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In re Guardianship of Matyaszek12/29/2004
Even the Probate Court concluded that any fraud perpetrated upon the court came from appellant's father. Also, the fact that the settlement was at the limit permitted without requiring independent representation creates the impression that representation for appellant was not desired by either party.
{ } Finally, neither party presented sufficient evidence to the Magistrate so that he could ensure that appellant's interests were protected. The Magistrate himself testified that he believed that appellant's interests had not been represented. In conclusion, it is entirely evident that appellant had no meaningful representation at the settlement hearing.
{ } A minor's interests are paramount in a settlement made on his behalf. When those interests are not protected in circumstances leaving a firm belief that an injustice has been done, relief is warranted. This Court is left with the definite belief that a wrong has been done to appellant. We think the Ohio Supreme Court summed it up best:
"A careful examination of this record, coupled with the rather unsatisfactory allegations of fraud, leads to much more than a suspicion that the court entering the decree was not as careful as might be desired, and the further suspicion that the guardian ad litem had not discharge his full duty * e think the dictates of substantial justice require that the demurrer should be overruled, that the interested defendants be required to answer, and that a better opportunity will be thereby afforded to do substantial justice between all parties interested." Bennett v. Fleming (1922), 105 Ohio St. 352, 365-66.
{ } We are of the firm opinion that justice wasnot done in this case for appellant. He is entitled to have his day in court where his interests are represented. The Probate Court abused its discretion in denying him relief from judgment under the facts of this case. Appellant's sole assignment of error is sustained.
VIII.
{ } This Court finds that the Probate Court abused its discretion in denying appellant's motion to vacate judgment. The Probate Court did not properly place appellant's interests as the paramount concern. The Probate Court did not consider the prejudicial effect the procedural irregularities had on appellant's interests. For the foregoing reasons, the decision of the Probate Court is reversed and the matter is remanded for further proceedings consistent with this opinion.
Judgment reversed, and cause remanded
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Costs taxed to appellee.
Exceptions.
DONNA J. CARR
BOYLE, J. CONCURS IN JUDGMENT ONLY BATCHELDER, J. DISSENTS, SAYING:
{ } Respectfully, I dissent from the majority opinion. In my view, the majority opinion presents a new conception of Civ.R. 60(B)(5).
{ } In this case, the Magistrate allegedly observed appellant at the hearing and inquired of his father to ascertain appellant's medical condition, approved the settlement and ordered the settlement money to be paid to appellant's interest. However, the Magistrate did not require any bond to be posted to protect appellant nor did he have any method in place to ensure that the settlement money was in fact paid to appellant. Last, the Magistrate did not appoint a guardian ad litem to ensure that appellant's interests were protected as con
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