Estate of Card v. Card

#27388-a-LSW
2016 S.D. 4
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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ESTATE OF JACQUELYN CARD, Plaintiff and Appellee,
v.
CURTIS CARD, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
FALL RIVER COUNTY, SOUTH DAKOTA
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THE HONORABLE ROBERT A. MANDEL
Judge
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PATRICK M. GINSBACH of
Farrell, Farrell & Ginsbach, PC
Hot Springs, South Dakota Attorneys for plaintiff
and appellee.
DAVID L. CLAGGETT of
Claggett & Dill Prof., LLC
Spearfish, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 30, 2015
OPINION FILED 01/13/16
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WILBUR, Justice
[¶1.] Decedent opened a savings account in 1989 and, in 2007, included her
son and daughter as additional account owners. When decedent passed away in
2012, son withdrew his share of the account balance relying on SDCL 29A-6-104,
which provides that the proceeds of a joint account automatically pass to the
surviving account holder. The estate brought suit against son to recover the
amount he withdrew. The estate asserted that it rebutted the presumption under
SDCL 29A-6-104 that the proceeds automatically pass to the surviving account
holder because decedent created the savings account for her and her husband’s
benefit. After a bench trial, the court ruled that the estate rebutted the
presumption with clear and convincing evidence that decedent did not intend to
create a joint account with right of survivorship. Son appeals. We affirm.
Background
[¶2.] Jacquelyn Card died on October 28, 2012, in her daughter’s home in
Virginia. She was survived by her husband Darrell and their four adult children:
Curtis, Kathleen, Craig, and David. Jacquelyn and Darrell had been married for 65
years at the time of her death. They lived in various locations throughout their
marriage, settling in Hot Springs in 1979. Jacquelyn worked as a teller at a local
bank until she retired in 1990. Darrell also worked at a bank, until it sold in 1985.
[¶3.] In 1989, Jacquelyn’s mother left her a substantial inheritance. The
amount of the inheritance is not known. Kathleen testified that she believed it was
near $100,000. Curtis claimed Jacquelyn inherited approximately $680,000.
Nonetheless, it is undisputed that Jacquelyn placed the inheritance in a savings
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account separate from Darrell. Darrell had a history of managing money poorly,
and Jacquelyn’s family described her to be financially conservative. When
Jacquelyn created the account in 1989, she asked Curtis if he would place his name
on the account with hers. Curtis agreed, and Jacquelyn and Curtis signed a
signature card for savings account #1683 at First Western Bank (1989 Account).
The signature card did not indicate whether the account was a joint tenancy, trust,
or tenancy in common. Curtis testified that his mother wanted his name on the
account so “if anything happened to her, that somebody would be on there so the
money would flow to them,” referring to Darrell and Jacquelyn.
[¶4.] In 1994, Jacquelyn executed a Will without the assistance of an
attorney. The Will provided:
I give, devise and bequeath unto my children, Curtis L. Card,
Kathleen M. Card, Craig A. Card and David A. Card, all my
interest in and to all the property of which I die seized,
possessed or entitled to, the same to be their sole and absolute
property in fee simple forever, be the property real property,
personal property, or mixed, in equal and undivided interests,
share and share alike, with the stipulation that my husband,
Darrell E. Card, have full use, control and enjoyment of the
properties and all the income therefrom, during his lifetime.
Also in 1994, Jacquelyn asked Kathleen to act as personal representative for her
estate. According to Kathleen, Jacquelyn did not trust Curtis to carry out
Jacquelyn’s wishes upon her death. Curtis, however, described his relationship
with Jacquelyn as “close[.]”
[¶5.] In 2007, Jacquelyn and Darrell began spending the colder months in
Virginia living with Kathleen. According to Kathleen, Jacquelyn told her that
Curtis asked that his name be removed from the 1989 Account so he could avoid
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potential tax liability. Curtis denied that he ever asked to be removed from the
account. Kathleen further claimed that Jacquelyn asked if Kathleen would place
her name on the account instead of Curtis. Kathleen agreed, and in October 2007,
Kathleen and Jacquelyn executed a new signature card at First Western Bank for
savings account #3200001623 (2007 Account). Curtis also executed a new signature
card for the 2007 Account. He testified that his mother told him he needed to sign
the new card because the bank was assigning a new number to the savings account.
[¶6.] The signature card for the 2007 Account designated the account as a
joint account with right of survivorship and listed the “Account Holder Name(s):” as
“JACQUELYN J CARD, CURTIS CARD or KATHLEEN M CARD.” From 2007
until Jacquelyn’s death in 2012, Jacquelyn and Darrell continued to spend the
colder months living with Kathleen. After Jacquelyn died, Darrell remained in
Virginia until Kathleen and her siblings determined that Darrell needed long-term
care. Kathleen and Darrell returned to Hot Springs in May 2013, and Darrell
moved into an assisted living facility. Kathleen intended to continue to use
Jacquelyn’s assets to provide for Darrell’s care.
[¶7.] In June 2013, Kathleen instituted formal probate proceedings. It was
at this time that Kathleen learned that the 2007 Account was a joint account with
right of survivorship. She informed Curtis. According to Kathleen, Curtis
responded that he was unaware that his name was on any of Jacquelyn’s accounts.
Kathleen further claimed that upon her request Curtis agreed to disclaim his
interest in the account. Curtis disputed this and contended that he believed
Kathleen was speaking to the interest generated by the account, not his ownership
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interest in the account balance. When Jacquelyn died, the 2007 Account had a
balance of $35,107.87. After Kathleen and Curtis exchanged emails on June 5,
2013, related to Curtis’s interest in the 2007 Account, Curtis informed Kathleen
that he had visited with an attorney and intended to remove his share of the
proceeds from the 2007 Account. On June 20, 2013, Curtis withdrew $17,553.94
from the 2007 Account and placed the funds in a certificate of deposit in his name.
[¶8.] In July 2013, the Estate of Jacquelyn Card brought a civil suit against
Curtis. The Estate alleged that Jacquelyn placed her inheritance in the 2007
Account “in an implied trust for the benefit of [herself] and her husband Darrell
Card.” The Estate further claimed that Curtis “converted $17,553.94” for “his own
personal use.” The Estate requested a judgment against Curtis for $17,553.94,
prejudgment interest, and attorney’s fees and costs. Curtis answered and claimed
that he could not, as a joint owner of the account, “convert” the funds for his own
use. He further asserted that SDCL 29A-6-104 barred the Estate’s claims.
[¶9.] During a trial to the court in January 2015, the parties stipulated to
the admission of all exhibits, and Kathleen and Curtis testified. They both testified
that Jacquelyn opened the 1989 Account because Darrell could not manage money.
Curtis offered no definitive opinion to what he believed Jacquelyn intended when
she placed his name on the account in 1989. In response to questions from the
court, Curtis testified as follows:
Court: The savings account was opened in 1989. Correct?
Curtis: Yes.
Court: What was your understanding at the time it was
opened, why was your name put on it?
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Curtis: Because my mother had just inherited a large amount
of money and she wanted somebody on there to - - in case
anything happened to her, and she didn’t want my dad’s name
on it.
Court: So suppose something happened to her the next day.
What was your understanding as to what you were supposed to
do with the money in there?
Curtis: We didn’t really discuss what it was. I guess she
trusted me - - I felt she trusted me to do what needed to be done.
Court: Would you think what needed to be done was for you to
just take all the money then, at that point?
Curtis: No. I - - I may have been - - probably, when I look back
on it in hindsight, I feel that it was naïve not to even ask about
your name being put on a joint account. I mean, I’ve learned a
lot from this trial - - or litigation process, if - - when you put
somebody’s name on a joint account, there’s a significant right
that that other person has to the account, should something
happen to the original person.
Court: But my question really is, what was your understanding
what you were to do with what was in that account if something
happened to your mother?
Curtis: There hadn’t been any discussion.
Court: So what would you have done if that had happened the
next day?
Curtis: What would I have done with the money? Well, at that
time, I probably would have talked to my brothers and sisters
and tried to figure out - - my dad and figure out what we should
do with the money. Because my understanding was it was quite
significant at that time.
Curtis and Kathleen testified that they were unaware the 2007 Account was a joint
account and that neither contributed money to the account balance at any time.
Kathleen claimed that Jacquelyn told her that the money in the 2007 Account was
to be distributed equally between her and her siblings after Darrell no longer
needed support or care. Curtis claimed that Jacquelyn intended to create a joint
account with right of survivorship because Jacquelyn had years of banking
experience and had given money to her son Craig while she was still alive.
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[¶10.] At the conclusion of the trial, the court directed the parties to submit
proposed findings of fact and conclusions of law. The court remarked, “Well, as I sit
here, I think that the core of this case is really around Paragraph 1 of 29A-6-104[.]”
The court did not address the Estate’s claim in its complaint that an implied trust
existed. On January 30, 2015, the court issued findings of fact, conclusions of law,
and a judgment. It ruled “[t]hat there has been clear and convincing evidence
presented that Jacquelyn Card intended to create savings account number
3200001623 for her own convenience and not for the benefit of the non-depositing
joint payees, Kathleen Card and Curtis Card.” It further ruled that “[t]he
circumstances and evidence presented establish that there was an inference that
the decedent intended to transfer to Kathleen Card and Curtis Card bare legal title
and not to convey the beneficial interest in savings account number 3200001623.”
The court held that Curtis “had no right to withdraw any funds from savings
account number 3200001623 for his own personal enrichment.” Therefore, it
declared that Curtis “has a duty to convey any funds taken from savings account
number 3200001623 back to the estate.” The trial court ordered that “any money
withdrawn by [Curtis] should be disgorged into the decedent’s estate.” It granted a
judgment against Curtis in favor of the Estate for $17,553.94, plus prejudgment
interest.
[¶11.] Curtis appeals and raises the following issues for our review:
1. Whether the trial court clearly erred when it held that the
Estate met its burden of proof that Jacquelyn did not
intend to establish a joint tenancy with right of
survivorship.
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2. Whether the trial court clearly erred when and if it held
that the Estate met its burden of proof to establish that
an implied trust existed and that a conversion occurred.
Standard of Review
[¶12.] “We review the [trial] court’s findings of fact under the clearly
erroneous standard of review.” Wiseman v. Wiseman, 2015 S.D. 23, ¶ 6, 863 N.W.2d
243, 245.
In applying the clearly erroneous standard, our function is not to
decide factual issues de novo. . . . This Court is not free to
disturb the lower court’s findings unless it is satisfied that they
are contrary to a clear preponderance of the evidence. Doubts
about whether the evidence supports the court’s findings of fact
are to be resolved in favor of the successful party’s “version of
the evidence and of all inferences fairly deducible therefrom
which are favorable to the court’s action.”
Fin-Ag, Inc. v. Feldman Bros., 2007 S.D. 105, ¶ 19, 740 N.W.2d 857, 862-63 (quoting
Am. Bank & Trust v. Shaull, 2004 S.D. 40, ¶ 11, 678 N.W.2d 779, 783) (internal
citations omitted).
Analysis
[¶13.] Curtis avers that “[s]tatutory and case law make it clear that the
[2007] account passes to the surviving joint tenants by operation of law.” He
further claims Kathleen admitted that the 2007 Account is a joint account with
right of survivorship. Because he has not disclaimed his interest, Curtis argues he
is legally entitled to his share. Although Curtis is correct—the 2007 Account is a
joint account with right of survivorship—the issue in this case is whether the Estate
rebutted the presumption of joint tenancy with clear and convincing evidence. See
SDCL 29A-6-104; In re Estate of Kuhn, 470 N.W.2d 248, 250 (S.D. 1991).
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[¶14.] Under SDCL 29A-6-104(1), “[s]ums remaining on deposit at the death
of a party to a joint account belong to the surviving party or parties as against the
estate of the decedent unless there is clear and convincing evidence of a different
intention at the time the account is created.” The controlling inquiry is Jacquelyn’s
intent at the time she created the account. See Barbour v. First Citizens Nat’l Bank,
77 S.D. 106, 112, 86 N.W.2d 526, 529 (1957). However, “[i]t is not essential to the
creation of a joint bank account with right of survivorship that the beneficiary
depositor have knowledge of the account; that he have possession of the passbook;
that he sign a signature card; or make withdrawals therefrom.” Id. Nor should a
party’s rights “be jeopardized by the somewhat lax methods used by the bank in
transacting its business and keeping its records.” Karlen v. Karlen, 89 S.D. 523,
534, 235 N.W.2d 269, 275 (1975) (quoting Equitable & Cent. Tr. Co. v. Zdziebko, 244
N.W. 505 (Mich. 1932)). “However, these are all important factors and competent
evidence bearing on the question of intention.” Barbour, 77 S.D. at 113, 86 N.W.2d
at 529.
[¶15.] As the party challenging the presumption, the Estate must present
clear and convincing evidence that Jacquelyn “did not intend the usual rights of
survivorship to attach to the joint asset, but instead intended the arrangement for
her own convenience.” See In re Estate of Steed, 521 N.W.2d 675, 678 (S.D. 1994).
“Whether the joint accounts in question were created by decedent for her own
convenience or for the benefit of the nondepositing joint payees is a question of fact
to be determined from all the facts and circumstances in the case.” Id. We,
therefore, review the trial court’s determination that Jacquelyn did not intend to
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create a joint account with right of survivorship for clear error. See Estate of Kuhn,
470 N.W.2d at 251. “The question is not whether this Court would have made the
same findings that the trial court did, but whether, on the entire evidence, we are
left with a definite and firm conviction that a mistake has been committed.” Id.
(quoting Kirsch v. First Nat’l Bank, 298 N.W.2d 71, 73 (S.D. 1980)).
[¶16.] From our review of the record and the trial court’s findings of fact, we
are not left with a definite or firm conviction that the court erred when it
determined that Jacquelyn did not intend to create a joint account with right of
survivorship in 2007. There is little evidence besides the signature card indicating
a joint account with right of survivorship when compared to the more significant
evidence that Jacquelyn intended to create the account for her convenience.
Jacquelyn placed her inheritance in an account separate from Darrell to protect the
funds from Darrell’s inability to manage money.
[¶17.] Curtis does not dispute that Jacquelyn wanted to ensure the money’s
existence for Darrell’s care and support. In his brief to this Court, Curtis merely
invites us to reweigh the evidence and assess witness credibility. Yet “it is within
the prerogative of the trial court to resolve conflicts of evidence, judge the credibility
of witnesses, and weigh the testimony of witnesses.” Schieffer v. Schieffer, 2013
S.D. 11, ¶ 22, 826 N.W.2d 627, 635; In re Nelson Living Trust, 2013 S.D. 58, ¶ 32,
835 N.W.2d 874, 884.
[¶18.] We decline to address Curtis’s claim that the court’s factual findings
are clearly erroneous because the findings refer to Kathleen’s testimony about
“uncorroborated statements” made by Jacquelyn. Curtis did not object to these
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statements when Kathleen testified. We also reject Curtis’s assertion that the trial
court ruled that the 1994 Will revoked the status of the 2007 Account as a joint
account. The court considered the 1994 Will as evidence of Jacquelyn’s intent when
she opened the 2007 Account. Lastly, we need not address Curtis’s argument that
the court clearly erred “if” it determined that the Estate met its burden of proof that
an implied trust existed. The trial court did not rule on the Estate’s claim that an
implied trust existed.
[¶19.] The Estate moved for $3,066 in appellate attorney’s fees under SDCL
15-26A-87.3. SDCL 15-26A-87.3 authorizes an award of appellate attorney’s fees
when fees are awardable at the trial level. The Estate relies on SDCL 29A-3-720 as
authorization for an award of attorney’s fees. That statute provides:
Any personal representative or person nominated as personal
representative who defends or prosecutes any proceeding in good
faith, whether successful or not, is entitled to receive from the
estate necessary expenses and disbursements including
reasonable attorney’s fees.
Id. (emphasis added). The plain and unambiguous language of this statute
authorizes an award of attorney’s fees from the estate, not from Curtis. See, e.g., In
re Guardianship of G.T.C., 2014 S.D. 65, ¶ 8, 854 N.W.2d 343, 345 (interpreting
similar statutory language and ruling that “the attorney for the guardianship and
conservatorship was entitled to her fees from the estate rather than guardians and
conservators personally”). The Estate directs this Court to no law authorizing an
award of attorney’s fees against Curtis at the trial level. We, therefore, deny the
Estate’s motion for an award of appellate attorney’s fees against Curtis.
[¶20.] Affirm.
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[¶21.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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