[Cite as In re Estate of von Meyer , 2017-Ohio-5839.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

IN RE: ESTATE OF SYLVIA VON MEYER FERDINAND VON MEYER, HEIR Appellant

v. KATHLEEN DANE, EXECUTRIX Appellee C.A. No. 16CA010980

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 12ES00821

DECISION AND JOURNAL ENTRY Dated: July 17, 2017

HENSAL, Presiding Judge. {¶1} Ferdinand von Meyer appeals from the judgment of the Lorain County Court of Common Pleas, Probate Division, adopting the magist rate’s decision that denied his motion to

remove the executor of his late wife’s estate. This Court affirms.

I. {¶2} This appeal involves a surviving spous e’s (“Husband”) motion to remove the

executor of his late wife’s estate. The decede nt died testate in 2011. Her will identified four

beneficiaries: three relatives and an endowment fund. The d ecedent disinherited her husband, indicating that she had otherwise provided for h im. The decedent’s sister, Kathy Dane, was appointed executor of the decedent’s estate. Ms. Dane is also a beneficiary under the will. {¶3} Three separate lawsuits were filed relative to the decedent’s estate, but only one remains unresolved. The unresolved lawsuit pertai ns to funds held in a Wells Fargo account2

owned by the decedent and Ms. Dane, which Husband claims entitlement to. More specifically, Husband claims that the Wells Fargo account wa s held in joint tenancy without rights of survivorship, while Ms. Dane claims that the acc ount was held in joint tenancy with rights of survivorship, thereby entitling her to the decedent’s share of the account. The other lawsuits pertained to: (1) a claim filed by Husband against Ms. Dane relative to funds Ms. Dane withdrew from a LorMet Community Federal Credit Uni on account (“LorMet Account”) prior to the decedent’s death; and (2) a concealment-of-assets claim filed by Ms. Da ne against Husband. Those lawsuits resolved through a settlement agreement and voluntary dismissal, respectively. {¶4} In 2015, Husband moved to have Ms. Dane removed as the executor of the decedent’s estate. He argued that Ms. Dane: (1) misappropriated estate assets when she withdrew funds from the LorMet Account prior to the decedent’s death; (2) intentionally omitted certain assets from any inventory; (3) made false representations to the probate court; and (4) admitted to wrongfully attempting to collect fune ral expenses from Husband, contrary to the will’s provision that those expenses be paid through the estate. Husband also argued that Ms.

Dane should be removed because unsettled claims existed between Ms. Dane and the estate, and

between the estate and Husband. {¶5} The magistrate held a hearing and ultimate ly denied Husband’s motion. In doing so, the magistrate summarized the lawsuits associated with the estate and concluded that “[t]hough there has been much litigation over th e past several years and allegations of wrongdoing on the part of the execut[or], there has been no finding of fiduciary misfeasance.” Husband filed objections to the magistrate’s decision, which th e probate court overruled. The probate court then adopted the magistrate’s decision, concluding that the magistrate properly3

determined the factual issues and appropriately applied the law. Husband now appeals, raising one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE PROBATE COURT ABUSED ITS DISCRETION WHEN IT UPHELD ITS MAGISTRATE’S DECISION NOT TO REMOVE THE EXECUT[OR]. {¶6} In his assignment of error, Husband argues that the probate court abused its discretion by adopting the magistrate’s decision th at denied his motion to remove the executor of his late wife’s estate. We disagree. {¶7} “This Court reviews a trial court’s action with respect to a magistrate’s decision

for an abuse of discretion.” Tabatabai v. Tabatabai , 9th Dist. Medina No. 08CA0049-M, 2009- Ohio-3139, ¶ 17. “In so doing, we consider the trial court’s action with reference to the nature of the underlying matter.” Id. at ¶ 18. Here, “[r]emoval of an executor rests within the sound discretion of the trial court and a reviewing court will not reverse the decision absent a clear showing of abuse of discretion.” Pio v. Ramsier , 88 Ohio App.3d 133, 136 (9th Dist.1993). An

abuse of discretion connotes that the court’ s attitude was “unreasona ble, arbitrary or

unconscionable.” Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶8} Husband moved to remove Ms. Dane as the executor under Revised Code Sections 2109.53 (“Judgment against fiduciary – removal.”) and 2113.18 (“Removal of executor or administrator.”). Although Husband did not specifically cite S ection 2109.24 (“Resignation or removal of fiduciary.”) in his motion, the su bstance of his motion referred to grounds for

removal thereunder. We will addr ess the latter two Sections only, as Husband has not developed an argument with respect to Section 2109.53 on appeal. See App.R. 16(A)(7).4

{¶9} First, Section 2113.18 provides that “[t] he probate court may remove any executor * * * if there are unsettled claims existing between the executor * * * and the estate that the court thinks may be the subject of controversy or litigation between the executor * * * and the estate or persons interested in the estate.” In support of his argument, Husband argued below that Ms. Dane owed both him and the estate money relative to the aforementioned settlement agreement, and that two lawsuits involving Ms. Dane (i.e., the conceal ment-of-assets lawsuit filed by Ms. Dane against Husband, and the laws uit filed by Husband ag ainst Ms. Dane relative to the Wells Fargo account) remained unresolved. Ms. Dane, however, testified at the hearing that she transferred the funds pursuant to the settlement agreemen t and dismissed her concealment-of-assets lawsuit against Husband. Thus, the magistrate noted that the only unresolved lawsuit pertained to the Wells Fargo account, and that there had been no adjudication on the merits of any adverse findings against Ms. Dane. {¶10} On appeal, Husband has not establishe d that the probate court abused its discretion when it adopted the magistrate’s deci sion relative to Section 2113.18. While there is no dispute that there is ongoing litigation involving the Wells Fargo account, ongoing litigation alone does not necessarily warrant removal of an executor. See Hoover v. Gamblin , 9th Dist. Summit No. 15707, 1993 WL 21023, *2 (Jan. 27, 1993). To the extent that Husband argues in his merit brief that the underlying litigation “cr eated hostile feelings” that “would or might interfere with the proper management of the estate[,]” he did not raise that argument in his motion to remove and, therefore, is barred from doing so on appeal. Miller v. Miller , 9th Dist. Summit No. 21770, 2004-Ohio-1989, ¶ 14 (stating that i ssues not raised below cannot be raised on appeal).5

{¶11} Next, Section 2109.24 provides, in pertinent part, that a court may remove a fiduciary if the fiduciary fails to make and file an inventory. It further provides that: [t]he court may remove any 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. {¶12} Regarding Ms. Dane’s alleged failure to file an accurate inventory, the magistrate noted that the estate was originally opened for litigation purposes only, and that the probate court’s order specifically indicated that no inventory was required. The magistrate further noted that Ms. Dane later filed an inventory when she became aware of an OPERS check and a promissory note, and that – to the extent that Hu sband argued that other assets should have been included in the inventory – the sufficiency of th e inventory had already been decided when the probate court denied Husband’s ex ceptions to same. Additionally, Ms. Dane testified that she intends to file an amended inventory to reflect th e funds she returned to the estate pursuant to the settlement agreement. {¶13} Regarding Ms. Dane’s other alleged misc onduct, the magistrate indicated that there had been no finding of fiduciary misfeasance. In his merit brief, Husband lists several instances of alleged misconduct, wh ich he claims are “undeniable and irrefutable[.]” A review of the record, however, makes clear that Husband’s merit brief mischaracterizes some of the evidence adduced at the hearing on his motion to remove. For example, he asserts that Ms. Dane took and concealed the decedent’s personal property, which were assets of the estate. Husband’s brother-in-law, however, testifie d that he and Husband told Ms. Dane and her sister (another heir) that “they could come get what they wanted[,]” from the marital home, including a sewing

machine and some clothes. Husband also assert s that Ms. Dane admitted to taking estate funds and dividing them between hersel f and her sister (another heir), despite knowing that other heirs6

existed. A review of the transcript in its entirety, however, indicates that at the time Ms. Dane withdrew the funds, she believed that she and the decedent alone owned the account. In yet another example, Husband asserts that Ms. Dane admitted that certain assets existed, and further admitted to making no effort whatsoever to garner those assets for estate purposes. Husband cites two transcript pages in support of his argume nt in this regard. Those pages indicate that Ms. Dane sued Husband for concealing assets, and that Husband eventually denied her access to the marital home. Those pages also reference Ms . Dane’s withdrawal of funds from the LorMet Account, and the fact that she believed it was held jointly with rights of survivorship and, therefore, not an estate asset. {¶14} Thus, despite asserting thatMs. Dane made false repr esentations to the probate court and otherwise knowingly engaged in misconduc t, the testimony adduced at the hearing, if believed, does not support Husba nd’s claims under Section 2109.24. Rather, the testimony indicates that when Ms. Dane took certain actions and made filings with the probate court, she did so pursuant to her understanding of the estate’s assets at that time. To the extent that the magistrate’s decision relied upon credibility determin ations, the fact finder is in the best position to make those determinations, which are entitled to considerable deference on appeal. Gorby v.

Aberth , 9th Dist. Summit No. 28021, 2017-Ohio-274, ¶ 19. {¶15} In light of the foregoing, we cannot say th at the probate court abused its discretion when it adopted the magistrate’s decision that de nied Husband’s motion to remove Ms. Dane as the executor. Accordingly, Husband’s assignment of error is overruled.

III. {¶16} Husband’s assignment of error is overrul ed. The judgment of the Lorain County Court of Common Pleas, Probate Division is affirmed.7

Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

SCHAFER, J. CALLAHAN, J. CONCUR.

APPEARANCES: JONATHAN E. ROSENBAUM, Attorney at Law, for Appellant. DAVID H. CULLIS, Attorney at Law, for Appellee.