[Cite as In re Estate of McCauley,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN RE: ESTATE OF CLETUS P. : Hon. William B. Hoffman, P. J. MCCAULEY, DECEASED : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. : : : Case No. 2013CA00221 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Probate Division, Case No.209512

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 27, 2014

APPEARANCES:

For-Appellants For-Appellee

CRAIG CONLEY JOHN FRANK 604 Huntington Plaza 3930 Fulton Drive N.W. 220 Market Avenue South Suite 102-A Canton, OH 44702 Canton, OH 44718 [Cite as In re Estate of McCauley,

.]

Gwin, P.J.

{¶1} Appellants, Estate Beneficiary Paula A. Clark and Trust Beneficiaries

Jennifer M. Fricke and Emily R. Clark (collectively “appellants”) appeal the October 24,

2013 Judgment Entry of the Stark County Court of Common Pleas, Probate Division

denying their fourth motion to remove appellee John R. Frank, administrator with will

annexed (WWA) of the McCauley Estate.

Facts and Procedural History

{¶2} This appeal involves the Estate of Cletus P. McCauley (McCauley Estate).

Mr. McCauley died on December 23, 2008. Mary McCauley died on August 9, 2008.

Paula Clark is one of four children of Mary and Cletus McCauley.

{¶3} A will executed by Cletus and Mary on May 29, 2007 gave specific sums

of money to their children, including Paula. The remainder was to pour-over into the

Cletus P. McCauley Trust. Also on May 29, 2007, Cletus and Mary created and

Irrevocable Trust Agreement that primarily benefited their disabled adult son Kevin

during his lifetime. (See, Stark County Court of Common Pleas, Probate Division, Case

No. 209055, Judgment Entry, filed July 13, 2010).

{¶4} His daughter, Paula A. Clark (Ms. Clark), who was appointed to serve as

executrix, opened Mr. McCauley’s estate at the Stark County Probate Court (Probate

Court) on December 30, 2008. The Probate Court: (1) removed Ms. Clark as the

McCauley Estate executrix on July 13, 2010; and (2) appointed appellee John R. Frank

(appellee) to serve as administrator with will annexed (WWA) of the McCauley Estate

on July 28, 2010. Stark County, Case No. 2013CA00221 3

{¶5} Ms. Clark and her two adult daughters, Jennifer M. Fricke and Emily R.

Clark, are the appellants in the instant appeal. They base their standing in this matter

upon their status as a beneficiary of the McCauley Estate and/or as a remainder

beneficiary of the wholly discretionary special needs trust, which Mr. & Mrs. McCauley

created for their disabled adult son, Kevin L. McCauley (Kevin) in May 2007. Kevin died

on September 6, 2013.

{¶6} This appeal involves the appellants' fourth motion to remove appellee

John R. Frank, administrator with will annexed (WWA) of the McCauley Estate, which

they filed in the trial court on October 9, 2013. Appellee filed a memorandum in

response to that motion on October 23, 2013. On October 24, 2013, the trial court filed

a judgment entry that overruled the appellants' fourth motion to remove appellee.

Assignment of Error

{¶7} Appellants raise one assignment of error

{¶8} “I. THE TRIAL COURT ERRED IN DENYING

BENEFICIARIES'/APPELLANTS' MOTION TO REMOVE ESTATE FIDUCIARY.”

Analysis

{¶9} Appellants argue the trial court's denial of their fourth motion to remove

the estate fiduciary was against the manifest weight of the evidence and/or constituted

an abuse of discretion.

{¶10} In their brief, the appellants contend that the trial court should have

granted their fourth motion to remove appellee because appellants filed a "Motion for an

Order Directing Reimbursement" on June 20, 2013, which the trial court denied;

appellants filed exceptions to successor fiduciary's partial account on August 14, 2013, Stark County, Case No. 2013CA00221 4

which the trial court dismissed; Mr. Frank, as successor fiduciary of the McCauley Trust,

filed a motion for authority to pay the $7,738.31 funeral and burial expense of the

McCauley Trust's primary beneficiary, Kevin L. McCauley, which the trial court granted;

and appellants filed a new lawsuit against appellee at the Stark County Court of

Common Pleas, General Division, which was subsequently transferred to the Probate

Division, upon appellee’s motion.

{¶11} Our standard of reviewing a Probate Court’s decision to remove a

fiduciary or guardian is the abuse of discretion standard. In Re: Estate of Russolillo,

,

(10th Dist. 1990). The Supreme Court has

repeatedly defined the term abuse of discretion as implying the court’s attitude is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,

,

(1983). In applying the abuse of discretion standard, this court

may not substitute our judgment for that of the trial court. Pons v. Ohio State Medical

Board,

,

,

. In applying the abuse

of discretion standard, we may not substitute our judgment for that of the trial court.

Combs vs. REO Allegiance, Inc., 5th Dist. Muskingum No. CT-2011-0005, 2011- Ohio-

4437, ¶8, citing Pons.

{¶12} R.C. 2109.24 states, in relevant part,

The court may remove any fiduciary, after giving the fiduciary not

less than ten days’ notice, 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. Stark County, Case No. 2013CA00221 5

{¶13} In pertinent part, Ohio Revised Code 2113.18 provides,

The probate court may remove any executor or administrator if

there are unsettled claims existing between him and the estate, which the

court thinks may be the subject of controversy or litigation between him

and the estate or persons interested therein. Ohio Revised Code

§2113.18(A).

{¶14} There was no evidence before the trial court that appellee had violated his

fiduciary duties or engaged in self-dealing. Each action with which appellants take

exception was the result of the decisions rendered by probate court. Removal of the

executor under R.C. 2113.18 is clearly discretionary with the trial court. Abuse of

discretion is more than an error of law or of judgment; it implies an unreasonable,

arbitrary or unconscionable attitude on the part of the court. Lee v. Jennings,

,

(4th Dist. 1967).

{¶15} There was insufficient evidence presented by appellants to raise a

colorable argument that appellee had sufficient conflicts to warrant his removal pursuant

to R.C. 2113.18 or R.C. 2109.24. We cannot say based upon the record before this

Court that the trial court’s refusal to remove appellee was an abuse of discretion. In re

Estate of Wahl, 5th Dist. Licking No. 92-CA-1,

(July 15, 1992). Stark County, Case No. 2013CA00221 6

{¶16} Appellants’ sole assignment of error is overruled and the judgment of the

Stark County Court of Common Pleas, Probate Division is affirmed.

By Gwin, J.,

Hoffman, P.J., and

Wise, J., concur