceded that he lived rent-free in his father's other home and that this angered
Schwarzbach. On occasions when he did visit Schwarzbach, Thomas stated that if
Valenzuela was not there, they would speak easily and freely, but when Valenzuela
returned, Schwarzbach would become reticent and ask Thomas to leave. Thomas
observed that his father's temperament has become mercurial and unreliable, including
episodes of forgetfulness. Thomas felt that the living conditions were squalid due to his
father's incontinence and lack of housekeeping. Thomas also suspected that Valenzuela
used illegal drugs and supplied Vicodin to sedate Schwarzbach. He felt that Valenzuela
controlled his father and was blocking him from family contact. Thomas was concerned
that his father was no longer capable of handling his financial affairs, and he did not trust
Hetzel, his father's long-term business partner, to manage the businesses with an eye
toward Schwarzbach's best interests.
{¶ 27} The magistrate considered the testimony of Starr, Schwarzbach's daughter.
She shared her brother's concerns for her father's physical and mental health, which she
also observed had declined rapidly since Elizabeth's death in 2011. When Starr took her
father to a doctor's appointment with his long-time primary care physician, Dr. Welker, in
2014, Dr. Welker advised Schwarzbach that he should no longer live on his own.
Schwarzbach was not pleased and insisted on continuing to live on his own. Starr
nonetheless continued to help her father by paying his bills, taking him to medical
appointments, and occasionally cleaning the house. She described her father as suffering
from Parkinson's disease and a heart condition, and stated that she frequently found his
medication untaken in the pill counter or, worse yet, strewn on the floor. In recent events,
Valenzuela no longer allowed Starr in the home, Starr was aware that her father had given
Valenzuela money to buy illegal drugs, and Starr had seen Valenzuela driving her father's
No. 16AP-670 11
Porsche SUV. When Starr tried to visit her father recently, Valenzuela had threatened to
call police if she did not leave. Police in fact did arrive on that occasion, performed a
welfare check, and recommended that Starr not enter the house based on Schwarzbach's
reaction. Starr had always heard her father communicate in English with his medical
providers, his bankers, his children, and his employees.
{¶ 28} Some of these observations over time had led Starr to seek appointment of a
guardian, particularly after Schwarzbach was admitted to the hospital in 2015 and tested
positive for Suboxone. Following Dr. Welker's recommendation that Schwarzbach not
live at home alone, Schwarzbach discontinued the doctor-patient relationship with Dr.
Welker.
{¶ 29} Pursuant to the incident involving police intervention, Schwarzbach was the
object of an adult protective services report prepared by a caseworker, Bruce Tolbert, who
met with Schwarzbach in July 2015 in his home. Tolbert appeared at the hearing and
testified regarding his professional qualifications and his observation of the case. Based
on his experience in 17 years of social work and his many investigations of elder abuse,
neglect, self-neglect, and exploitation, he described his conclusions after interviewing
Schwarzbach. Tolbert testified that Schwarzbach appeared agitated, distressed, and
distracted, and complained about his memory. Schwarzbach stated that he wanted
Valenzuela out of his house. Tolbert observed unidentified pills in the kitchen and
Schwarzbach could not identify them or their origin. Tolbert also observed uncashed
checks scattered about. Tolbert's ultimate opinion was that Schwarzbach was at
considerable risk, showed sufficient impairment, and required assessment by a clinical
psychologist. Tolbert also believed that a neurological assessment would be useful but
understood that Schwarzbach had missed three consecutive appointments with his
neurologist.
{¶ 30} Dr. John Tilley, a forensic psychologist specializing in testing and
assessments, testified regarding his total of six hours of interviewing and assessing
Schwarzbach. Dr. Tilley stated that he had been licensed to practice in Ohio since July
2002 and had conducted approximately 200 evaluations to assess diminished capacity for
guardianship situations.
No. 16AP-670 12
{¶ 31} Dr. Tilley's evaluation concluded that there was no language barrier to
impede assessment. Dr. Tilley also administered an oral mental-state examination to test
for cognitive impairment. Schwarzbach scored a 15 out of a possible 30, a score typically
associated with a clear and severe cognitive impairment. Dr. Tilley also observed
subjective impairments in orientation, speech, motor behavior, thought process, affect,
memory, judgment, concentration, and comprehension. He concluded that Schwarzbach
presented significant neurocognitive impairment and was in need of a guardianship
because his neurocognitive deficiencies were too substantial and debilitating to manage
his own affairs.
{¶ 32} The magistrate also assessed testimony from a probate court investigator
who visited Schwarzbach and concluded that Schwarzbach exhibited limited ability to
handle his own affairs. The investigator recommended a guardianship.
{¶ 33} The magistrate considered testimony from Dr. Cynthia Ledford, whose
opinion was that Schwarzbach did not need a guardian. The magistrate noted that Dr.
Ledford is a primary care physician and had never been involved with a proceeding
assessing the need for a guardian competency and a guardianship. Her testimony was
based on a single new-patient appointment with Schwarzbach in which she met him for
approximately 15 minutes. A resident physician conducted a 5-minute dementia
screening test during this time. Dr. Ledford was satisfied with Schwarzbach's
performance on that test. Dr. Ledford did conclude, however, that Schwarzbach had poor
health literacy and could not manage his own medications. Based on this, Dr. Ledford
recommended periodic nursing visits to ensure preparation and compliance with a
medical regimen.
{¶ 34} The magistrate disregarded further evidence submitted in the form of a
letter from Dr. Kathleen A. Ellickson, Ph.D., which opined that Schwarzbach was not in
need of a guardianship. The magistrate concluded that Dr. Ellickson was not qualified,
did not appear personally, and therefore her opinion could not be probative.
{¶ 35} The magistrate also considered testimony from Schwarzbach's business
associates. Schwarzbach's primary partner, Hetzel, testified regarding the actual business
arrangements between the two men and gave completely non-credible evidence regarding
their respective facility with the English language. The magistrate noted that Hetzel
No. 16AP-670 13
answered questions without difficulty in English when it was convenient and retreated
into incomprehension at other times. Hetzel was not straightforward regarding his recent
federal prosecution which resulted in house arrest and the resulting need to transfer
business shares to Hetzel's wife. Business dealings of the two men were, perhaps
deliberately, tangled and obscure, and Hetzel did not clarify either his own role or
Schwarzbach's ability to sustain management of the businesses, beyond the bald assertion
that Schwarzbach remained competent. The magistrate also noted that Hetzel's
testimony was burdened with a conflict, in that Schwarzbach's eventual incompetence
would impair Hetzel's ability to run the businesses without interference.
{¶ 36} The magistrate heard testimony from Peter Hewitt, a bookkeeper who
handled deposits, receivables, and basic accounting for the business affairs of the various
clubs. Hewitt opined that Schwarzbach could handle his business affairs although he was
increasingly forgetful and probably required assistance taking his medications.
{¶ 37} The court, in overruling objections, specifically noted that Schwarzbach is
"proficient in English and capable of communicating and comprehending the English
language." (Decision at 29.) The court therefore overruled any objections on this basis,
adopted the magistrate's report, and approved appointment of a guardian.
{¶ 38} We find no abuse of discretion in the probate court's judgment. Again, "[i]n
general, a probate court is given broad discretion in matters involving the appointment of
a guardian." In the Matter of Guardianship of Thomas, 148 Ohio App. 3d 11, 21 (10th
Dist.2002). Based on the summary of evidence contained in the magistrate's decision,
there was clear and convincing evidence to support the magistrate's conclusion and the
trial court's ultimate judgment that Schwarzbach was no longer competent to manage his
own business and personal affairs and a guardianship was necessary. Based on
diminished capacity and the risk of abuse at the hands of third parties and with the
extreme risk from inability to reliably administer medication, the guardianship was
appropriate. Schwarzbach's second assignment of error is accordingly overruled.
C. Third Assignment of Error
{¶ 39} Schwarzbach's third assignment of error asserts that the trial court erred in
refusing to allow payment of Schwarzbach's attorney fees and expenses incurred in
opposing the guardianship. The basis for this assignment of error is difficult to discern.
No. 16AP-670 14
Schwarzbach was in fact represented by counsel of his choice throughout the
guardianship proceedings. After an initial refusal of further transfers into the current
spending account entered by the magistrate, the trial court modified the magistrate's
decision on May 3, 2016 and allowed the transfer of $20,000 into the PNC living expenses
and operating account "to secure litigation costs, including but not limited to attorney fees
that remain subject to approval by the Court pursuant to Local Rules governing the fees in
the guardianship proceedings." (May 3, 2016 Entry at 3.) Although all fees remained
subject to approval under local rule, Schwarzbach was not deprived of representation by
the counsel of his choice nor the ability to provide payment therefor. Schwarzbach's third
assignment of error is accordingly overruled.
D. Fourth Assignment of Error
{¶ 40} Schwarzbach's fourth assignment of error asserts that the trial court erred
in "restricting" appellant's ability to engage and pay for a foreign language interpreter.
Schwarzbach appears to object to matters controlled by the agreed entry of September 3,
2015 determining that all expenses would run through the PNC account. The magistrate's
order of April 13, 2016 did state that interpretation services could be categorized as
litigation expenses and paid out of the PNC account. The subsequent court order of
May 3, 2016 enlarged on this authorization. We therefore find no indication that the trial
court in fact prohibited Schwarzbach from engaging the services of an interpreter in
preparation for litigation, and it is apparent that a translator was in fact provided during
the course of the hearing before the magistrate.
{¶ 41} Schwarzbach's fourth assignment of error is accordingly overruled.
III. CONCLUSION
{¶ 42} In accordance with the foregoing, Schwarzbach's four assignments of error
are overruled, and the judgment of the Franklin County Court of Common Pleas, Probate
Division, appointing a guardian for the person in the estate of Schwarzbach is affirmed.
Judgment affirmed.
TYACK, P.J., and DORRIAN, J., concur.
________________