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Mathers v. Gibson

Court of Appeals of Ohio, Fifth District, Guernsey

April 30, 2018

TERRI MATHERS, GUARDIAN OF ROBERT MATHERS, ET AL. Plaintiffs-Appellees
v.
RICHARD BRENT GIBSON, ET AL. Defendants-Appellants

          Appeal from the Court of Common Pleas, Probate Division, Case No. 17- PV-053026

          For Plaintiffs-Appellees GERALD J. TIBERIO, JR.

          For Defendants-Appellants MARK W. STUBBINS KYLE S. WITUCKY

          Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, Earle, J.

         {¶ 1} Defendants-Appellants, Richard Brent Gibson, Tonya R. Marlatt, Richard B. Marlatt, and Ryan Hatmaker, appeal the October 17, 2017 judgment entry of the Court of Common Pleas of Guernsey County, Ohio, Probate Division, granting summary judgment to Plaintiffs-Appellees, Terri Mathers, Guardian of Robert W. Mathers, and Robert W. Mathers.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} On August 17, 2000, Robert W. Mathers and Maxine L. Mathers created and executed the Mathers Family Trust as co-trustors for their benefit as co-trustees. The trust was funded by the transfer of real estate into the trust, approximately 123 acres consisting of a house and farm. They both executed powers of attorneys, living wills, and wills, naming each other as their primary agent/beneficiary. Maxine passed away in January 2013. Robert became the sole co-trustor/co-trustee.

         {¶ 3} When the trust was created, appellants Gibson and T. Marlatt, Robert's adult step-grandchildren, were named as co-successor trustees of the trust and co-executors to Robert's will, and were named as alternate attorneys-in-fact and agents for Robert's estate documents.[1] Appellants R. Marlatt and Hatmaker are remainder beneficiaries of the trust.

         {¶ 4} Appellee discovered Robert was unable to care for himself and his finances were in disarray. On March 22, 2017, appellee filed an application with the probate court to be Robert's guardian (Case No. 17PG052914). On May 3, 2017, appellee was appointed as guardian for Robert's person and estate. The aforementioned trust contained a provision that stated in the event a co-trustor was declared a ward of the court, and if income from the trust was insufficient to provide for the proper health, support, and maintenance of the ward, the ward's guardian had the right to invade the trust for the benefit of the ward.

         {¶ 5} On July 10, 2017, appellee filed a complaint with the probate court to invade the trust and sell the trust real estate pursuant to R.C. 2127.05 because Robert's monthly expenses exceeded his income from the trust. Appellee named appellants and others not a part of this appeal. At appellee's request, the probate court appointed a guardian ad litem for Robert.

         {¶ 6} On August 15, 2017, appellants (excluding T. Marlatt) filed an answer and asserted affirmative defenses, including that appellee was improperly seeking "to thwart the authority of the successor trustee by not allowing them to fulfill their duties."

         {¶ 7} On September 15, 2017, appellee filed a motion for judgment on the pleadings and summary judgment, claiming the sale of the trust real estate was necessary because Robert was out of funds to pay his bills, and no one had challenged her authority to sell the real estate or contest its submitted valuation or attempt to remove her as guardian in the guardianship case.

         {¶ 8} On October 5, 2017, appellants (excluding T. Marlatt) filed a memorandum in opposition, asserting under the terms of the trust, the co-successor trustees had the sole authority to sell the trust real estate. Appellants requested discovery to determine Robert's care and finances so the co-successor trustees could take appropriate actions under the trust.

         {¶ 9} By judgment entry filed October 17, 2017, the probate court granted summary judgment to appellee and authorized the ...


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