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In re Estate of Kinder6/12/1998
s pursuant to Civ.R. 12(B)(6), which the trial court subsequently granted.
The Revised Code, however, allows for removal of an administrator in a few limited circumstances. For example, R.C. 2109.24 allows the probate court to remove a fiduciary for wrongful or negligent conduct. R.C. 2109.53 requires a court to remove a fiduciary after a judgment has been rendered against him for concealment or embezzlement of estate assets. In addition, R.C. 2113.18 states, in relevant part, that the probate court may remove an administrator upon motion of the decedent's children when it has been determined that a wrongful death action should have been filed on behalf of the deceased. None of these circumstances applies here. We therefore find that the trial court acted inappropriately by granting appellee's motion to dismiss Ralph Kinder, Jr. as administrator and determining heirship without following the above-mentioned procedure.
Moreover, the foregoing practice led to further error in that the trial court summarily disposed of the case at the May 5, 1997 pretrial conference. Ralph Kinder, Jr. was never afforded the benefit of a hearing on the issue of heirship. Although the language of R.C. 2123.05 does not require that such a hearing be conducted, we find that the trial court erred in failing to do so in this case.
The question of whether Ralph Kinder, Jr. is an heir of Ralph Kinder, Sr. depends upon whether the parent/child relationship has been established pursuant to Michigan paternity law within the relevant statutory time limitations. This question could not properly be answered by an Ohio probate court without the benefit of a full hearing on all of the evidence and an adequate examination of the pertinent Michigan law.
The trial court in this case, however, disposed of the case after a brief examination of only two documents: the 1957 divorce decree establishing paternity of Regina Plylar and the 1963 child support order that had no affect on heirship, as it was silent on the issue of paternity. Appellant has argued that with more time to prepare he could have obtained existing records that may tend to prove his case if not for the trial court's rush to end this matter.
Based upon the foregoing, we find that the trial court erred in failing to follow the procedures for determination of heirship as set out in R.C. Chapter 2123 and that the procedure the trial court did follow, taken as a whole, prejudiced Ralph Kinder, Jr., thereby denying him due process of law.
Appellant's first assignment of error is sustained.
Appellant asserts the following as his second assignment of error:
"The trial court's ruling that Kinder, Jr. could not inherit from decedent was in error because the parent-child relationship was established in Michigan during decedent's lifetime and, therefore, entitled to Full Faith and Credit by the Ohio Courts."
Ralph Kinder, Jr. argues extensively in both of his appellate briefs that the Ohio court should have applied Michigan paternity law to this case in order to determine whether the parent/child relationship had been established between himself and Ralph Kinder, Sr. We agree with this contention.
The Supreme Court of Ohio has stated in Howells v. Limbeck (1961), 172 Ohio St. 297, 16 O.O.2d 68, 175 N.E.2d 517, paragraph one of the syllabus:
" he question whether act will have the effect of legitimating the child will be determined by the law of the domicile of the father at the time of the performance of the act, to the exclusion of any other law."
It is undisputed that Ralph Kinder, Sr. continued to reside in Wayne County, Michigan, for
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