COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70980 IN RE: VOLMER HOY YENSEN, : Incompetent : : JOURNAL ENTRY : : AND : : OPINION : DATE OF ANNOUNCEMENT OF DECISION: MAY 8, 1997 CHARACTER OF PROCEEDING: Appeal from Probate Court Case No. 1111852 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For appellant Karen Starr: MADELON SPRAGUE Zamore, Luria & Gisser 1111 Tower East 20600 Chagrin Blvd. Shaker Heights, Ohio 44122-5334 For appellees: IRWIN D. DINN 5885 Landerbrook Drive, Suite 205 Cleveland, Ohio 44124 RAYMOND E. COOKSTON Huntington Building, Suite 695 925 Euclid Avenue Cleveland, Ohio 44115 GERALD M. PORTER Donahue & Scanlon 3300 Terminal Tower 50 Public Square Cleveland, Ohio 44113 - 3 - O'DONNELL, P.J.: Karen P. Starr, the niece of Volmer Hoy Yensen, an incompetent, appeals from a judgment of the Cuyahoga County Probate Court which denied her Application for Appointment as Guardian of his Person. The record reflects that the matter originated in 1995 when Mary Yensen, Volmer's wife, filed an application to become his guardian. However, she died in August of that year before final adjudication, and consequently both that application and Volmer's opposition to it were withdrawn. Thereafter, Patricia Leutbecker, Mary Yensen's natural daughter and Yensen's adopted daughter, moved her father to her home in Virginia. He has remained in Virginia since that time and presently resides at the Arleigh Burke Nursing Home. The Cuyahoga County Probate court noted in its judgment entry that Leutbecker has filed an application for guardianship of her father with the Virginia court, but did not report any ruling on that matter. Further, the Cuyahoga County court appointed Gerald M. Porter, Esq., as Guardian of Yensen's $500,000 estate in accordance with terms of an agreed judgment entry. The central focus of this appeal concerns Karen Starr's Application for Appointment as Guardian of the Person of Volmer Yensen which she filed in Cuyahoga County as Yensen's niece on behalf of his Cuyahoga County relatives and friends. The - 4 - Cuyahoga County Probate Court referred the matter to a magistrate for an evidentiary hearing, and, after reviewing the magistrate's report and the objections to it, and after conducting its own hearing on the application, adopted the magistrate's recommendations and denied Starr's application. Karen Starr now appeals this judgment of the court and has assigned three errors for our review. Because the first two assignments of error are similar, we shall consider them jointly. They state: I. THE PROBATE COURT ERRED BY FAILING AND REFUSING TO APPOINT THE APPLICANT AS GUARDIAN OF THE PERSON OF THE INCOMPETENT. II. THE PROBATE COURT ABUSED ITS DISCRETION IN FINDING THAT IT WAS NOT IN THE BEST INTEREST OF THE INCOMPETENT TO APPOINT A GUARDIAN OF THE PERSON FOR HIM. Citing R.C. 2111.02, appellant argues that when the Probate Court determined Volmer Yensen incompetent and appointed a guardian for his estate, it had a concomitant duty to also appoint a guardian of his person and erred by not appointing appellant as such guardian; alternatively, appellant invites us to determine the court abused its discretion in failing to appoint a guardian for the person of Volmer Yensen. Appellee urges, however, that the court's judgment is supported by evidence contained in the record which demonstrates - 5 - that the court properly exercised its discretion in declining to appoint a guardian of the person of Volmer Yensen. The issues presented by these assignments of error can be stated as follows: did the Probate Court err or abuse its discretion in failing to appoint Karen Starr as guardian of the person of Volmer Yensen after it had appointed a guardian of his estate? After reviewing the evidence and the law, we conclude the court did not err or abuse its discretion in this case. We begin our discussion by reviewing R.C. 2111.02, the statute governing guardianships, which states in relevant part: (A) When found necessary, the probate court on its own motion or on application by an interested party shall appoint, subject to divisions (C) and (D) of this section and to section 2109.21 and division (B) of 2111.121 of the Revised Code, a guardian of the person, the estate, or both, of a minor or incompetent ***. (Emphasis added.) It is well settled law that the probate court has broad discretion in matters involving the appointment of a guardian, but the court must act in the best interest of an incompetent. See In re Bednarczuk (1992), 80 Ohio App.3d 548; In re Guardianship of Schumacher (1987), 38 Ohio App.3d 37. Further, the appropriate standard of appellate review in matters concerning guardianship is whether or not the court abused its discretion in considering the appointment. And, as the court pointed out when it reviewed a matter concerning an alleged incompetent: - 6 - A court of appeals may review findings of fact for an abuse of discretion by the trial court. But it cannot make a finding of fact that should have been made by the trial court, nor extract such a finding from the trial court's opinion where no finding was made. In re Guardianship of Rudy (1992), 65 Ohio St.3d 394 at 396. Here, then, we are obligated to review the actions of the trial court in conformity with the above-stated standards of review. In construing R.C. 2111.02, several emphasized parts of the statute suggest the court is required by law to exercise its discretion in considering an application for guardianship. Initially, we note the court only need act, "when found necessary", which vests the court with discretionary authority to act or to refuse to act; next, the portion of the statute quoted above allows for the appointment of "a guardian of the person, the estate, or both." Here, we recognize this as a disjunctive listing, thereby giving wide latitude to the court to act in the best interest of the ward as the court, in the same exercise of its discretion, deems appropriate. Finally, we point out that since the legislature chose to use the conjunction, "or" preceding the word "both," it gave the court the option of appointing only a guardian of the estate "or" appointing only a guardian of the person. Hence, we conclude the court did not err as a matter of law in not appointing a guardian of Volmer Yensen's person. Further, we recognize the court determined that appointment of a guardian who lives several hundred miles away from this - 7 - jurisdiction would not serve the ward's best interest, and that the appellant did not convince the court that the ward's best interest would be served by compelling him to return to Ohio. In conformity with In re Guardianship of Rudy, supra, we are unable to make findings different from those by the probate court in this case, and we do not find these findings exhibit an attitude on the part of the court which is unreasonable, arbitrary, or unconscionable. See Blakemore v. Blackmore (1983), 5 Ohio St.3d 217. Under the facts of this case, we cannot conclude that the failure of the court to appoint a guardian of the person of Volmer Yensen constitutes an abuse of discretion. Accordingly, these assignments of error are not well taken. III. Appellant's third assignment of error states: THE FINDINGS OF FACT OF THE PROBATE COURT ARE NOT SUPPORTED BY THE EVIDENCE AND CONTRARY TO THE EXPRESS WISHES OF THE INCOMPETENT. Appellant argues that the evidence in the case suggests that it is in the best interest of the ward to have a guardian appointed in Ohio in conformity with Yensen's wishes, and that the evidence does not support the contrary finding by the trial court. Appellee urges, however, that the evidence failed to convince the court to exercise it discretion to appoint a - 8 - guardian and that the record does not show any abuse in failing to exercise that discretion. The issue then, presented for our consideration, is whether the court's judgment is supported by evidence contained in the record. Appellant's concern for the well being of the ward is genuine as it is her belief that Yensen would like to return to Ohio nearer his Cleveland family and friends. However, as expressed herein, the court has broad discretion to act in these matters in conformity with law, proving it does not abuse its discretion. Here, the record reflects that Mr. Yensen is receiving excellent nursing home care in Virginia, and that his daughter visits him frequently; further, the trial court noted on page 5 of its judgment entry, that the appellant did not convince the court that Mr. Yensen's best interest compelled his return to Ohio nor support her contention that Yensen would be cut off from family and friends by remaining in Virginia. Accordingly, we conclude that the record contains evidence which supports the judgment of the court and does not compel a contrary result. Therefore, this assignment of error is not well taken. Judgment affirmed. - 9 - 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. KARPINSKI J., and ROCCO, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .