[Cite as In re Estate of Lynch, 2010-Ohio-6376.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              WYANDOT COUNTY




IN THE MATTER OF:

        THE ESTATE OF                                         CASE NO. 16-10-05
        DASHELLE LYNCH,

DARLENE LYNCH
                                                              OPINION
        APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                                Probate Division
                             Trial Court No. 071079

                                      Judgment Affirmed

                          Date of Decision:        December 27, 2010




APPEARANCES:

        Kurt A. Dauterman for Appellant

        Paul F. Burtis for Appellee, Wayne Lynch
Case No. 16-10-05


ROGERS, J.

       {¶1} Mother-Appellant, Darlene Lynch, appeals from the judgment of the

Court of Common Pleas of Wyandot County, Probate Division, approving a

$500,000 settlement amount on a wrongful death claim pertaining to her deceased

daughter, Dashelle Lynch, and distributing $2,000 of the settlement amount to her,

with the remainder being distributed to Dashelle’s Father, Wayne Lynch, after the

payment of attorney fees, court costs, and Medicaid bills. On appeal, Darlene

argues that the trial court erred in failing to find that both parents were entitled to a

presumption that the proceeds from the wrongful death claim settlement should be

distributed equally pursuant to R.C. 2125.02, and that the trial court abused its

discretion in distributing to her only $2,000 of the wrongful death claim

settlement. Based on the following, we affirm the judgment of the trial court.

       {¶2} In August 2007, Wayne filed an application to administer the estate

of Dashelle, who tragically died in an apartment fire. Within the application,

Darlene was listed as Dashelle’s mother and as a party entitled to inherit under the

statutes of descent and distribution.

       {¶3} In September 2007, Darlene filed a waiver of her right to administer

the estate.




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       {¶4} Subsequently, Wayne filed four applications to extend the

administration of the estate, in April 2008, August 2008, February 2009, and

August 2009, due to his pursuit of a wrongful death action on Dashelle’s behalf,

and the trial court granted each application.

       {¶5} In April 2010, Wayne filed an application to approve the settlement

amount and distribution of the wrongful death claim, with the settlement amount

being $500,000, to be distributed as follows: $123,495 for subrogation of a

Medicaid lein, $200,000 in attorney fees, $26,973.83 in case expenses, and the

remaining $149,531.17 to be distributed to him, with Darlene receiving no share in

the settlement.

       {¶6} In May 2010, a hearing was held on the application for distribution,

at which Karen Behm testified that she was serving as the attorney for the estate of

Dashelle and previously served as Wayne’s attorney in his divorce from Darlene;

that Wayne and Darlene were divorced in 1998, and, pursuant to a separation

agreement, Darlene was the residential parent of Dashelle; that, in 2000, Wayne

informed her that Darlene had left Dashelle on his doorstep at 6:00 a.m. without

informing him prior that she was going to do so; that she subsequently filed a

motion to re-allocate parental rights, and a consent agreement was signed by the

parties stating that Wayne would have residential parent status, Darlene would

have no contact with Dashelle unless Dashelle initiated the contact, and Darlene



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would not be responsible for child support payments; that, in 2001, she received a

letter from Donald Bennett, an attorney representing Darlene, indicating that

Darlene was “at her wits-end with regard to how to approach her daughter,” and

requesting that Wayne be willing to consider stepparent adoption, even if it did

relinquish Darlene of her parental rights, because “there seem[ed] to be no way to

effectively exercise parental rights, [and she] believed the time [had] now come to

call Dashelle’s bluff” (application for distribution hearing tr., p. 46); that,

subsequently in 2001, Darlene forwarded a letter to Dashelle through the guardian

ad litem at the time, and she (Behm) sent a letter to the guardian ad litem and

Darlene requesting Darlene have no contact with Dashelle pursuant to the no

contact order in the consent agreement; that she filed a motion for emancipation

for Dashelle in 2004 when she turned eighteen, as Dashelle wanted to move out of

Wayne’s home; that Wayne had concerns about Dashelle not graduating from high

school, but she wanted to live on her own; and, that, according to the judgment

entry filed in the case, Darlene was not present and did not respond to the motion

hearing.

      {¶7} Joseph O’Neil testified that he represented Dashelle’s estate and next

of kin in the wrongful death action; that Wayne answered the eleven page

questionnaire he prepared regarding damages in the action, and Wayne also

assisted in responding to interrogatories and gave deposition testimony; that



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Wayne also agreed to be responsible for the costs of litigation if there was no

recovery; that he thought Wayne was “a sincere, sad father who * * * didn’t like

the way his daughter died and didn’t want somebody else to die the same way, and

he was going through a lot of pain” (id. at 72); that he also sent the eleven page

questionnaire to Darlene; that Darlene did not complete the questionnaire, but

called to speak with him; that Darlene asked about the case, including the potential

amount of recovery, and she indicated that “she didn’t think anything would be

there and she really did not wanna [sic] pursue the matter or get involved with it”

(id. at 73); that he also sent Darlene interrogatories for the case, but she did not

answer them; that he did not get the impression that Darlene was a “sincere, sad

mother” (id. at 81); and, that he did not believe Darlene would have been a good

witness to the damages part of the case.

       {¶8} Wayne Lynch testified on direct examination that, when he and

Darlene divorced, Darlene was the residential parent of Dashelle, and he had

visitation and paid child support; that there was a period of time where Dashelle

did not want to see him, but he did not force her, and she eventually started

visiting him again; that, in June 2000, he and his wife were awakened by Dashelle

knocking at the door early in the morning; that Darlene had dropped off Dashelle

without notifying him, and Darlene was gone when he answered the door; that he

subsequently became the residential parent; that Dashelle lived with him while she



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was in high school up until her senior year; that, at age eighteen, Dashelle chose to

leave high school before graduating against his wishes; that, while in high school,

Dashelle played volleyball and was in National Honor Society; that he and

Dashelle went to football games together, and he and his wife taught her how to

drive when she turned sixteen; that he had rules that Dashelle had to follow, but

she “never gave [him] a problem” (id. at 95); that, during Dashelle’s senior year of

high school, he received a phone call from the school informing him that Dashelle

had been missing school; that he was not aware Dashelle was missing school

because she drove herself to school and would leave and return home at the correct

time; that, after a meeting with school counselors, Dashelle decided to quit school

and move out on her own; that there were no fights between him and Dashelle that

caused her to leave; that he filed paperwork so Dashelle could be emancipated

from him and Darlene; that, after she left home, he would still communicate with

her “as much as she would allow” (id. at 97); that Dashelle would come to family

holiday gatherings and would sometimes call and ask for help and support; that,

subsequently, Dashelle and her boyfriend, Mike, came over to his house, and Mike

asked for his permission to marry Dashelle; and, that they came over his house on

one other occasion, and he (Wayne) also helped put kitchen cabinets in their

house.




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       {¶9} Wayne further testified that Dashelle had essentially no contact with

her mother while she was in high school; that she may have written letters to

Darlene, but he “didn’t know that if she did” (id. at 100); that Dashelle “had

conflicting ideas of her mother” and chose not to visit her (id.); that he did not

force Dashelle to visit Darlene, but he always instilled in Dashelle that Darlene

was her mother and would always be her mother; that, when he heard about

Dashelle being injured in the fire, he left his office, went home to pick up his wife,

and immediately proceeded to the hospital; that, while at the hospital, he

overheard Darlene state that she had not seen Dashelle for six months; that he

made the medical decisions for Dashelle; that he goes to her grave site every

Sunday and the 17th and 23rd of every month; that he proceeded with Dashelle’s

wrongful death lawsuit because he wanted someone to be held responsible for her

death; that, when consulting with O’Neil, he was told that there may be no

recovery in the lawsuit, and he agreed to be responsible for the legal fees if there

was no recovery; and, that Dashelle was a “special child” and “his buddy.” (Id. at

105-106).

       {¶10} Wayne testified on cross-examination that there was never a time

where he forbid Dashelle from calling Darlene, and he was not aware of a letter

Dashelle wrote to Darlene making that claim; that he did not ask Darlene what she

wanted to do for Dashelle’s funeral arrangements; that he never discussed with



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Darlene his application to be appointed guardian of Dashelle; that he visited

Dashelle in the hospital every day, and Darlene was there most days also; and, that

he did not see Darlene crying at Dashelle’s funeral. Subsequently, Wayne read

three letters written by Dashelle to Darlene indicating that Dashelle missed

Darlene; that Dashelle asked Wayne if she could visit Darlene but Wayne would

not allow it; that Dashelle was anxious to turn eighteen so she could leave

Wayne’s house; that she wanted Darlene to go to court and tell them that Wayne

was not allowing her to see Darlene; that Dashelle was sorry for hurting Darlene in

the past; that she thought about Darlene everyday; and, that she loved Darlene.

         {¶11} After the presentation of Wayne’s evidence, Darlene moved for a

directed verdict1, alleging that Wayne failed to establish that Darlene abandoned

Dashelle, and the trial court overruled the motion.

         {¶12} Michael Fox testified that he was Dashelle’s former fiancé; that he

and Dashelle were engaged in 2006 and were planning the wedding for July 7,

2007; that, while they were engaged, he and Dashelle would regularly visit

Darlene in her home; that they visited her at least a dozen times; that they also

visited Wayne’s residence on two occasions during their engagement; that he and

Dashelle called off the wedding in May 2007 because Dashelle was seeing another

man; that Dashelle and Darlene had a disagreement due to the Dashelle’s


1
  We note that a motion for a directed verdict is proper only in a jury trial, not a bench trial. See Wallbrown
v. Kent State Univ. (2001), 143 Ohio App.3d 762, 767.


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Case No. 16-10-05


behavior; that he believed Wayne and Darlene loved Dashelle equally; that

Dashelle would have arguments and disagreements with both Wayne and Darlene;

and, that, from the time he knew Dashelle, he did not believe Darlene engaged in

any behavior that could be characterized as abandoning Dashelle.

      {¶13} Lynn Crosby testified that he lived with Darlene; that he has known

Darlene since 1998; that he was present the day that Darlene took Dashelle to

Wayne’s house early in the morning; that Dashelle had asked to “start [her]

summer vacation with [her] dad,” as she usually spent six weeks with Wayne

during the summer, because Darlene disciplined her for staying out all night with

an older man (id. at 141); that Darlene told Dashelle she could go to Wayne’s, and

instructed Dashelle to call Wayne; that Dashelle stated she called her father and

obtained permission, and she proceeded to pack her clothing; that the following

morning, he and Darlene drove Dashelle to Wayne’s residence; that they parked in

the driveway as Dashelle went to the front door; that he could not remember if he

saw Wayne answer the door, but they drove off after that saw Dashelle had gained

entry into the residence; that Darlene expected Dashelle to return after she spent

the six weeks with Wayne; that Darlene did not agree to allow Dashelle to stay

with Wayne, but he believed a Magistrate ordered that Dashelle was old enough to

decide where she wanted to live; that, while Dashelle was living with Wayne, she

would visit Darlene; that he was present on multiple occasions when Dashelle



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would visit; that, after Dashelle turned eighteen, her relationship with Darlene

“had ups and downs” (id. at 145); that Darlene and Dashelle would do things

together, but that Dashelle would get upset with Darlene when Darlene would tell

her she was not living her life correctly, and Dashelle would not speak with

Darlene for two or three months; that Dashelle and Mike visited on several

occasions and would stay for several hours at a time; and, that, after Dashelle

passed away, Darlene informed him that, because Wayne had a power of attorney,

Wayne made all the decisions regarding Dashelle’s funeral and she was never

asked anything.

       {¶14} Darlene Lynch testified that Dashelle was very “head strong” and

independent (id. at 154); that she did not contact Wayne before she dropped

Dashelle off at his house because she was not allowed to contact him under the

terms of the civil protection order in place at the time; that, a few days before she

dropped off Dashelle at Wayne’s residence, she contacted the police because she

could not locate Dashelle; that, after Dashelle came home, she grounded her; that,

shortly thereafter, Dashelle informed her that she wanted to start her summer

vacation with Wayne, and that if she did not allow Dashelle to go, she would be in

contempt if court; that she told her she needed to ask Wayne, and Dashelle went

upstairs and called him; that Dashelle informed her that Wayne gave her

permission to come over, and Dashelle began packing; that Dashelle did not return



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to her home after the summer vacation, and, when she attempted to call Wayne,

“the phone was just slammed” (id. at 160); that, by the end of the summer, Wayne

filed for custody of Dashelle, and she consented to it because Dashelle told her

“I’m always gonna love you * * * I’m gonna tell ‘em I wanna see you,

everything’s going to be fine. * * * I’ll still be seeing you” (id. at 161); that she

did not attempt to contact Wayne on other occasions regarding Dashelle because

she “knew he’d have Karen Behm on [her]” (id. at 158); that, after Dashelle began

living with Wayne, Dashelle would sneak to visit her because Wayne would not

allow visitation; that Dashelle also kept in touch with her by writing several

letters; and, that she did not file contempt charges against Wayne for failing to

permit Dashelle to visit because she could not afford to have an attorney represent

her.

       {¶15} Darlene continued that, after Dashelle was emancipated at age

eighteen, Dashelle visited her more frequently; that Dashelle also invited her to

her house on multiple occasions; that she assisted Dashelle financially by

purchasing household items for her, such as food, shampoo, and toilet paper; that

she and Dashelle had a very good relationship while Dashelle was engaged to

Mike; that, on one occasion, she and Dashelle went shopping for Dashelle’s

wedding dress, and, during the course of the day, she discovered that Dashelle was

having an affair with another man; that, when she confronted Dashelle, Dashelle



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became upset and did not want to speak with her; that she attempted to contact

Dashelle numerous times, but Dashelle refused to speak to her; that the incident

marked the last time she and Dashelle spoke; that Wayne did not want her visiting

Dashelle in the hospital; that there was an occasion while visiting Dashelle in the

hospital that security had to be called so she could visit Dashelle; that she visited

Dashelle every day that she was in the hospital; that Wayne never consulted her

regarding Dashelle’s funeral arrangements; that she did not offer any suggestions

for a funeral because she was not allowed; that Wayne used to intimidate her; that

someone contacted her regarding the wrongful death lawsuit, but she did not want

to get involved because she was grieving; that there were days where she was not

able to get out of bed; and, that she received mental health counseling two days

per week after Dashelle’s death and was continuing to receive counseling once per

month.

       {¶16} In June 2010, the trial court issued a judgment entry, stating, in

pertinent part, as follows:

       The amount of the settlement is Five Hundred Thousand Dollars
       ($500,000) and the Court hereby approves same.

       ***

       Courts who have dealt with the issue of the distribution of
       settlement proceeds as between individuals of equal
       consanguinity have found little authority in Ohio to assist in
       construing the applicable statutes. “However, it is quite
       apparent from its language that the statute was intended to vest


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      discretion…[in a] court in apportioning distribution in
      accordance with established principles of equity, without regard
      to the statute of descent and distribution, and without regard for
      any precise mathematical formula.” In Re Estate of Cline
      (1964), 1 Ohio Misc. 28, 30. With these statutes and concepts in
      mind the Court undertakes its analysis in this matter.

      Mother’s willingness to unburden herself of Dashelle when she
      was 14 years of age and neither requesting contact with Dashelle
      nor paying child support for her bespeaks of a serious
      disconnect in the mother child relationship. This disconnect is
      also evident when one considers that mother was willing to have
      Dashelle adopted by another which would have completely
      terminated Mother’s parental rights. Mother claims some
      communication with Dashelle while Dashelle was in high school
      but there is little evidence of the same.         Following her
      emancipation, it does appear that there was approximately a one
      year period where Dashelle enjoyed a healthier relationship with
      her mother, but approximately ten months prior to her death
      they had once again stopped speaking due to some argument.
      Darlene had never been to the apartment that Dashelle occupied
      just prior to her death. By contrast, father, when not the
      custodial parent, enjoyed visitation with Dashelle and paid child
      support on her behalf. He described it as unexpected [sic] yet
      pleasant surprise when Dashelle was abruptly dropped off at his
      house by mother in the early morning hours. Thereafter he
      sought and obtained residential parent status of Dashelle. It
      appears father and Dashelle had a typical father daughter
      relationship in that they engaged in activities together. Father
      proudly recounted some of the accomplishments of his daughter
      and was positive about her. While father said they went for a
      [sic] short periods of time without speaking because father
      disapproved of a relationship in which Dashelle was engaged, it
      appears that neither of them could maintain a lengthy break in
      their relationship. Father provided services for Dashelle, he
      seemed aware of what was occurring in her life and it appears
      Dashelle desired to keep her father in her life as shown by her
      comments to him concerning the Fathers Day holiday just prior
      to her death. More importantly, in her last conscious moments
      Dashelle was shaking her head “no” and not wanting her father


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      to leave her when the hospital nurses had instructed him to do
      so. Father’s grief over the death of his daughter appeared
      genuine and ongoing. When asked, he advised that he visits
      Dashelle’s grave every Sunday, every 17th of the month
      presumably in recognition of the date on which she died, and
      every 23rd of the month for reasons unknown to this Court but
      obviously [sic] to father. Father took it upon himself to become
      obligated to pay the funeral bill and took all the financial risks
      associated with this case in order to bring justice to “those girls
      which [sic] could not escape the building.” Father hired
      attorneys, participated in the case, answered interrogatories,
      completed the questionnaire and appeared for deposition.

      By contrast, mother upon questioning an attorney handling the
      Wrongful Death Action, concluded there would be no money
      and therefore declined to participate in the case. Counsel in the
      wrongful death action determined her lack of participation was
      a positive because mother did not strike him as a sad, grief
      stricken mother. By contrast he described father as an
      individual going through a lot of pain.

      Mother, according to father, did not cry at the hospital and did
      not cry at the funeral home. Mother was heard to wail in the
      courtroom during father’s testimony, but the genuineness of her
      sounds were questioned given how quickly they erupted and how
      quickly they faded when no attention was paid to them.
      Mother’s cold demeanor on the stand seemed odd when one
      considers the magnitude of the loss. The Court is mindful that
      [sic] the fact that everyone grieves in his or her own way. It is
      likely that both of Dashelle’s parents loved her in his or her own
      way. But in terms of loss it is quite apparent that father, as
      opposed to mother, is suffering the greater mental anguish and
      much more keenly feels the loss of this daughter’s
      companionship and society. Father took action to address what
      was done to his daughter, while mother sat back and did
      nothing, not even filling out a questionnaire to assist in gaining
      justice for her daughter. Only when mother was assured that
      there was money to be distributed did she choose to participate.
      The Court believes that this is a sad time for both parents;
      father for what he has lost and mother for the regrets she might


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      have for what might have been. In considering all of the
      foregoing the Court orders the following distribution:

      1. There is a funeral bill owing to Harold Floriana Funeral
      Home, 301 West Tiffin St., Fostoria, Ohio 44830 in the gross
      amount of $8,035.53. Father has paid some toward that debt
      and therefore father shall be reimbursed for any amounts he has
      spent on the funeral and any amount still owing shall be paid
      directly to the funeral home out of the settlement proceeds.

      2. Attorney fees to Attorney Joseph O’Neil and Karen Behm
      shall be paid in the sum of $200,000.00 plus case expenses in the
      sum of $26,973.83. The lien by Medicaid in an amount no
      greater than $125,000.00 shall be paid and if a lesser amount is
      negotiated, the difference between the $125,000.00 and that
      which is actually paid to Medicaid, shall be paid over to
      Dashelle’s father, Wayne Lynch. As to the remaining proceeds
      mother Darlene Clark shall receive the sum of $2,000.00 and all
      of the remainder of the proceeds shall be paid to father, Wayne
      Lynch.

(June 2010 Judgment Entry, pp. 1, 8-10).

      {¶17} It is from this judgment that Darlene appeals, presenting the

following assignments of error for our review.

                           Assignment of Error No. I

      BOTH PARENTS HAVE THE SAME LEVEL OF
      CONSANGUINITY AND THE PRESUMPTION UNDER ORC
      2105.02 [SIC] IS THAT BOTH ARE ENTITLED TO EQUAL
      SHARE OF ANY DISTRIBUTION.

                           Assignment of Error No. II

      THE COURT ABUSED IT’S [SIC] DISCRETION IN
      AWARDING DECEDENT’S FATHER, WAYNE LYNCH
      98.6% OF THE WRONGFUL DEATH PROCEEDS GIVEN
      THE FACTS AND TESTIMONY PRESENTED DURING THE


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         HEARING PROVES BOTH PARENTS HAD SIMILAR
         PATTERNS AND OR TYPES OF RELATIONSHIP [SIC]
         WITH   THEIR  DECEASED  ADULT   DAUGHTER,
         DASHELLE LYNCH.

                                     Assignment of Error No. I

         {¶18} In her first assignment of error, Darlene argues that the trial court

erred in failing to start with a rebuttable presumption that both parents were

entitled to an equal share in the distribution of the wrongful death claim settlement

proceeds.      Specifically, Darlene contends that R.C. 2125.022 establishes that

parents are to share equally in the wrongful death claim proceeds, and that

evidence must be presented establishing one parent did not suffer or suffered less

damages in order to divest that parent of an equal share. We disagree.

         {¶19} An appellate court reviews the trial court’s application of the law de

novo. Heritage Court v. Merritt, 187 Ohio App.3d 117, 2010-Ohio-1711, ¶13;

State v. Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872, ¶79. R.C. 2125.02

governs wrongful death claims and provides, in pertinent part, as follows:

         (A)(1) Except as provided in this division, a civil action for
         wrongful death shall be brought in the name of the personal
         representative of the decedent for the exclusive benefit of the
         surviving spouse, the children, and the parents of the decedent,
         all of whom are rebuttably presumed to have suffered damages
         by reason of the wrongful death, and for the exclusive benefit of
         the other next of kin of the decedent. A parent who abandoned a


2
  We note that Appellant’s brief cites to R.C. 2105.02, not the relevant section R.C. 2125.02. However, we
find this to be a typographical error, and one which Appellant corrected in her reply brief, properly citing
R.C. 2125.02.


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       minor child who is the decedent shall not receive a benefit in a
       civil action for wrongful death brought under this division.

       (2) The jury, or the court if the civil action for wrongful death is
       not tried to a jury, may award damages authorized by division
       (B) of this section, as it determines are proportioned to the
       injury and loss resulting to the beneficiaries described in
       division (A)(1) of this section by reason of the wrongful death
       and may award the reasonable funeral and burial expenses
       incurred as a result of the wrongful death. In its verdict, the
       jury or court shall set forth separately the amount, if any,
       awarded for the reasonable funeral and burial expenses
       incurred as a result of the wrongful death.

       {¶20} R.C. 2125.02(A)(1), (2).

       {¶21} Moreover, R.C. 2125.03 governs the distribution of the proceeds

from a wrongful death claim, and provides, in pertinent part, as follows:

       The amount received by a personal representative in an action
       for wrongful death under sections 2125.01 and 2125.02 of the
       Revised Code, whether by settlement or otherwise, shall be
       distributed to the beneficiaries or any one or more of them. The
       court that appointed the personal representative, except when all
       of the beneficiaries are on an equal degree of consanguinity to
       the deceased person, shall adjust the share of each beneficiary in
       a manner that is equitable, having due regard for the injury and
       loss to each beneficiary resulting from the death and for the age
       and condition of the beneficiaries. If all of the beneficiaries are
       on an equal degree of consanguinity to the deceased person, the
       beneficiaries may adjust the share of each beneficiary among
       themselves. If the beneficiaries do not adjust their shares among
       themselves, the court shall adjust the share of each beneficiary in
       the same manner as the court adjusts the shares of beneficiaries
       who are not on an equal degree of consanguinity to the deceased
       person.

R.C. 2125.03(A)(1).



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         {¶22} R.C. 2125.02(A)(1) provides a rebuttable presumption that the

surviving spouse, children, and parents of the decedent have suffered damages as

the result of the decedent’s death. Heise v. Orra, 8th Dist. No. 66172, 1995 WL

79794.     Nowhere in R.C. 2125.02 or 2125.03 is language which could be

interpreted to provide a rebuttable presumption of equal distribution of the

proceeds, as Darlene contends, and she cites us to no authority finding such

presumption.      On the contrary, the language of R.C. 2125.02(A)(2) and

2125.03(A)(1) indicates that the probate court has the discretion to apportion the

proceeds equitably according to the relative injury and loss suffered by surviving

spouses, parents, and children. See Grand Trunk Western R.R. v. Cothern, 6th

Dist. No. L-93-112, 1995 WL 112908; In re Estate of Marinelli (1994), 99 Ohio

App.3d 372, 377-378, quoting R.C. 2125.03(A)(1) (“R.C. 2125.03 empowers the

probate division to distribute the proceeds of a wrongful death award or settlement

to the beneficiaries. The latter statute directs the probate court to ‘adjust the share

of each beneficiary in such manner as is equitable, having due regard for the injury

and loss to each beneficiary resulting from the death and for the age and condition

of the beneficiaries.’”)

         {¶23} In the case at bar, the trial court analyzed all the evidence and

testimony and made a distribution of the wrongful death claim settlement proceeds

on the basis of what it believed was an equitable apportionment based on the loss



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suffered by both Darlene and Wayne. Consequently, we find that the trial court

properly applied the law as set forth under R.C. 2125.02(A).

      {¶24} Accordingly, we overrule Darlene’s first assignment of error.

                            Assignment of Error No. II

      {¶25} In her second assignment of error, Darlene argues that the trial court

abused its discretion in awarding her only $2,000 of the wrongful death claim

settlement proceeds. Specifically, she contends that the evidence and testimony

presented established that she and Wayne had similar relationships with Dashelle,

and, as such, that the distribution should have also been equal. We disagree.

      {¶26} As set forth in our disposition of Lynch’s first assignment of error,

R.C. 2125.03(A)(1) grants the probate court the discretion to distribute the

proceeds of the wrongful death claim equitably among the beneficiaries. In re

Estate of Werts, 2d Dist. No. 22824, 2009-Ohio-3120, ¶13. Specifically, R.C

2125.03(A)(1) directs the trial court to “adjust the share of each beneficiary in a

manner that is equitable, having due regard for the injury and loss to each

beneficiary resulting from the death and for the age and condition of the

beneficiaries.” See also In re Estate of Coman, 7th Dist. No. 07-MA-181, 2008-

Ohio-2266, ¶16; In re Estate of Barnett-Clardy, 10th Dist. No. 08AP-386, 2008-

Ohio-6126, ¶22. Accordingly, an appellate court cannot overturn the trial court’s

distribution of the proceeds absent an abuse of that discretion. Werts, 2009-Ohio-



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3120, at ¶13. A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-18,

citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of

discretion standard, a reviewing court may not simply substitute its judgment for

that of the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

       {¶27} In the case at bar, the trial court made detailed findings from the

evidence presented during the distribution hearing. Specifically, it relied upon the

testimony presented that Darlene dropped off Dashelle at Wayne’s residence early

in the morning without notifying him; that Darlene consented to granting Wayne

residential parent status and having no visitation with Dashelle unless at

Dashelle’s request; that Darlene was willing to have Dashelle adopted and to

terminate her parental rights; that Darlene had virtually no contact with Dashelle

while she was in high school; that despite Dashelle’s statements to Darlene that

Wayne was not allowing her to visit Darlene, she took no legal action; that

Darlene was not involved in the funeral planning and refused to answer a

questionnaire regarding the wrongful death action despite an attorney’s request;

that Darlene had not been in communication with Dashelle for several months

prior to her death; and, that Darlene was not a “sincere, sad mother.” (Application

for Distribution Hearing Tr., p. 81)



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       {¶28} In contrast, testimony was presented that, during the time period that

Wayne was not the residential parent, he exercised visitation with Dashelle and

provided child support; that he was happy to see Dashelle when Darlene dropped

her off at his residence, and he initiated proceedings to obtain residential parent

status; that he went forward with the wrongful death action despite the chance that

he might be unable to receive a recovery and could be responsible for the

associated legal fees because he “didn’t like the way his daughter died and didn’t

want somebody else to die the same way” (id. at 72); that he planned and paid for

Dashelle’s funeral; and, that there was never a lengthy period of time where he

and Dashelle would not communicate or have contact with each other.

       {¶29} While we recognize that Darlene presented a variety of reasons for

her failures to show care or concern for Dashelle, including that she did not have

the money to pursue visitation rights; that she only suggested having Dashelle

adopted and giving up her parental rights to “call Dashelle’s bluff” (id. at 46); and,

that she did not want to be involved in the wrongful death action because she was

still grieving Dashelle’s death, the trial court was in the best position to judge

witness credibility, State v. Hundley, 3d Dist. Nos. 15-09-10, 15-09-12, 2009-

Ohio-6873, ¶19, and specifically made a finding of Darlene’s cold demeanor while

testifying and the lack of genuineness when she cried during the proceedings.




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       {¶30} Although this case was a difficult one, and this Court may not have

reached the same conclusion as the trial court on the distribution of the wrongful

death claim settlement proceeds, we cannot find that the trial court’s decision was

unsupported by the evidence or grossly unsound.

       {¶31} Accordingly, we overrule Darlene’s second assignment of error.

       {¶32} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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