In re Estate of Lynch

[Cite as In re Estate of Lynch, 2010-Ohio-6376.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
IN THE MATTER OF:
THE ESTATE OF CASE NO. 16-10-05
DASHELLE LYNCH,
DARLENE LYNCH
OPINION
APPELLANT.
Appeal from Wyandot County Common Pleas Court
Probate Division
Trial Court No. 071079
Judgment Affirmed
Date of Decision: December 27, 2010
APPEARANCES:
Kurt A. Dauterman for Appellant
Paul F. Burtis for Appellee, Wayne Lynch
Case No. 16-10-05
ROGERS, J.
{¶1} Mother-Appellant, Darlene Lynch, appeals from the judgment of the
Court of Common Pleas of Wyandot County, Probate Division, approving a
$500,000 settlement amount on a wrongful death claim pertaining to her deceased
daughter, Dashelle Lynch, and distributing $2,000 of the settlement amount to her,
with the remainder being distributed to Dashelle’s Father, Wayne Lynch, after the
payment of attorney fees, court costs, and Medicaid bills. On appeal, Darlene
argues that the trial court erred in failing to find that both parents were entitled to a
presumption that the proceeds from the wrongful death claim settlement should be
distributed equally pursuant to R.C. 2125.02, and that the trial court abused its
discretion in distributing to her only $2,000 of the wrongful death claim
settlement. Based on the following, we affirm the judgment of the trial court.
{¶2} In August 2007, Wayne filed an application to administer the estate
of Dashelle, who tragically died in an apartment fire. Within the application,
Darlene was listed as Dashelle’s mother and as a party entitled to inherit under the
statutes of descent and distribution.
{¶3} In September 2007, Darlene filed a waiver of her right to administer
the estate.
-2-
Case No. 16-10-05
{¶4} Subsequently, Wayne filed four applications to extend the
administration of the estate, in April 2008, August 2008, February 2009, and
August 2009, due to his pursuit of a wrongful death action on Dashelle’s behalf,
and the trial court granted each application.
{¶5} In April 2010, Wayne filed an application to approve the settlement
amount and distribution of the wrongful death claim, with the settlement amount
being $500,000, to be distributed as follows: $123,495 for subrogation of a
Medicaid lein, $200,000 in attorney fees, $26,973.83 in case expenses, and the
remaining $149,531.17 to be distributed to him, with Darlene receiving no share in
the settlement.
{¶6} In May 2010, a hearing was held on the application for distribution,
at which Karen Behm testified that she was serving as the attorney for the estate of
Dashelle and previously served as Wayne’s attorney in his divorce from Darlene;
that Wayne and Darlene were divorced in 1998, and, pursuant to a separation
agreement, Darlene was the residential parent of Dashelle; that, in 2000, Wayne
informed her that Darlene had left Dashelle on his doorstep at 6:00 a.m. without
informing him prior that she was going to do so; that she subsequently filed a
motion to re-allocate parental rights, and a consent agreement was signed by the
parties stating that Wayne would have residential parent status, Darlene would
have no contact with Dashelle unless Dashelle initiated the contact, and Darlene
-3-
Case No. 16-10-05
would not be responsible for child support payments; that, in 2001, she received a
letter from Donald Bennett, an attorney representing Darlene, indicating that
Darlene was “at her wits-end with regard to how to approach her daughter,” and
requesting that Wayne be willing to consider stepparent adoption, even if it did
relinquish Darlene of her parental rights, because “there seem[ed] to be no way to
effectively exercise parental rights, [and she] believed the time [had] now come to
call Dashelle’s bluff” (application for distribution hearing tr., p. 46); that,
subsequently in 2001, Darlene forwarded a letter to Dashelle through the guardian
ad litem at the time, and she (Behm) sent a letter to the guardian ad litem and
Darlene requesting Darlene have no contact with Dashelle pursuant to the no
contact order in the consent agreement; that she filed a motion for emancipation
for Dashelle in 2004 when she turned eighteen, as Dashelle wanted to move out of
Wayne’s home; that Wayne had concerns about Dashelle not graduating from high
school, but she wanted to live on her own; and, that, according to the judgment
entry filed in the case, Darlene was not present and did not respond to the motion
hearing.
{¶7} Joseph O’Neil testified that he represented Dashelle’s estate and next
of kin in the wrongful death action; that Wayne answered the eleven page
questionnaire he prepared regarding damages in the action, and Wayne also
assisted in responding to interrogatories and gave deposition testimony; that
-4-
Case No. 16-10-05
Wayne also agreed to be responsible for the costs of litigation if there was no
recovery; that he thought Wayne was “a sincere, sad father who * * * didn’t like
the way his daughter died and didn’t want somebody else to die the same way, and
he was going through a lot of pain” (id. at 72); that he also sent the eleven page
questionnaire to Darlene; that Darlene did not complete the questionnaire, but
called to speak with him; that Darlene asked about the case, including the potential
amount of recovery, and she indicated that “she didn’t think anything would be
there and she really did not wanna [sic] pursue the matter or get involved with it”
(id. at 73); that he also sent Darlene interrogatories for the case, but she did not
answer them; that he did not get the impression that Darlene was a “sincere, sad
mother” (id. at 81); and, that he did not believe Darlene would have been a good
witness to the damages part of the case.
{¶8} Wayne Lynch testified on direct examination that, when he and
Darlene divorced, Darlene was the residential parent of Dashelle, and he had
visitation and paid child support; that there was a period of time where Dashelle
did not want to see him, but he did not force her, and she eventually started
visiting him again; that, in June 2000, he and his wife were awakened by Dashelle
knocking at the door early in the morning; that Darlene had dropped off Dashelle
without notifying him, and Darlene was gone when he answered the door; that he
subsequently became the residential parent; that Dashelle lived with him while she
-5-
Case No. 16-10-05
was in high school up until her senior year; that, at age eighteen, Dashelle chose to
leave high school before graduating against his wishes; that, while in high school,
Dashelle played volleyball and was in National Honor Society; that he and
Dashelle went to football games together, and he and his wife taught her how to
drive when she turned sixteen; that he had rules that Dashelle had to follow, but
she “never gave [him] a problem” (id. at 95); that, during Dashelle’s senior year of
high school, he received a phone call from the school informing him that Dashelle
had been missing school; that he was not aware Dashelle was missing school
because she drove herself to school and would leave and return home at the correct
time; that, after a meeting with school counselors, Dashelle decided to quit school
and move out on her own; that there were no fights between him and Dashelle that
caused her to leave; that he filed paperwork so Dashelle could be emancipated
from him and Darlene; that, after she left home, he would still communicate with
her “as much as she would allow” (id. at 97); that Dashelle would come to family
holiday gatherings and would sometimes call and ask for help and support; that,
subsequently, Dashelle and her boyfriend, Mike, came over to his house, and Mike
asked for his permission to marry Dashelle; and, that they came over his house on
one other occasion, and he (Wayne) also helped put kitchen cabinets in their
house.
-6-
Case No. 16-10-05
{¶9} Wayne further testified that Dashelle had essentially no contact with
her mother while she was in high school; that she may have written letters to
Darlene, but he “didn’t know that if she did” (id. at 100); that Dashelle “had
conflicting ideas of her mother” and chose not to visit her (id.); that he did not
force Dashelle to visit Darlene, but he always instilled in Dashelle that Darlene
was her mother and would always be her mother; that, when he heard about
Dashelle being injured in the fire, he left his office, went home to pick up his wife,
and immediately proceeded to the hospital; that, while at the hospital, he
overheard Darlene state that she had not seen Dashelle for six months; that he
made the medical decisions for Dashelle; that he goes to her grave site every
Sunday and the 17th and 23rd of every month; that he proceeded with Dashelle’s
wrongful death lawsuit because he wanted someone to be held responsible for her
death; that, when consulting with O’Neil, he was told that there may be no
recovery in the lawsuit, and he agreed to be responsible for the legal fees if there
was no recovery; and, that Dashelle was a “special child” and “his buddy.” (Id. at
105-106).
{¶10} Wayne testified on cross-examination that there was never a time
where he forbid Dashelle from calling Darlene, and he was not aware of a letter
Dashelle wrote to Darlene making that claim; that he did not ask Darlene what she
wanted to do for Dashelle’s funeral arrangements; that he never discussed with
-7-
Case No. 16-10-05
Darlene his application to be appointed guardian of Dashelle; that he visited
Dashelle in the hospital every day, and Darlene was there most days also; and, that
he did not see Darlene crying at Dashelle’s funeral. Subsequently, Wayne read
three letters written by Dashelle to Darlene indicating that Dashelle missed
Darlene; that Dashelle asked Wayne if she could visit Darlene but Wayne would
not allow it; that Dashelle was anxious to turn eighteen so she could leave
Wayne’s house; that she wanted Darlene to go to court and tell them that Wayne
was not allowing her to see Darlene; that Dashelle was sorry for hurting Darlene in
the past; that she thought about Darlene everyday; and, that she loved Darlene.
{¶11} After the presentation of Wayne’s evidence, Darlene moved for a
directed verdict1, alleging that Wayne failed to establish that Darlene abandoned
Dashelle, and the trial court overruled the motion.
{¶12} Michael Fox testified that he was Dashelle’s former fiancé; that he
and Dashelle were engaged in 2006 and were planning the wedding for July 7,
2007; that, while they were engaged, he and Dashelle would regularly visit
Darlene in her home; that they visited her at least a dozen times; that they also
visited Wayne’s residence on two occasions during their engagement; that he and
Dashelle called off the wedding in May 2007 because Dashelle was seeing another
man; that Dashelle and Darlene had a disagreement due to the Dashelle’s
1
We note that a motion for a directed verdict is proper only in a jury trial, not a bench trial. See Wallbrown
v. Kent State Univ. (2001), 143 Ohio App.3d 762, 767.
-8-
Case No. 16-10-05
behavior; that he believed Wayne and Darlene loved Dashelle equally; that
Dashelle would have arguments and disagreements with both Wayne and Darlene;
and, that, from the time he knew Dashelle, he did not believe Darlene engaged in
any behavior that could be characterized as abandoning Dashelle.
{¶13} Lynn Crosby testified that he lived with Darlene; that he has known
Darlene since 1998; that he was present the day that Darlene took Dashelle to
Wayne’s house early in the morning; that Dashelle had asked to “start [her]
summer vacation with [her] dad,” as she usually spent six weeks with Wayne
during the summer, because Darlene disciplined her for staying out all night with
an older man (id. at 141); that Darlene told Dashelle she could go to Wayne’s, and
instructed Dashelle to call Wayne; that Dashelle stated she called her father and
obtained permission, and she proceeded to pack her clothing; that the following
morning, he and Darlene drove Dashelle to Wayne’s residence; that they parked in
the driveway as Dashelle went to the front door; that he could not remember if he
saw Wayne answer the door, but they drove off after that saw Dashelle had gained
entry into the residence; that Darlene expected Dashelle to return after she spent
the six weeks with Wayne; that Darlene did not agree to allow Dashelle to stay
with Wayne, but he believed a Magistrate ordered that Dashelle was old enough to
decide where she wanted to live; that, while Dashelle was living with Wayne, she
would visit Darlene; that he was present on multiple occasions when Dashelle
-9-
Case No. 16-10-05
would visit; that, after Dashelle turned eighteen, her relationship with Darlene
“had ups and downs” (id. at 145); that Darlene and Dashelle would do things
together, but that Dashelle would get upset with Darlene when Darlene would tell
her she was not living her life correctly, and Dashelle would not speak with
Darlene for two or three months; that Dashelle and Mike visited on several
occasions and would stay for several hours at a time; and, that, after Dashelle
passed away, Darlene informed him that, because Wayne had a power of attorney,
Wayne made all the decisions regarding Dashelle’s funeral and she was never
asked anything.
{¶14} Darlene Lynch testified that Dashelle was very “head strong” and
independent (id. at 154); that she did not contact Wayne before she dropped
Dashelle off at his house because she was not allowed to contact him under the
terms of the civil protection order in place at the time; that, a few days before she
dropped off Dashelle at Wayne’s residence, she contacted the police because she
could not locate Dashelle; that, after Dashelle came home, she grounded her; that,
shortly thereafter, Dashelle informed her that she wanted to start her summer
vacation with Wayne, and that if she did not allow Dashelle to go, she would be in
contempt if court; that she told her she needed to ask Wayne, and Dashelle went
upstairs and called him; that Dashelle informed her that Wayne gave her
permission to come over, and Dashelle began packing; that Dashelle did not return
-10-
Case No. 16-10-05
to her home after the summer vacation, and, when she attempted to call Wayne,
“the phone was just slammed” (id. at 160); that, by the end of the summer, Wayne
filed for custody of Dashelle, and she consented to it because Dashelle told her
“I’m always gonna love you * * * I’m gonna tell ‘em I wanna see you,
everything’s going to be fine. * * * I’ll still be seeing you” (id. at 161); that she
did not attempt to contact Wayne on other occasions regarding Dashelle because
she “knew he’d have Karen Behm on [her]” (id. at 158); that, after Dashelle began
living with Wayne, Dashelle would sneak to visit her because Wayne would not
allow visitation; that Dashelle also kept in touch with her by writing several
letters; and, that she did not file contempt charges against Wayne for failing to
permit Dashelle to visit because she could not afford to have an attorney represent
her.
{¶15} Darlene continued that, after Dashelle was emancipated at age
eighteen, Dashelle visited her more frequently; that Dashelle also invited her to
her house on multiple occasions; that she assisted Dashelle financially by
purchasing household items for her, such as food, shampoo, and toilet paper; that
she and Dashelle had a very good relationship while Dashelle was engaged to
Mike; that, on one occasion, she and Dashelle went shopping for Dashelle’s
wedding dress, and, during the course of the day, she discovered that Dashelle was
having an affair with another man; that, when she confronted Dashelle, Dashelle
-11-
Case No. 16-10-05
became upset and did not want to speak with her; that she attempted to contact
Dashelle numerous times, but Dashelle refused to speak to her; that the incident
marked the last time she and Dashelle spoke; that Wayne did not want her visiting
Dashelle in the hospital; that there was an occasion while visiting Dashelle in the
hospital that security had to be called so she could visit Dashelle; that she visited
Dashelle every day that she was in the hospital; that Wayne never consulted her
regarding Dashelle’s funeral arrangements; that she did not offer any suggestions
for a funeral because she was not allowed; that Wayne used to intimidate her; that
someone contacted her regarding the wrongful death lawsuit, but she did not want
to get involved because she was grieving; that there were days where she was not
able to get out of bed; and, that she received mental health counseling two days
per week after Dashelle’s death and was continuing to receive counseling once per
month.
{¶16} In June 2010, the trial court issued a judgment entry, stating, in
pertinent part, as follows:
The amount of the settlement is Five Hundred Thousand Dollars
($500,000) and the Court hereby approves same.
***
Courts who have dealt with the issue of the distribution of
settlement proceeds as between individuals of equal
consanguinity have found little authority in Ohio to assist in
construing the applicable statutes. “However, it is quite
apparent from its language that the statute was intended to vest
-12-
Case No. 16-10-05
discretion…[in a] court in apportioning distribution in
accordance with established principles of equity, without regard
to the statute of descent and distribution, and without regard for
any precise mathematical formula.” In Re Estate of Cline
(1964), 1 Ohio Misc. 28, 30. With these statutes and concepts in
mind the Court undertakes its analysis in this matter.
Mother’s willingness to unburden herself of Dashelle when she
was 14 years of age and neither requesting contact with Dashelle
nor paying child support for her bespeaks of a serious
disconnect in the mother child relationship. This disconnect is
also evident when one considers that mother was willing to have
Dashelle adopted by another which would have completely
terminated Mother’s parental rights. Mother claims some
communication with Dashelle while Dashelle was in high school
but there is little evidence of the same. Following her
emancipation, it does appear that there was approximately a one
year period where Dashelle enjoyed a healthier relationship with
her mother, but approximately ten months prior to her death
they had once again stopped speaking due to some argument.
Darlene had never been to the apartment that Dashelle occupied
just prior to her death. By contrast, father, when not the
custodial parent, enjoyed visitation with Dashelle and paid child
support on her behalf. He described it as unexpected [sic] yet
pleasant surprise when Dashelle was abruptly dropped off at his
house by mother in the early morning hours. Thereafter he
sought and obtained residential parent status of Dashelle. It
appears father and Dashelle had a typical father daughter
relationship in that they engaged in activities together. Father
proudly recounted some of the accomplishments of his daughter
and was positive about her. While father said they went for a
[sic] short periods of time without speaking because father
disapproved of a relationship in which Dashelle was engaged, it
appears that neither of them could maintain a lengthy break in
their relationship. Father provided services for Dashelle, he
seemed aware of what was occurring in her life and it appears
Dashelle desired to keep her father in her life as shown by her
comments to him concerning the Fathers Day holiday just prior
to her death. More importantly, in her last conscious moments
Dashelle was shaking her head “no” and not wanting her father
-13-
Case No. 16-10-05
to leave her when the hospital nurses had instructed him to do
so. Father’s grief over the death of his daughter appeared
genuine and ongoing. When asked, he advised that he visits
Dashelle’s grave every Sunday, every 17th of the month
presumably in recognition of the date on which she died, and
every 23rd of the month for reasons unknown to this Court but
obviously [sic] to father. Father took it upon himself to become
obligated to pay the funeral bill and took all the financial risks
associated with this case in order to bring justice to “those girls
which [sic] could not escape the building.” Father hired
attorneys, participated in the case, answered interrogatories,
completed the questionnaire and appeared for deposition.
By contrast, mother upon questioning an attorney handling the
Wrongful Death Action, concluded there would be no money
and therefore declined to participate in the case. Counsel in the
wrongful death action determined her lack of participation was
a positive because mother did not strike him as a sad, grief
stricken mother. By contrast he described father as an
individual going through a lot of pain.
Mother, according to father, did not cry at the hospital and did
not cry at the funeral home. Mother was heard to wail in the
courtroom during father’s testimony, but the genuineness of her
sounds were questioned given how quickly they erupted and how
quickly they faded when no attention was paid to them.
Mother’s cold demeanor on the stand seemed odd when one
considers the magnitude of the loss. The Court is mindful that
[sic] the fact that everyone grieves in his or her own way. It is
likely that both of Dashelle’s parents loved her in his or her own
way. But in terms of loss it is quite apparent that father, as
opposed to mother, is suffering the greater mental anguish and
much more keenly feels the loss of this daughter’s
companionship and society. Father took action to address what
was done to his daughter, while mother sat back and did
nothing, not even filling out a questionnaire to assist in gaining
justice for her daughter. Only when mother was assured that
there was money to be distributed did she choose to participate.
The Court believes that this is a sad time for both parents;
father for what he has lost and mother for the regrets she might
-14-
Case No. 16-10-05
have for what might have been. In considering all of the
foregoing the Court orders the following distribution:
1. There is a funeral bill owing to Harold Floriana Funeral
Home, 301 West Tiffin St., Fostoria, Ohio 44830 in the gross
amount of $8,035.53. Father has paid some toward that debt
and therefore father shall be reimbursed for any amounts he has
spent on the funeral and any amount still owing shall be paid
directly to the funeral home out of the settlement proceeds.
2. Attorney fees to Attorney Joseph O’Neil and Karen Behm
shall be paid in the sum of $200,000.00 plus case expenses in the
sum of $26,973.83. The lien by Medicaid in an amount no
greater than $125,000.00 shall be paid and if a lesser amount is
negotiated, the difference between the $125,000.00 and that
which is actually paid to Medicaid, shall be paid over to
Dashelle’s father, Wayne Lynch. As to the remaining proceeds
mother Darlene Clark shall receive the sum of $2,000.00 and all
of the remainder of the proceeds shall be paid to father, Wayne
Lynch.
(June 2010 Judgment Entry, pp. 1, 8-10).
{¶17} It is from this judgment that Darlene appeals, presenting the
following assignments of error for our review.
Assignment of Error No. I
BOTH PARENTS HAVE THE SAME LEVEL OF
CONSANGUINITY AND THE PRESUMPTION UNDER ORC
2105.02 [SIC] IS THAT BOTH ARE ENTITLED TO EQUAL
SHARE OF ANY DISTRIBUTION.
Assignment of Error No. II
THE COURT ABUSED IT’S [SIC] DISCRETION IN
AWARDING DECEDENT’S FATHER, WAYNE LYNCH
98.6% OF THE WRONGFUL DEATH PROCEEDS GIVEN
THE FACTS AND TESTIMONY PRESENTED DURING THE
-15-
Case No. 16-10-05
HEARING PROVES BOTH PARENTS HAD SIMILAR
PATTERNS AND OR TYPES OF RELATIONSHIP [SIC]
WITH THEIR DECEASED ADULT DAUGHTER,
DASHELLE LYNCH.
Assignment of Error No. I
{¶18} In her first assignment of error, Darlene argues that the trial court
erred in failing to start with a rebuttable presumption that both parents were
entitled to an equal share in the distribution of the wrongful death claim settlement
proceeds. Specifically, Darlene contends that R.C. 2125.022 establishes that
parents are to share equally in the wrongful death claim proceeds, and that
evidence must be presented establishing one parent did not suffer or suffered less
damages in order to divest that parent of an equal share. We disagree.
{¶19} An appellate court reviews the trial court’s application of the law de
novo. Heritage Court v. Merritt, 187 Ohio App.3d 117, 2010-Ohio-1711, ¶13;
State v. Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872, ¶79. R.C. 2125.02
governs wrongful death claims and provides, in pertinent part, as follows:
(A)(1) Except as provided in this division, a civil action for
wrongful death shall be brought in the name of the personal
representative of the decedent for the exclusive benefit of the
surviving spouse, the children, and the parents of the decedent,
all of whom are rebuttably presumed to have suffered damages
by reason of the wrongful death, and for the exclusive benefit of
the other next of kin of the decedent. A parent who abandoned a
2
We note that Appellant’s brief cites to R.C. 2105.02, not the relevant section R.C. 2125.02. However, we
find this to be a typographical error, and one which Appellant corrected in her reply brief, properly citing
R.C. 2125.02.
-16-
Case No. 16-10-05
minor child who is the decedent shall not receive a benefit in a
civil action for wrongful death brought under this division.
(2) The jury, or the court if the civil action for wrongful death is
not tried to a jury, may award damages authorized by division
(B) of this section, as it determines are proportioned to the
injury and loss resulting to the beneficiaries described in
division (A)(1) of this section by reason of the wrongful death
and may award the reasonable funeral and burial expenses
incurred as a result of the wrongful death. In its verdict, the
jury or court shall set forth separately the amount, if any,
awarded for the reasonable funeral and burial expenses
incurred as a result of the wrongful death.
{¶20} R.C. 2125.02(A)(1), (2).
{¶21} Moreover, R.C. 2125.03 governs the distribution of the proceeds
from a wrongful death claim, and provides, in pertinent part, as follows:
The amount received by a personal representative in an action
for wrongful death under sections 2125.01 and 2125.02 of the
Revised Code, whether by settlement or otherwise, shall be
distributed to the beneficiaries or any one or more of them. The
court that appointed the personal representative, except when all
of the beneficiaries are on an equal degree of consanguinity to
the deceased person, shall adjust the share of each beneficiary in
a manner that is equitable, having due regard for the injury and
loss to each beneficiary resulting from the death and for the age
and condition of the beneficiaries. If all of the beneficiaries are
on an equal degree of consanguinity to the deceased person, the
beneficiaries may adjust the share of each beneficiary among
themselves. If the beneficiaries do not adjust their shares among
themselves, the court shall adjust the share of each beneficiary in
the same manner as the court adjusts the shares of beneficiaries
who are not on an equal degree of consanguinity to the deceased
person.
R.C. 2125.03(A)(1).
-17-
Case No. 16-10-05
{¶22} R.C. 2125.02(A)(1) provides a rebuttable presumption that the
surviving spouse, children, and parents of the decedent have suffered damages as
the result of the decedent’s death. Heise v. Orra, 8th Dist. No. 66172, 1995 WL
79794. Nowhere in R.C. 2125.02 or 2125.03 is language which could be
interpreted to provide a rebuttable presumption of equal distribution of the
proceeds, as Darlene contends, and she cites us to no authority finding such
presumption. On the contrary, the language of R.C. 2125.02(A)(2) and
2125.03(A)(1) indicates that the probate court has the discretion to apportion the
proceeds equitably according to the relative injury and loss suffered by surviving
spouses, parents, and children. See Grand Trunk Western R.R. v. Cothern, 6th
Dist. No. L-93-112, 1995 WL 112908; In re Estate of Marinelli (1994), 99 Ohio
App.3d 372, 377-378, quoting R.C. 2125.03(A)(1) (“R.C. 2125.03 empowers the
probate division to distribute the proceeds of a wrongful death award or settlement
to the beneficiaries. The latter statute directs the probate court to ‘adjust the share
of each beneficiary in such manner as is equitable, having due regard for the injury
and loss to each beneficiary resulting from the death and for the age and condition
of the beneficiaries.’”)
{¶23} In the case at bar, the trial court analyzed all the evidence and
testimony and made a distribution of the wrongful death claim settlement proceeds
on the basis of what it believed was an equitable apportionment based on the loss
-18-
Case No. 16-10-05
suffered by both Darlene and Wayne. Consequently, we find that the trial court
properly applied the law as set forth under R.C. 2125.02(A).
{¶24} Accordingly, we overrule Darlene’s first assignment of error.
Assignment of Error No. II
{¶25} In her second assignment of error, Darlene argues that the trial court
abused its discretion in awarding her only $2,000 of the wrongful death claim
settlement proceeds. Specifically, she contends that the evidence and testimony
presented established that she and Wayne had similar relationships with Dashelle,
and, as such, that the distribution should have also been equal. We disagree.
{¶26} As set forth in our disposition of Lynch’s first assignment of error,
R.C. 2125.03(A)(1) grants the probate court the discretion to distribute the
proceeds of the wrongful death claim equitably among the beneficiaries. In re
Estate of Werts, 2d Dist. No. 22824, 2009-Ohio-3120, ¶13. Specifically, R.C
2125.03(A)(1) directs the trial court to “adjust the share of each beneficiary in a
manner that is equitable, having due regard for the injury and loss to each
beneficiary resulting from the death and for the age and condition of the
beneficiaries.” See also In re Estate of Coman, 7th Dist. No. 07-MA-181, 2008-
Ohio-2266, ¶16; In re Estate of Barnett-Clardy, 10th Dist. No. 08AP-386, 2008-
Ohio-6126, ¶22. Accordingly, an appellate court cannot overturn the trial court’s
distribution of the proceeds absent an abuse of that discretion. Werts, 2009-Ohio-
-19-
Case No. 16-10-05
3120, at ¶13. A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-18,
citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of
discretion standard, a reviewing court may not simply substitute its judgment for
that of the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶27} In the case at bar, the trial court made detailed findings from the
evidence presented during the distribution hearing. Specifically, it relied upon the
testimony presented that Darlene dropped off Dashelle at Wayne’s residence early
in the morning without notifying him; that Darlene consented to granting Wayne
residential parent status and having no visitation with Dashelle unless at
Dashelle’s request; that Darlene was willing to have Dashelle adopted and to
terminate her parental rights; that Darlene had virtually no contact with Dashelle
while she was in high school; that despite Dashelle’s statements to Darlene that
Wayne was not allowing her to visit Darlene, she took no legal action; that
Darlene was not involved in the funeral planning and refused to answer a
questionnaire regarding the wrongful death action despite an attorney’s request;
that Darlene had not been in communication with Dashelle for several months
prior to her death; and, that Darlene was not a “sincere, sad mother.” (Application
for Distribution Hearing Tr., p. 81)
-20-
Case No. 16-10-05
{¶28} In contrast, testimony was presented that, during the time period that
Wayne was not the residential parent, he exercised visitation with Dashelle and
provided child support; that he was happy to see Dashelle when Darlene dropped
her off at his residence, and he initiated proceedings to obtain residential parent
status; that he went forward with the wrongful death action despite the chance that
he might be unable to receive a recovery and could be responsible for the
associated legal fees because he “didn’t like the way his daughter died and didn’t
want somebody else to die the same way” (id. at 72); that he planned and paid for
Dashelle’s funeral; and, that there was never a lengthy period of time where he
and Dashelle would not communicate or have contact with each other.
{¶29} While we recognize that Darlene presented a variety of reasons for
her failures to show care or concern for Dashelle, including that she did not have
the money to pursue visitation rights; that she only suggested having Dashelle
adopted and giving up her parental rights to “call Dashelle’s bluff” (id. at 46); and,
that she did not want to be involved in the wrongful death action because she was
still grieving Dashelle’s death, the trial court was in the best position to judge
witness credibility, State v. Hundley, 3d Dist. Nos. 15-09-10, 15-09-12, 2009-
Ohio-6873, ¶19, and specifically made a finding of Darlene’s cold demeanor while
testifying and the lack of genuineness when she cried during the proceedings.
-21-
Case No. 16-10-05
{¶30} Although this case was a difficult one, and this Court may not have
reached the same conclusion as the trial court on the distribution of the wrongful
death claim settlement proceeds, we cannot find that the trial court’s decision was
unsupported by the evidence or grossly unsound.
{¶31} Accordingly, we overrule Darlene’s second assignment of error.
{¶32} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
-22-