[Cite as In re Estate of Holmes, 2019-Ohio-1584.]


                                       COURT OF APPEALS
                                    MORROW COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 IN THE ESTATE OF:                                  JUDGES:
                                                    Hon. William B. Hoffman, P.J
         PATTY A. HOLMES                            Hon. Patricia A. Delaney, J.
         (Deceased)                                 Hon. Craig R. Baldwin, J.

                                                    Case No. 18CA0006


                                                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                          Appeal from the Morrow County Court of
                                                    Common Pleas, Probate Division, Case
                                                    No. 2016 EX 18405



 JUDGMENT:                                          Affirmed in part, and Reversed and
                                                    Remanded in part

 DATE OF JUDGMENT ENTRY:                            April 22, 2019


 APPEARANCES:


 For Plaintiff-Appellant                            For Defendant-Appellee

 MINDY K. YOCUM                                     JOHN S. DILTS
 7652 Sawmill Road, Ste. 263                        28 South Park Street
 Dublin, Ohio 43016                                 Mansfield, Ohio 44902
Morrow County, Case No. 18CA0006                                                                        2

Hoffman, P.J.
        {¶1}    Appellant Jeanette Holmes appeals the May 23, 2018 Journal Entry entered

by the Morrow County Court of Common Pleas, Probate Division, which ordered her to

pay Appellee Donald Holmes $93,349.00.

                                   STATEMENT OF THE FACTS AND CASE

        {¶2}    Appellant and Appellee are the adult children of Patty A. Holmes

("Decedent"). Decedent died on April 20, 2008. Decedent's Last Will and Testament

provided all of her tangible personal property be equally divided between Appellant and

Appellee. Pursuant to the Will, all residue of the Estate was to be divided equally between

Decedent's two children.

        {¶3}    On April 4, 2016, Appellant filed an Application to Probate Will and an

Application for Authority to Administer Estate, requesting she be appointed as fiduciary.

Although named as a co-fiduciary, Appellee initially declined to serve due to health issues.

On June 17, 2016, the trial court appointed Appellant as fiduciary. In a correspondence

dated July 10, 2016, and filed July 14, 2016, Appellee requested the trial court appoint

him as co-executor, explaining he was well enough to fulfill the role.

        {¶4}    The trial court conducted a hearing on August 31, 2016.1 Appellant advised

the trial court there were only four tangible or intangible Estate assets, consisting of

certain asbestos claims which could have been asserted prior to Decedent's death or

should have be asserted shortly after her passing. Appellee indicated there were at least

three other possible Estate assets, to wit: a mobile home located at 7394 St. Rt. 97, Lot

108, Mansfield, Ohio, which has been occupied by Appellant since Decedent's death; a


1The facts set forth in the instant paragraph are taken from the trial court’s May 23, 2018 Journal Entry,
which sets forth a Case History. See p.4 of 5/23/18 Journal Entry.
Morrow County, Case No. 18CA0006                                                          3


2003 Pontiac Vibe, which has been driven exclusively by Appellant since Decedent's

death; and possible bank accounts which Appellant may have transferred to herself

following Decedent's death. Appellee also informed the trial court he had been compelled

to seek a judgment against Appellant in the Morrow County Municipal Court for her portion

of Decedent's funeral expenses, which Appellee had paid in full.

       {¶5}   An Amended Inventory and Accounting was approved on January 25, 2017.

The Amended Inventory included a date of death valuation of $10,500.00 for the 2003

Pontiac Vibe and a date of death valuation of $4,000.00 for the mobile home. The case

moved slowly as issues were resolved and others came to the forefront. Appellant

asserted she should receive an offset or claim for insurance premiums, real estate taxes,

utility bills, lot rent, and other costs she incurred. Appellant had exclusive and sole use

of Decedent's property throughout the course of the proceedings. Appellee filed a claim

for reimbursement from the Estate of $775.00 as monthly rent on the mobile home and

$150 as weekly car rental, as well as one half of the funeral and cemetery expenses

totaling $3,098.00, which he paid in full.

       {¶6}   The trial court conducted a hearing on April 16, 2018, on the two remaining

issues, to wit: the fair market rental value of the mobile home and the fair market value of

the Pontiac Vibe. Via Journal Entry filed May 23, 2018, the trial court ordered the value

of the mobile home and the automobile as well as the remaining balance of the Estate

assets in the amount of $11,350.30 be divided equally. However, the trial court ordered

the amount due to Appellant be offset by $91,800.00. The trial court arrived at this figure

by determining a fair rental value of $18,360.00/year for the Decedent's mobile home, its

contents, and the automobile ($10,560.00 for the mobile home and $7,800.00 for the
Morrow County, Case No. 18CA0006                                                      4


vehicle) multiplied by 10, the number of years Appellant had control and use of the

property, then divided by 2 for the two Estate beneficiaries. The trial court ordered

Appellant to pay Appellee $1,549.00, one half of the funeral and cemetery expenses.

      {¶7}   It is from this judgment entry Appellant appeals, raising the following

assignments of error:



             I. THE TRIAL COURT'S DETERMINATION THAT $500.00 IS THE

      APPROPRIATE BASE MONTHLY RENTAL VALUE FOR THE MOBILE

      HOME WAS NOT BASED ON SUBSTANTIAL EVIDENCE.

             II. THE TRIAL COURT'S DETERMINATION THAT $150.00 IT HE

      [SIC] APPROPRIATE BASE WEEKLY RENTAL VALUE FOR THE

      PONTIAC VIBE IS NOT BASED ON SUBSTANTIAL EVIDENCE.

             III. THE TRIAL COURT ERRONEOUSLY DETERMINED, DURING

      THE FINAL HEARING, THAT APPLIANCES SHOULD ALSO BE AN ISSUE

      FOR RENTAL VALUE WITHOUT NOTICE TO THE PARTIES.                        IN

      FURTHER       ERROR,     THE    BASE     MONTHLY      RENTAL      VALUE

      CALCULATED FOR THESE APPLIANCES IS NOT BASED ON

      SUBSTANTIAL EVIDENCE.

             IV. THE TRIAL COURT ERRONEOUSLY DETERMINED THAT MS.

      HOLMES SHALL BE RESPONSIBLE FOR ONE-HALF OF THE

      DECEDENT'S FUNERAL EXPENSES; HOWEVER, THIS MATTER HAS

      ALREADY BEEN LITIGATED THROUGH SMALL CLAIMS WITH A

      JUDGMENT TO MR. HOLMES. THUS, THE TRIAL COURT ERRED IN
Morrow County, Case No. 18CA0006                                                            5


       MAKING THAT DEBT A MATTER FOR THIS COURT.



                                                    I, II

       {¶8}    We choose to address Appellant’s first and second assignments of error

together.     In her first assignment of error, Appellant contends the trial court’s

determination $500.00 was an appropriate base monthly rental value for the mobile home

was not based upon substantial evidence. In her second assignment of error, Appellant

submits the trial court’s determination $150.00 was an appropriate base weekly rental

value for the Pontiac Vibe also was not based upon substantial evidence. As best we

can determine, Appellant appears to argue the trial court's determinations as to the rental

values are against the manifest weight of the evidence.

       {¶9}    We note Appellant failed to file a transcript of the April 16, 2018 hearings in

this Appeal as required by App.R. 9(B). When portions of the transcript necessary for

resolution of assigned errors are omitted from the record, the reviewing court has nothing

to pass upon and thus, as to those assigned errors, the court has no choice but to

presume the validity of the lower court's proceedings, and affirm. Knapp v. Edwards Lab.,

61 Ohio St.2d 197, 400 N.E.2d 384 (1980). Because Appellant has failed to provide this

Court with a transcript, we must presume the regularity of the proceedings below and

affirm. It is the duty of an appellant to ensure the record, or whatever portions thereof are

necessary for the determination of the appeal, are filed with the court in which he seeks

review. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 19, 520 N.E.2d 56 (1988).

       {¶10} Appellant’s first and second assignments of error are overruled.
Morrow County, Case No. 18CA0006                                                         6


                                                III

       {¶11} In her third assignment of error, Appellant asserts the trial court erred in

determining, during the final hearing and without notice to the parties, the appliances

should be included in calculating the rental value, and the value placed assigned to the

appliances was not based upon substantial evidence.

       {¶12} As there is no transcript of the April 16, 2018 hearing, this Court has no way

of determining whether Appellant objected to the admission of testimony and/or evidence

regarding the value of the appliances. Without evidence she objected, Appellant has

failed to properly preserve the issue she now assigns as error on appeal. See Hudson v.

P.I.E. Mut. Ins. Co., 10th Dist. No. 10AP–480, 2011–Ohio–908, ¶ 12, quoting Gentile v.

Ristas, 160 Ohio App.3d 765, 2005–Ohio–2197, ¶ 74 (10th Dist.) We must presume

regularity of the trial court's proceedings and conclude the testimony and/or evidence

supported the trial court’s findings with respect to the value of the appliances.

       {¶13} Appellant’s third assignment of error is overruled.

                                                IV

       {¶14} In her final assignment of error, Appellant maintains the trial court erred in

determining she was responsible for one-half of Decedent’s funeral expenses as the

matter had already been litigated in Morrow County Municipal Court, which resulted in a

judgment in favor of Appellee, arguing the doctrine of res judicata barred further action

by the trial court.

       {¶15} As set forth in ¶4, supra, the trial court noted, in its May 23, 2018 Journal

Entry, Appellee sought a judgment in Morrow County Municipal Court against Appellant

for her half of Decedent’s funeral expenses.          The trial court found the funeral and
Morrow County, Case No. 18CA0006                                                           7


cemetery expenses totaled $3,098.00, which Appellee had paid in full. The trial court

ordered Appellant to pay Appellee $1,549.00, as reimbursement for her share of said

expenses.

       {¶16} Appellant claims the Morrow County Municipal Court granted judgment in

favor of Appellee and against her in the amount of $880.59, specifically for the funeral

expenses. In support of her position, Appellant attached Exhibit G to her Brief to this

Court. Exhibit G is a copy of an October 13, 2009 Decision issued by the magistrate of

the Morrow County Municipal Court, which awards judgment in favor of Appellee and

against Appellant in the amount of $880.59.

       {¶17} We are unable to ascertain from the magistrate’s decision the nature of the

underlying claim(s) upon which judgment was granted to Appellee. As discussed, supra

Appellant failed to file the transcript which could provide a context for this decision;

therefore, we cannot determine whether the $880.59 awarded to Appellee in the October

13, 2009 Decision was for reimbursement of the funeral expenses. Although we find the

trial court did not err in considering this claim, we reverse the judgment of the trial court

as to the amount owed by Appellant to Appellee for reimbursement of Decedent’s funeral

expenses. The trial court is ordered to determine whether the October 13, 2009 Decision

issued by the Muskingum County Municipal Court is a judgment for the funeral expenses.

If the trail court so determines, the trial court should offset that amount against its order

Appellant pay Appellee $1,549.00 as reimbursement for her share of said expenses.
Morrow County, Case No. 18CA0006                                                        8


      {¶18} Appellant’s fourth assignment of error is sustained.

      {¶19} The judgment of the Morrow County Court of Common Pleas, Probate

Division, is affirmed, in part, and reversed, in part. The matter is remanded to the trial

court to determine the amount owed by Appellant to Appellee for reimbursement of

Decedent’s funeral expenses.




By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur
