[Cite as Reed v. Turner, 2014-Ohio-5109.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Deborah L. Reed et al., : 

 Plaintiffs-Appellants, : 

v. : No. 14AP-400 

 (Prob. No. 553947A) 

Tamara E. Turner, : 

 (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on November 18, 2014 

 

Bellinger & Donahue, Kerry M. Donahue and Scott P. 

Bellinger, for appellants. 

Kyle B. Smith, for appellee. 

 

APPEAL from the Franklin County Court of Common Pleas, 

Probate Division 

TYACK, J. 

{¶ 1} Plaintiffs-appellants, Deborah L. Reed and Deana L. Reed ("the Reeds"), 

appeal the judgment of the Probate Court of Franklin County adopting its magistrate's 

decision granting distribution of the remainder of a trust to defendant-appellee, Tamara 

E. Turner. For the following reasons, we affirm the judgment of the probate court. 

{¶ 2} The Reeds bring four assignments of error for our consideration: 

[I.] THE LOWER COURT DID NOT PROPERLY APPLY THE 

LAW TO THE FACTS BECAUSE THE WRITTEN TRUST 

CONTROLS INTENT AND THE TRUSTORS INTENT IS 

CLEAR FROM THE TRUST DOCUMENT. 

[II.] IT WAS ERROR TO DECIDE THE CASE ON SUMMARY 

JUDGMENT AND REFUSE TO HOLD A HEARING IF THE 

COURT WAS GOING TO DECIDE THE ISSUE BY GOING 
No. 14AP-400 2 

OUTSIDE THE CLEAR INTENT SET FORTH IN THE TRUST 

DOCUMENT ITSELF. 

[III.] THE RULING IN FAVOR OF APPELLEE UPON 

SUMMARY JUDGMENT WAS A DUE PROCESS 

VIOLATION AND IN A LIGHT MOST FAVORABLE TO 

APPELLANT THE CLEAR AND UNAMBIUOUS [sic] TERMS 

OF THE TRUST SHOULD HAVE CONTROLLED. 

[IV.] EXTRINSIC EVIDENCE OF INTENT OF THE 

TRUSTORS SHOULD NOT HAVE BEEN PERMITTED 

SINCE THE WRITTEN TERMS OF THE TRUST ARE 

CLEAR. 

{¶ 3} The facts of this case are not in dispute. In August 2001, Robert Judd 

("Robert") and Winnie Judd ("Winnie") were married. Robert had one adult daughter, 

Tamara Turner ("Turner") who is the appellee in this case. Winnie had two adult 

daughters, the Reeds, appellants herein. On August 8, 2002, Robert and Winnie executed 

the Judd Family Trust. The corpus of trust contained Winnie's condominium and 

Robert's Edward Jones brokerage accounts as well as some of Robert's savings accounts. 

The Judd Family Trust document is 57-pages long and uses terms interchangeably for the 

same share of the trust, e.g., Decedent's Marital Share Trust B, Decedent's Trust B, Robert 

W. Judd's Share of the Trust Assets, Trust B. 

{¶ 4} On March 22, 2005, Robert died. Pursuant to the terms of the trust, 

Winnie, as surviving spouse and trustee, divided the trust into two relatively equal and 

separate shares: Survivor's Marital Share Trust A and Decedent's Marital Share Trust B. 

Survivor's Marital Share Trust A was revocable and the corpus contained Winnie's 

condominium. Decedent's Marital Share Trust B is irrevocable and contains the financial 

accounts Robert brought into the marriage. 

{¶ 5} After funding Survivor's Trust A and Decedent's Trust B, Winnie exercised 

her rights and defunded Trust A by transferring the condominium into her own name. 

Winnie also properly exercised her rights under the trust and used assets of Decedent's 

Trust B for her maintenance and support. 

{¶ 6} Winnie died on August 11, 2011. The condominium was passed to her 

daughters, the Reeds, and was sold for $90,000 in November 2012. Winnie's funeral 
No. 14AP-400 3 

expenses were paid by Deborah Reed and totaled more than $10,000. At the time of 

Winnie's death, there was approximately $75,000 remaining in Decedent's Trust B. 

{¶ 7} In May 2012, the Reeds filed a complaint in the Franklin County Probate 

Court for declaratory judgment arguing that they are entitled to one-half of the remaining 

assets in the Decedent's Trust B after Trust B paid for Winnie's funeral expenses. Turner 

argued that Trust B is to be distributed outright to her. During a scheduling conference 

with the magistrate, both parties' counsel agreed that the case only involved legal issues 

which could be properly presented through briefs. Both parities subsequently filed 

motions for summary judgment. 

{¶ 8} On September 24, 2013, the magistrate in the probate court issued her 

decision. The magistrate recommended that appellant's motion for summary judgment 

be denied, a $350 fee be paid from Decedent's Trust B for tax preparation and the 

remainder of Decedent's Trust B be distributed outright to Turner. The magistrate's 

decision found decedent's Trust B to have no responsibility for paying the funeral 

expenses of Winnie Judd. Turner's request for attorney fees and legal costs were denied. 

{¶ 9} The Reeds filed objections to the magistrate's decision and also requested 

an oral hearing on their objections. Turner filed a response to the objections and a 

request for a hearing. There was also a motion to file additional documents with the 

court. On April 22, 2014, the probate court issued its judgment allowing the filing of 

additional documents, denying the request for an oral hearing and adopting the 

magistrate's decision. 

{¶ 10} There are no disputed facts in this case, only disputed interpretations of the 

trust document. Therefore summary judgment is appropriate. Civ.R. 56(C) states that 

summary judgment shall be rendered forthwith if: 

[T]he pleadings, depositions, answers to interrogatories, 

written admissions, affidavits, transcripts of evidence, and 

written stipulations of fact, if any, timely filed in the action, 

show that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of 

law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be 

rendered unless it appears from the evidence or stipulation, 

and only from the evidence or stipulation, that reasonable 

minds can come to but one conclusion * * *. 
No. 14AP-400 4 

{¶ 11} Accordingly, summary judgment is appropriate only where: (1) no genuine 

issue of material fact remains to be litigated; (2) the moving party is entitled to judgment 

as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving 

party, reasonable minds can come to but one conclusion and that conclusion is adverse to 

the non-moving party. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 

629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66 

(1978). 

When a motion for summary judgment is made and 

supported as provided in this rule, an adverse party may not 

rest upon the mere allegations or denials of the party’s 

pleadings, but the party’s response, by affidavit or as 

otherwise provided in this rule, must set forth specific facts 

showing that there is a genuine issue for trial. If the party 

does not so respond, summary judgment, if appropriate, shall 

be entered against the party. 

Civ.R. 56(E). Summary judgment is a procedural device to terminate litigation, so it 

must be awarded cautiously with any doubts resolved in favor of the non-moving party. 

Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992). 

{¶ 12} De novo review is well established as the standard of review for summary 

judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). We stand in the 

shoes of the trial court and conduct an independent review of the record applying the 

same summary judgment standard. As such, we must affirm the trial court's judgment if 

any of the grounds raised by the moving party, at the trial court’s level, are found to 

support it, even if the trial court failed to consider those grounds. See Dresher v. Burt, 75 

Ohio St.3d 280 (1996); Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th 

Dist.1995). 

{¶ 13} The Reeds in their first assignment of error argue that the probate court 

erred in determining the intent of Robert and Winnie in construing the language of the 

trust document. They argue that Turner should not receive the balance of Decedent's 

Trust B but it should be distributed evenly between the parties after Winnie's funeral 

expenses are paid. 
No. 14AP-400 5 

{¶ 14} One of the fundamental tenets for the construction of a will or trust is to 

ascertain, within the bounds of law, the intent of the testator, grantor or settlor. Domo v. 

McCarthy, 66 Ohio St.3d 312, 314 (1993). The intent can be ascertained from the express 

terms of the trust itself if the instrument is not ambiguous. Id. Interpreting a trust is akin 

to interpreting a contract; as with trust, the role of courts in interpreting contracts is "to 

ascertain and give effect to the intent of the parties." Saunders v. Mortensen, 101 Ohio 

St.3d 86, 2004-Ohio-24, ¶ 9. 

{¶ 15} We look to the language of the trust to determine the intent of trustees 

Robert and Winnie: 

DEATH OF TRUSTOR 

Upon the death of either Trustor the Surviving Trustee shall 

divide and allocate the Trust Estate into two (2) separate 

shares * * *. One share shall be designated as Survivor's Trust 

A and the other share shall be designated as Decedent's 

Marital Share, Trust B. 

* * * 

Decedent's Marital Share shall consist of the Decedent's onehalf (1/2) interest in the commonly owned property or 

community property of the Trust Estate, one-half (1/2) 

interest in the quasi-community property and all other 

property included in the Trust Estate as the Separate Property 

of the Decedent Trustor. Decedent's Martial Share shall be 

placed into Decedent's Trust B. Upon creation of such Trust 

shares, Decedent's Trust B is irrevocable. 

The Surviving Trustee shall have the sole discretion to select 

the commonly owned, community and quasi-community 

assets or the proportionate share of any such assets which 

shall be included in the Decedent's Trust B. 

 

(R. 1, Trust Document, 26.) 

{¶ 16} Upon the death of Robert, Winnie did divide the corpus of the Judd Family 

Trust assets into two trusts of nearly equal value, with Survivor's Trust A containing the 

condominium that Winnie owned before the marriage and Decedent's Trust B containing 

the accounts Robert brought into the marriage. The trust makes clear then the 

beneficiaries of the Decedent's Trust B. 
No. 14AP-400 6 

Distribution of Residual of Trust B 

The balance of the principal of Trust B shall be distributed in 

accordance with the provision specified in the section of this 

Trust titled "ALLOCATION AND DISTRIBUTION OF TRUST 

ASSESTS." 

(R. 1, Trust Document, 33.) 

ALLOCATION AND DISTRIBUTION OF TRUST 

ASSETS 

Primary Beneficiaries of Robert W. Judd's share of 

the Trust Estate

Unless otherwise herein provided, upon or after the death of 

the Surviving Trustor, the Primary Beneficiary of Robert W. 

Judd's share of this Trust is Tamara E. Turner. 

 

(R. 1, Trust Document, 37.) In the event of Turner's death before receiving her entire 

share, the undistributed balance would be distributed to her children or her children's 

heirs. (R. 1, Trust Document, 37.) If all the issue of Turner were to die before receiving 

their share then the balance would be distributed among Robert Judd's primary 

beneficiaries. Id.

{¶ 17} We find that the intent of Robert and Winnie was clear and the trust 

document is not ambiguous. The trust document clearly shows that the terms, Decedent's 

Marital Share Trust B, Decedent's Trust B, and Trust B are different terms for the same 

trust that is composed of assets from Robert W. Judd's Share of the Trust Assets. Winnie 

made the determination what assets were placed in Trust B, and having done so created 

an irrevocable trust. It is clear that Robert's share of the trust was determined by Winnie 

and placed in Trust B where it ceased to be commonly owned or community property. 

The intent of Robert and Winnie was to have assets of Decedent's Trust B be distributed 

only to Turner upon the death of Winnie, the surviving trustor. 

{¶ 18} The Reeds also argue in their brief that the intention of trustors was that the 

funeral expenses of both Robert and Winnie be paid from the trust and that this provision 

demonstrates that Robert and Winnie considered all of the trusts assets communal 

property. However, it was conceded at oral argument that the trust document clearly 
No. 14AP-400 7 

requires all trustees to agree to pay these funeral expenses out of Decedent's Trust B after 

Survivors' Trust A had been devalued with the removal of the condominium. (R. 1, Trust 

Document, 8.) The probate court correctly determined that the funeral expense should 

not be paid out of Decedent's Trust B. The method of payment of the funeral expense of 

the Survivor Trustor through Trust A only reinforces our findings of the trustors' intent 

that Robert's share of the trust, Decedent's Trust B, should pass to only his heir. 

{¶ 19} The first assignment of error is overruled. 

{¶ 20} The second assignment of error argues that a hearing should have been 

granted on the Reeds' objection to the magistrate's decision. In this case, the probate 

court was not required to grant such a hearing. "If one or more objections to a 

magistrate’s decision are timely filed, the court shall rule on those objections. * * * Before 

so ruling, the court may hear additional evidence but may refuse to do so unless the 

objecting party demonstrates that the party could not, with reasonable diligence, have 

produced that evidence for consideration by the magistrate." Civ.R. 53(D)(4)(d). 

Whether to grant such a hearing is within the discretion of the probate court. Losey v. 

Diersing, 12th Dist. No. CA2012-06-048, 2013-Ohio-1108, ¶ 11. There is no argument 

that the Reeds could not have produced evidence for consideration by the magistrate. The 

probate court did not abuse its discretion in refusing to conduct an oral hearing on the 

objections to the magistrate's decision. 

{¶ 21} The second assignment of error is overruled. 

{¶ 22} The third assignment of error argues that the Reeds' due process rights were 

violated when this case was resolved through summary judgment. A hearing was not 

required and pursuant to Civ.R. 53(D)(4)(d) conducting such a hearing was within the 

probate court's discretion. There was no due process violation. 

{¶ 23} The third assignment of error is overruled. 

{¶ 24} The fourth assignment of error argues the probate court erred in finding 

that Decedent's Trust B was not community property of the marriage. The Reeds argue 

that Robert and Winnie's intentions were that all trust assets be considered as community 

property. The argument relies on one section of the trust. "All property held by the 

undersigned * * * is the commonly owned or community property of the said Trustors 

unless otherwise designated by writing in the Trust documents." (R. 1, Trust Document, 
No. 14AP-400 8 

56, Letter of intent and Declaration of Gift.) The Reeds argue that no writing exists which 

designates any property in the trust as separate. 

{¶ 25} This provision of the trust document cannot be read in isolation. Due 

weight must be given to all the words and provisions of a trust instrument. Mumma v. 

Huntington Natl. Bank of Columbus, 9 Ohio App.2d 166 (10th Dist.1967). After Robert 

died, Winnie transferred property from being community property to being separate 

property when she created Survivor's Trust A and Decedent's Trust B. This division was 

in accordance with the trust and satisfies the intention of Robert and Winnie to have 

assets available for both Robert's and Winnie's heirs upon both their deaths. 

{¶ 26} The fourth assignment of error is overruled. 

{¶ 27} Having overruled all the assignments of error, we affirm the judgment of the 

Franklin County Court of Common Pleas, Probate Division. 

 Judgment affirmed. 

BROWN and KLATT, JJ., concur.