[Cite as In re Estate of Murphy v. Murphy , 2023
- Ohio
- 3904.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

I N R E : ESTATE OF SHAWN MURPHY : JUDGES: : Hon. Patricia A. Delaney , P.J. KOLT DAUGHERTY : Hon. Craig R. Baldwin , J. : Hon. Andrew J. King , J. Appell ant : :

- vs - : : SHANNON D. MURPHY , : Case No. 23AP0006 ADMINISTRATOR : : Appell ee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Probate Division, Case No. 20221129

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 26, 2023

APPEARANCES: For Appell ant For Appell ee BRIAN W. BENBOW STEPHEN A. ECKINGER 265 Sunrise Center Drive 1611 North Main Street Zanesville, OH 43701 Suite ACoshocton County, Case No. 23AP0006 2
North Canton, OH 44720 King , J. {¶ 1} Appellant, Kolt Daugher t y , appeals the February 9, 2023 judgment entry of the Court of Common Pleas of Coshocton County, Ohio, Probate Division, denying his motion to intervene. Appellee is Shannon D. Murphy, Administrator ("Administrator") . We affirm the trial court. FACTS AND PROCEDURAL HISTORY {¶ 2} On July 22, 2022, Administrator filed an application to administer the Estate of Shawn Murphy ("decedent") . Administrator is decedent's brother, decedent's sole listed next of kin. Decedent did not leave a will. {¶ 3} On October 26, 2022, Daugher t y filed a motion to intervene under Civ.R. 24(A)(2), claiming to be the natural son of d ecedent. A hearing was held on January 5, 2023. By judgment entry filed February 9, 2023, the trial court denied the motion. {¶ 4} Daugher t y filed an appeal with the following assignment of error:
I {¶ 5} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING
APPELLANT ' S MOTION TO INTERVENE WHEN APPELLANT HAD A RIGHT TO
INTERVENE. " {¶ 6} "THE TRIAL COURT COMMITTED AN ERROR OF LAW BY NOT HOLDING AN EVIDENTIARY HEARING AS REQUIRED UNDER R.C. §2123.01 AND R.C. §2123.02. " {¶ 7} "THE TRIAL COURT, BY DENYING A HEARING, DENIED PROPOSED INTERVENOR/SON/APPELLANT DUE PROCESS OF LAW UNDER SECTION 16,Coshocton County, Case No. 23AP0006 3

ARTICLE I, OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. "
I {¶ 8} Daugher t y listed all three issues under one assignment of error as he states they are interrelated. He claims the trial court erred in denying his motion to intervene. We dis agree

. {¶ 9} Civ.R. 24 governs intervention . Daugher t y moved for intervention under subsection (A)(2) which states the f ollowing :

(A) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the sub ject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately repr esented by existing parties.

{¶ 10} In seeking intervention, Daugher t y claimed the distribution of the entirety of
the estate ' s proceeds would either go to him or Administrator, decedent ' s brother.
Because Administrator serves as executor and personally stands to benefit from denying
that Daugher t y is a lawful heir, their interests are contrary. So, the issue on appeal is
whether the " interest " claimed by Daugher t y is sufficient under the rule.Coshocton County, Case No. 23AP0006 4

{¶ 11} We begin our analysis by noting motions under Civ. R. 24(A) are reviewed under an abuse of discretion standard. Waynesburg Holdings, LLC v. Wells Fargo Bank,
N.A. , 2019

- Ohio

- 4764, 149 N.E.3d 199, ¶ 42 (5th Dist.). "Abuse of discretion" means an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). Most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An unreasonable decision is one backed by no sound reasoning process which would support that decision. Id. "It is not enough that the reviewing court, were it deciding the issue de nov o, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result." Id. {¶ 12} The movant of a Civ.R. 24 motion bears the burden of proof and production. Miller v. Miller, 2019

- Ohio

- 1886, 135 N.E.3d 1271, ¶ 19 (8th Dist.), citing Grove Court Condominium Unit Owners' Association v. Hartman , 8th Dist. Cuyahoga No. 94910,
2011

- Ohio

- 218, ¶ 14

. To be successful, a movant must show the " interest " is a legally protect able interest. State ex rel. Merrill v. Ohio Department of Natural Resources , 130 Ohio St.3d 30, 2011

- Ohio

- 4612, 955 N.E.2d 935 , ¶ 42

. Although there is not an explicit test for determining whether a movant has a protected legal interest, the Supreme Court
has held a movant ' s claim must be colorable. In re Schmidt , 25 Ohio St.3d 331, 33 6 , 496 N.E.2d 952 (1986). We note when evaluating a motion under Civ.R. 24, a trial court should liberally grant intervention. Merrill , supra ; Rumpke Sanitary Landfill, Inc. v. State , 128 Ohio St.3d 41, 2010

- Ohio

- 6037 , 941 N.E.2d 1161

.Coshocton County, Case No. 23AP0006 5

{¶ 13} In its February 9, 2023 judgment entry denying the motion to intervene, the trial court did not express any reasons for its denial: "The Court finds the Motion to Intervene not well taken, and it is denied." {¶ 14} As the former stepson of decedent , Daugher t y would have no colorable claim to the estate proceeds. But as the legal son of decedent , he would indeed have a legally protected claim. In order to possess a colorable claim to estate proceeds and therefore a right to intervene, Daugher t y claims " paternity was established prior to the death of the decedent. " {¶ 15} Administrator responds by noting a parentage action under R.C. Chapter
3111 was never filed and is now barred by the statute of limitations (R.C. 3111.05)

. We
agree. A claim brought after the tolling of the statute of limitations is not a colorable claim. Accordingly, the trial court did not abuse its discretion in this regard. {¶ 16} Daugher t y responds by arguing a statutory parentage action is not the only vehicle by which he can establish a colorable claim. He argues under the authority of
Powell v. Williams , 2022

- Ohio

- 526, 185 N.E.3d 595 , ¶ 20, appeal not a ccepted , 167 Ohio St.3d 1408, 2022

- Ohio

- 2047, 188 N.E.3d 1100 , he can inherit because decedent married his mother and acknowledged him. There is no dispute that Daugher t y's mother married decedent. But as the movant, Daugher t y has the burden to establish a colorable claim in both law and fact that he was acknowledged by decedent. {¶ 17} In an apparent effort to assist the trial court in determining whether Daugher t y met that burden, a hearing was conducted at which his counsel could present evidence. During the January 5, 2023 hearing, the trial court heard from two witnesses, Loretta Murphy, Daugher t y's mother, and Daugher t y himself.Coshocton County, Case No. 23AP0006 6

{¶ 18} Ms. Murphy testified when she gave birth to Daugher t y in March 1985 , she
was married to Joe Daugher t y. T. at 10. They divorced in 1987. T. at 13. In the dissolution/divorce document, Daugher t y was listed as a child of the marriage; a child support order was issued at the time. T. at 19, 21. Joe did not pay child support for years until after "Wayne County support went after him." T. at 14 , 21

. She stated Joe never acknowledged Daugher t y as his son. T. at 14. She testified she "cheated" on Joe with
decedent. T. at 13. She married decedent in 1994, but they divorced in 1997. T. at 25.
Accordin g to Ms. Murphy, d ecedent unofficially claimed Daugher t y as his son; he attended Daugher t y's life events and provided him with financial assistance. T. at 15

- 16. Genetic testing between Daugher t y and decedent was never done because "[w]e never thought we had to." T. at 18. Ms. Murphy, Daugher t y, or decedent never filed an action in juvenile court to determine the existence of a father and child relationship. T. at 22. A new birth certificate was never issued listing decedent as Daugher t y's father, nor did decedent legally adopt Daugher t y. Id. Ms. Murphy agreed there were no legal proceedings where in decedent acknowledged paternity of Daugher t y. T. at 22

- 23. She did not think legal proceedings were ever necessary because she and decedent "have 39 years together * * * good and bad. And he was just always Kolt's dad." T. at 24. When asked if she had any doubt as to who Daugher t y's father was, Ms. Murphy answered in the negative. T. at 19. However, at no time during her testimony did Ms. Murphy directly say decedent was Daugher t y's father. {¶ 19} Daugher t y testified decedent was his father. T. at 26. When asked why he believed that, Daugher t y replied: "That's a hard question to answer. I don't understand why he wouldn't be. To me, he has always been my father." Id. D ecedent was there " forCoshocton County, Case No. 23AP0006 7

everything" in Daugher t y's life, offering emotional and financial support. T. at 28. Daugher t y stated he shared physical characteristics with decedent. T. at 27. Daugher t y agreed there were no legal proceedings that established decedent as his father. T. at 40

- 41. {¶ 20} Prior to receiving the evidence, Daugher t y's claim could have been thought of as contingent until paternity via acknowledgment was sufficiently established. The Sixth Circuit faced a similar situation in Purnell v. City of Akron , 925 F.2d 941, 947 (6th Cir.1991). In Purnell, in dividuals claiming to be the children of the decedent sought to
intervene in a wrongful death action arising under federal law. Whether they could intervene turned on whether they could sufficiently establish paternity. The trial court denied the motion, but the Sixth Circuit reversed. In reversing , the Sixth Circuit held it may turn out later that they are not the decedent ' s children and thus would be without standing , b ut they could intervene in the matter until that time. Id

. at 948. 1 {¶ 21} Here, the trial court decided to give Daugher t y the opportunity to present evidence related to paternity before ruling on the motion. We cannot say that was an

error. At best, Daughtery established that he felt like he was the decedent ' s son. There

was insufficient evidence to establish a colorable claim that he was acknowledged as the
decedent ' s son. Daugher t y argues he should have been allowed to intervene and then receive another evidentiary hearing. As illustrated by Purnell , that appears to have been a valid option for the trial court to consider. But if Daugher t y cannot make a factual

1 We note under the federal rules , the appellate court reviews a motion to intervene de novo and standing is not required to grant intervention.Coshocton County, Case No. 23AP0006 8

showing that he has a colorable claim after an evidentiary hearing, it follows that he would fare worse after a second hearing on a higher burden. {¶ 22} The trial court had ample evidence before it to sustain its decision not to grant intervention ; we cannot find th e trial court abused its discretion. {¶ 23} The assignment of error is denied

. {¶ 24} The judgment of the Court of Common Pleas of Coshocton County, Ohio , Probate Division, is hereby affirmed

. By King, J. Delaney , P.J. and Baldwin , J. concur.