Marcinkevicius v. Galloway

Summary

The Ohio Eighth District Court of Appeals affirmed a probate court’s appointment of a neutral successor trustee for the Gary L. Bryenton Trust. The court held that the probate court followed the statutory order of priority, properly addressed the alleged appointment by Barbara Bryenton, and did not abuse its discretion by deciding the matter based on the existing record without sworn testimony.

Holdings

1. The probate court acted within its equitable and statutory authority to appoint a successor trustee and complied with the statutory order of priority because Galloway did not designate a successor, the beneficiaries did not unanimously agree, and Barbara did not effectively exercise the appointment power after the court struck her purported notice.
2. The probate court did not abuse its discretion by deciding the appointment on the filings and record before it without sworn testimony because the parties had notice and an opportunity to present evidence, elected not to do so, and identified no authority requiring sworn evidence or a particular evidentiary hearing.
3. The order appointing an independent successor trustee was a final, appealable order because it arose in a special proceeding, affected a substantial right, determined the action, and prevented a judgment.

Questions Presented

1. Whether the probate court erred or abused its discretion by appointing a neutral successor trustee rather than recognizing Barbara Bryenton's purported appointment of herself and Elisabeth Bryenton under the trust instrument and R.C. 5807.04(C).
2. Whether the probate court erred or abused its discretion by relying on unsworn allegations and conducting a brief hearing without sworn testimony or other introduced evidence.

Disposition

affirmed