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Nixon v. Day

Court of Appeals of Ohio, Fifth District, Tuscarawas

August 16, 2019

WILLIAM FREDERICK NIXON, et al. Plaintiffs-Appellees
v.
TANNY DAY Defendant-Appellant

          Civil Appeal from the Court of Common Pleas, Probate Division, Case No. 2018 DJ 20545

          FOR SUBSTITUTE APPELLEES COLIN G. SKINNER DAY KETTERER, LTD.

          FOR DEFENDANT-APPELLANT HARRY C. E. TOLHURST, III

          Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

          OPINION

          WISE, J.

         {¶1} Defendant-Appellant Tanny Day appeals from the decision of the Tuscarawas County Court of Common Pleas, Probate Division, which granted a declaratory judgment in favor of Donna Miller, guardian for William Frederick ("Fred") Nixon (now deceased).[1] The relevant facts leading to this appeal are as follows.

         {¶2} Appellant Tanny Day and the late William Frederick Nixon (hereinafter "Fred") met in early 2014. At that time, Fred's first wife, with whom he had raised two children, had recently passed away. Fred, born in 1941, was struggling with ordinary household chores, and appellant moved in with him, agreeing to help with the necessary work around the house in exchange for room and board. Over time, appellant also began assisting Fred in taking his medications, arranging medical appointments, and other needs. Tr. at 35. However, appellant has conceded that even though they lived together, "it was not a love affair." Tr. at 23. In 2016, Fred named appellant as the sole beneficiary under his will. Tr. at 34.

         {¶3} After having resided together under the aforesaid arrangement for several years, Fred and Appellant Tanny went to the Tuscarawas County Probate Court on August 7, 2018, to apply for an Ohio marriage license. According to the deputy clerk's subsequent testimony, Fred appeared confused, could not answer questions, and did not give appropriate responses. Tr. at 105-106. Appellant and Fred did not bring along all necessary documentation for the license, so they returned the next day, August 8, 2018. The clerk of the Tuscarawas County Probate Court did not issue the marriage license that day, essentially taking the application under advisement. After they left, the clerk expressed concerns about Nixon's competence to the probate magistrate and the court. Tr. at 107.

         {¶4} On August 10, 2018, appellant asked a friend, Vicki W., to transport her and Fred to Steuben County, Indiana. According to Vicki, Fred again appeared confused. He could not state the number of his prior marriages. Tr. at 83. Appellant Tanny repeatedly went over such basic questions with Fred for "maybe 30 miles." Id. Fred could not remember his full address or his children's names. Tr. at 84. When appellant and Fred met with the clerk at the Steuben County marriage license bureau, Vicki observed that Fred incorrectly stated that he had been married four times previously, and that he did not know his children's names. Tr. at 87-88.

         {¶5} Despite the foregoing, appellant and Fred were issued an Indiana marriage license on August 10, 2018 in Steuben County, Indiana. A local minister thereupon performed a wedding ceremony on the same day. Vicki, who described herself as "very well-versed" regarding dementia and Alzheimer's issues, did not believe that Fred was competent to get married. Tr. at 89. She further thought Fred "had no clue" that he was getting married. Tr. at 91. At the ceremony, Vicki overheard appellant "prompting" Fred. Tr. at 90-91.

         {¶6} Back in Ohio, the Tuscarawas County probate clerk formally denied the issuance of a marriage license on August 15, 2018. The probate court further granted an application for emergency guardianship, filed on behalf of Fred by Sunny Nixon, his adult child, on August 15, 2018.

         {¶7} Appellant later attempted to obtain surviving spouse benefits from Fred's police and fire pension, but this was denied due to the existence of the emergency guardianship. Tr. at 54.

         {¶8} On August 20, 2018, a hearing was held on the issue of whether to extend the guardianship. On August 22, 2018, Attorney Donna Miller was appointed as emergency guardian for Fred, and her appointment as guardian was issued on September 5, 2018. On that same day, Attorney Miller (as guardian for Fred), filed a complaint for declaratory judgment, asking the Tuscarawas County Probate Court to annul the Indiana marriage between Fred and Appellant Tanny.

         {¶9} The Probate Court conducted a trial on the matter October 10, 2018. At the trial, the probate court indicated that its decision would be based on Ohio law and not whether the marriage was legal or valid under Indiana law. Tr. at 73. Appellant appeared pro se, both giving testimony and cross-examining witnesses at the hearing. In addition, Vicki W. took the stand as a witness, as well as Holly Buzzelli, a ...


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