Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Probate
Division Case No. 2017 ADV 225027
& Berne, L.L.P., James A. Goldsmith, and Daniela Paez
Paredes, for appellee Keybank National Association.
Thompson Hine, L.L.P., Mark A. Conway, Terry W. Posey, Jr.,
and Christine M. Haaker, for appellees Jeffrey B. Firestone
and Amy Firestone.
Deborah Lynn Firestone Boylen, pro se.
Reminger Co., L.P.A., Adam M. Fried, and Clifford C. Masch,
JOURNAL ENTRY AND OPINION
T.GALLAGHER, PRESIDING JUDGE
1} Appellant, Cindy Firestone ("Cindy"),
appeals from the trial court's determination that she is
not a beneficiary under a trust executed by her adopted
father in July 1960. She raises the following assignment of
error for review:
Pursuant to the relevant governing Ohio law in existence at
the time the 1960 Trust Agreement was executed, Cindy
Firestone qualifies as a beneficiary under the trust.
2} After careful review of the record and relevant
case law, we affirm the trial court's judgment.
Procedural and Factual History
3} On July 5, 1960, D. Morgan Firestone (the
"Settlor") and his former wife, Nancy Morgan
Firestone, entered into a separation agreement as part of
their divorce. Relevant to this appeal, the separation
agreement governed the details of the property settlement,
alimony, and the custody and care of their children. David M.
Firestone, Amy M. Firestone, and Jeffrey B. Firestone are the
biological children of the Settlor and Nancy. Paragraph 7(a)
of the separation agreement provided for the creation and
funding of an irrevocable trust (the "Trust"),
which was attached as an exhibit to the separation agreement.
Under the terms of the Trust, Nancy was entitled to the Trust
income during her lifetime.
4} Section 1 of the Trust outlined how the remaining
proceeds of the Trust were to be distributed upon the death
of Nancy, stating:
Upon [Nancy's] death, the trustee shall distribute the
then principal of the [T]rust estate to the then living
descendants of the settlor in equal shares per stirpes. The
term "descendants of the settlor" shall include Amy
Morgan Firestone, David Morgan Firestone, and Jeffrey Bryan
Firestone, and any child or more remote descendant of the
settlor who shall be born after the date of this instrument.
5} In March 1974, the Settlor remarried and, in June
1983, he adopted his wife's two adult daughters, Deborah
Lynn Boylen Firestone, then age 23, and appellant, Cindy
Firestone, then age 21.
6} Upon the death of Nancy in May 2016, KeyBank
National Association, as Trustee for the Trust, filed a
complaint for declaratory judgment "to resolve any
uncertainty with respect to the distribution of the Trust
assets." Specifically, KeyBank requested "a
declaration from the court as to whether Defendants Cindy
Firestone and Deborah Lynn Boylen Firestone are excluded as
beneficiaries of the trust, and a determination as to whether
they are entitled to receive a distribution of Trust assets
under the terms of the Trust."
7} On November 3, 2017, Cindy filed a motion for
judgment on the pleadings pursuant to Civ.R. 12(C). Cindy
asserted that she is a beneficiary pursuant to the plain
language of the Trust and by operation of R.C. 3107.15(A)(2).
She further argued that while R.C. 3107.15(A)(2) applies
retroactively to include her as a beneficiary, R.C.
3107.15(A)(3), which by its language is also retroactive and
would disqualify her, "unconstitutionally imposes
burdens and obligations on transactions that transpired
before the effective date of the amended statutory
8} On December 11, 2017, Amy and
Jeffrey filed a cross-motion for judgment on the
pleadings, arguing (1) the words of the Trust must be
interpreted according to their legal effect and meaning in
1960 when the Trust was executed; (2) the legal effect of the
term "child" in 1960 was only to include blood
relatives; (3) in 1960, Ohio law did not permit adult
adoptions, and, therefore, (4) the Settlor and Nancy could
not have intended to include an adult adoptee as a member of
the class of children.
9} In May 2018, the trial court granted the
cross-motion for judgment on the pleadings in favor of
Jeffrey and Amy, finding that, in the absence of an express
intent to include adopted persons, Deborah and Cindy are not
beneficiaries of the Trust. The court further granted the
complaint for declaratory judgment, finding that R.C.
3107.15(A)(3) is constitutional as applied to the Trust and
operates to exclude Cindy and Deborah from status as
beneficiaries of the Trust.
10} Cindy now appeals the trial court's
Law and Analysis
11} In her sole assignment of error, Cindy argues
the trial court erred in excluding her as a beneficiary under
12} We review a ruling on a motion for judgment on
the pleadings de novo. Matthews v. United States Bank
Natl Assn., 8th Dist. Cuyahoga No. 105315, 2017
Ohio-7079, ¶ 8. Civ.R. 12(C) provides that a party may
move for judgment on the pleadings after the pleadings are
closed but within such time as to not delay trial. Duncan
v. Cuyahoga Community College, 2012-Ohio-1949, 970
N.E.2d 1092, ¶ 16 (8th Dist). A motion for judgment on
the pleadings raises only questions of law, and the court may
look to only the allegations in the pleadings in deciding the
motion. Id. The pleadings must be construed
liberally and in a light most favorable to the party against
whom the motion is made, indulging every reasonable inference
in favor of the party against whom the motion is made.
Id., citing Case W. Res. Univ. v.
Friedman, 33 Ohio App.3d 347, 515 N.E.2d 1004 (8th
In order to be entitled to a dismissal under Civ.R. 12(C), it
must appear beyond doubt that [the nonmovant] can prove no
set of facts warranting the requested relief, after
construing all material factual allegations in the complaint
and all ...