Branham v. Branham ( 1997 )

Present: Carrico, C.J., Compton, Stephenson, 1 Lacy, Hassell,
Keenan, and Koontz, JJ.
MAZIE SOWARDS BRANHAM
BY LARRY DON BRANHAM,
GUARDIAN AND SUBSTITUTED
PARTY
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No. 962398 September 12, 1997
JOSEPH W. BRANHAM
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
This is an appeal of an order overruling the report of a
special commissioner in chancery recommending that a deed be set
aside based upon the commissioner's finding that clear and
convincing evidence established that the deed had been procured
by fraud.
On August 15, 1988, Joseph William Branham took Mazie
Sowards Branham, his mother, to the office of a notary public to
execute a deed. According to Mazie Branham, Joseph Branham had
advised her that the document she would sign would provide her
with a life estate in her home in Wise County, with the remainder
interest vesting in her daughter Deborah Kay Branham. The deed
Mazie Branham actually executed transferred the property to
Joseph Branham subject to her life estate. The deed was recorded
in the land records of Wise County on the same day.
On February 7, 1991, Mazie Branham filed a bill of complaint
against Joseph Branham seeking to have the deed set aside on the
ground that it was procured by fraud. A guardian ad litem was
1
Justice Stephenson participated in the hearing and decision
of this case prior to the effective date of his retirement on
July 1, 1997.
appointed to represent Joseph Branham, who was at that time
incarcerated in the Bland Correctional Center. Joseph Branham
filed a pro se answer asserting that his mother had freely
transferred the property with full knowledge of the import of the
deed, but was now subject to influence of other family members
who wished to deprive him of his rights in the property because
of his incarceration.
The trial court referred the matter to a special
commissioner in chancery by decree of reference dated March 15,
1991. Thereafter, on April 26, 1991, the commissioner held an
ore tenus hearing, receiving testimony from Mazie Branham, her
son Larry Don Branham, and the notary who witnessed the deed.
Joseph Branham was represented by his guardian ad litem, who was
an attorney, but did not appear or have counsel present at the
hearing.
The notary testified that she did not read the deed or
inform Mazie Branham of its content before the deed was executed.
She further testified that she recalled either Mazie Branham or
Joseph Branham saying that the deed was intended to convey an
interest in the property to Joseph because "he was the only one
[of several children] taking care of [Mazie Branham] and that she
wanted him to have the property." The notary believed it was
probably Joseph Branham who had said this, but could not recall
whether Mazie Branham indicated she had heard him.
Mazie Branham testified that at the time of the hearing she
was 81 years old, legally blind, and hard of hearing. She
further testified that she learned that the remainder interest in
her property had been deeded to her son from her 1990 tax notice.
At that time she realized that she had "made a bad mistake"
because she had intended the remainder interest to go to Deborah
Kay Branham. Although she conceded that her signature appeared
on the deed, she stated that she would not have signed the deed
had she known that it conveyed the remainder interest to Joseph
Branham. In response to questions from the guardian ad litem and
the commissioner, Mazie Branham conceded that Joseph Branham had
taken care of her for two years prior to his incarceration.
Although occasionally asking that questions be repeated, she
indicated that she understood the nature of her complaint and the
purpose of the commissioner's hearing.
Larry Don Branham testified that Joseph Branham had assisted
his mother while living with her, and that Deborah Kay Branham
had also lived with their mother for a part of that time and
assisted in taking care of her. He further testified that it was
the family's understanding that Deborah Kay Branham would receive
the property at her mother's death if she remained with her
2
mother, but that Deborah had subsequently moved away.
Sometime after the commissioner's hearing, Joseph Branham
was released from prison and retained counsel to represent him in
the suit. The record indicates that Joseph Branham sought and
2
Additional evidence suggested that Joseph Branham had
indicated in a letter to his criminal defense attorney that he
did not wish to contest the proceeding to set aside the deed.
Although the commissioner indicated that a subpoena duces tecum
would be issued to obtain the letter and a deposition of the
attorney was noticed, the letter does not appear in the record
and it does not appear that the deposition of the attorney was
ever taken.
was given additional time to supplement the record before the
commissioner, but no further evidence was offered.
During the interim between the commissioner's hearing and
the filing of his report on January 19, 1993, in a separate court
proceeding on January 14, 1992, Larry Don Branham was named as
guardian for Mazie Branham who was at that time declared
"mentally and physically unable to care for herself or her
property because of her mental and physical condition" resulting
from organic brain syndrome. The trial court entered an order
amending the style of the suit to reflect the guardianship and to
permit the guardian to act in Mazie Branham's name.
In his report, the commissioner found that the deed in
question was procured by fraud and misrepresentation and
recommended that the deed be declared void; that Joseph Branham
be required to convey his interest to Mazie Branham; or that a
special commissioner be appointed to do so.
Subsequently, numerous letters from counsel and ex parte
communications from the parties were received by the trial court.
Several letters from counsel for Mazie Branham urged the trial
court to enter a final disposition in the matter. One such
letter indicated that, on June 15, 1993, Joseph Branham executed
a deed of gift transferring his remainder interest in the
property to Georgia K. Gruszka and supplied the trial court with
a copy of that deed.
On July 15, 1994, the chancellor sent a letter opinion to
counsel expressing his intent to overrule the commissioner's
report and to dismiss the bill of complaint. The express basis
for the chancellor's determination was that, by reference to the
separate 1992 proceeding in which Mazie Branham had been declared
"incompetent," he did not accept her testimony from the 1991
commissioner's hearing or in a subsequent deposition as credible.
Mazie Branham filed a motion to reconsider with supporting
evidence to show that at the time of the commissioner's hearing
she did not exhibit any signs or symptoms of her subsequent
dementia. This motion and a subsequent motion to reconsider were
overruled, and a final order overruling the report of the
commissioner and dismissing the bill of complaint was entered on
August 27, 1996. We awarded Mazie Branham this appeal.
We have repeatedly defined the standard of review for such
matters as follows:
While the report of a commissioner in chancery does not
carry the weight of a jury's verdict, Code § 8.01-610,
it should be sustained unless the trial court concludes
that the commissioner's findings are not supported by
the evidence. . . . [W]here the chancellor has
disapproved the commissioner's findings, this Court
must review the evidence and ascertain whether, under a
correct application of the law, the evidence supports
the findings of the commissioner or the conclusions of
the trial court. Even where the commissioner's
findings of fact have been disapproved, an appellate
court must give due regard to the commissioner's
ability, not shared by the chancellor, to see, hear,
and evaluate the witnesses at first hand.
Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984)
(citations omitted); accord Yeskolski v. Crosby, 253 Va. 148,
152-53, 480 S.E.2d 474, 476 (1997).
Here, the chancellor's basis for disapproving the
commissioner's findings depended upon "facts" not in the record
of this case. Moreover, even if the evidence of Mazie Branham's
mental condition from the separate and unrelated hearing was a
permissible subject of judicial notice, the chancellor's opinion
letter clearly indicates that she was not judicially declared
"incompetent" until more than eight months after the
commissioner's hearing.
During the lengthy delays following the commissioner's
hearing, Joseph Branham made no effort to rebut the evidence
taken at the commissioner's hearing despite being afforded an
opportunity to do so. Nor did he offer any evidence of his
mother's incapacity at the time of the commissioner's hearing.
Thus, the evidence before the commissioner was entirely
unrebutted.
Mazie Branham testified that she did not intend to convey an
interest in her property to Joseph Branham and that she would not
have signed the deed in question if she had known the deed would
do so. But, it is unrefuted that Mazie Branham was led to sign
the deed as a result of the fraud perpetrated by Joseph Branham.
The commissioner accepted the testimony of the witnesses as
credible. Accordingly, upon this record, the commissioner's
findings are supported by the evidence, and his opportunity to
see and hear the witnesses should be afforded appropriate
deference.
For these reasons, we will reverse the judgment of the
circuit court, will declare the deed in question void, and will
remand the matter to the circuit court with directions that
forthwith a special commissioner be appointed to effect transfer
of the property back to Mazie Branham.
Reversed and remanded.