In re Estate of Jenkins , 2019 Ohio 2112 ( 2019 )

[Cite as In re Estate of Jenkins, 2019-Ohio-2112.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE ESTATE OF ELASE JENKINS :
: No. 107343
[Appeal by Sharla Jenkins] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 30, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Probate Division
Case No. 2015 EST212340
Appearances:
Sharla Jenkins, pro se.
Forbes, Fields & Associates Co., L.P.A., Helen Forbes
Fields, and Scott H. Schooler, for appellee, Helen Forbes
Fields.
MICHELLE J. SHEEHAN, J.:
Appellant Sharla Jenkins (“Sharla”) appeals the probate court’s
orders appointing an administrator and approving the inventory, appraisal, and
amended final account of the estate of Elase Jenkins. For the reasons that follow,
we affirm.
Procedural History and Substantive Facts
Sharla’s mother, Elase Jenkins (“Jenkins”), died in November 2015.
Jenkins’s last will and testament was admitted in December 2015, and Shera
Jenkins (“Shera”), Sharla’s sister, was appointed executor without a bond per the
terms of the will. In January 2016, Sharla filed a motion to remove her sister as
executor for the failure to properly administer the estate. Sharla’s motion detailed
the conflict amongst her sisters regarding the administration of her mother’s estate.
The court held a hearing on May 19, 2016, with all parties present. Because Shera
failed to file an inventory of the estate’s assets, failed to make arrangements to
remove the decedent’s remains from the county morgue, or further administer the
estate, the court granted the motion and removed Shera as executor in June 2016.
Jenkins’s will had named Shirley Cook to administer her estate in the event Shera is
unable to serve; however, Cook predeceased Jenkins. According to appellee Helen
Forbes Fields, Esq., (“Fields”) the probate court determined that a nonfamily
member should be appointed the next administrator because there was much
discord among Jenkins’s heirs. Thereafter, in June 2016, Fields filed an application
for authority to administer the estate. The court found Fields to be a suitable and
competent person and appointed Fields as administrator.
During the remainder of 2016 and 2017, Fields filed several motions
on behalf of the estate, including a motion in August 2016 to direct the estate to
make funeral or cremation arrangements for the decedent. The record shows that
the decedent’s body had been in the county morgue for more than 250 days. The
court granted Fields’s motion and directed the estate to make arrangements for
cremation and use the funds on deposit with the memorial chapel. The court also
directed the estate to divide Jenkins’s ashes equally among Jenkins’s four
daughters: Shera, Sharla, Sherry Jenkins-Pickens (“Sherry”), and Shafone Palmer.
Also in August 2016, Fields filed an appointment of appraiser, and in
October 2016, she filed the inventory for the estate. The inventory included:
Jenkins’s residence valued at $49,200; a 1999 Ford Escort valued at $1,736; a
KeyBank savings account containing $1,056.34; a Citizens Bank checking account
containing $665.18; and household goods valued at $500. Sharla filed exceptions
to the inventory contesting some items that were missing amongst other things.
Following a hearing in November 2016, the magistrate issued a decision denying
Sharla’s exceptions. The magistrate issued detailed findings of facts and conclusions
of law. The magistrate determined “that after a thorough examination of the
testimony and the court records, it is clear that the successor administrator Helen
Forbes Fields has correctly inventoried the assets of this estate.” Sharla then filed
objections to the magistrate’s decision, which the court denied and dismissed in
January 2017.
Fields continued her administration of the estate in 2017, filing an
application for certificate of transfer regarding the real property in February. The
court granted the application. Thereafter, in April 2017, Sharla and Sherry filed a
motion to remove Fields as administrator of the estate. The sisters expressed general
dissatisfaction with Fields’s administration of the estate and claimed that their
mother had won $250,000 from the Ohio lottery five years ago and wondered why
there was no accounting for those funds. In their motion, they also alleged that their
sister, Shera, had been embezzling money from her mother. In reply, Fields stated
that she has faithfully and competently discharged her duties, including conducting
bank account searches and contacting the Ohio Lottery Commission, and she has
not engaged in any fraudulent conduct. Fields further asserted that the estate would
be completely administered but for the sisters’ litigiousness and harassment.
Finding the petitioners’ motion failed to set forth any statutory reason for removal
and contained “a rambling, incoherent recital of claims” previously addressed, the
court denied the motion to remove Fields as administrator.
In August 2017, Fields filed the final account and a motion for
extraordinary attorney fees due to numerous adversarial proceedings, exceptions,
and contested claims made by two of the estate’s beneficiaries, Sharla and Sherry,
and the “constant harassment” from Sharla and Sherry through “telephone calls,
threatening letters, and menacing conduct.” In September 2017, Sharla and Sherry
filed exceptions to the final account regarding bank accounts as well as issues
regarding property and jewelry from the estate. The court heard and granted
Fields’s motion for extraordinary attorney fees, and in November 2017, Fields filed
an amended final account. Sharla and Sherry then filed additional exceptions to the
amended final account in December 2017.
Following a hearing, in April 2018, the magistrate issued its decision
addressing the September and December exceptions to the final account. The
magistrate found that all of the petitioners’ arguments raised in their exceptions had
been previously heard and addressed in prior hearings and stated:
Ms. Fields has attempted to locate additional accounts which [the
petitioners] believed existed. The decedent received proceeds from
the Ohio lottery many years before her death; it appears that the funds
were used by the decedent long before her death. Citizens Bank
provided an estimate of $943 in costs to obtain statements and checks
for the period commencing January 10, 2010. None of the heirs can
advance the costs to conduct this further investigation. As there are
no funds remaining in the estate, it is not cost effective for the
administrator to pursue her investigation, especially since it is
unlikely to lead to any additional financial assets. Ms. Fields made the
reasonable determination that it would not be in the estate’s best
financial interest to pursue this matter.
The magistrate further found that a division of household goods and
jewelry completed by Fields was reasonable under the circumstances and Fields
properly distributed the tangible personal property in kind.
Finally, upon reviewing the account and documents submitted by
Fields, the magistrate found that Fields, as administrator, had satisfactorily
accounted for the assets that came under her control and documented the payment
of estate expenses. Thus, the magistrate concluded that Fields had satisfactorily
administered the estate, and it recommended the exceptions filed in September
2017 and December 2017 be denied and the amended final account be approved.
Sharla objected to the magistrate’s decision.
On May 24, 2018, the court found Sharla’s objections without merit,
stating as follows:
The court finds that Sharla Jenkins alleges in her objection that
“Administrator Helen Forbes Fields has failed to reveal an account of
concealed assets.” The objection is primarily a request for bank
records which Sharla Jenkins believes will reveal assets owned by the
decedent. Sharla Jenkins supplemented her objection with a letter to
the court dated May 18, 2018, reporting that the decedent had
received the sum of $250,000 from the Ohio Lottery Commission in
2010.
The court further found that (1) Sharla failed to provide a transcript
of the hearing before the magistrate or file an affidavit of facts as required by Civ.R.
53(D)(3)(b)(iii); (2) the inventory in the estate was approved in January 2017, over
Sharla’s objections, and the objections raised in the exceptions to the amended final
account are the same that were raised as exceptions to the inventory and judgment
had been rendered regarding those exceptions; and (3) since the decedent’s death in
November 2015, no evidence has been presented to the court reflecting the existence
of bank accounts or other assets other than what the administrator had reported.
The court therefore denied and dismissed Sharla’s objections and approved the
amended final account.
Sharla now appeals, pro se, raising three purported errors for our
review: (1) “inappropriate appointment of administrator of the estate”; (2) “the
inventory and appraisal”; and (3) “the amended fiduciary’s account.”1
1 We note that Sharla’s appellate brief fails to fully comply with App.R. 16(A).
However, because we find the brief is in substantial compliance with the appellate rule,
we will address what we discern to be appellant’s assignments of error and the
corresponding arguments. See N. Frozen Foods, Inc. v. Moton, 8th Dist. Cuyahoga No.
99938, 2014-Ohio-825, ¶ 9.
Appointment of Administrator
In her first assignment of error, Sharla challenges the probate court’s
appointment of Helen Forbes Fields, Esq. as the administrator of Sharla’s mother’s
estate. Sharla appears to contend that Fields should not have been appointed
because the decedent had three other daughters entitled to the appointment. For
the reasons outlined below, we find no merit to the assignment of error.
Under R.C. 2113.05, the probate court may appoint an administrator
for an estate:
if the executor named in a will or nominated pursuant to that power
dies, fails to accept the appointment, resigns, or is otherwise
disqualified and the holders of the power do not have authority to
nominate another executor or the power is not conferred in the will,
or if the power is conferred in a will but the power cannot be exercised
because of the death of a holder of the power * * *.
The statute requires the court to grant letters of administration to a
“suitable person” who would have been entitled to administer the estate if the
decedent had died intestate. Id.; In re Estate of Amoroso, 8th Dist. Cuyahoga No.
102484, 2015-Ohio-3352, ¶ 16.
R.C. 2113.06 establishes an order of priority a probate court must
follow in appointing an administrator. See In Re Estate of Vickers, 110 Ohio App.
499, 501, 170 N.E.2d 85 (4th Dist.1959) (stating that the probate court must appoint
an administrator from the preferred class outlined in the statute). The statute
provides that the administration of the estate shall be granted to the surviving
spouse of the deceased, if a resident of the state, or next, to one of the deceased’s
next of kin, who is a resident of the state.2 R.C. 2113.06(A). However, if there are
no persons entitled to administration under this statute, or the court finds them
unsuitable for the task, the court “shall commit the administration to some suitable
person who is a resident of the state * * *.” R.C. 2113.06(C); Amoroso at ¶ 22, citing
In Re Estate of Vickers (stating that the next of kin is preferable to a stranger unless
the next of kin is unsuitable).
A “suitable person” is an individual who “is reasonably disinterested
and in a position to reasonably fulfill the obligations of a fiduciary.” In re Estate of
Henne, 66 Ohio St.2d 232, 421 N.E.2d 506 (1981), paragraph two of the syllabus. In
determining whether an individual is “reasonably disinterested,” the probate court
considers “(1) the nature and extent of the hostility and distrust among the parties;
(2) the degree of conflicting interests and obligations, both personal and financial;
and (3) the underlying and aggregate complexities of the conflict.” Id. at paragraph
three of the syllabus; Amoroso at ¶ 17.
We review a probate court’s order granting or refusing letters
testamentary for an abuse of discretion. Amoroso, 8th Dist. Cuyahoga No. 102484,
2015-Ohio-3352, at ¶ 16, citing In re Estate of Young, 4 Ohio App.2d 315, 320, 212
N.E.2d 612 (10th Dist.1964). An abuse of discretion is more than an error of law or
judgment; it implies that the court’s attitude was unreasonable, arbitrary, or
2 Although R.C. 2113.06 applies to persons who have died intestate, courts have
held that R.C. 2113.05 should be read in pari materia with R.C. 2113.06 when determining
the suitability of an administrator. Amoroso at ¶ 11, fn. 2; Driggers v. Osdyke, 11th Dist.
Portage No. 96-P-0004, 1996 Ohio App. LEXIS 5264 (Nov. 22, 1996).
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
Here, the record shows that Jenkins had a will and her will named an
executor and an alternate executor. Sharla’s sister, the designated executor, was
removed as executor due to her failure to file an inventory or make funeral
arrangements for the deceased, and the alternate executor predeceased Jenkins. No
other individuals were designated in the will as an alternative executor, and no other
family members filed an application to be appointed as administrator. Thereafter,
Fields filed an application for appointment as administrator, and the court held a
hearing on the application. According to Fields, the probate court determined that
a nonfamily member should be appointed the next administrator because there was
much discord among Jenkins’s heirs. The probate court then, under its statutory
authority, appointed Fields as administrator. In its order appointing Fields, the
court stated that Fields “is a suitable and competent person to execute the trust.”
The record does not contain any evidence that the probate court’s
appointment of Fields as administrator was somehow improper. Sharla has
provided no evidence, through affidavit or transcript of the hearing, in support of
her arguments. “The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an 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), citing State v. Skaggs, 53 Ohio St.2d
162, 372 N.E.2d 1355 (1978). Where there is no transcript, there is no basis upon
which the reviewing court can discern the alleged errors, and consequently, the
reviewing court must presume regularity in the trial court’s proceedings. Id.;
Blisswood Village Home Owners Assn. v. Genesis Real Estate Holdings Group, 8th
Dist. Cuyahoga No. 106583, 2018-Ohio-4215, ¶ 19.
Because there is no transcript of the probate court’s hearing on
Fields’s application, we presume the court initially considered the preferred class of
family members, particularly Sharla and her other sisters, and determined that none
of Jenkins’s daughters were suitable for the task of administration of the estate. We
also presume that in appointing Fields, the court properly considered the relevant
factors and determined that Fields was “reasonably disinterested” and was “in a
position to reasonably fulfill the obligations of a fiduciary.” In re Estate of Henne,
66 Ohio St.2d 232, 421 N.E.2d 506, at paragraph two of the syllabus.
In light of the above, we cannot find that the trial court abused its
discretion in appointing Fields as administrator of Jenkins’s estate.
Within the context of her first assignment of error alleging the
improper appointment of Fields as administrator, Sharla seems to argue that the
probate court erred in denying Sharla’s motion to remove Fields as administrator
filed nearly one year later. To the extent Sharla contends the probate court erred in
not removing Fields as administrator, we find no merit for the reasons outlined
above.
R.C. 2109.24 governs the resignation and removal of a fiduciary. The
statute provides that the court may remove a fiduciary for failing to file an inventory
or for failing “to render a just and true account of the fiduciary’s administration at
the times [statutorily] required.” Id. The statute also permits a probate court to
remove a fiduciary “for habitual drunkenness, neglect of duty, incompetency, or
fraudulent conduct, because the interest of the property, testamentary trust, or
estate that the fiduciary is responsible for administering demands it, or for any other
cause authorized by law.”
Sharla apparently argues that Fields engaged in several improprieties
as administrator, including filing an incomplete and inaccurate inventory and final
accounting, improperly distributing the decedent’s personal items, causing the
cremation of the decedent and the distribution of the decedent’s ashes against the
decedent’s wishes, and inappropriately “bonding” with the former executor, Shera.
The probate court denied Sharla’s motion, finding that Sharla failed to provide “any
statutory reason for removal.” The court further found Sharla’s motion “a rambling,
incoherent recital of claims that have already been addressed.”
Because there is no transcript of the hearing on the motion to remove
Fields as administrator, we must presume regularity. In so doing, we presume the
trial court properly considered Sharla’s motion and correctly found, based upon any
purported evidence advanced in support of the motion, no evidence of conduct
outlined in R.C. 2109.24 warranting Fields’s removal.
Sharla’s first assignment of error is overruled.
Inventory and Appraisal
In her second assignment of error, Sharla contends that the court’s
approval of the inventory and appraisal was improper. In support, Sharla appears
to contest the distribution of the decedent’s personal items, she maintains that
Fields determined the value of the household goods “sight unseen,” and she asserts
that the inventory was incomplete.
R.C. 2115.02 provides that the executor or administrator of an estate
shall file “an inventory of the decedent’s interest in real property located in this state
and of the tangible and intangible personal property of the decedent that is to be
administered and that has come to the executor’s or administrator’s possession or
knowledge.” See also R.C. 2115.05. The inventory must include the values of the
items as of the date of the death of the decedent, and any asset, “the value of which
is readily ascertainable,” need not be appraised but must be included in the
inventory. R.C. 2115.02. “Inventory” includes appraisement. R.C. 2115.01.
Additionally, the inventory must contain an account “of all moneys
that belong to the deceased and have come into the possession or under the control
of the executor or administrator.” R.C. 2115.09.
Pursuant to R.C. 2115.16, the probate court must conduct a hearing
on the inventory. Exceptions to the inventory may be filed “at any time prior to five
days before the date set for the hearing or the date to which the hearing has been
continued by any person interested in the estate or in any of the property included
in the inventory,” excepting cases of fraud or alleged concealment of assets. Id.The probate court’s hearing of exceptions to an inventory “‘is a
summary proceeding conducted by the probate court to determine whether those
charged with the responsibility of filing an inventory have included in the decedent’s
estate more or less than the decedent owned at the time of his or her death.’” In re
Estate of Brown, 8th Dist. Cuyahoga No. 103867, 2016-Ohio-3074, ¶ 12, quoting In
re Estate of Platt, 148 Ohio App.3d 132, 2002-Ohio-3382, 772 N.E.2d 198, ¶ 13 (11th
Dist.). The party disputing the estate’s inventory has the burden of proving the
existence of assets he or she claims should have been included on the inventory.
Brown at ¶ 13, citing In re Estate of Haas, 10th Dist. Franklin No. 07AP 512, 2007-
Ohio-7011, ¶ 43.
This court reviews the probate court’s approval or denial of an
inventory and appraisal for an abuse of discretion. Brown at ¶ 14, citing Estate of
Luoma, 11th Dist. Lake No. 2011-L-006, 2011-Ohio-4701, ¶ 20.
Here, Sharla filed exceptions to the inventory on October 18, 2016,
claiming that an estate account was never opened, another sister has been
withdrawing funds from her mother’s account, and her mother’s personal items
were improperly distributed. On December 16, 2016, the magistrate recommended
denying Sharla’s exceptions. In recommending the court deny Sharla’s exceptions
to the inventory, the magistrate considered the evidence and testimony presented
and found as follows:
[Sharla] focused a great deal of attention on the lack of an estate
checking account. That would normally not be an issue until an actual
account was due. Funds had been deposited with a memorial chapel
for cremation services, so there were actually no funds to deposit into
an estate checking account. This exception has no merit.
* * * Fields has attempted to locate additional accounts which [Sharla]
believes existed. [Fields’s] investigation has not led to any additional
financial assets.
[P]hone transfers totaling approximately $1,000 were made from the
decedent’s Citizens [Bank] checking account prior to her death. While
these phone transfers were probably made by one of [Sharla’s] sisters,
Fields made the reasonable determination that it would not be in [the]
estate’s best interest to pursue this matter.
[A] division of household goods and jewelry was completed by Fields
after reviewing the “wish lists” submitted by the heirs. Where some
items were requested by multiple parties, Fields made the final
decision as to the division. These decisions were reasonable under the
circumstances. This also has nothing to do with the actual inventory
[A]fter a thorough examination of the testimony and the court
records, it is clear that the successor administrator * * * has correctly
inventoried the assets of this estate. She has also properly distributed
the tangible personal property in kind after allowing input from the
heirs.
* * * Based upon the evidence and testimony presented, Fields has
faithfully discharged her duties as successor administrator.
Sharla filed objections to the magistrate’s decision, reiterating the
arguments contained in her exceptions. In response, Fields asserted that she has
been “harassed incessantly” by several heirs since her appointment as administrator
of Jenkins’s estate; she has attempted to resolve the matters, despite the harassing
and dilatory conduct of the heirs; there are few assets in the estate and opening an
estate account is not advisable; the administrator has been unable to locate any
additional assets, including the purported lottery winnings; the assets included in
the inventory are the only assets that remained in Jenkins’s estate; and she
attempted to divide the decedent’s personal items equally among the heirs,
including the decedent’s jewelry.
The probate court adopted the magistrate’s recommendations
concerning the inventory on January 31, 2017, and dismissed Sharla’s objections. In
adopting the magistrate’s decision, the court found that Fields correctly inventoried
the assets of the estate and properly distributed the tangible personal property in
kind after allowing input from the heirs.
Civ.R. 53(D)(3)(b)(i) provides that “[a] party may file written
objections to a magistrate’s decision within fourteen days of the filing of the
decision, whether or not the court has adopted the decision during that fourteen-
day period as permitted by Civ.R. 53(D)(4)(e)(i).” Where a party objects to a factual
finding, whether or not it is specifically designated as a finding of fact under Civ.R.
53(D)(3)(a)(ii), the objection “shall be supported by a transcript of all the evidence
submitted to the magistrate relevant to that finding or an affidavit of that evidence
if a transcript is not available.” Civ.R. 53(D)(3)(b)(iii).
The objecting party bears the burden of supplying the trial court with
a basis to dispute the magistrate’s factual findings. In re A.L., 8th Dist. Cuyahoga
No. 99040, 2013-Ohio-5120, ¶ 11. And where a party fails to timely file a transcript
or affidavit of evidence, the party waives any objection to the magistrate’s factual
findings. Id., citing Ramsey v. Hurst, 5th Dist. Licking No. 12-CA-70, 2013-Ohio-
2674, ¶ 23. Thus, “if the objecting party fails to file a proper transcript of all relevant
testimony with his or her objections, a trial court’s review is necessarily limited to
the magistrate’s conclusions of law.” Vannucci v. Schneider, 8th Dist. Cuyahoga No.
104598, 2017-Ohio-192, ¶ 17; see also James v. My Cute Car, L.L.C., 10th Dist.
Franklin No. 16AP-603, 2017-Ohio-1291, ¶ 15.
Likewise, the failure to file a transcript or affidavit of evidence with
the trial court under Civ.R. 53(D)(3)(b)(iii) waives all factual challenges to the
magistrate’s decision on appeal. Van Dress Law Offices Co., L.L.C. v. Dawson, 8th
Dist. Cuyahoga No. 105189, 2017-Ohio-8062, ¶ 21. “[W]here a party files objections
to a magistrate’s decision in the trial court but does not support those objections
with a transcript or affidavit, that party is precluded from arguing on appeal that the
trial court erred in its factual determinations.” Gill v. Grafton Corr. Inst., 10th Dist.
Franklin No. 09AP-1019, 2010-Ohio-2977, ¶ 14.
Appellate review of the trial court’s findings is therefore limited to
determining whether the trial court abused its discretion in adopting the
magistrate’s decision or, stated differently, whether the trial court’s application of
the law to its factual findings constituted an abuse of discretion. State ex rel. Duncan
v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995);
Dawson; see also State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978),
paragraph one of the syllabus (“A reviewing court cannot add matter to the record
before it, which was not a part of the trial court’s proceedings, and then decide the
appeal on the basis of the new matter.”).
Sharla’s objections related purely to the magistrate’s factual findings.
Yet there is no evidence in the record that Sharla filed a transcript of the proceedings
or an affidavit of evidence in support of her objections to the magistrate’s decision
before the trial court or on appeal. Without a transcript to contradict the factual
findings of the magistrate and the trial court, Sharla has failed to demonstrate error
concerning the inventory, and the trial court’s decision approving the inventory and
appraisal must be affirmed. In re R.L.H., 8th Dist. Cuyahoga No. 100327, 2014-
Ohio-3411, ¶ 25.
Sharla’s second assignment of error is overruled.
Amended Final Account
In her final assignment of error, Sharla contests the amended final
account. As best we can discern, Sharla argues that she became aware of three
checking accounts at Citizens Bank but the amended final account does not include
these accounts. She asserts that these purportedly additional funds were not
dispersed. Sharla also apparently claims she did not receive certain jewelry from
her mother’s estate.
Regarding a final account, an administrator must render a final
account of the administration of the estate in accordance with R.C. 2109.301. R.C.
2109.30(A) and (B). Under R.C. 2109.301(A),
[a]n administrator or executor shall render an account at any time
other than a time otherwise mentioned in this section upon an order
of the probate court issued for good cause shown either at its own
instance or upon the motion of any person interested in the estate.
Except as otherwise provided in division (B)(2) of this section, an
administrator or executor shall render a final account within thirty
days after completing the administration of the estate or within any
other period of time that the court may order.
Every account shall include an itemized statement of all receipts of
the administrator or executor during the accounting period and of all disbursements
and distributions made by the executor or administrator during the accounting
period. In addition, the account shall include an itemized statement of all funds,
assets, and investments of the estate known to or in the possession of the
administrator or executor at the end of the accounting period and shall show any
changes in investments since the last previous account.
The statute also requires the probate court to hold a hearing on the
final account. R.C. 2109.32. And an interested party may file exceptions to the final
account. R.C. 2109.33.
The administrator has the burden of establishing the validity of an
account. In re Estate of Butler, 137 Ohio St. 96, 105, 28 N.E.2d 186 (1940), citing
Steward v. Barry, 102 Ohio St. 129, 131 N.E. 492 (1921), paragraph four of the
syllabus; see also Talbott v. Fisk, 10th Dist. Franklin Nos. 02AP-427 and 02AP-428,
2002-Ohio-6960, ¶ 30. The exceptor, however, has the initial burden of proving the
existence of assets she claimed were not, but should have been, included in the
account as assets of the estate. Steward at paragraph three of the syllabus; Bolen v.
Humes, 94 Ohio App. 1, 114 N.E.2d 281 (5th Dist.1951), paragraph six of the syllabus;
see also In re Estate of Haas, 10th Dist. Franklin No. 07AP-512, 2007-Ohio-7011, ¶
43 (“[T]he party who was disputing the estate’s inventory * * * had the burden of
going forward with, or of producing evidence, that challenged the estate’s
inventory.”).
Here, Sharla filed exceptions to the final account (September 6, 2017)
and the amended final account (December 19, 2016), raising essentially the same
issues she raised in her exceptions to the inventory and appraisal. On April 19, 2018,
the magistrate recommended denying Sharla’s exceptions to the final account and
the amended final account. In recommending the court deny Sharla’s exceptions,
the magistrate considered the evidence presented and found as follows:
[A]ll of the exceptor’s arguments have been previously dealt with in
prior hearings. Fields has attempted to locate additional accounts
which [Sharla] believed existed. The decedent received proceeds from
the Ohio Lottery many years before her death; it appears that the
funds were used by the decedent long before her death. Citizens Bank
provided an estimate of $943 in costs to obtain statements and checks
for the period commencing January 10, 2010. None of the heirs can
advance the costs to conduct this further investigation. As there are
no funds remaining in the estate, it is not cost effective for the
administrator to pursue her investigation, especially since it is
unlikely to lead to any additional financial assets. Fields made the
reasonable determination that it would not be in the estate’s best
financial interest to pursue this matter.
The magistrate further found that Fields’s distribution of the
household goods and jewelry was reasonable under the circumstances and that
Fields properly distributed the tangible personal property in kind. Finally, the
magistrate found that Fields had satisfactorily accounted for the assets of the estate
that came under her control and documented the payment of the estate expenses.
Thus, the magistrate concluded, the administrator satisfactorily administered the
estate.
Sharla objected to the magistrate’s decision. The probate court found
her objections to be without merit and adopted the magistrate’s decision concerning
the final account and the amended final account on May 24, 2018. In so doing, the
court stated that Sharla’s objection was “primarily a request for bank records which
[Sharla] believes will reveal assets owned by the decedent.” The court found that
Sharla’s objections raised in the exceptions to the amended final account were the
same as the arguments raised in her exceptions to the inventory and appraisal and
judgment had been rendered on those exceptions. The court further found that
“there has been no evidence presented * * * that there exist bank accounts or other
assets other than what has been reported by the administrator.” Finally, the court
found that Sharla failed to provide the court a transcript of the hearing before the
magistrate or an affidavit of evidence as required by Civ.R. 53(D)(3)(b)(iii).
For the reasons outlined in this court’s discussion of Sharla’s second
assignment of error, we must overrule her third assignment of error. Sharla disputes
the magistrate’s factual findings. Yet Sharla did not file a transcript of the
proceedings or an affidavit of evidence in support of her objections to the
magistrate’s decision before the trial court or on appeal. In the absence of a
transcript to contradict the factual findings of the magistrate and the trial court,
Sharla has failed to demonstrate error concerning the final account or amended final
account, and the trial court’s decision approving the amended final account must be
affirmed. In re R.L.H., 8th Dist. Cuyahoga No. 100327, 2014-Ohio-3411, at ¶ 25.
Sharla’s final assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant 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
common pleas court, probate division, 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.
MICHELLE J. SHEEHAN, JUDGE
MARY EILEEN KILBANE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR