Marsha A. Casdorph- McNeil v. Mark Casdorph

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Marsha A. Casdorph-McNeil,
Petitioner FILED
September 9, 2019
vs.) No. 18-0497 (Kanawha County 17-AA-69) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Mark Casdorph,
Respondent
MEMORANDUM DECISION
Petitioner Marsha A. Casdorph-McNeil, by counsel Gregory E. Elliott, appeals the Circuit
Court of Kanawha County’s April 26, 2018, order affirming the County Commission of Kanawha
County’s (“County Commission”) order finding that certain jointly-held accounts were probate
assets, ordering present day value calculations of probate assets, and charging missing probate
assets against petitioner’s distribution. Respondent Mark Casdorph, by counsel Charles R. Bailey
and Adam K. Strider, filed a response.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
The parties to this appeal are brother and sister. On January 6, 1997, their aunt, Mary Lola
Hawkins, died testate. Frances H. Casdorph (“Frances”), Ms. Hawkins’s sister and the parties’
mother, was confirmed as executrix of Ms. Hawkins’s estate (the “Hawkins estate”), and she was
its sole beneficiary.
On March 24, 1997, the parties’ father, Jack N. Casdorph, died testate. Frances, the sole
beneficiary of Jack N. Casdorph’s estate (the “Jack Casdorph estate”), declined to serve as
executrix, and petitioner was appointed in her stead. Petitioner was also appointed as administratrix
of the Hawkins estate after Frances no longer wished to serve as executrix.
On March 17, 1999, Frances died testate. The parties were the beneficiaries of her estate
(the “Frances Casdorph estate”), and petitioner was appointed executrix. Frances’s will provided
that the parties were to share equally certain real estate located in Elkview, West Virginia, with
one-third of the residue of the estate distributed to respondent and two-thirds to petitioner. Among
other assets, Frances held accounts at a credit union containing $155,571.19 (the “subject
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accounts”), which were held jointly with petitioner. Following Frances’s death, petitioner removed
the funds from the subject accounts and placed them into her personal bank account.
On July 7, 1999, petitioner filed an “Appraisement and Non-Probate Inventory” for the
Hawkins estate and the Jack Casdorph estate; however, she took no further action to administer
either estate, despite numerous efforts by the Fiduciary Supervisor’s Office to contact her and its
issuance of multiple summonses.
Shortly after petitioner was appointed executrix of the Frances Casdorph estate, Craig Kay,
attorney for the Frances Casdorph estate, submitted a document titled “Probate Information” to the
Fiduciary Supervisor’s Office approximating the total value of that estate at $500,000. Petitioner,
however, failed to timely file an appraisement of the Frances Casdorph estate, despite the Fiduciary
Supervisor’s Office’s numerous attempts to contact her and its issuance of a May 15, 2001, letter
warning her of possible penalties. The Fiduciary Supervisor’s Office also issued a number of
summonses directing petitioner to appear at the Fiduciary Supervisor’s Office and submit the
appraisement and inventory form for the Frances Casdorph estate at the time of appearance.
Petitioner never appeared.
On October 1, 2010, respondent requested petitioner’s removal as executrix of the Frances
Casdorph estate. By order dated October 19, 2010, the County Commission referred the Frances
Casdorph estate to a fiduciary commissioner, who scheduled a hearing on the removal petition for
January 13, 2011. Petitioner failed to post the required bond; accordingly, the hearing was
canceled, subject to rescheduling should petitioner post the bond. The fiduciary commissioner
further advised that failure to post the bond by February 12, 2011, would result in a
recommendation to the County Commission that the removal petition be granted. Petitioner failed
to post the bond and cooperate with the fiduciary commissioner.
On January 21, 2011, respondent learned that the Elkview property referenced in Frances’s
will had been sold for unpaid taxes. Respondent was unable to contact petitioner, so he personally
paid $1,338.98 to redeem the property.
On May 20, 2011, the County Commission revoked petitioner’s appointment as executrix
of the Frances Casdorph estate and appointed respondent as executor. The County Commission
further ordered petitioner to turn over to respondent all assets, personal property, and financial
documents of the Frances Casdorph estate, and to provide an accounting to the Fiduciary
Supervisor’s Office. Petitioner failed to comply with this order. A summons, dated July 23, 2011,
was issued to petitioner directing her to appear at the Fiduciary Supervisor’s Office on August 10,
2011, to present a full accounting of the Frances Casdorph estate, but petitioner failed to appear.
Petitioner’s appointments as administratrix of the Hawkins estate and executrix of the Jack
Casdorph estate were also revoked for her failure to properly administer the estates, and respondent
was appointed executor.
On April 26, 2013, respondent filed an “Appraisement and Non-Probate Inventory” for the
Frances Casdorph estate listing certain assets, but on October 15, 2013, respondent informed the
Fiduciary Supervisor that he was unable to provide an accurate accounting of all three estates,
despite his efforts and those of several attorneys and an accountant. Respondent blamed
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petitioner’s inappropriate actions in administering the estates for the confusion regarding the
estates and listed a series of concerns, including that $155,571.19 held by Frances at a credit union
(in the subject accounts) was not distributed according to Frances’s will and had disappeared, that
stock dividend checks were cashed and not distributed in accordance with Frances’s will, and that
certain oil and gas rights were lost due to petitioner’s failure to pay taxes. Respondent sought to
have the Frances Casdorph estate again referred to a fiduciary commissioner, and on November
14, 2013, the County Commission referred the Frances Casdorph estate to another fiduciary
commissioner. Later, the Hawkins estate and Jack Casdorph estate were also referred to the
fiduciary commissioner as all three estates were “inextricably intertwined.”
The fiduciary commissioner held several evidentiary hearings. Primarily, the parties
disagreed over the disposition of the subject accounts. Petitioner maintained that because the funds
were held in an account jointly titled with Frances, she was entitled to a presumption that these
funds were non-probate assets and a gift to her upon Frances’s death. See W. Va. Code § 31A-4-
33(b). Mr. Kay, the estate’s counsel, testified that he met with Frances prior to her death, and his
notes from that meeting reflect that Frances informed him that she placed petitioner’s name on the
subject accounts “as a matter of convenience.” Mr. Kay also prepared an “Appraisement and Non-
Probate Inventory” for the Frances Casdorph estate, which listed the subject accounts as probate
assets. This document was never filed, however.
The fiduciary commissioner issued her “Recommendation of Fiduciary Commissioner”
on July 6, 2016. The fiduciary commissioner concluded that petitioner occupied a confidential and
fiduciary relationship with Frances as well as with Jack Casdorph and Mary Lola Hawkins. In
support, the fiduciary commissioner noted that petitioner held a medical power of attorney for all
three individuals during their lives; she was empowered to act under the three individuals’ living
wills; she assisted the individuals with errands, including banking matters; and she provided care
and assistance during their final illnesses. Moreover, petitioner succeeded to the appointments of
administratrix of the Hawkins estate and executrix of the Jack Casdorph estate at Frances’s request
after Frances, who was suffering the loss of her sister and husband in quick succession, “felt herself
unequal to the task of administering their estates.” Frances was the sole beneficiary of these estates,
and petitioner refused to timely and appropriately administer them for Frances’s benefit.
As a result of these findings, the fiduciary commissioner found that the burden shifted to
petitioner to establish that the funds in the subject accounts were intended as a gift. In light of Mr.
Kay’s testimony and evidence, the fiduciary commissioner found that petitioner failed to make the
required showing and recommended that the subject accounts be deemed probate assets and that
the money in the subject accounts be calculated at present value. Further, “[a]ny other identifiable
assets, missing or recovered, may also be calculated at present value, if necessary in order to
achieve justice and an equitable distribution.” Additionally, given that petitioner’s “malfeasance
and nonfeasance” caused assets to disappear from all three estates, the fiduciary commissioner
recommended that any missing assets “be deemed to have been distributed” to petitioner and the
Frances Casdorph estate “be calculated accordingly.”
Petitioner filed objections to the fiduciary commissioner’s recommendation with the
County Commission. Of relevance to the instant appeal, petitioner challenged the fiduciary
commissioner’s conclusion that the joint accounts were estate assets, the apportionment of missing
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assets against her distribution, and the present value calculations. With regard to this last issue, she
stated that
[a]s to the issue raised on the present day value of some distribution that should
have been made to [respondent] the argument is speculative at best, since the only
distributions would have been from Exxon dividends. Under W. Va. Code 31-4A-
33, the [c]redit [u]nion accounts and any other joint accounts passed entirely to
[petitioner] as the joint owner and that conclusive presumption has never been
rebutted. Furthermore, any distribution which should have occurred does not carry
a penalty of calculating a present day value for failure to distribute and the existing
law does not support the [c]ommissioner’s [r]ecommendations that the present day
value of some past failed distribution would either ma[k]e [respondent] whole or
punish [petitioner] fully. After all, [respondent] sat on the “sidelines” for ten (10)
plus years without lifting a hand to assist or to remove his sister, [petitioner].
Respondent filed a response to petitioner’s objections, which did not address the present
value calculation issue, and a hearing on the objections was held before the County Commission
on February 16, 2017. The County Commission found that the subject accounts were intended to
be assets of the Frances Casdorph estate and that the findings of fact and conclusions of law
contained within the “Recommendation of Fiduciary Commissioner” were fair and reasonable, not
contrary to West Virginia law, and resulted in an equitable outcome; therefore, it affirmed and
adopted that recommendation, but it did not specifically address the present value calculation issue.
On August 15, 2017, petitioner appealed the County Commission’s final order to the circuit
court challenging, among other things, the present value calculation1, apportionment of missing
assets against her distribution, and determination that the funds in the subject accounts were not
intended as a gift. Concerning the subject accounts, the court found petitioner’s holding of a
medical power of attorney insufficient by itself to give rise to the presumption of constructive
fraud. But in light of Mr. Kay’s testimony concerning Frances’s intent with respect to the subject
accounts, and in conjunction with the facts that petitioner served as administrator for the two
estates that funneled into the Frances Casdorph estate and assisted Frances with financial and
banking duties late in life, the circuit court concluded that a presumption of constructive fraud was
appropriate. The court further found that petitioner failed to overcome the presumption of
constructive fraud; therefore, it concluded that the subject accounts were properly deemed probate
assets.
The circuit court declined to rule on petitioner’s challenge to the present value calculations,
finding that challenge waived because “[n]owhere in the lower proceedings below was the
[p]etitioner’s issue with present value calculations or these allegedly unaccounted-for funds
raised.” Finally, the circuit court found no error in the apportionment of any lost or missing items
of the Frances Casdorph estate against petitioner’s share because she “presented no argument as
1
Petitioner’s argument on this issue was nearly identical to that presented to the County
Commission, differing only in the substitution of “Commission’s Final Order” for
“Commissioner’s Recommendations” and adding to the last sentence that “this concept is merely
punitive for [petitioner’s] failures and is definitely not supported by statute or case law.”
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to why the holding below that equity demands the assessment of missing assets against [her] share
was in error.” It is from this April 26, 2018, order affirming the County Commission’s order that
petitioner appeals.
When reviewing the final disposition of a circuit court acting as an intermediate appellate
court from the County Commission, “[t]his Court reviews the circuit court’s final order and
ultimate disposition under an abuse of discretion standard. We review challenges to findings of
fact under a clearly erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 1,
Haines v. Kimble, 221 W. Va. 266, 654 S.E.2d 588 (2007) (quoting Syl. Pt. 4, Burgess v.
Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996)).
In petitioner’s first assignment of error, she claims that the circuit court erred in
determining that she held a confidential or fiduciary relationship with Frances as the medical
power of attorney she held was insufficient to create such a relationship, particularly where she
never exercised any powers under that document. But if this Court disagrees and finds that the
medical power of attorney was sufficient to create such a relationship, petitioner relies on Vance
v. Vance, 192 W. Va. 121, 451 S.E.2d 422 (1994), and Nugen v. Simmons, 200 W. Va. 253, 489
S.E.2d 7 (1997), to argue that the burden of proving that the proceeds were a gift should not have
shifted to her because she did not use the relationship to create the subject accounts or divert funds
into them.
Petitioner claims that, instead, she was entitled to the presumption provided for in West
Virginia Code § 31A-4-33(b) that the proceeds of the subject accounts were a gift. Petitioner notes
that Frances’s failure to place any restrictions on the subject accounts, such as limiting petitioner’s
abilities to writing checks and paying bills, supports the inference that the proceeds in the subject
accounts were intended as a gift. Petitioner also argues that the heightened burden of proof
necessary to overcome the presumption of a gift is due to the fact that the signature card and deposit
in the subject accounts represent an agreement between her and Frances and evidence of Frances’s
intent with respect to the proceeds.
West Virginia Code § 31A-4-33(b) provides that
[w]hen a deposit is made by any person in the name of such depositor and another
or others and in form to be paid to any one of such depositors, or the survivor or
survivors of them, such deposit, and any additions thereto, made by any of such
persons, upon the making thereof, shall become the property of such persons as
joint tenants. All such deposits, together with all interest thereon, shall be held for
the exclusive use of the persons so named, and may be paid to any one of them
during the lifetime of them, or to the survivor or survivors after the death of any of
them.
This statute “creates, in the absence of fraud, mistake or other equally serious fault, a conclusive
presumption that the donor depositor of a joint and survivorship bank account intended a causa
mortis gift of the proceeds remaining in the account after his death to the surviving joint tenant.”
Syl. Pt. 2, in part, Dorsey v. Short, 157 W. Va. 866, 205 S.E.2d 687 (1974). But
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[a] presumption of constructive fraud may arise in connection with joint
bank accounts with survivorship, if the parties to the joint account occupy a
fiduciary or confidential relationship. This presumption requires the person who
benefits from the creation of the account to bear the burden of proving that the funds
were, in fact, a [b]ona fide gift.
Syllabus, Kanawha Valley Bank v. Friend, 162 W. Va. 925, 253 S.E.2d 528 (1979).
Here, petitioner’s argument that the circuit court erred in finding that the medical power of
attorney was sufficient to create a fiduciary or confidential relationship misstates the court’s
finding. The court found that “[t]he fact that the [p]etitioner served as the medical power of
attorney for [Frances] is not sufficient by itself to provoke the presumption of constructive fraud.”
Instead, the court relied upon the “totality of the circumstances” in finding the existence of a
fiduciary or confidential relationship, which included not only the medical power of attorney but
also the fact that petitioner was the administrator for two estates that funneled into Frances’s, which
estates petitioner should have administered for Frances’s benefit, and assisted Frances with
financial and banking duties late in life. Petitioner’s arguments on appeal ignore these additional
findings, and the presence of these additional factors distinguishes this case from Vance and
Nugen.
Petitioner cites Vance and Nugen for the proposition that “[i]t is not the fact that fiduciary
relationship exists that requires the proving of the bona fide gift. Rather, it is the fact that the
fiduciary powers were used by the fiduciary to divert funds to the joint tenancy with the right of
survivorship that is determinative.” Vance, 192 W. Va. at 124, 451 S.E.2d at 425; see also Nugen,
200 W. Va. at 257, 489 S.E.2d at 11 (“It is important to note that a party seeking to invoke
constructive fraud under Friend must show not only that a confidential or fiduciary relationship
existed, but also that the fiduciary used the relationship to direct property into the joint tenancy.”).
In Vance, the individual who benefited from the creation of the joint account only held a power of
attorney for the decedent, but he “in no way used his fiduciary power to bring about the transfer
of assets to the joint account.” 192 W. Va. at 124, 451 S.E.2d at 425. In Nugen, we found no
evidence of a confidential or fiduciary relationship in the first place as the only circumstances
argued in support of such a relationship were that the individual in whose name the account was
jointly titled met the decedent for coffee daily before the decedent’s death, that the individual
stated that he was “looking out for the decedent’s interests as well as his health,” and that the
individual had previously invited the decedent to live with him. 200 W. Va. at 258, 489 S.E.2d at
12. But we also found no evidence that “whatever relationship” was occupied with the decedent
was used “to influence the decedent’s decision to place the funds in the disputed joint account.”
Id.
In this case, however, Mr. Kay’s notes make clear that petitioner’s relationship with
Frances—particularly petitioner’s assistance with banking matters—gave rise to the creation of
the jointly-titled subject accounts. We find these circumstances to be more akin to those presented
in Barnhart v. Redd, 196 W. Va. 142, 469 S.E.2d 1 (1996), than Vance or Nugen.
In Barnhart, John Redd appealed the circuit court’s determination following a bench trial
that a fiduciary or confidential relationship existed between him and Ida Calloway and that he had
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not proven that a $10,000 certificate of deposit titled jointly in his and Ms. Calloway’s names was
a gift. 196 W. Va. at 144, 469 S.E.2d at 3. Ms. Calloway did not grant Mr. Redd a power of attorney
and he never used funds in her accounts for his personal needs, but he testified that he assisted Ms.
Calloway with banking matters and believed “he was supposed to ‘help her’ in a custodial
capacity.” Id. at 147, 469 S.E.2d at 6. These facts were sufficient to shift the burden to Mr. Redd
to prove that the certificate of deposit was a gift. Id. at 147-48, 469 S.E.2d at 6-7. We also found
nothing to substantiate Mr. Redd’s assertion that the funds were intended as a gift from Ms.
Calloway; therefore, the circuit court’s judgment was affirmed. Id.
As explained above, and just as in Barnhart, petitioner assisted Frances with banking
matters and this assistance prompted Frances’s joint titling of the subject accounts. Thus, we find
no error in the lower tribunals’ determination that petitioner held a confidential or fiduciary
relationship with Frances and that the burden shifted to her to prove a bona fide gift.
We likewise find no error in the circuit court’s conclusion that petitioner failed to meet her
burden of establishing that the proceeds in the subject accounts were intended as a gift. Petitioner’s
arguments concerning the restrictions that could have been placed on the subject accounts are
unavailing in light of Mr. Kay’s testimony that Frances placed petitioner’s name on the accounts
as a matter of convenience.
Moreover, although petitioner is correct that a stricter standard of proof is required for
proving fraud, mistake, or other serious fault because the “signature card and deposit speak the
final agreement entered into by the donor depositor and are regarded as the strongest evidence of
the donor depositor’s intent,” Lutz v. Orinick, 184 W. Va. 531, 535, 401 S.E.2d 464, 468 (1990),
we have also found that “the language of a contract or agreement governing accounts is not the
sole determinant of the ownership of those accounts” as the existence of a fiduciary or confidential
relationship “can affect the ownership of the accounts and the rights of the parties.” Koontz v.
Long, 181 W. Va. 800, 804, 384 S.E.2d 837, 841 (1989). In determining ownership of jointly held
accounts, “the universal thread or key to the decisions has been the intention of the donor
depositor.” Dorsey, 157 W. Va. at 872, 205 S.E.2d at 691. Mr. Kay’s notes and testimony provide
direct evidence of Frances’s intent in jointly titling the subject accounts. Accordingly, we find no
error in the circuit court’s conclusion that the proceeds of the subject accounts are probate assets
rather than a causa mortis gift.
Petitioner next claims that the circuit court erred in determining that she waived the issue
of respondent’s present day valuation of the proceeds of the subject accounts for failing to raise
the issue below. Petitioner submits that the issue was, in fact, raised.
We find no error in the circuit court’s conclusion that petitioner waived any challenge to
the present day valuations. Although a review of the record shows that petitioner mentioned the
present value calculation, she provided no law, analysis, or explanation for her assertions that the
valuations were speculative, unlawful, or unwarranted.2 We have repeatedly found that
inadequately briefed arguments are waived and need not be addressed on appeal. Tiernan v.
2
Petitioner does cite West Virginia Code § 31-4A-33 to argue that the subject accounts
passed to her as a joint owner, but the circuit court adequately addressed that argument.
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Charleston Area Med. Ctr., 203 W. Va. 135, 140 n.10, 506 S.E.2d 578, 583 n.10 (1998) (“Issues
not raised on appeal or merely mentioned in passing are deemed waived.”); State, Dep’t of Health
and Human Res., Child Advocate Office ex rel. Robert Michael B. v. Morris N., 195 W. Va. 759,
765, 466 S.E.2d 827, 833 (1995) (“‘[A] skeletal “argument”, really nothing more than an assertion,
does not preserve a claim.’”) (citation omitted); see also Ohio Cellular RSA Ltd. P’ship v. Bd. of
Pub. Works, 198 W. Va. 416, 424 n.11, 481 S.E.2d 722, 730 n.11 (1996) (declining to address
inadequately briefed assignment of error). To preserve her claim, petitioner was required to
adequately brief it before the circuit court, which was sitting as an appellate court. Petitioner failed
to do so, however, and because this Court may “affirm the judgment of the lower court when it
appears that such judgment is correct on any legal ground disclosed by the record, regardless of
the ground, reason or theory assigned by the lower court as the basis for its judgment,” we find no
error in the court’s conclusion that petitioner waived this claim. Syl. Pt. 3, in part, Barnett v.
Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).
Lastly, petitioner claims error in the lower tribunals’ assessment of missing assets against
her share of the Frances Casdorph estate. Petitioner argues that because the residuary clause
dictated that assets pass two-thirds to her and one-third to respondent, she owned two-thirds of
those assets and only one-third of the value of any missing or misappropriated property should
have been assessed against her share.
We find no merit to petitioner’s final assignment of error. The fiduciary commissioner’s
recommendation, affirmed by both the County Commission and circuit court, was that any assets
“that have since gone missing, may, at the sound discretion of the personal representative, be
deemed to have been distributed to [petitioner], inasmuch as their loss is directly attributable to
her malfeasance and nonfeasance,” and the Frances Casdorph estate “calculated accordingly.”
Thus, the value of any missing assets would be assessed against petitioner’s two-thirds share of
the residuary. Petitioner has failed to demonstrate that this conclusion operated to deprive her of
anything to which she was entitled. Rather, as found by the lower tribunals, if the assets that were
lost or became unaccounted for during her administration of the estate were not charged against
her two-thirds share, petitioner would profit from her malfeasance and nonfeasance. Petitioner has,
therefore, demonstrated no error.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: September 9, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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