COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68697 IN THE MATTER OF: : : EDNA S. LECHT : : JOURNAL ENTRY : : AND : : OPINION : : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Probate Division, Case No. 1096933 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant, Audrey Heller: For Edna S. Lecht: DAVID I. JAFFE, Esq. JAMES FLAHERTY, Esq. 24200 Chagrin Blvd. #346 13147 Westchester Trail Beachwood, OH 44122 Chesterland, OH 44026 LOREN M. SONKIN, Esq. 2637 Ashton Road Cleveland Heights, OH 44118 For Stuart Lecht: PHILLIP LAWRENCE 26 South Franklin Street Chagrin Falls, OH 44022 - 2 - O'DONNELL, J.: Audrey Paula Heller, appeals the decision of the Cuyahoga County Probate Court, dismissing her application for appointment as guardian of her mother, Edna Siegel Lecht, and finding that the applicant failed to provide clear and convincing evidence of incompetency. Edna Siegel Lecht, the eighty-seven year old mother of Audrey Heller, Carol Turoff, and Stewart Lecht, lives at the R.H. Myers Apartments, located at 27200 Decar Road, Beachwood, Cuyahoga County, Ohio, an assisted living facility. The evidence contained in the record of this case shows that Mrs. Lecht's estate dwindled from Six Hundred Thousand Dollars ($600,000.00) in 1992 to less than Seventy Thousand Dollars in December 1994, during which time, her son Stuart Lecht, held a power of attorney for her. The evidence further reveals that in November 1993, Edna Lecht deeded her former $125,000.00 residence located at 2564 Fenwick Road, University Heights, Ohio, to her son, and also that on January 24, 1994, she wrote two checks to him totaling $99,790.30 from her National City Account. When she learned of these transactions, Audrey Heller, Stuart's sister, filed an application on January 27, 1994 for guardianship for her mother on the basis of incompetency. On October 4, 1994, Stuart rendered an accounting to the probate court of expenditures made with the money received from his - 3 - mother which included restoration of the Fenwick property, personal expenses and other purchases of a boat and motorcycle and airplane parts. After conducting hearings on this matter on two occasions where the proposed ward testified for ninety (90) minutes and sixty (60) minutes respectively, and almost one year after the filing of the original application for guardianship, the court entered its order denying the application and finding that the applicant had not proved incompetence by clear and convincing evidence. Heller now appeals and assigns three errors for our review. I. The first assignment of error states: THE COURT ERRED IN ITS DETERMINATION THAT APPLICANT HAD FAILED TO PROVE, BY A PREPONDERANCE OF THE EVIDENCE THAT THE PROPOSED WARD WAS NOT CAPABLE AS DEFINED UNDER OHIO REVISED CODE SECTION 2101.01. Although the appellant phrases this assignment of error in terms of a preponderance of evidence, in the brief submitted in support of this appeal, appellant argues clear and convincing evidence, the correct burden of proof for a case involving incompetency. Appellant believes that the evidence proved Edna Lecht's incompetence by clear convincing evidence and, therefore, the court erred in its contrary finding. In support of this position, appellant urges that the large gifts made by Mrs. Lecht to her son, demonstrate she is incompetent. - 4 - In this case, the record reveals that Stuart Lecht hired James T. Flaherty, an attorney, to represent his mother. Flaherty, together with Stuart Lecht, opposed this application urging that the court correctly found Edna Lecht competent because the applicant failed to demonstrate incompetency by clear and convincing evidence. The issue then for our review is whether the trial court properly found Edna Lecht competent. We begin by examining the proper standard of review in cases of this distinction. Decisions regarding the appointment of guardians will not be reversed absent an abuse of discretion of the trial court. In re the Estate of Bednarczuk (1992), 80 Ohio App.3d 548. "An abuse of discretion is more than an error of law or judgment; rather, it implies that the court's attitude is unreasonable, unconscionable or arbitrary." State v. Adams (1980) 62 Ohio St.2d 151, 157. In re the Estate of Bednarczuk (1992), 80 Ohio App.3d 548, 551. Thus, we shall review this case to determine whether or not the trial court abused its discretion in finding the proposed ward competent. R.C. 2111.02 (C)(3) states in relevant part: If the hearing concerns the appointment of a guardian or limited guardian for an alleged incompetent, the burden of proving incompetency shall be by clear and convincing evidence. See also In re Guardianship of Rudy (1992), 65 Ohio St.3d 394. - 5 - Further, R.C. 2111.01 (D) defines incompetency as follows: "Incompetent" means any person who is so mentally impaired as a result of a mental of physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that he is incapable of taking proper care of himself or his property. . . A review of the record and evidence presented in this matter reveals that Dr. Phil Cohen, a psychiatrist who examined Mrs. Lecht on March 16, 1994 while she was a patient at the Montefiore Nursing Home in 1994, and Dr. Nancy Beller, a physician who treated Mrs. Lecht from September 1992 through March 1994, testified that in their respective professional opinions, Mrs. Lecht was incompetent. On the other hand, the record also reflects that Dr. Nancy Huntsman, a psychologist who met with Mrs. Lecht in January of 1993 and Dr. Thomas Hall, a psychologist who met with Mrs. Lecht on October 24, 1994, and Dr. Franklin Price, a physician who treated Mrs. Lecht, each testified that in their expert opinions, Mrs. Lecht was competent. Further, the findings of fact reveal that the alleged incompetent testified before the judge on two separate occasions. After consideration of the record and evidence before the court, it is clear that the professionals who examined the proposed ward differed as to her competency. The court in rendering its decision considered all of the expert testimony as well as the testimony of the alleged incompetent. The court, as trier of fact in this case, may believe all, part or none of the - 6 - testimony of these witnesses because it determines credibility and observes each witnesses' demeanor and in the exercise of its discretion, renders its judgment. In this case we cannot conclude that the court, abused its discretion because the record does not demonstrate the court's attitude was unreasonable, unconscionable or arbitrary. Accordingly, this assignment of error is not well taken. II. Appellant's second assignment of error states: THE COURT ERRED IN ITS DETERMINATION THAT THE PROPOSED WARD OBJECTED TO THE APPOINTMENT OF A GUARDIAN AND WAS EFFECTIVELY REPRESENTED BY COUNSEL. Appellant argues that the court erred in disregarding the alleged incompetent's request for the appointment of a guardian since she had written a letter to the court requesting that the court help her account for her assets. Appellant also believes counsel failed to effectively represent the alleged incompetent since he failed to consider her best interest. Appellee asserts that the alleged incompetent never requested that the court determine her to be incompetent, that she hired counsel to represent her, and he zealously advocated on her behalf. Appellee urges that the court acted properly by denying the requested guardianship. - 7 - Thus, the issue presented is whether the court's determination in this case is supported by the evidence in the record. The record reflects that the alleged incompetent through counsel, filed an objection to the guardianship and later testified before the judge that she did not want the court to adjudicate her incompetent, she only wanted the court to assist her in helping her account for her assets. In light of these facts, we find no merit to the position being advocated by the appellant. This assignment of error is therefore overruled. III. For her last assignment of error, Heller states as follows: APPLICANT WAS DEPRIVED OF DUE PROCESS IN THE COURSE OF THE PROCEEDINGS ON THE APPLICATION FOR APPOINTMENT OF GUARDIANSHIP IN THE PROBATE COURT. Appellant contends that the trial court denied due process to the applicant and the alleged incompetent because of the length of time the court took to make a final order in the case, and because the transfer of the case from the referee to the judge denied both the applicant and the alleged incompetent a full hearing in front of either the referee or the judge. Conversely, appellee contends that appellant lacks standing to assert a due process violation on behalf of the alleged incompetent who does not complain of a due process denial. - 8 - The issue then is whether the probate court violated the due process rights of the litigants in the determination of guardianship in this matter. Fundamental due process requires notice be given to the parties and that the parties be given an opportunity to be heard. Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 542. In this case, all parties appeared at all scheduled hearings, availing themselves of their opportunity to present and cross- examine witnesses. The alleged incompetent testified before the court on two occasions; testimony before the referee was transcribed and entered into evidence pursuant to stipulation of the parties; and trial court conducted a full hearing. On the status of this record, we conclude that no due process violation occurred in this case. Furthermore, Revised Code 2111.02, which defines the procedure for the determination of incompetency, imposes no time within which a court must render a decision on a guardianship matter, and accordingly, we conclude this should be done within reasonable time. In this instance, due to the complexity of the issues presented, and the number of witnesses and the totality of the circumstances, we cannot conclude the probate court denied due process to these litigants. Appellant's third assignment of error is therefore overruled. - 9 - In accordance with the foregoing analysis, the judgment of the trial court is affirmed. Judgment affirmed. - 10 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Probate Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., JOHN T. PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .