COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72052 IN RE: IRWYN P. METZENBAUM : ACCELERATED DOCKET : Appellee : JOURNAL ENTRY : and : OPINION : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION : JULY 31, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Probate Division : Case No. 1080844 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For appellant TERRY S. METZENBAUM, pro se Terry Shane Metzenbaum: 3882 Bushnell Road University Heights, OH 44118 For appellee ANNE H. MIHELICH ROSS Howard Roy Linder : Attorney at Law Mihelich & Mihelich Ross 400 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For appellee SARAH GABINET Irwyn P. Metzenbaum : Attorney at Law One Cleveland Center, 20th Fl. 1375 East Ninth Street Cleveland, Ohio 44114 PER CURIAM: Appellant, Terry Shane Metzenbaum, appeals the decision of the Cuyahoga County Common Pleas Court, Probate Division, which granted letters of guardianship to appellee, Howard Linder, as guardian of the person and estate of Irwyn P. Metzenbaum. On December 30, 1996, appellant filed an application to be appointed guardian of his father, Irwyn P. Metzenbaum ("Irwyn"). The hearing was initially set for January 22, 1997. The record reflects that the proposed ward was personally served with notice of this hearing on December 31, 1996, as required by R.C. 2111.04(A)(2)(a)(i). Leslie Linder, as Irwyn's daughter and next of kin, was notified by certified mail. The hearing was continued until February 10, 1997. On February 5, 1997, a second applica- tion for guardianship was filed by appellee Howard Linder ("Linder"), Irwyn's son-in-law. Appellant moved to strike this application on the basis that it was improperly served and that 1 Linder was an inappropriate guardian. The hearing proceeded on February 10, 1997. It is undisputed that appellant was at the hearing representing himself and that Linder and Irwyn were present, each represented by separate counsel. The record does not contain any transcript of this 1 Appellant also moved the probate court for a criminal investigation of Byron Krantz, the trustee of Irwyn's living trust. This motion was denied by the court on February 12, 1997. - 3 - hearing nor was any statement of evidence provided to this court in lieu of such a transcript as permitted by App.R. 9. In its judgment entry journalized on February 12, 1997, the court found Irwyn to be incompetent. Finding Linder to be a suitable person to serve as guardian of the person and estate of Irwyn and appellant unsuitable in that capacity, the court appointed Linder as guardian. In turn, appellant's motion to strike Linder's applica- tion was denied. This appeal follows wherein appellant assigns the following errors for our review: I. THE COURT BELOW ERRED AS TO GRANTING THE GUARDIANSHIP APPLICATION AS FILED BY HOWARD LINDER AS LINDER'S APPLICATION WAS NEVER SERVED ON IRWYN METZENBAUM OR OTHER PARTIES ENTITLED TO SERVICE, INCLUDING APPELLANT, AS REQUIRED BY LAW. II. THE COURT BELOW ERRED IN ALLOWING GUARD- IANSHIP PROCEEDINGS TO CONTINUE WITHOUT ENSURING PROPER LEGAL REPRESENTATION FOR IRWYN METZENBAUM. III. THE COURT BELOW ABUSED ITS DISCRETION IN APPOINTING HOWARD LINDER AS GUARDIAN FOR IRWYN METZENBAUM. I. In his first assignment of error, appellant contends that Linder's application was not served according to statute and therefore should not have been considered by the trial court. - 4 - R.C. 2111.04 governs the notice required when seeking the appointment of a guardian for an alleged incompetent person and provides: (A) *** [N]o guardian of the person, the estate, or both shall be appointed until at least seven days after the probate court has caused written notice, setting forth the time and place of the hearing, to be served as follows: * * * (2) In the appointment of the guardian of an incompetent, notice shall be served: (a)(i) Upon the person for whom appointment is sought by personal service by a probate court investi- gator, *** * * * (b) Upon the next of kin of the person for whom appointment is sought who are known to reside in this state. Compliance with the notice provisions as set forth above assures that those affected by the proposed guardianship are given the opportunity to be heard and afforded their right to due process. In re Guardianship of Reynolds (1956), 103 Ohio App. 102, 106-107; see, also, Horn v. Childers (1959), 116 Ohio App. 175, 181; In re Koegnigshoff (1954), 99 Ohio App. 39. Consequently, the failure to personally serve the proposed ward with notice as directed by statute divests a court of authority to appoint a guardian and any appointment made without jurisdiction to do so is void. Reynolds, supra; In re Corless (1981), 2 Ohio App.3d 92, 93; - 5 - In re Aron (Apr. 13, 1978), Cuyahoga App. No. 37398, unreported. Notwithstanding, the requirements of the statute are satis- fied if an alleged incompetent was aware that the jurisdiction of the court had been invoked. In re Guardianship of Bireley (1944), 41 Ohio Law Abs. 604, 606. In Bireley, two competing applications for guardianship were before the court, the second having been filed after the proposed ward received notice of the hearing on the first application. The second applicant was ultimately appointed. In finding that the requirements of the statute were met, the court reasoned that the proposed ward was put on notice that a guardianship application was filed, invoking the jurisdiction of the probate court. The fact that the identity of the appointee was not known would not affect the substantive rights of the ward so as to invalidate the appointment. Accord In re Guardianship of Sechler (Dec. 24, 1996), Franklin App. No. 96APF03-359, unreported. The same is true in this case. The record reflects that Irwyn was personally served with notice of the hearing on appellant's application. He was aware that the jurisdiction of the court was invoked and was present at the originally scheduled hearing as well as the rescheduled hearing. Moreover, appellant and his sister were both put on notice that the probate court had acquired jurisdiction as a result of appellant's prior application. Because Linder's intervening application did not in any way impair Irwyn's - 6 - substantive right to due process, the notice requirements of R.C. 2111.04 were satisfied and the probate court was within its authority to appoint a guardian for Irwyn. Accordingly, appellant's first assignment of error is not well taken. II. In his second assignment of error, appellant contends that Irwyn was inadequately represented by counsel. Specifically, he argues that attorney Sarah Gabinet represented to the court that she was Irwyn's counsel despite appellant's attempts to bring to 2 the court's attention a conflict of interest. However meritorious appellant's arguments may be, we find that resolution of this assignment of error requires a review of the evidence presented at the hearing. Reiterating, the record does not contain any transcript of the hearing nor any statement of evidence in lieu of such a transcript a permitted by App.R. 9. It is the appellant who bears the burden of providing a record which demonstrates the claimed error. App.R. 9(B) and 10(A); Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19; Baker v. Cuyahoga Cty. Court of Common Pleas (1989), 61 Ohio App.3d 59, 62. "When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court 2 Sarah Gabinet is a partner in the same law firm as Byron Krantz, the trustee of Irwyn's living trust. - 7 - has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199; Chaney v. East (1994), 97 Ohio App.3d 431, 435; Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, 386- 389. Because the record does not contain any transcript or statement of evidence in lieu of a transcript, we must presume the validity of the probate court's proceedings and affirm the decision of the court below as to the adequacy of Irwyn's legal representation. Accordingly, appellant's second assignment of error is not well taken. III. In his third assignment of error, appellant contends that the probate court abused its discretion in appointing Linder as guardian of the person and estate of Irwyn. Specifically, appel- lant argues that he is a better choice for guardian than Linder because he has been Irwyn's caregiver for several years and is aware of Irwyn's needs. The probate court's primary responsibility in choosing who shall serve as guardian is to ensure that the person appointed will promote the best interests of the ward. In re Guardianship of Elliott (Dec. 16, 1991), Madison App. No. CA91-01-002, unreported. In so doing, the probate court has broad discretion in appointing - 8 - guardians and, in the absence of an abuse of that discretion, the decision of the probate court will not be set aside by a reviewing court. In re Estate of Bednarczuk (1992), 80 Ohio App.3d 548. 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 (1983), 5 Ohio St.3d 217, 219. Appellant contends that the evidence submitted at the hearing supports his argument that the probate court erred in appointing Linder instead of appellant as guardian. Without a transcript of the proceedings or statement of evidence in lieu thereof, this court has nothing to pass upon and, as in appellant's second assignment of error, we must presume validity of the probate court's decision appointing Linder as guardian. Accordingly, appellant's third assignment of error is not well taken. Judgment affirmed. - 9 - This cause is affirmed. It is ordered that appellees recover of appellant their 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 its 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, PRESIDING JUDGE JOHN T. PATTON, JUDGE ROBERT E. HOLMES, JUSTICE* *SITTING BY ASSIGNMENT: Robert E. Holmes, retired Justice of the Ohio Supreme Court, sitting by assignment. 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 of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .