IN THE MATTER OF THE CONSERVATORSHIP OF MARGARETTE SMITH: CONSTANCE FITZMAURICE APPELLANT
CHARLES VANDEVORT, CONSERVATOR APPELLEEIN THE MATTER OF THE LAST WILL AND TESTAMENT OF MARGARETTE SMITH, DECEASED: CONSTANCE FITZMAURICE APPELLANT
CHARLES VANDEVORT, EXECUTOR APPELLEE
OF JUDGMENT: 10/29/2014
COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT, HON. WILLIAM
H. SINGLETARY JUDGE.
ATTORNEYS FOR APPELLANT: HARRIS H. BARNES III JAMES WILLIAMS
ATTORNEY FOR APPELLEE: SAM M. BRAND JR.
LEE, C.J., ISHEE AND GREENLEE, JJ.
Constance Fitzmaurice filed separate contempt petitions
against Charles Vandevort stemming from his conduct as
Margarette Smith's conservator and the executor of
Smith's estate. The Hinds County Chancery Court, Second
Judicial District, dismissed the former and stayed the
latter. Fitzmaurice's appeals were consolidated before
they were assigned to this Court. We agree that the
chancellor erred when he dismissed the contempt petition that
Fitzmaurice filed in Smith's conservatorship matter.
Accordingly, we reverse the chancellor's judgment and
remand that case for further proceedings. However, we lack
jurisdiction to hear the appeal from Smith's estate,
because the chancellor's order staying Fitzmaurice's
contempt petition was not a final judgment. As such, we
dismiss that appeal.
AND PROCEEDINGS BELOW
Smith's only daughter, Isabella Robinson, predeceased
her. Robinson's daughter, Fitzmaurice, is Smith's
sole descendant. The record contains almost no information
regarding Vandevort's connection to Smith. Our source is
a report prepared by the Mississippi Department of Human
Services (MDHS) in response to an allegation that Vandevort
had been physically neglecting Smith and planning to acquire
her assets. The report, which was filed in support of
Fitzmaurice's contempt petitions, states that when
Robinson died in October 2009, she and Vandevort had been
dating and cohabiting for approximately a decade. Thus,
Vandevort's connection to Smith was through Smith's
daughter, Robinson, who was Fitzmaurice's mother.
In November 2009, Vandevort filed a conservatorship petition
alleging that Smith "suffer[ed] from dementia and other
medical conditions." The petition only said that he was
Smith's unrelated caregiver. Vandevort's petition
further said that Smith's only living relative was an
unnamed granddaughter, but "[n]either the deceased
mother or father have heard from her" for fifteen years,
and Vandevort did not know where she lived. Vandevort did not
file supporting affidavits from two physicians with the
petition. Instead, he said that after he was appointed as
Smith's conservator, he would provide the court with an
affidavit from Smith's physician. The chancellor entered
an order granting Vandevort's conservatorship petition on
the same day that it was filed. The order said that Smith was
eighty-six years old and that she suffered from dementia. The
order also directed Vandevort to file a statement from
Smith's treating physician regarding her physical and
mental health. There is a subsequent docket entry labeled
"Affidavit of Physician, " but the affidavit is not
included in the appellate record.
On January 13, 2010, Vandevort and Smith went to a
BancorpSouth branch and opened a joint checking account with
rights of survivorship without first obtaining the
chancellor's permission. The bank employee who assisted
them selected a box listed as "cash" regarding the
source of the initial $30, 000 deposit. The next day, the
chancellor appointed a guardian ad litem (GAL) to accept
service of process, prepare an inventory of Smith's
estate, and produce an accounting.
On January 19, 2010, Vandevort filed an amended
conservatorship petition. Contrary to Vandevort's first
petition, his amended conservatorship petition said that
Smith had "no descendant." The amended petition did
not disclose the existence of the joint checking account that
Vandevort had opened less than a week earlier. The
clerk's docket entries indicate that the chancellor
subsequently conducted a hearing during February 2010, but
the record does not contain a transcript of the hearing.
The next docket entry is the GAL's March 5, 2010 motion
to approve his inventory and accounting, all of which are
omitted from the record. The chancellor granted the GAL's
motion on the same day that it was filed. The chancellor
noted that Smith had approximately $87, 000 in "cash on
hand, " and Smith's income was nearly $1, 500 per
month. Stating that Smith's accounts with Bank of America
were "exceedingly hard for [Vandevort] to deal with,
" the chancellor ordered Vandevort "to have the
accounts consolidated at" BancorpSouth. There is no
indication that the chancellor was aware that Vandevort and
Smith had opened the joint account with rights of
survivorship. In a handwritten notation, the chancellor
directed Vandevort to post a $100, 000 bond.
Smith had a checking account and a savings account at Bank of
America, where she had been banking since 1972. Her and
Robinson's names were on both accounts. The record
contains one "Combined Account Statement" related
to Smith's accounts at Bank of America. As of April 15,
2010, Smith had approximately $43, 000 in her checking
account, and $19, 000 in her savings account. On April 27,
2010, Vandevort transferred $30, 000 from Smith's
accounts. He transferred another $31, 000 on June 4, 2010.
On June 21, 2010, Smith executed a will. Prepared by the same
lawyer who represented Vandevort throughout the
conservatorship proceedings, the will named Vandevort as the
sole beneficiary of Smith's estate. The will also
nominated Vandevort as the executor of Smith's estate.
Smith died on November 29, 2010.
In December 2010, Vandevort filed a petition to probate
Smith's will. He also submitted an affidavit stating that
he had diligently tried to find anyone who might have a claim
against Smith's estate. On January 6, 2011, Chancellor
Dewayne Thomas entered an order admitting the will to
probate, appointing Vandevort as the executor of Smith's
estate, and granting Vandevort's request for permission
to have Smith cremated.
On January 18, 2011, Vandevort withdrew $90, 000 from the
joint checking account at BancorpSouth. According to counsel
for Fitzmaurice, on February 11, 2011, Vandevort used the
money to buy a house in Tacoma, Washington.
Although not borne out by the record or the chancery
clerk's docket entries, the parties and the chancellor
all represent that on July 14, 2011, Fitzmaurice filed a
complaint to set aside Smith's will. The record is silent
regarding how or when Fitzmaurice became aware of the estate
or conservatorship proceedings. Five days later, Vandevort
filed a petition to approve his final conservatorship
accounting and release him from any further responsibilities
as Smith's conservator. Vandevort's final accounting
did not include any financial statements beyond November
2010. Thus, the final accounting represented that Smith had
nearly $100, 000 in the BancorpSouth account, and it omitted
the fact that Vandevort had withdrawn $90, 000 on his own
initiative during January 2011.
Again, the chancellor granted Vandevort's petition on the
same day that it was filed.The chancellor's order was
prepared by Vandevort's attorney. It approved
Vandevort's final accounting and discharged Vandevort
from any further duties as Smith's conservator. The order
further said that all of the conservatorship's assets
"are hereby transferred" to Smith's estate.
Notwithstanding his representation that there was nearly
$100, 000 in Smith's checking account, Vandevort did not
transfer that figure to Smith's estate.
On October 13, 2013, Fitzmaurice filed a contempt petition in
Smith's conservatorship proceeding. She also filed a
separate but identical contempt petition in Smith's
estate proceeding. Fitzmaurice alleged that Vandevort should
be held in civil contempt for breaching his fiduciary duties
to Smith, and he failed to comply with the chancellor's
orders. Among other exhibits, Fitzmaurice attached a copy of
the MDHS report mentioned above.
The report was prompted by Vandevort's ex-wife, Joyce,
who contacted MDHS shortly after she visited Smith and
Vandevort during January 2010. Joyce alleged that Vandevort
was physically neglecting Smith, screaming at her, and giving
her Prozac that had been prescribed for Robinson. Joyce also
reported that Vandevort wanted all of Smith's money
through inheritance or otherwise, and that Vandevort had
shown her $80, 000 of Robinson's money that he had
"stashed" in Smith's house. Finally, Joyce
claimed that Vandevort knew that Fitzmaurice lived in
California, but he intentionally said
The report also indicates that approximately a month before
Smith executed the will naming Vandevort as the sole
beneficiary of her estate, an MDHS investigator visited with
Smith and attempted to interview her. According to the
report, Smith "did not have the mental capacity to
answer [the] allegations when asked . . . ." The MDHS
investigator further reported that Smith "could not
answer questions on the Mini Mental Stat[e] Examination"
and that she "was not oriented to day, date, season,
Vandevort subsequently moved to dismiss both of
Fitzmaurice's contempt petitions. According to Vandevort,
the contempt petition that Fitzmaurice filed in the
conservatorship proceeding was untimely per the two-year
statute of limitations set forth in Mississippi Code
Annotated section 91-7-309 (Rev. 2013). Fitzmaurice responded
that she was not attempting to reopen Vandevort's
accounting, so the two-year statute of limitations did not
apply. The chancellor ultimately agreed with Vandevort.
Consequently, the chancellor dismissed the contempt petition
that Fitzmaurice filed in the conservatorship proceeding.
However, the chancellor stayed Fitzmaurice's other
contempt petition until he ruled on her complaint to set
aside Smith's will. Fitzmaurice appeals both the denial
of the contempt motion in the ...