In re Estate of Ohman
OSOWIK, J.
{1} This is an appeal from a judgment of the Sandusky County Court of Common Pleas, Probate Division, which overruled three objections to the magistrate‘s decision on an amended complaint under
{2} The following chronology of events are relevant in this appeal. Gail Ina Ridoutt and her husband, Robert Dale Ridoutt, were friends of Kaylene Ohman through their mutual church, the Church of Jesus Christ of Latter-Day Saints in Fremont, Sandusky County, Ohio. In 2012, an attorney, who was the branch president of their mutual church and the Ridoutt‘s son-in-law, prepared a last will and testament signed by Ms. Ohman in which she named Mr. and Mrs. Ridoutt as her joint personal representatives/executors. Ms. Ohman, who lived in Fremont, was unmarried and without children.
{3} Ms. Ohman died on March 5, 2016, survived by four siblings, one of whom has since passed away. Mrs. Ridoutt notified the siblings, including Evalie Brockway, Ms. Ohman‘s sister, of Ms. Ohman‘s death. Ms. Ohman‘s landlord gave the Ridoutts up to ten days to vacate Ms. Ohman‘s apartment. The Ridoutts placed most of Ms. Ohman‘s personal property owned at death in a locked storage unit. The personal property not found in the storage unit is the main subject of this litigation.
{4} On March 11, Mrs. Brockway sought access to Ms. Ohman‘s apartment, which the Ridoutts denied. Mrs. Brockway then contacted the local police, who investigated and determined that the Ridoutts had proper authority from the decedent.
{5} On April 6, Mrs. Ridoutt obtained from a local jeweler an estate appraisal for 19 items of Ms. Ohman‘s jewelry, which totaled $1,922.00.
{7} Then on April 10, 2017, the probate court appointed Mrs. Brockway as the administrator of Ms. Ohman‘s estate, the personal property of which Mrs. Brockway at the time believed was worth about two-hundred dollars. On July 13, Mrs. Brockway filed an accounting with the probate court for the $633 appraised value of the storage unit contents. The volume of jewelry itemized in the appraisal comprised about $275.00 of that appraised value and was described by the probate court as “showing values generally between five and fifteen dollars apiece.”
{8} Mrs. Ridoutt died on September 7, 2018, and on March 4, 2019, the probate court admitted her last will and testament and appointed Mr. Ridoutt as the executor of Mrs. Ridoutt‘s estate.
{9} In March 2019, as administrator of Ms. Ohman‘s estate, Mrs. Brockway (hereafter “appellee“) filed by affidavit an $80,000 claim against Mrs. Ridoutt‘s estate,
{10} On January 29, 2020, appellee filed an amended complaint3 against defendants Robert Ridoutt, individually, as Executor of the Estate of Gail Ina Ridoutt, and as Trustee of the Ridoutt Living Trust dated February 23, 2018; Amy Wylykanowitz;
{11} The probate court magistrate held a two-day hearing on appellee‘s amended complaint and filed the decision on June 30, 2021, which the probate court adopted on July 9, pursuant to
{12} First, although nominated in Ms. Ohman‘s will, Mr. and Mrs. Ridoutt were never formally appointed by the probate court as executors of Ms. Ohman‘s estate, yet “acted in all respects as if they had in fact already been appointed as Executors.”
{13} Second, Mr. and Mrs. Ridoutt took possession of, and control of, the personal property of Ms. Ohman shortly after her death, all of which they believed had no
{14} The Ridoutts took some jewelry to a jeweler for appraisal, all of which is now missing. The appraised value of the missing jewelry is $1922.00, which, even when combined with the jewelry items from the storage unit, the magistrate found Ms. Ohman‘s jewelry overall “was not extraordinary or reflective of fine, expensive jewelry.” The magistrate further found the missing jewelry “admittedly was lost or otherwise improperly disposed of by Gail and or Robert Ridoutt.”
{15} Third, appellee failed to establish the $10,000 life insurance policy, which named Mrs. Ridoutt as beneficiary, “should have been an asset of the Estate of Kaylene Ohman.”
{16} Fourth, Mr. Ridoutt, as executor of Mrs. Ridoutt‘s estate, “has discretion to deny any claim presented under [
{17} Fifth, for purposes of
{18} Also reflected in the magistrate‘s decision is the following: “The parties stipulated that the trial was to be conducted in accordance with ordinary civil rules for procedure and that special procedural requirements of the statute were waived.”
{19} Mr. Ridoutt timely filed objections on July 23, 2021, to the magistrate‘s decision, which appellee opposed. Mr. Ridoutt argued three grounds for his objections. First, the guilty finding under
{20} In response, appellee opposed Mr. Ridoutt‘s objections because Mr. Ridoutt‘s mishandling of the estate‘s assets deprived the estate from satisfying at least a portion of the creditors. Appellee argued that Mr. Ridoutt refused to return to the estate the large Jesus statue in his possession and the scarves and jewelry and other items which others possessed because of his actions. Finally, appellee argued her attorney‘s fees are reasonable for the number of hours expended on the case multiplied by the $100 hourly fee, subject to lodestar factors, which are in appellee‘s favor.
{21} On May 9, 2022, the probate court entered its judgment overruling those objections. The probate court determine that due to Mr. Ridoutt‘s failure to support his objections to the magistrate‘s decision under
{22} The probate court then undertook “an independent review of the application of the law, to the facts as found by the Magistrate, via a review of the Court‘s file and all pleadings, exhibits, and information contained therein.”
{23} The probate court determined, “Upon review, it is clear that the Defendant, Robert Ridoutt, exerted control over estate assets, without appropriately safeguarding those items. Additionally, it is without dispute that the Defendant also distributed items of the estate, without proper legal authority, while not being able to account for other items at all.” The probate court made further decisions: (1) denied Mr. Ridoutt‘s objections to the magistrate‘s decision, (2) denied appellee‘s amended complaint on
{24} Only defendant Robert Ridoutt, individually (hereafter “appellant“), timely filed this appeal, setting forth three assignments of error:
- The lower court erred in finding that the defendant Robert Ridoutt was guilty of concealing or carrying away or otherwise improperly disposing of some of the personal property of the decedent Kaylene Ohman, in violation of the provisions of
R.C. 2109.50 . - The lower court erred in finding that the appellant should be ordered to pay the sum of $1,922.00, plus court costs and costs of ten percent for the missing jewelry owned by the decedent.
- The lower court erred in ordering the defendant to pay plaintiff‘s attorney fees.
{25} Appellant‘s three assignments of error are identical to his objections to the magistrate‘s findings of fact and legal conclusions, as required by
{26} However, we must first determine if the parties’ agreement that the rules of civil procedure, such as
A. R.C. 2109.50 Special Proceeding
{27} “‘Special proceeding’ means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.”
{28} ”
{29} The
When passing on a complaint made under [
R.C. 2109.50 ], the probate court shall determine * * * whether the person accused is guilty ofhaving concealed, embezzled, conveyed away, or been in the possession of moneys, personal property, or choses in action of the estate * * *. If the person is found guilty, the probate court shall assess the amount of damages to be recovered or the court may order the return of the specific thing concealed or embezzled or may order restoration in kind.
{30} As a quasi-criminal special proceeding, the procedure under
B. Standard of Review
{31} Having determined
{32} It is well-settled that appellant has the duty to provide a transcript for appellate review because appellant “bears the burden of showing error by reference to matters in the record.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Appellant supplemented the record to this court with the transcript of the two-day hearing. This is problematic because the probate court did not have that transcript before it when it entered judgment after waiting nine months from the filed objections. Under
{33} Appellant‘s problem with the record carries over to his appeal.
{34} Moreover, supplementing the record to this court with the absent hearing transcript “is of no consequence[.]” State ex rel. Pallone at ¶ 11, citing
{35} We are similarly precluded from reviewing any findings of facts derived from the exhibits admitted into evidence at the hearing. Where no exhibit was properly filed to support appellant‘s objections to the magistrate‘s decision, we are limited to the probate court‘s descriptions of them in its judgment entries. For example, the magistrate‘s decision does not identify the witnesses who testified, nor identify the
{36} Therefore, relevant to this appeal we find the following determinations by the magistrate are not against the manifest weight of the evidence: (1) “one large Jesus statue,” scarves, jewelry, and “other personal property formerly the property of Kaylene Ohman” are assets of Ms. Ohman‘s estate subject to the
{37} Having established the relevant findings of fact in this appeal, we next address appellant‘s assignment of errors.
{38} Appellant argues in support of his first assignment of error that the probate court erred when it found he violated
{39} Appellee responds that
{40} Neither party is entirely correct. The Ohio Supreme Court has determined that an interested person states an actionable cause under
1. Estate Assets
{41} Appellee met the first prong of the Maloney test with the magistrate‘s factual findings that were then adopted by the probate court: a large Jesus statue, scarves, jewelry, and miscellaneous personal property were assets of Ms. Ohman‘s estate subject to the
2. Wrongful Conduct
{42} The second prong of the Maloney test is a conclusion of law. Contrary to appellee‘s strict liability argument, the Ohio Supreme Court holds that “wrongful” conduct towards the estate‘s assets is required under
{43} Appellant‘s reliance on In re Estate of Popp is too narrow, as that court also distinguished between “wrongful” conduct, which is necessary to invoke the probate court‘s jurisdiction under
{44} Appellant essentially argues his good-faith defense defeats the second prong because he did not act “wrongfully” with his “mere possession” of estate assets, which he distributed in the spirit of Ms. Ohman‘s wishes. Appellant, however, points neither to the portions of the record, nor to citations to legal authorities, where he had legal authority or other legally-recognized excuse to take the “good-faith” actions he alleges with respect to the estate‘s assets.
{46} Appellant‘s first assignment of error is not well-taken.
E. Remedies Under R.C. 2109.52
1. Money Judgment, Penalty, and Court Costs
{47} In support of his second assignment of error, appellant argues the probate court erred by ordering him to pay damages and a penalty for the missing jewelry. Appellant does not dispute the portion of the probate court‘s order that he retrieve a large Jesus statue, scarves, jewelry, and miscellaneous personal property and return them to the estate. Once again, appellant essentially argues a good faith defense: the more valuable jewelry was taken to a local jeweler “to secure these items, if they did have value, for the estate.” Appellant “believed” the jewelry was still with the local jeweler, “and when he learned it was not there, he searched his own home, thinking perhaps his [now-deceased] wife had picked it up.” Appellant concludes, without citation to legal authority, there is no merit to support the probate court‘s finding that he was responsible for the missing jewelry, which he does not have and the location of which remains “a mystery.”
{49} Having found no error with appellant‘s first assignment of error, we further find no error where the probate court found, upon its de novo review, appellant “guilty” and ordered relief under
In all cases, except when the person found guilty is the fiduciary, the probate court shall render judgment in favor of the fiduciary * * * against the person found guilty, for the amount of the moneys or the value of the personal property or choses in action concealed, embezzled, conveyed away, or held in possession, together with ten per cent penalty and all costs of the proceedings or complaint; except that the judgment shall be reduced to the extent of the value of anything specifically restored or returned in kind as provided in this section.
{50} ”
{51} We do not find the trial court abused its discretion when it overruled appellant‘s second objection to the magistrate‘s decision upon a preponderance of the evidence in the record before it. We do not find the probate court‘s attitude was unreasonable, arbitrary or unconscionable when it determined appellant was guilty under
{52} Appellant‘s second assignment of error is not well-taken.
2. Attorney‘s Fees
{53} In support of his third assignment of error, appellant argues the trial court erred in awarding attorney‘s fees. Appellant argues
{54} Appellee points to the fact the attorney‘s fees totaling $16,964.56 were reduced by the magistrate to $11,566.56 in recognition of the work related to bringing the
{55} We review the probate court‘s award of attorney‘s fees for an abuse of discretion. Bittner v. Tri-Cnty. Toyota, Inc., 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991); Phoenix Lighting Group at paragraph two of the syllabus. The magistrate recommended that attorney‘s fees in the amount of $11,566.56 was warranted in this matter as an additional penalty for appellant‘s failure to “properly safeguard” Ms. Ohman‘s personal property, “losing some of the jewelry,” and, without legal authority, “distributing” Ms. Ohman‘s personal property.
{56} The record establishes that the hearing concerning the award of attorney‘s fees occurred before the magistrate. Appellant contests the nature and extent of the evidence presented to establish the amount of reasonable attorney fees that were awarded.
{57} As we have already noted, when appellant filed objections to the magistrate‘s decision, the trial court was not provided the testimony presented to the magistrate. Hence, the trial court correctly determined that it was “unable to independently ascertain if the Magistrate has properly determined the factual issues; and as such is bound by the 45 enumerated findings within the Magistrate‘s decision.” We
{58} Because the trial court was not provided the testimony presented to the magistrate, we are unable to review that testimony on appeal. Therefore, we must presume that the testimony and evidence presented supported the factual findings of the magistrate, and, consequently, the judgment of the trial court. See Goodluck v. Chagrin Valley Athletic Club, 11th Dist. Geauga No. 98-G-2122, 1998 WL 964293 (Dec. 18, 1998). We find no abuse of discretion with respect to the trial court‘s application of the law to the magistrate‘s factual findings.
{59} Accordingly, appellant‘s third assignment of error is found not well-taken.
III. Conclusion
{60} On consideration whereof, the judgment of the Sandusky County Court of Common Pleas, Probate Division, is affirmed.
{61} Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J.
JUDGE
Gene A. Zmuda, J.
JUDGE
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.