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In re Estate of Kinder6/12/1998
he meaning of the 1963 child support order. On June 3, 1997, the Michigan court stated that the 1963 order pertained only to the issue of support and "does not affect the issue of inheritance." Moreover, the court declared that appellant's birth certificate, the 1963 child support order, and the fact that Ralph Kinder, Sr. paid child support for approximately sixteen years comprised prima facia evidence of paternity under Michigan law. Nonetheless, because it was called upon only to interpret the 1963 order, the Michigan court did not issue a new order stating that a parent/child relationship had been established between appellant and Ralph Kinder, Sr.
Based upon the finding of the Michigan court, appellant then filed a motion for reconsideration of the trial court's June 4, 1997 decision. This court sua sponte remanded Ralph Kinder, Jr.'s appeal in order for the trial court to rule on the pending motion.
On January 7, 1998, the trial court issued its decision and overruled appellant's motion despite the finding of the Michigan court. Particularly, the trial court stated:
"Ralph L. Kinder, Jr. may be able to prove that he is the natural son of Ralph L. Kinder, Sr. Indeed, Michigan has determined the birth certificate to be PrimsFacie evidence of paternity; however, due to the statutes of limitations on paternity actions, which specifically apply to an heirship proceeding, there is no legal way to accomplish that proof."
On January 13, 1998, appellant filed an appeal to the trial court's latest judgment on the Civ.R. 60(B) motion. Ralph Kinder, Jr.'s appeal of the June 4, 1997 judgment was still pending as well. Both cases are now before this court, and both raise similar assignments of error for our review.
Appellant asserts the following as his first assignment of error:
"The trial court erred in granting what amounted to a `summary judgment' that Ms. Plylar was decedent's sole heir at law."
Although not clearly stated in the assignment of error, appellant essentially argues that the trial court erred in disposing of the case without following the established procedures set forth in R.C. Chapter 2123. We agree.
R.C. 2123.01 states in part:
"Whenever property passes by the laws of intestate succession proceedings may be had in the probate court to determine the persons entitled to such property."
R.C. 2123.02 states:
"In a situation described in section 2123.01 of the Revised Code, the executor or administrator may file in the probate court of the county where the estate is being administered a petition signed by such * * * administrator * * *. The petition shall contain a concise statement of the pertinent facts and shall conclude with a prayer for the determination of the heirs and distributees of such decedent * * *."
In addition, R.C. 2123.06 allows any other interested person to file a petition for the determination of heirship. Furthermore, R.C. 2123.05 states that " t the time assigned for the hearing of a proceeding set forth under section 2123.01," the probate judge may hear evidence in open court concerning the determination of heirship.
In the case sub judice, the trial court failed to follow any of the procedures set forth in the foregoing statutes. Because appellee questioned appellant's status as Ralph Kinder, Sr.'s legal heir, appellee should have filed a petition pursuant to R.C. 2123.06 to request the trial court to determine heirship. Appellee, however, ignored R.C. 2123.06 and attempted to procure an immediate removal of appel-
lant through the filing of a motion to dismis
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