Court of Appeals of Ohio, Fifth District, Guernsey
TERRI MATHERS, GUARDIAN OF ROBERT MATHERS, ET AL. Plaintiffs-Appellees
RICHARD BRENT GIBSON, ET AL. Defendants-Appellants
from the Court of Common Pleas, Probate Division, Case No.
Plaintiffs-Appellees GERALD J. TIBERIO, JR.
Defendants-Appellants MARK W. STUBBINS KYLE S. WITUCKY
W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E.
Wise, Jr., 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.
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
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. 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
9} By judgment entry filed October 17, 2017, the probate
court granted summary judgment to appellee and authorized the