In Re Estate of Bednarczuk

609 N.E.2d 1310, 80 Ohio App. 3d 548, 1992 Ohio App. LEXIS 2854
CourtOhio Court of Appeals
DecidedJune 8, 1992
DocketNo. CA91-08-065.
StatusPublished
Cited by56 cases

This text of 609 N.E.2d 1310 (In Re Estate of Bednarczuk) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Bednarczuk, 609 N.E.2d 1310, 80 Ohio App. 3d 548, 1992 Ohio App. LEXIS 2854 (Ohio Ct. App. 1992).

Opinion

*550 Walsh, Judge.

Petitioner-appellant, Keith Bednarczuk, appeals a decision of the Warren County Court of Common Pleas, Probate Division, appointing appellee, John L. Conger, guardian of the estate of Ryan Bednarczuk, a minor.

The record indicates that appellant and Connie Bednarczuk were married in 1973. They had one child as issue of the marriage, a son named Ryan. At the time of the proceedings below, Ryan was eleven years old.

Appellant and Connie Bednarczuk were divorced by a decree dated June 29, 1983. After a prolonged illness, Connie died on February 24, 1991. In her will, she left Ryan an estate in excess of $125,000. She also stated in her will that she wanted her father, appellee, to be the guardian of the estate of Ryan with respect to the property she left him in the will.

On May 23, 1991, appellee filed an application in the probate court to be appointed guardian of the estate of Ryan as requested in Connie Bednarczuk’s will. On July 10, 1991, appellant filed an objection to the appointment of a guardian and in the alternative petitioned the court to name him as the sole guardian of both the person and estate of Ryan.

A hearing on the matter was held on July 30, 1991. At the hearing, appellee testified that he had experience in managing money and that he was familiar with the assets of the estate left to Ryan. In fact, appellee’s testimony indicated that he had overseen the estate in question, as well as Connie Bednarczuk’s other financial affairs, during the last several years of her life. In general, appellee expressed the opinion that he would be a proper guardian of the estate.

Appellant, however, stated that there was no necessity for the appointment of a guardian. He testified that he had operated his own optometry practice for many years and was well qualified to manage Ryan’s affairs. While conceding that he was not familiar with the assets that comprised the estate, he stated that his knowledge of financial matters and his concern for Ryan’s welfare made him the appropriate person to manage the estate.

In a judgment entry filed July 31, 1991, the probate court appointed appellee, Ryan’s maternal grandfather, the guardian of the estate for Ryan as to the assets left to him in his mother’s will, effective until Ryan reaches majority. Appellant brings the instant appeal, setting forth the following assignments of error:

Assignment of Error No. 1:

“The trial court committed reversible error in overruling appellant’s objections to the appointment of a guardian for Ryan Bednarczuk (or alternatively *551 appointing appellant as guardian) for reason that appellant has a statutory entitlement to his minor child’s care, custody, control, nurture, welfare, education and to the care and management of his estate.”

Assignment of Error No. 2:

“The trial court erred to the prejudice of appellant, thereby committing reversible error, in failing to find and/or consider a less restrictive alternative to a guardianship.”

Assignment of Error No. 3:

“The trial court committed reversible error in sustaining appellee’s objection at page 31 and page 32 of the transcript of proceedings for reason that appellant should have been permitted to cross-examine the witness on appellant’s fitness to manage the affairs of the minor child herein.”

In his first assignment of error, appellant argues that, as the natural father of Ryan, he had a statutory entitlement to be the guardian of Ryan’s estate. R.C. 2111.02, governing the appointment of guardians, provides in part as follows:

“(A) When found necessary, the probate court on its own motion or on application by any interested party shall appoint, subject to division (C) of this section and to section 2109.21 and division (B) of section 2111.121 of the Revised Code, a guardian of the person, the estate, or both, of a minor or incompetent * * * [.]”

In matters relating to guardianships, the probate court is required to act in the best interest of the minor or incompetent. In re Guardianship of Elliott (Dec. 16, 1991), Madison App. No. CA91-01-002, unreported, 1991 WL 268238; In re Mahaffey (Jan. 20, 1987), Butler App. No. CA86-10-147, unreported, 1987 WL 5503. It is well settled that a probate court has broad discretion in appointing guardians and that decisions regarding the appointment of guardians will not be reversed absent an abuse of discretion. In re Mahaffey, supra. The term “abuse of discretion” means more than a mere error of law or judgment; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.

In the instant case, the court did not abuse its discretion in finding that the appointment of appellee as Ryan’s guardian was in Ryan’s best interest. It is undisputed that, as a child of eleven years of age, Ryan requires someone to oversee an estate of $125,000. The evidence indicated that appellee had experience in managing money and was familiar with the assets of the estate, having managed those assets for several years. The evidence further indicated that appellee would administer the estate according to Ryan’s best interest. *552 While appellant also demonstrated the ability to manage financial affairs and testified that he would manage the assets in Ryan’s best interest, the evidence indicated that he was not acquainted with the assets in Ryan’s estate and had never managed those assets. Under these circumstances, we cannot say that the probate court abused its discretion in appointing appellee the guardian of the estate.

Appellant argues, however, that a biological parent has a statutory entitlement to be the guardian of the estate of the minor. He cites R.C. 2111.08, which provides in part as follows:

“The wife and husband are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare, and education and the care and management of their estates. * * * ”

However, appellant does not provide, and we cannot find, any authority for the proposition that this language, which makes a husband and wife equally responsible for the care of their minor children, further creates an entitlement for an ex-husband parent to be the guardian of an estate devised to the minor by the other ex-wife parent.

Appellant does cite several cases for the .proposition that, in order for there to be an appointment of a guardian other than the natural parent, there must be a showing that the parent (1) has abandoned the child; (2) has contractually relinquished custody, (3) is totally unable to provide for the care or support of the child, or (4) is otherwise unsuitable for the custody of the child. See, e.g., In re Perales (1978), 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047; In re Jewell (Dec.

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Cite This Page — Counsel Stack

Bluebook (online)
609 N.E.2d 1310, 80 Ohio App. 3d 548, 1992 Ohio App. LEXIS 2854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-bednarczuk-ohioctapp-1992.