J-S19032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF TYRELL JOHNSON,

an incapacitated person,

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:

IN THE SUPERIOR COURT OF

PENNSYLVANIA :

: :

: :

APPEAL OF: LARNELL D. MORRISON, Natural Father,

: :

:

Appellant : No. 971 MDA 2013

Appeal from the Decree entered on May 16, 2013 in the Court of Common Pleas of Dauphin County,

Orphans' Court Division, No. 17 OC 2009

BEFORE: PANELLA, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 12, 2014

Larnell D. Morrison (“Morrison”), the natural father of Tyrell Johnson

(“Tyrell”), an incapacitated person, appeals, pro se, from the Decree

approving the Petition for Approval of Estate Planning (“Petition for Estate

Planning”) filed by the Guardian ad litem for Tyrell (hereinafter “the GAL”)

concerning Tyrell’s Estate (“the Estate”), and overruling Morrison’s

Exceptions to the Petition for Estate Planning. We affirm.

The Orphans’ Court set forth the relevant facts and procedural history

underlying this appeal in its Opinion, which we adopt herein by reference.

See Orphans’ Court Opinion, 9/12/13, at 1-8.

Following the GAL’s filing of the Petition for Estate Planning, Morrison

filed a pro se Response to the Petition (“Response”) on March 16, 2013.

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After conducting a hearing on the Petition for Estate Planning (hereinafter

“the hearing”), and considering Morrison’s Response, the Orphans Court

entered a Decree Nisi on April 2, 2013. Morrison timely filed Exceptions

asserting, inter alia, that the estate plan proposed by the GAL (hereinafter

“the Estate Plan”) was improper and inequitable because (1) it afforded

Morrison no share of the Estate; and (2) the GAL failed to provide notice of

the hearing to all parties in interest regarding the Estate Plan.

Subsequently, the Orphans’ Court entered a final Decree on May 16, 2013,

overruling Morrison’s Exceptions, approving the Petition for Estate Planning,

and making the April 2, 2013 Decree Nisi absolute. Morrison timely filed a

pro se Notice of Appeal.

On appeal, Morrison presents the following issues for our review:

1. Did the [Orphans’ C]ourt commit a reversible error in approving the Petition for Estate Planning that

disproportionally favors certain presumptive heirs while

excluding others?

2. Did the [Orphans’ C]ourt commit a reversible error in determining that the [GAL] gave notice to all parties in

interest?

Brief for Appellant at 3 (capitalization omitted).

This Court has explained our deferential standard of review of an

Orphans’ Court’s findings and decree as follows:

The findings of a judge of the [O]rphans’ [C]ourt division, sitting without a jury, must be accorded the same weight and effect as the verdict of a jury, and will not be reversed by an

appellate court in the absence of an abuse of discretion or a lack of evidentiary support. This rule is particularly applicable to

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findings of fact which are predicated upon the credibility of the

witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony. In

reviewing the Orphans’ Court’s findings, our task is to ensure that the record is free from legal error and to determine if the

Orphans’ Court’s findings are supported by competent and adequate evidence and are not predicated upon capricious

disbelief of competent and credible evidence.

When the Orphans’ Court has come to a conclusion through the exercise of its discretion, the party complaining on

appeal has a heavy burden. It is not sufficient to persuade the appellate court that it might have reached a different conclusion

if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the

discretionary power. An abuse of discretion is not merely an

error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record, discretion is

abused. A conclusion or judgment constitutes an abuse of discretion if it is so lacking in support as to be clearly erroneous.

If the lack of evidentiary support is apparent, reviewing tribunals have the power to draw their own inferences and make their own

deductions from facts and conclusions of law. Nevertheless, we will not lightly find reversible error and will reverse an

[O]rphans’ [C]ourt decree only if the [O]rphans’ [C]ourt applied an incorrect rule of law or reached its decision on the basis of

factual conclusions unsupported by the record.

Jerome Markowitz Trust v. Markowitz, 71 A.3d 289, 297-98 (Pa. Super.

2013) (citation, brackets and ellipses omitted).

Morrison first argues that the Orphans’ Court erred by excluding him

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from being a beneficiary under the Estate.1 Brief for Appellant at 10-11.

Additionally, Morrison challenges the Estate Plan to the extent that it

provides that Morrison’s other children shall receive substantially smaller

shares of the Estate than the shares given to Jayden and Justin. Id.

According to Morrison, “[t]his distribution is not only disproportionate, and

not an accurate reflection of Tyrell’s wishes, it is also unjust.” Id. at 11.

Morrison further argues as follows:

There is no suggestion being made that Morrison should

receive an equal share of [the E]state, as [Morrison]

understands and acknowledges that Johnson, as [Tyrell’s] custodial parent, is entitled to a substantially larger share of the

[E]state than [Morrison] is. However, this does not mean that Morrison should receive nothing, as even if the share is small, it

would be more reflective of Tyrell’s wishes than excluding him entirely. The [Orphans’] Court finding Johnson’s testimony [to be] one[-]hundred percent credible, without recognizing or even considering the fact that she stood to benefit exponentially from

the proposed distribution, is a clear error.

Id. at 14; see also id. at 11 (challenging the Orphans’ Court’s credibility

determination regarding Johnson, asserting that the Court should have

“appl[ied] a measure of skepticism to Johnson’s statements regarding

Morrison’s involvement in Tyrell’s life” because she “stood to receive and/or

1 Pursuant to the Estate Plan approved by the Orphans’ Court, upon Tyrell’s death, Tyrell’s biological mother, Melissa Johnson (“Johnson”), would receive 35% of the funds in the Estate. Johnson’s two children, Jayden Johnson (“Jayden”) and Justin Piper (“Justin”), would each receive 20% of the Estate. Under the Estate Plan, Morrison’s other children (Tyrell’s four half-siblings), Angel Hodges Morrison (“Angel”), Danae Morrison (“Danae”), Ly’Niah Strainger (“Ly’Niah”), and Lyre Strainger (“Lyre”) (collectively “Morrison’s other children”), would share 10% of the Estate.

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control a substantial sum of money, and, as a result, … had a vested interest

in portraying her actions in a favorable light, while demonizing Morrison….”).

The Orphans’ Court, in addressing Morrison’s claims in its Opinion, set

forth the applicable law and determined that the Court did not err in

approving the Estate Plan, which excluded Morrison from being a beneficiary

under the Estate. See Orphans’ Court Opinion, 9/12/13, at 8-11. We adopt

the Orphans’ Court’s sound rationale in this regard. See id.

Additionally, we discern no abuse of discretion by the Orphans’ Court

in determining that Morrison’s other children were entitled to a smaller share

of the Estate than Johnson’s children, Jayden and Justin, because the

evidence established that Morrison’s other children were much less involved

in Tyrell’s life. Unlike Morrison’s other children, Jayden and Justin have

resided with Tyrell for their entire lives, and they interact with Tyrell on a

daily basis. N.T., 3/28/13, at 12-13.

Moreover, we decline Morrison’s invitation to disturb the Orphans’

Court’s credibility determination regarding Johnson, as it is improper for an

appellate court to disturb a fact-finder’s credibility determination, and

substitute our judgment for that of the fact-finder, absent an abuse of

discretion. Estate of Brown, 30 A.3d 1200, 1206 (Pa. Super. 2011)

(stating that “[b]ecause the Orphans’ Court sits as the fact-finder, it

determines the credibility of the witnesses and, on review, we will not

reverse its credibility determinations absent an abuse of that discretion.”

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(citation omitted)). We discern no abuse of discretion by the Orphans’ Court

in crediting Johnson’s testimony and determining that the evidence

established that Morrison failed to perform any meaningful parental

responsibilities regarding Tyrell, and was essentially uninvolved in his life.

Based upon the foregoing, we conclude that the Orphans’ Court

properly (1) excluded Morrison as being a beneficiary under the Estate; and

(2) exercised its discretion in awarding a larger share of the Estate to Jayden

and Justin.

Morrison next argues that the Orphans’ Court abused its discretion by

approving the Petition for Estate Planning because the GAL failed to give

proper notice of the Petition, and the hearing thereon, to all parties in

interest. Brief for Appellant at 14-17. Morrison specifically points out that

the GAL did not provide notice to Lyric and Ly’Niah, and, according to

Morrison, the GAL could have located their addresses by conducting “a

simple internet search[.]” Id. at 16. In the alternative, Morrison contends

that the GAL could have effectuated service on Lyric and Ly’Niah by

publication. Id.

In its Opinion, the Orphans’ Court addressed and rejected Morrison’s

claim of improper notice. See Orphans’ Court Opinion, 9/12/13, at 12-13.

Because our review reveals that the Orphans’ Court’s analysis is supported

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by competent evidence of record, we affirm on this basis with regard to this

issue.2 See id.

Accordingly, because we conclude that the Orphans’ Court committed

neither an error of law nor an abuse of discretion, and the Court’s findings

are supported by the record, we affirm the Decree approving the Petition for

Estate Planning and overruling Morrison’s Exceptions to the Petition.

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/12/2014

2 To the extent that Morrison argues that the GAL did not give Morrison

notice of the hearing, see Reply Brief for Appellant at 7, this claim is belied by the record.