IN THE MATTER OF: ESTATE OF JOHN A. MOLITOR
CASE NO. CA2012-06-013
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BROWN COUNTY
2/19/2013
[Cite as In re Molitor, 2013-Ohio-525.]
PROBATE DIVISION
Case No. 2002-1171
Lawrence J. Brokamp, 3734 Eastern Avenue, Cincinnati, Ohio 45226, for appellee, Estate of John A. Molitor
Ravi Suri, 850 Euclid Avenue, Suite 804, Cleveland, Ohio 44114, for appellants, Jackie Rothwell and Frank Molitor
Steve Molitor, 6211 U.S. Hwy. 98 N., Lakeland, Florida, 33809, pro se
Ronald Molitor, 4665 68th Street, LaMesa, California, 19141, pro se
Barbara Vogelpohl, 10696 Hopping Road, Harrison, Ohio 45030, pro se
O P I N I O N
HENDRICKSON, P.J.
{¶ 1} Defendants-appellants, Jackie Rothwell and Frank Molitor, appeal a decision of the Brown County Court of Common Pleas, Probate Division, distributing the net proceeds of
{¶ 2} John A. Molitor died intestate on December 28, 2001 as a result of asbestos-related health problems. He was survived by his wife, Lilly, and their five children, Barbara Vogelpohl, Steve Molitor, Ronald Molitor, Jackie Rothwell, and Frank Molitor. Asbestos-related wrongful death claims were brought in the state of Texas. In September 2002, an estate was opened in the Brown County Probate Court for the sole purpose of pursuing the wrongful death claims. Vogelpohl and Rothwell were originally appointed as co-administrators of the estate, and Rothwell, who resided in Alabama, opened a bank account for the estate in Alabama. In May 2007, Rothwell was removed as аdministrator and was ordered to close the Alabama estate account and transfer the funds to an estate account opened in Ohio.1
{¶ 3} In February 2008, Vogelpohl filed an Application to Approve Settlement and Distribution оf Wrongful Death and Survival claims after John‘s estate was awarded $650,232.57. The application sought to have the wrongful death proceeds distributed as follows: $216,744.22 awarded to Lilly and $86,697.67 awarded to each of the five children. On February 21, 2008, the magistrate approved the report of distribution of wrongful death proceeds as set forth in Vogelpohl‘s application. Lilly, Steve, Ronald, and Vogelpohl all filed objections, stating that they took “exception to the amount of the settlement and to the net proceeds alleged to have been distributed to beneficiaries.” A hearing on the objections was held on April 15, 2008. Four days later, on April 19, 2008, Lilly died.
{¶ 5} On April 24, 2008, the magistrate ordered that John‘s estate be terminated “by virtue of the fact that any and all assets of this Estate were bequeathed and devised by intestate succession ([R.C.] 2105.06(B)) to said surviving spouse Lilly Molitor; [and], that further, since she is a legal resident of Alabama, no further action need be taken in this Estate.” Although this entry was never signed by the probate court judge, nor ever served on the parties, John‘s estate was closed.
{¶ 6} Jоhn‘s estate was opened briefly in 2009 for the limited purpose of executing documents necessary for the continued pursuit of the asbestos-related claims pending in the state of Texas. Then, in 2011, Vogelpohl sought to reopen the estate and have herself reappointed as administrator after additional wrongful death proceeds were received. On February 14, 2011, the magistrate filed an entry reopening the estate and appointing Vogelpohl as аdministrator “for purposes of executing any and all documents relating to ongoing wrongful death litigation and any other necessary purposes in order that said matters may be settled and that any proceeds shall be distributed to the Lilly H. Molitоr Estate.” After appellants filed a motion to deny the appointment of Vogelpohl as the administrator of John‘s estate, the court appointed Ellen A. Molitor and Charlotte M. Molitor as co-administrators of
{¶ 7} Ellen and Charlotte filed a “Request for Instruction from the Court” on September 9, 2011. Within their request for instruction, the co-administrators sought clarification as to whether “all future settlement proceeds [should] be paid to the Estate of Lilly Molitor pursuant to this Court‘s Order.”3 A hеaring on the request for instruction was held before the magistrate on November 2, 2011. That same day, the magistrate issued an entry ordering that all future proceeds be paid to Lilly‘s estate.
{¶ 8} Appellants timely objected to the magistrate‘s November 2, 2011 order, arguing in relevant part, that the probate court erred by (1) distributing the wrongful death proceeds pursuant to intestate succession under
{¶ 9} On May 1, 2012, the рrobate court overruled appellants’ objections to the November 2, 2011 order. In ruling on appellants’ objections, the probate court noted that it was “now considering and reviewing on an objections basis” the April 24, 2008 magistratе‘s decision, and that the “April 24, 2008 Entry is generally consistent as to distribution of assets/proceeds with the April 22, 2008 Entry, which was signed by [the probate judge].” The probate court further stated that in regards to the distribution of wrongful death proceeds,
{¶ 10} Appellants’ appealed the probate court‘s decision, raising two assignments of error.
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE PROBATE COURT ERRED BY DIVIDING WRONGFUL DEATH SETTLEMENT PROCEEDS AS INTESTATE ESTATE PROPERTY UNDER R.C. 2105.06 INSTEAD OF USING THE EQUITABLE FACTORS SPECIFIED BY R.C. 2125.03 .
{¶ 13} In their first assignment of error, appellants contend that the probate court erred, as a matter of law, in applying
{¶ 14} As an initial matter, we note that throughout this case, the magistrate and judge failed to comply with the formalities of
{¶ 15} We have previously held that when the trial court has failed to comply with the requirements set forth in
{¶ 16} Generally, a probate court‘s distribution of wrongful death proceeds is reviewed for an abuse of discretion. See In re Estate of Cochran, 12th Dist. No. CA2000-05-030, 2001 WL 273644 at *1 (Mar. 19, 2001); In re Estate of Barnett-Clardy, 10th Dist. No. 08AP-386, 2008-Ohio-6126, ¶ 22. However, the issue of whether the probate court applied the correct legal standard in distributing the wrongful death proceeds raises a question of law, which we review de novo. Turner v. Langenbrunner, 12th Dist. No. CA2003-10-099, 2004-Ohio-2814, ¶ 12.
{¶ 17} A probate court‘s authority to apportion wrongful death proceeds arises out of
{¶ 18} The record indicates that the wrongful death proceeds were ordered to be distributed to Lilly without any discussiоn of the parties’ injuries and losses as a result of John‘s death. Although the probate court held a hearing on April 15, 2008 to discuss the parties’ various objections to the application to approve wrongful death proceеds filed by Vogelpohl in February 2008, there is no indication that the parties were permitted to introduce evidence regarding their respective injuries or losses. The probate court‘s April 22, 2008 Entry ordering “any future proceeds of the wrongful dеath settlement * * * distributed in their entirety to the surviving spouse Lilly H. Molitor” is silent as to consideration of the parties’ injuries or losses pursuant to
{¶ 19} We hereby find that the рrobate court erred in 2008 and 2012 by ordering and confirming the distribution of wrongful death proceeds pursuant to
{¶ 20} Appellants’ first assignment of error is, therefore, sustained.
{¶ 21} Assignment of Error No. 2:
{¶ 23} In their second assignment of error, appellants argue that the probate court erred by ordering that all future wrongful death proceeds be distributed to Lilly‘s estate. Appellants contend that the probate court lacks jurisdiction over hypothetical future estate proceeds.
{¶ 24} Based on our finding that thе probate court erred as a matter of law in ordering the wrongful death proceeds distributed to Lilly pursuant to intestate succession rather than in accordance with the wrongful death distribution statute,
{¶ 25} Judgment is hereby reversed and the matter remanded so that the probate court may conduct a hearing and order distribution of the wrongful death proceeds in accordance with
RINGLAND and M. POWELL, JJ., concur.