Friday, March 18, 2005
No hearing date on the motion has been set.
YOUNGSTOWN -- A lawyer for National City Bank has filed a contempt motion in the 7th District Court of Appeals against Judge Timothy P. Maloney of Mahoning County Probate Court.
In an unrelated matter Thursday, the appellate court sent a case back to the judge because of errors he made.
Atty. Richard J. Thomas filed the motion for a contempt hearing before the appellate judges earlier this week.
Thomas contends Judge Maloney defied a 2002 appellate court ruling to grant NCB fees for maintenance of certain trust and guardianship accounts. Judge Maloney had denied the fees and made the bank repay the fees and 10 percent interest it previously had taken.
The appellate court ruled that Judge Maloney abused his discretion in denying the NCB fees, and sent the matter back to the judge for a hearing on the appropriate amount of fees minus a reasonable discount for NCB's errors, Thomas wrote.
The lawyer says in his motion that 26 months after the appellate court's ruling, Judge Maloney put out a judgment entry that disregarded the appellate court mandate, again denying the fees.
Thomas argued the probate court has no discretion to disregard the appellate court mandate, and that the appellate court has the authority to enforce its order to Judge Maloney.
The appellate court has not set a hearing date on Thomas' show-cause motion for contempt.
Estate accounting
The court did send back to Judge Maloney for a new hearing a case involving the guardianship and estate of a Youngstown woman.
A probate court magistrate ruled that Alvin J. Weisberg, director of Jewish Family Services, be required to pay the estate of Bertha Brockman $11,567. Judge Maloney upheld that ruling without having a hearing, which Weisberg, through his lawyers, contended would deprive him of his money without due process.
Bertha Brockman had Alzheimer's disease and was staying at Jewish Family Services on Gypsy Lane. Her husband, Harold, was appointed her guardian. When Harold Brockman died in 1992, Weisberg was appointed guardian of Bertha Brockman's estate as she had no immediate family living here.
In 1994, Weisberg informed probate court that Mrs. Brockman had a son living in Seattle, who requested his mother be moved there. She had to be moved by air ambulance at a cost of $12,000. Weisberg said she did not have money for that move but would receive in excess of $28,000 from her late husband's estate.
Judge Maloney issued a judgment entry that same year allowing funds from the husband's estate to be used to move Mrs. Brockman. She died in Seattle in January 1996.
In a March 2004 hearing, the magistrate found that Weisberg's accounts showed that Mr. Brockman's estate paid his wife $18,406, while the Brockman estate showed distributions of $29,973.
The magistrate determined Mr. Brockman's estate was short $11,567 and recommended Weisberg pay that amount. Weisberg contended he never received a final accounting of Mr. Brockman's estate. Nevertheless, Judge Maloney adopted the magistrate's ruling.
The appellate court ruled that Judge Maloney should have had a hearing to find out about the distributions and also allow Weisberg to address issues related to Harold Brockman's estate "in which he was neither a guardian nor fiduciary and in which he did not receive a final accounting."