[Cite as Reed v. Turner, 2014-Ohio-5109.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Deborah L. Reed et al.,                            :

                Plaintiffs-Appellants,             :

v.                                                 :               No. 14AP-400
                                                                  (Prob. No. 553947A)
Tamara E. Turner,                                  :
                                                              (REGULAR CALENDAR)
                Defendant-Appellee.                :

                                            D E C I S I O N

                                  Rendered on November 18, 2014


                Bellinger & Donahue, Kerry M. Donahue and Scott P.
                Bellinger, for appellants.

                Kyle B. Smith, for appellee.

                  APPEAL from the Franklin County Court of Common Pleas,
                                     Probate Division
TYACK, J.
        {¶ 1} Plaintiffs-appellants, Deborah L. Reed and Deana L. Reed ("the Reeds"),
appeal the judgment of the Probate Court of Franklin County adopting its magistrate's
decision granting distribution of the remainder of a trust to defendant-appellee, Tamara
E. Turner. For the following reasons, we affirm the judgment of the probate court.
        {¶ 2} The Reeds bring four assignments of error for our consideration:
                [I.] THE LOWER COURT DID NOT PROPERLY APPLY THE
                LAW TO THE FACTS BECAUSE THE WRITTEN TRUST
                CONTROLS INTENT AND THE TRUSTORS INTENT IS
                CLEAR FROM THE TRUST DOCUMENT.

                [II.] IT WAS ERROR TO DECIDE THE CASE ON SUMMARY
                JUDGMENT AND REFUSE TO HOLD A HEARING IF THE
                COURT WAS GOING TO DECIDE THE ISSUE BY GOING
No. 14AP-400                                                                           2


              OUTSIDE THE CLEAR INTENT SET FORTH IN THE TRUST
              DOCUMENT ITSELF.

              [III.] THE RULING IN FAVOR OF APPELLEE UPON
              SUMMARY JUDGMENT WAS A DUE PROCESS
              VIOLATION AND IN A LIGHT MOST FAVORABLE TO
              APPELLANT THE CLEAR AND UNAMBIUOUS [sic] TERMS
              OF THE TRUST SHOULD HAVE CONTROLLED.

              [IV.] EXTRINSIC EVIDENCE OF INTENT OF THE
              TRUSTORS SHOULD NOT HAVE BEEN PERMITTED
              SINCE THE WRITTEN TERMS OF THE TRUST ARE
              CLEAR.

       {¶ 3} The facts of this case are not in dispute. In August 2001, Robert Judd
("Robert") and Winnie Judd ("Winnie") were married. Robert had one adult daughter,
Tamara Turner ("Turner") who is the appellee in this case.         Winnie had two adult
daughters, the Reeds, appellants herein. On August 8, 2002, Robert and Winnie executed
the Judd Family Trust.     The corpus of trust contained Winnie's condominium and
Robert's Edward Jones brokerage accounts as well as some of Robert's savings accounts.
The Judd Family Trust document is 57-pages long and uses terms interchangeably for the
same share of the trust, e.g., Decedent's Marital Share Trust B, Decedent's Trust B, Robert
W. Judd's Share of the Trust Assets, Trust B.
       {¶ 4} On March 22, 2005, Robert died. Pursuant to the terms of the trust,
Winnie, as surviving spouse and trustee, divided the trust into two relatively equal and
separate shares: Survivor's Marital Share Trust A and Decedent's Marital Share Trust B.
Survivor's Marital Share Trust A was revocable and the corpus contained Winnie's
condominium. Decedent's Marital Share Trust B is irrevocable and contains the financial
accounts Robert brought into the marriage.
       {¶ 5} After funding Survivor's Trust A and Decedent's Trust B, Winnie exercised
her rights and defunded Trust A by transferring the condominium into her own name.
Winnie also properly exercised her rights under the trust and used assets of Decedent's
Trust B for her maintenance and support.
       {¶ 6} Winnie died on August 11, 2011. The condominium was passed to her
daughters, the Reeds, and was sold for $90,000 in November 2012. Winnie's funeral
No. 14AP-400                                                                            3


expenses were paid by Deborah Reed and totaled more than $10,000. At the time of
Winnie's death, there was approximately $75,000 remaining in Decedent's Trust B.
       {¶ 7} In May 2012, the Reeds filed a complaint in the Franklin County Probate
Court for declaratory judgment arguing that they are entitled to one-half of the remaining
assets in the Decedent's Trust B after Trust B paid for Winnie's funeral expenses. Turner
argued that Trust B is to be distributed outright to her. During a scheduling conference
with the magistrate, both parties' counsel agreed that the case only involved legal issues
which could be properly presented through briefs.         Both parities subsequently filed
motions for summary judgment.
       {¶ 8} On September 24, 2013, the magistrate in the probate court issued her
decision. The magistrate recommended that appellant's motion for summary judgment
be denied, a $350 fee be paid from Decedent's Trust B for tax preparation and the
remainder of Decedent's Trust B be distributed outright to Turner. The magistrate's
decision found decedent's Trust B to have no responsibility for paying the funeral
expenses of Winnie Judd. Turner's request for attorney fees and legal costs were denied.
       {¶ 9} The Reeds filed objections to the magistrate's decision and also requested
an oral hearing on their objections. Turner filed a response to the objections and a
request for a hearing. There was also a motion to file additional documents with the
court. On April 22, 2014, the probate court issued its judgment allowing the filing of
additional documents, denying the request for an oral hearing and adopting the
magistrate's decision.
       {¶ 10} There are no disputed facts in this case, only disputed interpretations of the
trust document. Therefore summary judgment is appropriate. Civ.R. 56(C) states that
summary judgment shall be rendered forthwith if:
              [T]he pleadings, depositions, answers to interrogatories,
              written admissions, affidavits, transcripts of evidence, and
              written stipulations of fact, if any, timely filed in the action,
              show that there is no genuine issue as to any material fact and
              that the moving party is entitled to judgment as a matter of
              law. No evidence or stipulation may be considered except as
              stated in this rule. A summary judgment shall not be
              rendered unless it appears from the evidence or stipulation,
              and only from the evidence or stipulation, that reasonable
              minds can come to but one conclusion * * *.
No. 14AP-400                                                                             4



       {¶ 11} Accordingly, summary judgment is appropriate only where: (1) no genuine
issue of material fact remains to be litigated; (2) the moving party is entitled to judgment
as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving
party, reasonable minds can come to but one conclusion and that conclusion is adverse to
the non-moving party. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621,
629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66
(1978).
              When a motion for summary judgment is made and
              supported as provided in this rule, an adverse party may not
              rest upon the mere allegations or denials of the party’s
              pleadings, but the party’s response, by affidavit or as
              otherwise provided in this rule, must set forth specific facts
              showing that there is a genuine issue for trial. If the party
              does not so respond, summary judgment, if appropriate, shall
              be entered against the party.

Civ.R. 56(E). Summary judgment is a procedural device to terminate litigation, so it
must be awarded cautiously with any doubts resolved in favor of the non-moving party.
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).
       {¶ 12} De novo review is well established as the standard of review for summary
judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). We stand in the
shoes of the trial court and conduct an independent review of the record applying the
same summary judgment standard. As such, we must affirm the trial court's judgment if
any of the grounds raised by the moving party, at the trial court’s level, are found to
support it, even if the trial court failed to consider those grounds. See Dresher v. Burt, 75
Ohio St.3d 280 (1996); Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th
Dist.1995).
       {¶ 13} The Reeds in their first assignment of error argue that the probate court
erred in determining the intent of Robert and Winnie in construing the language of the
trust document. They argue that Turner should not receive the balance of Decedent's
Trust B but it should be distributed evenly between the parties after Winnie's funeral
expenses are paid.
No. 14AP-400                                                                              5


       {¶ 14} One of the fundamental tenets for the construction of a will or trust is to
ascertain, within the bounds of law, the intent of the testator, grantor or settlor. Domo v.
McCarthy, 66 Ohio St.3d 312, 314 (1993). The intent can be ascertained from the express
terms of the trust itself if the instrument is not ambiguous. Id. Interpreting a trust is akin
to interpreting a contract; as with trust, the role of courts in interpreting contracts is "to
ascertain and give effect to the intent of the parties." Saunders v. Mortensen, 101 Ohio
St.3d 86, 2004-Ohio-24, ¶ 9.
       {¶ 15} We look to the language of the trust to determine the intent of trustees
Robert and Winnie:
              DEATH OF TRUSTOR

              Upon the death of either Trustor the Surviving Trustee shall
              divide and allocate the Trust Estate into two (2) separate
              shares * * *. One share shall be designated as Survivor's Trust
              A and the other share shall be designated as Decedent's
              Marital Share, Trust B.

              ***
              Decedent's Marital Share shall consist of the Decedent's one-
              half (1/2) interest in the commonly owned property or
              community property of the Trust Estate, one-half (1/2)
              interest in the quasi-community property and all other
              property included in the Trust Estate as the Separate Property
              of the Decedent Trustor. Decedent's Martial Share shall be
              placed into Decedent's Trust B. Upon creation of such Trust
              shares, Decedent's Trust B is irrevocable.

              The Surviving Trustee shall have the sole discretion to select
              the commonly owned, community and quasi-community
              assets or the proportionate share of any such assets which
              shall be included in the Decedent's Trust B.

(R. 1, Trust Document, 26.)
       {¶ 16} Upon the death of Robert, Winnie did divide the corpus of the Judd Family
Trust assets into two trusts of nearly equal value, with Survivor's Trust A containing the
condominium that Winnie owned before the marriage and Decedent's Trust B containing
the accounts Robert brought into the marriage.           The trust makes clear then the
beneficiaries of the Decedent's Trust B.
No. 14AP-400                                                                            6


             Distribution of Residual of Trust B

             The balance of the principal of Trust B shall be distributed in
             accordance with the provision specified in the section of this
             Trust titled "ALLOCATION AND DISTRIBUTION OF TRUST
             ASSESTS."

(R. 1, Trust Document, 33.)
             ALLOCATION          AND     DISTRIBUTION         OF    TRUST
             ASSETS

             Primary Beneficiaries of Robert W. Judd's share of
             the Trust Estate

             Unless otherwise herein provided, upon or after the death of
             the Surviving Trustor, the Primary Beneficiary of Robert W.
             Judd's share of this Trust is Tamara E. Turner.

(R. 1, Trust Document, 37.) In the event of Turner's death before receiving her entire
share, the undistributed balance would be distributed to her children or her children's
heirs. (R. 1, Trust Document, 37.) If all the issue of Turner were to die before receiving
their share then the balance would be distributed among Robert Judd's primary
beneficiaries. Id.
      {¶ 17} We find that the intent of Robert and Winnie was clear and the trust
document is not ambiguous. The trust document clearly shows that the terms, Decedent's
Marital Share Trust B, Decedent's Trust B, and Trust B are different terms for the same
trust that is composed of assets from Robert W. Judd's Share of the Trust Assets. Winnie
made the determination what assets were placed in Trust B, and having done so created
an irrevocable trust. It is clear that Robert's share of the trust was determined by Winnie
and placed in Trust B where it ceased to be commonly owned or community property.
The intent of Robert and Winnie was to have assets of Decedent's Trust B be distributed
only to Turner upon the death of Winnie, the surviving trustor.
      {¶ 18} The Reeds also argue in their brief that the intention of trustors was that the
funeral expenses of both Robert and Winnie be paid from the trust and that this provision
demonstrates that Robert and Winnie considered all of the trusts assets communal
property. However, it was conceded at oral argument that the trust document clearly
No. 14AP-400                                                                               7


requires all trustees to agree to pay these funeral expenses out of Decedent's Trust B after
Survivors' Trust A had been devalued with the removal of the condominium. (R. 1, Trust
Document, 8.) The probate court correctly determined that the funeral expense should
not be paid out of Decedent's Trust B. The method of payment of the funeral expense of
the Survivor Trustor through Trust A only reinforces our findings of the trustors' intent
that Robert's share of the trust, Decedent's Trust B, should pass to only his heir.
       {¶ 19} The first assignment of error is overruled.
       {¶ 20} The second assignment of error argues that a hearing should have been
granted on the Reeds' objection to the magistrate's decision. In this case, the probate
court was not required to grant such a hearing.          "If one or more objections to a
magistrate’s decision are timely filed, the court shall rule on those objections. * * * Before
so ruling, the court may hear additional evidence but may refuse to do so unless the
objecting party demonstrates that the party could not, with reasonable diligence, have
produced that evidence for consideration by the magistrate."             Civ.R. 53(D)(4)(d).
Whether to grant such a hearing is within the discretion of the probate court. Losey v.
Diersing, 12th Dist. No. CA2012-06-048, 2013-Ohio-1108, ¶ 11. There is no argument
that the Reeds could not have produced evidence for consideration by the magistrate. The
probate court did not abuse its discretion in refusing to conduct an oral hearing on the
objections to the magistrate's decision.
       {¶ 21} The second assignment of error is overruled.
       {¶ 22} The third assignment of error argues that the Reeds' due process rights were
violated when this case was resolved through summary judgment. A hearing was not
required and pursuant to Civ.R. 53(D)(4)(d) conducting such a hearing was within the
probate court's discretion. There was no due process violation.
       {¶ 23} The third assignment of error is overruled.
       {¶ 24} The fourth assignment of error argues the probate court erred in finding
that Decedent's Trust B was not community property of the marriage. The Reeds argue
that Robert and Winnie's intentions were that all trust assets be considered as community
property. The argument relies on one section of the trust. "All property held by the
undersigned * * * is the commonly owned or community property of the said Trustors
unless otherwise designated by writing in the Trust documents." (R. 1, Trust Document,
No. 14AP-400                                                                           8


56, Letter of intent and Declaration of Gift.) The Reeds argue that no writing exists which
designates any property in the trust as separate.
       {¶ 25} This provision of the trust document cannot be read in isolation. Due
weight must be given to all the words and provisions of a trust instrument. Mumma v.
Huntington Natl. Bank of Columbus, 9 Ohio App.2d 166 (10th Dist.1967). After Robert
died, Winnie transferred property from being community property to being separate
property when she created Survivor's Trust A and Decedent's Trust B. This division was
in accordance with the trust and satisfies the intention of Robert and Winnie to have
assets available for both Robert's and Winnie's heirs upon both their deaths.
       {¶ 26} The fourth assignment of error is overruled.
       {¶ 27} Having overruled all the assignments of error, we affirm the judgment of the
Franklin County Court of Common Pleas, Probate Division.
                                                                      Judgment affirmed.

                            BROWN and KLATT, JJ., concur.
