Bayes v. Dornon

• Decision Date: 31 July 2015
• Docket Number: No. 2014–CA–129.,2014–CA–129.
• Citation: 37 N.E.3d 181
• Parties: Penny L. BAYES, et al., Plaintiffs–Appellees v. Leon E. DORNON, Jr., et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

37 N.E.3d 181

Penny L. BAYES, et al., Plaintiffs–Appellees
v.
Leon E. DORNON, Jr., et al., Defendants–Appellants.

No. 2014–CA–129.

Court of Appeals of Ohio, Second District, Clark County.

July 31, 2015.

37 N.E.3d 183

Paul J. Kavanagh, Springfield, OH, for Plaintiffs–Appellees.

Edward A. Frizzell, Springfield, OH, for Defendants–Appellants.

OPINION

WELBAUM, J.

{¶ 1} In this case, Defendant–Appellant Leon Dornon, Jr., appeals from a judgment entered after a bench trial, finding him guilty of having concealed or embezzled assets. In support of his appeal, Dornon contends that the trial court lacked subject matter jurisdiction without finding that an inter vivos gift from Leon Dornon, Sr. was invalid. Dornon also contends that the trial court's decision was against the manifest weight of the evidence.

{¶ 2} We conclude that the trial court had jurisdiction over this matter. Although property that passes by an inter vivos gift or transaction is not property of an estate retrievable by an executor under R.C. 2109.50, a probate court can decide that the inter vivos gift or transaction was invalid, in which case the property is an asset of the estate retrievable by R.C. 2109.50. We further conclude that the trial court's decision, finding Dornon guilty of concealment or embezzlement, was not against the manifest weight of the evidence. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In 2011, Leon Dornon, Sr. was diagnosed with lymphoma.¹ Shortly after his diagnosis, he consulted with the law firm of Daniels and Jeffries to have a will and trust created. Junior accompanied his father to the attorney's office. At that time, Junior learned that Senior had over $300,000 in assets. Senior had worked as a carpenter during his lifetime, was very thrifty, and saved a lot of money. Senior had only attended school through the sixth grade. He was 79 when he died on October 8, 2013.

{¶ 4} In July 2011, Senior signed a Revocable Living Trust Agreement (“Trust”), which designated Senior as the settlor and trustee. The Trust named Junior as the successor trustee upon the resignation, incompetency, or death of the trustee. According to Article I of the Trust, the property in the trust consisted of the items described in Schedule A, which included “Household Goods and Furniture and all other tangible personal property.” Trial Ex. B, pp. TA35 and TA51.² After the settlor's death, the trust became irrevocable.

{¶ 5} Senior had five living children. Upon his death, the balance of the trust

37 N.E.3d 184

was to be divided into equal shares for four of the children: Junior; Penny Bayes; Jimmy Dornon; and Rita Sheeley. No provision was made for the remaining child, Brenda Wiley, because she had ample property of her own. The shares of Jimmy and Penny were also to be reduced by $5,400 and $5,300, respectively, because of loans that Senior had made to them.

{¶ 6} Senior's will, also signed in July 2011, named Junior executor of the will. In July 2011, Senior also signed several other documents, including: a durable power of attorney naming Junior his attorney-in-fact immediately for financial transactions; a living will naming Junior as his health-care agent; and a State of Ohio Living Will Declaration. Junior knew from the beginning that he was the successor trustee for the trust, and also knew he had the power of attorney for his father's health. However, he claimed that he was unaware of the financial power of attorney.

{¶ 7} When these documents were signed, Senior was given instructions by his attorney about transferring property into the trust, including adding payable on death (POD) instructions to his financial accounts. However, he did not do so until shortly before his death.

{¶ 8} Senior's daughter, Penny Bayes, testified that she quit work after Senior was diagnosed in 2011, in order to take care of him. At that time, Senior was residing in his own home. Bayes stated that she took care of her father in 2011, 2012, and into 2013. The time Bayes spent with her father decreased a bit when it appeared he was in remission. During Senior's illness, Junior took Senior to doctor's visits. Neither Bayes nor Junior discussed their father with each other, as communication between them was poor and they rarely saw each other.

{¶ 9} Junior and his wife, Teresa, had significant financial problems, apparently largely caused by gambling. At some point after the trust and other documents had been signed, Junior obtained $20,000 from his father because the home in which Junior and Teresa lived was in foreclosure.³ Junior's testimony about this money was conflicting. At times he described it as a loan and at other times he said it was not a loan. He also contradicted himself about repayment. He stated in his deposition that he had paid some of the money back in cash about once a week. He could not recall how long the payments went on or exactly how much he had paid back. Deposition of Leon Dornon, Jr., pp. 124–125. However, at trial, Junior stated that while he had attempted to pay his father back, Senior said not to worry about it and never accepted repayment. Transcript of Proceedings, p. 110.

{¶ 10} By May 2013, Teresa's property was in foreclosure again, and Teresa had filed a bankruptcy petition. A foreclosure sale was scheduled for December 2013. In late August 2013, Senior's condition had worsened significantly, and he was moved into Junior's home on August 30, 2013. Hospice care started the next day.

{¶ 11} Junior did not notify any of his siblings for two weeks that his father was in his home. Around the middle of September, Junior went to Bayes' home and told her. Thereafter, Bayes and other siblings were able to visit Senior, but there was friction among the siblings, and Bayes stated that she felt unwelcome in Junior's home. When Bayes visited, Senior told her that he wanted to go to his own home. He also told this to another sister and to Hospice personnel. Bayes and her sister offered to stay with their father in his own home, but Junior would not allow it.

37 N.E.3d 185

{¶ 12} A hospice evaluation done on August 30, 2013, indicates that Senior's primary diagnosis was acute leukemia, with a secondary diagnosis of lymphoma, stage 3. He had been diagnosed as having a “life-limiting illness with a life expectancy of six months or less.” Ex. G, p. CMH19.

{¶ 13} An assessment on September 4, 2013, indicated that Senior was oriented to person and place, but was forgetful and lethargic.⁴ Junior indicated to Hospice personnel that Senior was sleeping most of the time. At that time, Senior expressed desire to have a blood transfusion for symptom management. Senior had a transfusion on September 5, 2013.

{¶ 14} On September 16, 2013, Senior's caregiver, Teresa, reported that Senior had been more alert after receiving a transfusion, but was now becoming more restless. At that time, Senior was unable to state the date, year or president, and was disoriented/confused and lethargic. He also was “not eating but a few bites but will drink liquids if assisted.” Id. at CMH59. On September 18, 2013, Trimble again described Senior as alert as to person, but disoriented/confused and lethargic. At the time, Senior was retaining urine, was only taking bites of food, and was having difficulty swallowing pills and food. Trimble inserted a catheter and left it in place.

{¶ 15} The next day, on September 19, 2013, Senior had a temperature of 101.2 degrees, was not eating, and was “in and out of sleep.” Id. at CMH71. On September 20, 2013, Senior was alert to person, but was disoriented/confused and lethargic. His temperature was 102 degrees, and Teresa reported that he was sleeping most of the time. At that time, Trimble indicated that Senior was “able to open eyes to verbal stimuli but is confused, quickly falls asleep.” Id. at CMH81.

{¶ 16} According to Trimble, Teresa stated during this visit that Junior did not want his father to have any more blood transfusions, as this would be difficult for Senior. Trimble did not discuss this with Senior that day, or subsequently. She indicated that she always asks the patient first about transfusions, if she is able to get a response. Trimble inserted a Tylenol suppository on September 20, 2013, and instructed Teresa that Tylenol was in the care kit that Hospice had provided. During this visit, Trimble was also informed about a family member (Bayes) having called the sheriff's department because of concerns about whether Senior was being cared for appropriately. Junior instructed Hospice not to release any information to Bayes.

{¶ 17} September 20, 2013, was a Friday. The notes indicate that Trimble left Junior's home that day around 12:45 p.m. According to Junior, Senior asked Teresa that afternoon to call Huntington Bank because he had to do a POD. Junior stated that even though he was getting his father's mail, he did not open it and had no idea where Senior had assets or the amount of the assets. After Teresa called Huntington Bank, an individual from that bank came to the house on Friday after work, and allowed Senior to sign a POD for the Huntington account.

{¶ 18} Teresa also called WesBanco Bank, Inc. (“WesBanco”) on...