[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 514 JOURNAL ENTRY AND OPINION Appellant/cross appellee Julia Miller claims that Probate Court Judge John E. Corrigan erred when he adopted the opinion of Magistrate Charles E. Brown finding her late husband, Lloyd Miller's inter vivos trust valid, and denying her the use of the family home during her lifetime. She maintains that the trust instrument is a contract between a husband and wife concerning the disposition of marital property and void as against public policy. Appellees/cross appellants Gary O. Miller, Kenneth D. Miller, Keith E. Miller and Dale L. Miller assert the only error of the judge was in adopting the magistrate's finding that Mrs. Miller was entitled to the entire balance of a joint and survivorship bank account under which both she and Kenneth Miller survived Mr. Miller. We affirm in part, reverse in part and remand.
Lloyd Miller, then age 47 years, and Julia Dzurinda, then age 51 years, were married on October 4, 1968. Throughout the course of their marriage they resided at 6207 Hampstead Avenue, Parma, Ohio; a home owned by Mr. Miller. A residence, owned by Mrs. Miller prior to her marriage, was located in Hinckley, Ohio. Her son from a previous marriage, Steven Dzurinda, lived there after her marriage, paid the mortgage on the property and paid monthly rent of $250 to Mr. Miller. *Page 515
Mr. Miller had four sons from a previous marriage; Kenneth, Keith, Gary, and Dale. Of these, three were under the age of fifteen in 1968 and lived in the Hampstead Avenue home until reaching adulthood.
Mr. Miller retired from Cleveland Twist Drill in 1981. On December 29, 1993, Mr. and Mrs. Miller each endorsed a Revocable Living Trust and Accompanying Will, prepared by Robert W. Sinkovic who was not a licensed attorney. The trust agreements provided that each would be both settlor and trustee of his own individual trust. The instrument at issue included the following waiver clause signed by Mrs. Miller in the Lloyd G. Miller Trust:
I, the undersigned legal spouse of the settlor (Mr. Miller), hereby waive all community property, dower or courtesy rights which I may have in the hereinabove-described property and give my assent to the provisions of the trust and to the inclusion of said property.
Also included in the trust was an attachment listed as the Schedule of Beneficiaries and Distributive Shares, which included the following:
The Following are the named Beneficiaries of the Lloyd G.Miller Trust as of this 29th day of December, 1993.
2. The property located at 6207 Hampstead Avenue in the City of Parma, State of Ohio, along with the furniture and fixtures is to be distributed as follows;
Julia Miller will have life rights to live in the residence located at 6207 Hampstead Avenue, Parma, Ohio, 44129. She may reside there as long as she lives. She will be responsible for any maintenance expenses such as water, sewer, real estate taxes.
At the time of her death the property will then be sold and distributed to my said below children in equal shares or to the survivor.
3. All power tools and property of the Trust will be distributed to my said below children in equal shares or to the survivor;
Gary O. Miller Kenneth D. Miller Keith E. Miller Dale L. Miller
On December 29, 1993, Mr. Miller endorsed a quitclaim deed that transferred the Hampstead Avenue home to the Lloyd G. Miller Trust. A subsequent quitclaim deed, endorsed October 30, 1995, indicated that Mr. Miller, as Trustee, transferred the Hampstead Avenue property to himself as Trustee of the Lloyd G. Miller Trust Dated 12-29-93. The second deed was endorsed by both Mr. and Mrs. Miller. On January 25, 1996, Mr. Miller transferred title of his 1993 Ford Taurus to the Lloyd G. Miller Trust. On March 15, 1996, Mr. Miller *Page 516 changed his Twist Drill death benefit and retirement beneficiary to name his son Gary.
Mr. Miller died of complications from colon cancer on April 27, 1996. Mrs. Miller, unable to cope with the loss of her husband, was hospitalized two days after his death. Gary Miller then changed the locks of the Hampstead home and Kenneth Miller moved in. Mrs. Miller was diagnosed with dementia and currently resides in her son's home. To date, her total distribution from Mr. Miller's possessions consists of a bed, a dresser and $5,000 as the survivor of a joint and survivorship bank account with Third Federal Savings Loan Association.
Miller's sons received the automobile; approximately $70,000 from their father's Twist Drill Hourly Pension Plan through the Lutheran Brotherhood, and the Hampstead home and its furnishings. Gary and Kenneth were the joint and survivor beneficiaries of a $39,000 Third Federal Savings account while Kenneth withdrew the entire balance of $12,482.22 from a joint and survivorship account #0089034623 at Third Federal Savings in which he and Mrs. Miller were the joint survivors. Gary received the $6,000 Twist Drill death benefit.
On October 6, 1996, Mrs. Miller filed a complaint for declaratory judgment in the Cuyahoga County Court of Common Pleas, Probate Division, alleging four distinct causes of action: (1) the invalidity of the Lloyd G. Miller Trust; (2) a determination of the ownership of the joint and survivorship account with Third Federal Savings, account #0089034623; (3) a determination of her right to possession of the Hampstead Avenue home; and (4) the rightful distribution of the pension fund with Lutheran Brotherhood. Miller's sons filed an answer on October 24, 1996. Third Federal Savings Loan Association and Lutheran Brotherhood were later dismissed from the suit.
A hearing was held before the magistrate on February 23, 1998; Gary Miller, Kenneth Miller, and Steven Dzurinda testified. The magistrate's report was filed on May 21, 1998, and both Mrs. Miller and Gary Miller filed objections. On November 3, 1998, the judge entered an order adopting the magistrate's decision.
Mrs. Miller's first assignment of error states:
I. THE PROBATE COURT ERRED IN DECLARING THE LIVING TRUST, WHICH WAS A CONTRACT BETWEEN LLOYD MILLER AND JULIA MILLER, HUSBAND AND WIFE, TO BE A VALID INSTRUMENT.
Mrs. Miller argues that the Lloyd G. Miller Trust is not a valid trust because: (1) it failed to fully disclose Mr. Miller's assets; (2) the nature of the document is one of a contract between a husband and wife that alters their legal relationship, and thus violates Ohio public policy; (3) the superior party in a fiduciary relationship must prove the validity of a document in which he receives a benefit; *Page 517 and, (4) Robert Sinkovic engaged in the unauthorized practice of law in drafting these documents.
While the first page of Mr. Miller's trust declaration states that he desires to create a revocable trust of the property described in Schedule A hereto annexed, no Schedule A is attached. Mrs. Miller argues that, when she endorsed the waiver of her marital rights, there was no disclosure of what properties were being placed in trust and, therefore, the document was invalid as to a surviving spouse. Mrs. Miller supports her contention by citing In re Mize (1992), 82 Ohio App.3d 97, 611 N.E.2d 460, which involved an antenuptial agreement that listed no property whatsoever. In his brief, Gary Miller counters that Mrs. Miller is mistaken and states that a copy of Schedule A is attached hereto; except nothing is attached hereto to his brief.1
An examination of the trust declaration fails to reveal a page specified as Schedule A but does include one (Pg. 14 of 14) called Schedule of Beneficiaries and Distributive Shares. The Hampstead residence, its furniture and fixtures is identified with Mrs. Miller as a beneficiary, being given the right to live there during her lifetime. Further, Mr. Miller's then-living sons, as beneficiaries, are to evenly divide the proceeds from the sale of the residence after Mrs. Miller's death. Additionally, it specifies that all of Mr. Miller's power tools and property of the trust is to be ultimately divided among his then-living sons. On September 29, 1993, both Mr. and Mrs. Miller signed their trust declarations and a waiver of marital rights to trust property of the other and Mr. Miller endorsed the quitclaim deed transferring the Hampstead property. Mrs. Miller endorsed the second Hampstead quitclaim deed on October 30, 1995. These attendant circumstances are sufficient to place Mrs. Miller on notice of the real estate being transferred to the trust. The eventual transfer of the automobile to the trust would not have to be enumerated in the trust declaration. As with any other property owned by Mr. Miller individually, Mrs. Miller would have no claim to the automobile during coverture.
We turn next to the contention that the trust declaration is against public policy. Mrs. Miller attempts to distinguish this case from the Supreme Court's holding in Smyth v. Cleveland Trust (1961), 172 Ohio St. 489, 179 N.E.2d 60, where a widow was barred from a distributive share of her late husband's inter vivos trust estate. Mrs. Miller's attempt was not successful.
In Dumas v. Estate of Dumas (1994), 68 Ohio St.3d 405,627 N.E.2d 978, syllabus, the Supreme Court reaffirmed its holding inSmyth, stating that: *Page 518
A valid, nontestamentary trust executed by a settlor and in existence at the time of his or her death bars the settlor's spouse from claiming a distributive share in the trust assets under the statutes of descent and distribution, even though the settlor is the trustee, derives all income from the trust, and reserves the rights to revoke or amend the trust and to withdraw and deposit assets.
As for Mrs. Miller's remaining arguments, Dumas is controlling on the argument claiming the burden of proof on the validity of the trust rests upon Mr. Miller's trustee. Further, while we agree that Sinkovic violated R.C. 4705.01 and undoubtedly profited from the unauthorized practice of law, the subject matter of the trust declarations is legal and Mr. Miller executed a valid inter vivos trust in which he was both the settlor and the trustee. The Lloyd G. Miller Trust is a valid instrument through which he could circumvent the dower rights of his wife, and this assignment of error is overruled.
Mrs. Miller's second assignment of error reads:
II. THE COURT ERRED IN NOT AWARDING RELIEF TO JULIA MILLER CONCERNING OCCUPANCY OF THE MANSION HOME.
Mrs. Miller argues that she was improperly ousted from the Hampstead home under both the terms of the trust and R.C. 2106.15, which grants her either an unconditional right to live in the marital residence, or, if the home is to be occupied by someone else, the fair market rental value during that time period. Gary Miller counters that she voluntarily abandoned the property, has not maintained the property as required under the trust and, more importantly, did not object to the magistrate's decision on the subject.
Pursuant to Civ.R. 53(E)(3)(b), "A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule." By failing to object to an element of a magistrate's decision, an appellant ordinarily waives his right to challenge it. See Maiher v. Maiher (Aug. 20, 1997), Medina App. No. 2644-M, unreported; Lewis v. Savoia (Aug. 28, 1996), Summit App. No. 17614, unreported.
Gary Miller is correct that this alleged error was not brought to the judge's attention and that this court need not consider the alleged error. See State v. Williams (1977), 51 Ohio St.2d 112,364 N.E.2d 134: Johnson v. English (1966), 5 Ohio App.2d 109,214 N.E.2d 254. Need not, however, does not mean cannot.
We are empowered to review a claim of error such as this under the doctrine of plain error. *Page 519
[A]lthough in criminal cases "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court," Crim.R. 52(B), no analogous provision exists in the Rules of Civil Procedure. The plain error doctrine originated as a criminal law concept. In applying the doctrine of plain error in a civil case, reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209, 24 O.O.3d 316, 317, 436 N.E.2d 1001, 1003; LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 124, 512 N.E.2d 640, 643; Cleveland Elec. Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 275, 18 OBR 322, 327-328, 480 N.E.2d 794, 800.
Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 121,679 N.E.2d 1099, 1103.
The failure to object to the magistrate's silence on Mrs. Miller's life interest in the Hampstead Avenue property, the magistrate's omission of a ruling on this issue, and the judge's failure to recognize this oversight is plain error. This oversight may be understandable had the record been devoid of discussion concerning this issue, but the record is replete with examples, including testimony from Mrs. Miller's son about the locks on the residence being changed to prevent access by him or his mother.
This assignment of error is sustained, and this cause is remanded to the judge to determine Mrs. Miller's rights to the Hampstead home during her lifetime.
Gary Miller cross-assigns one assignment of error:
I. THE TRIAL COURT ERRED WHEN IT AFFIRMED THE REPORT OF THE MAGISTRATE WHICH ORDERED THE DEFENDANTS TO PAY PLAINTIFF $12,482.22 FROM THIRD FEDERAL SAVINGS AND LOAN ACCOUNT.
Gary Miller contends that because Mr. Miller contributed all the money in the account of which Kenneth Miller and Mrs. Miller were joint survivors, the money should be divided equally between the two. Mrs. Miller maintains that she is entitled to all the money in the account because Kenneth Miller failed to make a single contribution into it.
The Ohio Supreme Court determined in Wright v. Bloom (1994),69 Ohio St.3d 596, 635 N.E.2d 31, paragraph two of the syllabus, that:
The opening of a joint and survivorship account in the absence of fraud, duress, undue influence or lack of capacity on the part of the decedent is conclusive evidence of his or her intention to transfer to the surviving party or *Page 520 parties a survivorship interest in the balance remaining in the account at his or her death. (In re Estate of Thompson [1981], 66 Ohio St.2d 433, 20 O.O.3d 371, 423 N.E.2d 90, paragraph two of the syllabus, overruled.)
See, also, In re Estate of Mayer (1995), 105 Ohio App.3d 483, 486,664 N.E.2d 583, 585 (the establishment of a joint and survivor bank account(s) demonstrates decedent's intent for co-owner(s) to have money in account(s) upon decedent's death.)
It was error to affirm the magistrate's decision finding Mrs. Miller was entitled to the entire account balance. The magistrate relied on paragraph two of the syllabus of In re Thompson (1981),66 Ohio St.2d 433, 423 N.E.2d 90, specifically overruled by Wright,supra. The magistrate incorrectly determined that the survivors of a joint and survivorship account are entitled to the proceeds in the amount each individually contributed. He reasoned, therefore, that Mrs. Miller was entitled to the entire balance because Kenneth Miller admitted he had contributed nothing to the account.
Under the holding in Wright, supra, the creation of this joint survivorship account by Mr. Miller evidenced an intention that both Mrs. Miller and his son receive a survivorship interest. The record below does not reveal the source of the $12,000 deposited in the account on July 13, 1995, save for Mr. Miller's name heading the list of account holders. Absent evidence that Mrs. Miller contributed to that initial deposit, as one of two survivors, she would be entitled to no more than one-half of the balance in the account on the date of Mr. Miller's death. It was error to adopt the decision of the magistrate that Kenneth Miller had no survivorship interest in the balance of Third Federal Savings Loan account # 0089034623. Gary Miller's cross-assignment of error is sustained.
Accordingly, this case is remanded for a determination of the distribution of the Third Federal Savings Loan Association account # 0089034623, and of Mrs. Miller's rights to the use of the Hampstead Avenue home.
Judgment affirmed in part, reversed in part, and remanded.
It is ordered that the parties bear their own costs herein taxed.
This court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
_______________________ JUDGE, ANNE L. KILBANEJOHN T. PATTON, P. J., CONCURRING SEPARATELY; LEO M. SPELLACY, J., CONCURRING IN JUDGMENT ONLY WITH SEPARATECONCURRING OPINION.
1 We surmise Gary Miller meant to attach the Schedule of Beneficiaries and Distributive Shares.
CONCURRING OPINION