Estate of Rismiller

2024 Ohio 1704

• Court: Ohio Court of Appeals
• Decided: May 3, 2024
• Docket: 2023-CA-29
• Status: Published

Opinion

[Cite as Estate of Rismiller, 2024-Ohio-1704.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY

ESTATE OF THEORA RISMILLER, : aka THEORA M. RISMILLER, : aka THEORA MAE RISMILLER : C.A. No. 2023-CA-29 : : Trial Court Case No. 19-1-202 : : (Appeal from Common Pleas Court- : Probate Division) : :

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OPINION

Rendered on May 3, 2024

DOUG RISMILLER, Pro Se Appellant

CAROLINE R. SCHMIDT, Attorney for Appellee

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EPLEY, P.J.

{¶ 1} Doug Rismiller, pro se, appeals from a judgment of the Darke County Court

of Common Pleas, Probate Division, which overruled his exceptions and approved the

co-executors’ final and distributive account of his mother’s estate. For the following

reasons, the probate court’s judgment will be affirmed.

I. Facts and Procedural History -2-

{¶ 2} Theora Rismiller, Doug’s mother, died on June 7, 2019, and her will was

admitted to probate on July 18, 2019. The beneficiaries under her will were her three

living children – Doug, Ronald Rismiller, and Cinda Rismiller – and two adult

granddaughters, Krista Fourman and Kimberlee Freeman, the children of her deceased

daughter, Sharon. Ronald and Cinda were named as co-executors of the estate.

{¶ 3} In October 2019, Ronald and Cinda filed an inventory and appraisal, which

stated that the estate consisted of tangible personal property (a vehicle) totaling $1,500;

intangible personal property totaling $60,227.42; and real property valued at $1,980,822.

The inventory did not address Theora’s personal property contained within her home.

Doug purchased Theora’s vehicle for $1,000.

{¶ 4} Ronald and Cinda filed partial accounts in February 2020, March 2021, and

March 2022, each of which were approved by the probate court. During this time, some

of the real property was sold. Doug did not object to any of these filings.

{¶ 5} On March 23, 2023, Ronald and Cinda filed a final and distributive account

for the period of March 4, 2022 to December 2022. The report indicated, in part, that

certain real property had been transferred to Doug and other real property had been

transferred to Ronald. Of relevance here, Doug received the house, land, and buildings

located at 1273 Elijah-York Road in Rossburg. The final account valued this residential

property at $150,000.

{¶ 6} On May 26, 2023, Doug filed exceptions to the final and distributive account,

contesting the appraisal of the house, land, and buildings and the distribution of the

personal property from Theora’s home. The probate court conducted a hearing on -3-

August 29, 2023, during which Cinda, Ronald, and Doug testified. On September 20,

2023, the probate court overruled Doug’s exceptions and accepted the final and

distributive accounting as presented.

{¶ 7} Doug requested a new hearing or a new trial and separately indicated his

desire to appeal the probate court’s ruling, although the probate court did not consider

that document to be a properly filed notice of appeal. On October 24, 2023, the probate

court overruled Doug’s motion for a new trial. Doug then appealed the probate court’s

September 20, 2023 decision.

II. Analysis

{¶ 8} Doug does not set forth any assignments of error as required by App.R.

16(A)(3). However, we infer that he is claiming that the probate court erred in overruling

his exceptions and adopting the co-executors’ final and distributive account.

{¶ 9} R.C. 2109.301(B)(1) requires the filing of a final and distributive account.

The probate court must set a hearing on the account. R.C. 2109.32(A). At least five

days before the hearing occurs, any person interested in the estate may file exceptions

to the account. R.C. 2109.33. If, at the hearing, the court finds that the fiduciary has

fully and lawfully administered the estate and has distributed the estate’s assets in

accordance with the law or the governing document, as shown in the account, the court

must order the account approved and settled and may order the fiduciary discharged.

R.C. 2109.32(A). The probate court’s order upon the settlement of a fiduciary’s account

has the effect of a judgment. R.C. 2109.35.

{¶ 10} In his exceptions to the final and distributive account, Doug contested the -4-

valuation of the residential real property that he received; he asserted at the August 29,

2023 hearing that the valuation of the residential property was improperly increased by

approximately $20,000. Doug further challenged the distribution of Theora’s household

items.

{¶ 11} The probate court concluded that neither of Doug’s exceptions had merit.

It found that Doug had consented to the valuation of the residential property and could

not later object in the final account. As to the distribution of the personal property inside

Theora’s home, the court found that soon after Theora passed away, Doug went to the

home and something happened that caused co-executors’ counsel to instruct him to stay

away from the property. As time went on, Doug raised the issue of dividing the personal

property in the house. The co-executors then developed a process for the division of

that property, but Doug opted not to express his wishes or to appear on the day the

property was to be divided. The co-executors proceeded with the plan but left many

items in the residence as Doug’s share of the personal property. The court continued:

The Court would not have chosen the co-executors’ specific plan for

division of the personal property. It is obvious the plan was written by one

or both of the co-executors. It is not a legal document. And the execution

of the plan has created the opportunity for Doug Rismiller to now object.

At the same time, however, the co-executors’ plan included a lengthy

list of property, along with a straightforward process, and notice to all

parties. Doug Rismiller participated in the process up to a point. All of the

beneficiaries had a meeting on September 25, 2022, but the testimony -5-

established there were multiple meetings during August and September.

Doug Rismiller walked through the residence. These actions would have

given the co-executors the impression Doug Rismiller was a willing

participant in the process.

Doug Rismiller has provided no explanation as to why he did not

submit a list to the co-executors. There has been no explanation as to why

he did not attend the day of the actual distribution. Beyond that, Doug

Rismiller did not object to the Court at any point about the list provided by

the co-executors, the process, or anything until months after the process

was already complete.

The Court finds that the co-executors reasonably relied on Doug

Rismiller’s actions in proceeding with the personal property distribution as

planned and announced. The Court finds that the co-executors have fully

and lawfully administered the estate. The final and distributive account is

approved as presented.

Judgment (Sept. 20, 2023).

{¶ 12} We find no error in the probate court’s ruling. Beginning with the value of

the residential property, the record reflects that an October 2019 appraisal valued the

one-acre home site plus improvements at $128,770. Ronald testified that the county

later required him to upgrade the well and the sewage system before selling the property.

He indicated that, after the work was completed, another appraisal was performed which

concluded that the value was $150,000. The property was valued at $150,000 when it -6-

was transferred to Doug in December 2022.

{¶ 13} Cinda testified that on March 28, 2023, the co-executors filed, along with

the final and distributive account, a document titled “consent to distribution of real

property,” which identified the real property that would be transferred to Doug and Ronald.

Cinda identified the document at the hearing and testified that it represented the

agreement among all the beneficiaries as to the value and distribution of the real property

owned by Theora. It specifically stated that the residential property that Doug would

receive was valued at $150,000. All the beneficiaries, including Doug, signed the

document. The probate court thus reasonably concluded that Doug had consented to

the real property’s valuation and waived any objection to it.

{¶ 14} As for Theora’s personal property, Cinda and Ronald each testified that

Cinda was the co-executor primarily responsible for distribution of Theora’s household

goods. Cinda testified that, after speaking with one of their attorneys, they decided to

create a list of the household goods, separate them into groups, and then have the

beneficiaries identify which groups of items they wanted; Cinda, Ronald, and Doug would

have the opportunity to select four groups each, and their nieces (the daughters of the

deceased sibling) would have the opportunity to select two groups each. They also

created a mechanism for resolving issues if more than one person wanted the same

group. The beneficiaries were provided an opportunity to walk through the home on

September 25, 2022. Cinda had asked everyone to provide their selections by

September 26, 2022, the next day.

{¶ 15} Doug testified that the creation of an inventory was his idea, and it is -7-

undisputed that he walked through the home with his nieces, although he testified that he

only had 20 minutes to do so. Cinda testified that she received a list of selected items

from the other beneficiaries, but Doug did not respond. Doug agreed, both at the hearing

and in his appellate brief, that he did not provide a list of what he wanted to Cinda. Doug

avoided communicating with Cinda and communicated exclusively with Ronald about the

estate. However, Doug did not provide a list of desired household goods to Ronald

either.

{¶ 16} When asked on cross-examination about his not providing a list or asking

for specific items, Doug testified that he “would like to look at everything” and that he

could not provide a list if he did not know what was in there. Doug acknowledged that

his mother had lived in the home for his entire life and that he had been in the home

before. Doug testified on rebuttal, though, that he had not looked through his mother’s

belongings to learn what she had and that he did not know everything that was in the

house.

{¶ 17} Ronald agreed with Doug that the beneficiaries went into the residence in

late December 2022 and removed items from the home, and that Doug had not been

notified. Doug describes this event as a “free for all,” but it appears the purpose was to

remove items that had been apportioned to them, and Doug had not indicated that he

wanted any particular items. Nevertheless, several items were left at the house for

Doug, including kitchen appliances, tables and chairs, living room furniture, a television,

a washer and dryer, two bedroom suites, a riding lawnmower, and personal photographs

and mementos. -8-

{¶ 18} At the hearing, Doug raised that numerous items had been removed from

the house and were not included in the inventory that Cinda and Ronald had prepared.

Cinda indicated that she disposed of a sewing machine and a jewelry box that were in

poor condition and that a niece took a desk that she wanted for her daughter. In addition,

the nieces took some of Theora’s jewelry, which was not valuable. Ronald also stated

that items that had been gifted to Theora were returned to the giver.

{¶ 19} On this record, the probate court reasonably concluded that the co-

executors had relied on Doug’s actions in proceeding with the personal property

distribution as planned and announced. The court further reasonably concluded that the

co-executors fully and lawfully administered the estate.

{¶ 20} In his appellate brief, Doug asserts that, for a three-year period, Cinda

removed “dozens and dozens of items, hundreds of items” from Theora’s home and either

kept them for her own benefit or distributed them to others for the pleasure of receiving

attention. He contended that she did so to keep family members whom she despised

from getting their fair share. He further claimed that Ronald was aware of Cinda’s

behavior and allowed it to happen. Although Doug testified that numerous items were

removed from the house before the inventory was prepared, there was no testimony

regarding Cinda’s motivations. Accordingly, we cannot consider Doug’s allegations in

resolving this appeal. See, e.g., Bank of Am., N.A. v. Shailer, 2d Dist. Montgomery No.

29036, 2021-Ohio-3939, ¶ 14 (in reviewing the trial court’s judgment, we are limited to

the record before the probate court).

{¶ 21} Finally, Doug raises that the estate’s attorney had a possible conflict of -9-

interest, which allegedly affected the administration of the estate and was not disclosed

to the probate court. This issue was not raised in probate court, and we cannot consider

it for the first time on appeal. E.g., State v. Wintermeyer, 158 Ohio St.3d 513, 2019-

Ohio-5156, 145 N.E.3d 278, ¶ 10 (“A first principle of appellate jurisdiction is that a party

ordinarily may not present an argument on appeal that it failed to raise below.”); Budz v.

Somerfield, 2d Dist. Montgomery No. 29550, 2023-Ohio-155, ¶ 30 (“It is well settled that

arguments raised for the first time on appeal will not be considered by an appellate

court.”).

III. Conclusion

{¶ 22} The probate court’s judgment will be affirmed.

LEWIS, J. and HUFFMAN, J., concur.