[Cite as In re Estate of Burdette, 2016-Ohio-5866.]




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

 IN THE MATTER OF                                     :
 THE ESTATE OF                                        :   Appellate Case No. 26915
                                                      :
      I.V. JUNIOR BURDETTE, JR.                       :   Court Case No. 10-EST-19
                                                      :
                                                      :   (Appeal from Probate Division,
                                                      :    Common Pleas Court)
                                                      :
                                                      :
                                                      :

                                                ...........

                                                OPINION

                          Rendered on the 16th day of September, 2016.

                                                ...........

JERRY W. MEADOWS, Atty. Reg. No. 0021262, 7501 Paragon Road, Lower Level,
Dayton, Ohio 45459-5318
      Attorney for Appellant, Jackie Marie Burdette (nka Wright)

WILLIAM O. CASS, Jr., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 117,
Kettering, Ohio 45429
       Attorney for Appellee, William O. Cass, Jr., Administrator

SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, Scott A. Ashelman, Esq., LLC, Post
Office Box 752345, Dayton, Ohio 45475
       Attorney for Appellee, Veronica Burdette-Marshall

                                              .............

FAIN, J.

        {¶ 1} Appellant Jackie Marie Burdette (now known as Wright) contends that the
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Montgomery County Probate Court erred when it determined that she was not eligible to

inherit from the estate of her father, I. V. Burdette, Jr. Wright asserts that the trial court

erred by failing to accept her birth certificate as prima facie evidence of the parent-child

relationship, and that the court’s failure to treat her with equal standing to the decedent’s

other two children violates her rights to equal protection. Appellee, the Estate of I.V.

Burdette, Jr. argues that the trial court correctly concluded that Wright was not entitled to

inherit from the estate because Wright did not prove that a parent-child relationship had

been legally established through a paternity action or any other statutory proceeding.

       {¶ 2} We conclude that the trial court did not abuse its discretion in overruling

Wright’s motion for relief from judgment or err in overruling her motion for summary

judgment. The probate court correctly concluded that Wright is not entitled to inherit from

the estate of her father. Accordingly, the order of the trial court overruling Wright’s motion

for relief from judgment is Affirmed.



                              I. The Course of Proceedings

       {¶ 3} I.V. Burdette, Jr., died intestate on July 18, 2009. An estate was opened in

Probate Court, and two of Burdette’s children, Veronica and Jerome, were notified as next

of kin. Wright was not listed as next of kin, and was not notified of the proceedings. The

trial court approved a settlement of a wrongful death/medical negligence claim in the

amount of $135,000, which was divided up between Jerome and Veronica after the

payment of medical bills, attorney fees and costs. A final account was approved and the

probate was completed. Fourteen months later, Wright moved for relief from judgment

and submitted an affidavit averring that she is a natural born child of Burdette, that she
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had not been notified of the estate proceedings, and that she was not aware of the

medical negligence claim or its settlement. Attached to the affidavit was Wright’s birth

certificate, in which Burdette is listed as her father. After all parties briefed the issue, the

trial court set the matter for hearing before a magistrate. Prior to the hearing, the parties

agreed to genetic testing, and the results were submitted through an agreed entry,

reflecting that Wright is the biological child of Burdette. In lieu of a hearing, the parties

stipulated to the following facts:

       1. Decedent I.V. Burdette died without a will.

       2. An estate was opened for the purpose of settling a personal injury claim

       of Decedent.

       3. Jackie Burdette (Jackie) was not listed on Form 1.0.

       4. The estate was closed by the Entry Approving and Settling the Account

       that was filed and signed by this Court on October 18, 2010 and Jackie

       Burdette (Jackie) was not included in the estate disbursements.

       5. Jackie, born September 27, 1963, has established through DNA testing

       that she is the biological child of the Decedent.

       6. Jackie’s mother and the Decedent were never married.

       7. Jackie was not provided for in the Decedent’s will because there was no

       will.

       8. Jackie was never adopted by the Decedent.

       9. Jackie was never acknowledged by the Decedent by any statutory

       acknowledgement proceedings in any Probate or Juvenile Court.

       10. Jackie was never designated by the Decedent as his heir at law.
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       11. The Decedent was never determined to be the father of Jackie in a

       parentage action and no parentage action was pending at the time of the

       Decedent’s death.

Dkt. #43.


       {¶ 4} Both parties moved for summary judgment. In support of her motion, Wright

submitted an affidavit in which she avers that throughout her life Burdette acknowledged

her as his daughter, and he never denied the relationship. Wright further averred that she

lived with Burdette’s mother, her paternal grandmother, for several years, and that

Burdette often visited her there. These facts were corroborated in a separate affidavit of

her uncle, Herbert Burdette, the decedent’s brother. In response to Wright’s motions, the

estate moved to dismiss or to overrule Wright’s motion for summary judgment, supported

by an affidavit of Veronica, in which she avers that Wright was introduced to her as a

step-sister, but that her father never acknowledged Wright as his daughter. Veronica also

asserts that Wright only lived with their grandmother for one year during her childhood.

       {¶ 5} After Wright filed a responsive memorandum, the matter was submitted for

decision without a hearing. A magistrate’s decision was entered overruling Wright’s

motion for summary judgment and her motion for relief from judgment, concluding that

Wright is not an heir of the estate of I.V. Burdette, Jr. Wright filed objections to the

magistrate’s decision, arguing that the birth certificate should be considered prima facie

evidence of paternity, and that Wright is being denied her rights of equal protection. After

reviewing the facts and the applicable law, the trial court overruled the objections to the

magistrate’s decision, concluding that Wright was not a person entitled to inherit from
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Burdette’s estate and did not have standing to move to vacate the final judgment

approving the distribution of the estate assets. The trial court adopted the reasoning

articulated in the magistrate’s decision, concluding that the birth certificate was insufficient

to prove inheritance rights when the undisputed facts establish that a parent-child

relationship was not established or acknowledged by a marriage between the biological

parents, a provision for Wright in the decedent’s will, an adoption, or an acknowledgement

in any statutory proceeding.

       {¶ 6} From the order of the trial court overruling her motion for relief from judgment

and her motion for summary judgment, Wright appeals.



                                   II. Standard of Review

       {¶ 7} When reviewing a summary judgment, we must conduct a de novo review.

Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

De novo review requires an “independent review of the trial court's decision without any

deference to the trial court's determination.” Jackson v. Internatl. Fiber, 169 Ohio App.3d

395, 2006-Ohio-5799, 863 N.E.2d 189, ¶ 17 (2d Dist.), quoting State ex rel. AFSCME v.

Taft, 156 Ohio App.3d 37, 2004-Ohio-493, 804 N.E.2d 88, ¶ 27 (3d Dist.).

       {¶ 8} When an appeal asserts an error involving an order deciding a motion for

relief from judgment, we utilize an abuse of discretion standard of review. “Motions for

relief from judgment under Civ.R. 60(B) are addressed to the sound discretion of the trial

court, and the court's ruling ‘will not be disturbed on appeal absent a showing of abuse of

discretion.’ ” Jackson v. Hendrickson, 2d Dist. Montgomery No. 21921, 2008-Ohio-491, ¶

28, citing Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). “ ‘Abuse of
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discretion’ has been defined as an attitude that is unreasonable, arbitrary, or,

unconscionable. * * * A decision is unreasonable if there is no sound reasoning process

that would support that decision.” AAAA Enterprises, Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).



  III. The Trial Court Correctly Concluded that Wright Was Not an Heir Entitled to

                              Inherit from Burdette’s Estate

       {¶ 9} For her First Assignment of Error, Wright asserts:

              THE PROBATE COURT ERRED IN FINDING THAT THE BIRTH

       CERTIFICATE OF APPELLANT DID NOT ESTABLISH BY PRIMA FACIE

       EVIDENCE THAT APPELLANT WAS A CHILD ENTITLED TO INHERIT

       FROM DECEDENT

       {¶ 10} Wright argues that the trial court’s decision to overrule her motion for

summary judgment is based on an erroneous conclusion that Wright’s birth certificate is

insufficient to establish her inheritance rights. The estate argues that even if the birth

certificate does establish that she is the illegitimate child of the decedent, Wright is still

not entitled to inherit from her father under R.C. 2105.06 unless paternity is established

by one of the procedures established by law.

       {¶ 11} Pursuant to R.C. 3705.23(A)(3) and R.C. 3705.23(B)(1), a certified copy of

a birth certificate “shall be prima-facie evidence of the facts stated in it in all courts and

places.” However, “ ‘[p]rima facie evidence’ is not conclusive.” Krischbaum v. Dillon, 58

Ohio St.3d 58, 64, 567 N.E.2d 1291 (1991). “The term denotes evidence which will

support, but not require, a verdict in favor of the party offering the evidence.” Id.
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Therefore, unless a statute provides otherwise, prima facie evidence creates a rebuttable

presumption.

       {¶ 12} More importantly, it is not enough for Wright to prove that she is, in fact,

Burdette’s daughter (which DNA testing appears to have conclusively proved); before

Wright may claim the status of heir for purposes of intestate distribution, she must prove

either that Burdette acknowledged her as his daughter, or that her status as his daughter

was acknowledged publicly through statutory paternity proceedings. This is so because

the law of intestate distribution establishes a presumption of how a decedent wishes his

estate to be distributed in the absence of a valid will. Once Burdette’s paternity of Wright

was established or acknowledged, he would know the consequences of his death without

a valid will, and could decide to leave Wright with less than an intestate share, or with

nothing (or with more, for that matter) should that be his desire, by executing a valid will

so providing. See Byrd v. Trennor, 157 Ohio App.3d 358, 2004-Ohio-2736, 811 N.E.2d

549, ¶33 (2d Dist.).

       {¶ 13} In the case before us, the trial court recognized that the birth certificate

issued for Wright in 1963 lists Burdette as her father, but its compliance with the law was

questioned.    Neither version of the birth certificate proffered by Wright contains her

father’s signature, nor was a paternity affidavit signed, which is currently required by R.C.

3705.09(F)(2) in order for a father to acknowledge paternity at the time of birth for a child

born out of wedlock. The lack of a paternity affidavit or the father’s signature on the birth

certificate is one factor to consider in evaluating whether the presumption of paternity has

been rebutted. The trial court properly considered all the other procedures provided by

Ohio law to establish paternity or a parent-child relationship.
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       {¶ 14} In Byrd v. Trennor, supra, we identified five ways to establish a parent-child

relationship for purposes of inheritance, as follows:

               Illegitimate children can inherit from their fathers if it is shown that

       affirmative steps were taken by their father, which could include (1) marrying

       the child’s mother; (2) providing for the child in a will; (3) adopting the child;

       (4) acknowledging the child pursuant to R.C. 2105.18; or (5) designating the

       child as his heir at law pursuant to R.C. 2105.15. Birman v. Sproat (1988),

       47 Ohio App.3d 65, 66, 546 N.E.2d 1354, citing White v. Randolph (1979),

       59 Ohio St.2d 6, 13 O.O.3d 3, 391 N.E.2d 333. Where the parent-child

       relationship is established prior to the father’s death, no differentiation is to

       be made in the rights of children based upon whether they were born in or

       out of wedlock. Id.

Id. at ¶ 28.

       {¶ 15} The trial court correctly concluded that based on the undisputed facts, it

was not established that Burdette ever married Wright’s mother, Burdette did not write a

will, he did not adopt Wright, and he did not acknowledge her in the manner prescribed

by R.C. 2105.18 or R.C. 5101.314 before those laws were repealed, or by the probate

statute, R.C. 2105.15. By considering all of these factors, the court properly concluded

that based on Burdette’s lack of action during his lifetime to indicate his desire to include

Wright as an heir in his estate, any presumption of parentage created by the birth

certificate was rebutted for the purpose of inheritance under R.C. 2105.06.

       {¶ 16} Wright’s reliance on the holding of In re Estate of Collins, 3d Dist. Allen No.
                                                                                          -9-

1-11-63, 2012-Ohio-5234, is misplaced. In Collins, the birth certificate was considered

prima facie evidence of a parent-child relationship for purposes of inheritance when the

presumption of paternity was not sufficiently rebutted. In Collins, the biological parents of

the children who were born out of wedlock established a common law marriage by living

together and holding themselves out as husband and wife for several years. The children

lived with their father, who continued to raise and support them after the biological mother

died. Collins at ¶ 13. As we discussed in Byrd, supra, marriage to the mother is one of

several legal actions that can be taken by the father to legally acknowledge a parent-child

relationship for the purpose of inheritance. In the case before us, there was no evidence

that Wright’s mother and father ever lived together, or took action that would establish a

common law marriage at a time when common law marriage was recognized in Ohio.

All of the facts presented to the probate court in the case before us lead to the conclusion

that a parent-child relationship for purposes of inheritance was not established and after

considering all facts, any presumption of paternity was rebutted.

       {¶ 17} Wright’s First Assignment of Error is overruled.



               IV. Wright Was Not Denied Equal Protection of the Law

       {¶ 18} For her Second Assignment of Error, Wright asserts:

              THE PROBATE COURT ERRED IN FAILING TO FIND THAT

       APPELLANT SHOULD BE TREATED WITH EQUAL STANDING AS THE

       OTHER TWO CHILDREN LISTED AS NEXT OF KIN IN PROBATE COURT

       FILINGS, REQUIRED BY PRINCIPLES OF FUNDAMENTAL FAIRNESS

       AND    EQUITY,     IN   VIOLATION      OF    HER     RIGHTS     OF    EQUAL
                                                                                         -10-


       PROTECTION.

       {¶ 19} Wright argues that the court erred in overruling her motion for relief from

judgment because it prevented her from having an equal opportunity to challenge the

inheritance rights of Burdette’s other two children. Wright claims that it is fundamentally

unfair to require that she prove her inheritance rights, while the court allowed Burdette’s

other two children, Veronica and Jerome, to share in the distribution of the estate without

having to prove a parent-child relationship with the decedent.

       {¶ 20} We previously addressed a challenge to the inheritance statute on equal

protection grounds in Byrd, supra. The facts in Byrd are similar to the case before us.

Byrd also stipulated that her father and mother were never married, her father never

adopted her, he did not leave a will, and he did not designate or acknowledge her as an

heir at law. The undisputed facts established that a parent-child relationship was not

established prior to the death of Byrd’s father. In Byrd, we concluded that the inheritance

statute in Ohio, R.C. 2105.06, does not violate the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution, even when inheritance rights

of children differ on the basis of whether paternity is or is not established by statutory

proceedings, in view of the important state interest in the just and orderly disposition of

property at death. We explained:

              Due to inherent biological differences between the genders, there is

       a significant possibility that a father of an illegitimate child may be unaware

       of that child’s existence, whereas it is extremely unlikely that the mother of

       an illegitimate child will be unaware of the child’s existence. When that

       father dies without having made a will, he is likely to know, generally, that
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       his estate will pass to his surviving spouse, if any, and to his lineal

       descendants, although he may well be unaware of the exact proportions

       that each heir will receive. His conscious or unconscious decision not to

       make a will is likely to be influenced by the fact that he is content that those

       persons will receive his property at his death. If there were any of those

       persons that he did not want to receive a portion of his estate, he would

       presumably take the trouble to write a will disinheriting that individual. But

       he cannot be presumed to be content that his property will pass at his death

       to some person whose relationship to him as his child is unknown to him

       during his life. By asserting the existence of the father-child relationship

       after the death of the father, the child deprives the father of the opportunity,

       during life, to make a will disinheriting the child. In requiring that assertions

       of the existence of a father-child relationship be made during the life of the

       father, the intestate succession statute serves the important state interest

       of enabling the father to make the decision whether to make a will with

       knowledge of the consequences of that decision.

Byrd v. Trennor, 157 Ohio App.3d 358, 2004-Ohio-2736, 811 N.E.2d 549, ¶ 33 (2d Dist.).

       {¶ 21} We acknowledge that Wright’s equal protection argument is not focused

on the difference between the way the inheritance statute treats children born within a

marriage or out of wedlock, but rather seeks a reversal on the grounds that she should

be given an equal opportunity to challenge the status of Burdette’s other two children as

heirs, who were not required to substantiate their parent-child relationship with the

decedent. The trial court noted that Wright had presented no evidence suggesting that
                                                                                         -12-


the two persons who did receive a distribution from Burdette’s estate were not entitled to

inherit.   This question presented by Wright is a procedural issue, resolved by the

application of Civ. R. 60(B), as Wright would have been able to challenge the distribution

of the estate if the case was reopened. A Civ.R. 60(B) motion for relief from judgment is

an appropriate method of reopening an estate to challenge a distribution based on a

mistake of fact or law. See, e.g., In re Estate of Dinsio, 159 Ohio App. 3d 98, 2004-Ohio-

6036, 823 N.E.2d 43 (7th Dist.). To prevail on a motion to vacate a judgment pursuant to

Civ.R. 60(B), the movant must demonstrate that: 1) the party has a meritorious claim or

defense to present if relief is granted; 2) the party is entitled to relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5); and 3) the motion is made within a

reasonable time, and where the grounds for relief are Civ.R. 60(B)(1), (2), or (3), not more

than one year after the judgment. We have held that to demonstrate a meritorious claim

or defense the movant “must set out operative facts which, if true, constitute a prima facie

showing of the claim or defense concerned. A prima facie showing is one which is

‘[s]ufficient to establish a fact or raise a presumption unless disapproved or rebutted.’ ”

Smith v. Gilbert, 2d Dist. Clark No. 2015-CA-61, 2016-Ohio-1099, ¶ 19, quoting Savage

v. Delamore Elizabeth Place, 2d Dist. Montgomery No. 23147, 2009-Ohio-2772, ¶ 23.

       {¶ 22} The probate court correctly concluded that Wright did not establish that she

has a meritorious claim to present if relief was granted. As explained above, the trial

court correctly concluded that Wright was not an established heir, and no evidence was

proffered to demonstrate any grounds for a challenge to the status of any other heir.

Therefore, the probate court did not abuse its discretion by denying the motion for relief

from judgment. Wright’s Second Assignment of Error is overruled.
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                                    V. Conclusion

      {¶ 23} Both assignments of error having been overruled, the order of the probate

court overruling Wright’s motion for relief from judgment, and for summary judgment, is

Affirmed.

                                   .............



FROELICH and HALL, JJ., concur.



Copies mailed to:

Jerry A. Meadows
William O. Cass, Jr.
Scott A. Ashelman
John C. Ferneding & Associates, Inc.
The Ohio Casualty Insurance Company
Hon. Alice O. McCollum
