[Cite as In re Estate of DePalma, 2017-Ohio-397.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

In re: : 

 No. 16AP-619 

The Estate of Joyce M. DePalma, : (Prob. No. 555851)

(E. Maria DePalma, : (REGULAR CALENDAR) 

 Appellant). : 

 

 

D E C I S I O N 

Rendered on February 2, 2017 

 

On brief: E. Maria DePalma, pro se. Argued: E. Maria 

DePalma.

 

APPEAL from the Franklin County Court of Common Pleas, 

Probate Division 

HORTON, J. 

{¶ 1} E. Maria DePalma appeals the decision of the Franklin County Court of 

Common Pleas, Probate Division ("probate court"), overruling her motion to remove John 

DePalma as the executor of the estate of her mother, Joyce M. DePalma. For the reasons 

set forth below, we affirm. 

{¶ 2} Joyce M. DePalma ("Joyce") had three children: E. Maria DePalma 

("Maria"), Robert N. DePalma, and John DePalma ("John"). Joyce executed a pour over 

will on August 12, 2004 ("2004 Will") that named John as executor and left her residuary 

estate to a family trust, with equal distribution of the assets among her three children. 

{¶ 3} Joyce signed another will on October 18, 2007 ("2007 Will"), that appointed 

Maria as executor, left the entirety of the estate to Maria, and disinherited Robert and 

John. 

{¶ 4} Joyce died on July 18, 2012, and Maria filed the 2007 Will with the probate 

court on August 20, 2012. John filed a complaint to contest the 2007 Will on 
No. 16AP-619 2 

January 15, 2013. The case was tried before a jury and the 2007 Will was determined not 

to be Joyce's last will and testament. No party appealed the probate court's entry 

confirming the jury verdict. 

{¶ 5} John filed the 2004 Will with the probate court on April 4, 2016, and he was 

appointed the executor of Joyce's estate. The same day, Maria filed a motion to remove 

John as the executor and fiduciary. A magistrate held a hearing on the motion on 

May 9, 2016. John and Maria both provided testimony at the hearing. 

{¶ 6} The magistrate filed a decision on May 18, 2016, that contained findings of 

fact and conclusions of law. Although Maria's motion had cited R.C. 5808.03 and 

5808.04 in her motion, the magistrate noted that those provisions applied to trusts, not 

wills, and accordingly analyzed the motion under R.C. 2109.24. That provision allows for 

the removal of a fiduciary for failing to file an inventory or accounting of an estate, or "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." R.C. 2109.24. 

{¶ 7} The magistrate noted that Maria had filed the motion the same day as 

John's appointment. No time had passed during which John might have committed 

errors in the estate's administration or failed to file its inventory or accounting. Maria's 

only evidence to support her motion was her opinion testimony asserting that John 

wanted "to harm her" and that he would fail to be impartial as executor. (May 18, 2016 

Mag. Decision and Scheduling Order at 7.) The magistrate rejected this testimony as 

evidence to support John's removal for cause under R.C. 2109.24 and overruled her 

motion. 

{¶ 8} Maria filed objections, but failed to file a transcript or affidavit to dispute 

any findings of fact made by the magistrate. Accordingly, the probate court accepted the 

magistrate's findings of facts as unchallenged. The probate court also found that the 

magistrate had properly overruled the motion to remove John as executor because no 

evidence supported his removal under the R.C. 2109.24 factors, and therefore entered a 

judgment overruling Maria's objections. (Aug. 19, 2016 Jgmt. Entry at 6-7.) 

{¶ 9} Maria filed a timely notice of appeal from the judgment of the probate court. 

(Aug. 31, 2016 Notice of Appeal.) 
No. 16AP-619 3 

{¶ 10} A probate court's decision to deny the removal of an estate's fiduciary is a 

final appealable order over which this court has jurisdiction. See In re Estate of Ober, 155 

Ohio St. 279 (1951) (reversing the decision of a probate court denying the removal of an 

estate's administrator); In re Estate of Nardiello, 10th Dist. No. 01AP-281 (Oct. 30, 2001) 

(interpreting Ober as an indication "that the Ohio Supreme Court considers such orders 

appealable" and holding that orders of the probate court removing fiduciaries are final 

appealable orders). We review such orders under an abuse of discretion standard. Ober at 

282-83. 

{¶ 11} Maria's sole assignment of error, however, simply quotes 28 U.S.C. 455, the 

federal statute governing the disqualification of federal judges and magistrates. The 

statute applies only to a "justice, judge, or magistrate [magistrate judge] of the United 

States," not judicial officers of the State of Ohio. 28 U.S.C. 455(a). Even in a federal forum, 

28 U.S.C. 455 provides no authority for a party to challenge the actions of a state court 

judge. Davis v. Jones, 506 F.3d 1325, 1332 (11th Cir.2007) (noting that "the federal 

recusal statute * * * [does] not govern state judges"); Lawerenz v. Wisconsin, E.D.Wis. 

No. 97-C-781 (Oct. 31, 1997) (observing that 28 U.S.C. 455 "has no application to a state 

court judge"). 

{¶ 12} Furthermore, this court is without jurisdiction to hear a complaint of 

judicial bias against a judge of the probate court. See Ohio Constitution, Article IV, 

Section 5(C) ("The chief justice of the supreme court * * * shall pass upon the 

disqualification of any judge of the courts of appeals or courts of common pleas or 

division thereof"). A party who believes that a judge or magistrate of the probate court is 

biased must file an affidavit of disqualification with the Supreme Court of Ohio. 

R.C. 2101.39 ("If a probate judge allegedly has a bias or prejudice for or against a party 

* * * any party to the proceeding or the party's counsel may file an affidavit of 

disqualification with the clerk of the supreme court."). For these reasons, the assignment 

of error fails to identify or reference in the record any alleged error by the probate court, 

as it must for this court to make a determination on the merits of the appeal. 

App.R. 16(A)(3) and 12(A)(1)(b). 

{¶ 13} To the extent that Maria's brief addresses the final appealable order on 

which this appeal is based, it provides no grounds for reversing the probate court's 
No. 16AP-619 4 

decision to overrule the motion to remove John as executor. Although Maria quotes the 

statute governing the removal of a fiduciary, R.C. 2109.24, she addresses none of the 

points made by the court when it overruled her motion. Maria asserts only that John has 

"done nothing but try to hurt" her, but cites to no portion of the record or any evidence to 

support this assertion. (Appellant's Brief at 10.) The remainder of her arguments criticize 

the probate court's treatment of her and level accusations of bias that this court is without 

jurisdiction to address. In short, there is no indication in the record that the probate court 

abused its discretion when it overruled Maria's motion to remove John as the executor of 

their mother's estate. Accordingly, the sole assignment of error is overruled and the 

judgment of the probate court is affirmed. 

Judgment affirmed. 

SADLER and DORRIAN, JJ., concur. 

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