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In re Conservatorship of Smith

Court of Appeals of Mississippi

August 8, 2017

IN THE MATTER OF THE CONSERVATORSHIP OF MARGARETTE SMITH: CONSTANCE FITZMAURICE APPELLANT
v.
CHARLES VANDEVORT, CONSERVATOR APPELLEEIN THE MATTER OF THE LAST WILL AND TESTAMENT OF MARGARETTE SMITH, DECEASED: CONSTANCE FITZMAURICE APPELLANT
v.
CHARLES VANDEVORT, EXECUTOR APPELLEE

          DATE OF JUDGMENT: 10/29/2014

         HINDS COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT, HON. WILLIAM H. SINGLETARY JUDGE.

          ATTORNEYS FOR APPELLANT: HARRIS H. BARNES III JAMES WILLIAMS JANOUSH.

          ATTORNEY FOR APPELLEE: SAM M. BRAND JR.

          BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

          GREENLEE, J.

         ¶1. 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.[1] 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.[2]

         FACTS AND PROCEEDINGS BELOW

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.

         ¶5. On January 19, 2010, Vandevort filed an amended conservatorship petition.[3] 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.

         ¶6. 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.

         ¶7. 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.[4] On April 27, 2010, Vandevort transferred $30, 000 from Smith's accounts. He transferred another $31, 000 on June 4, 2010.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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.

         ¶11. 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.

         ¶12. Again, the chancellor granted Vandevort's petition on the same day that it was filed.[5]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.

         ¶13. 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.

         ¶14. 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 otherwise.[6]

         ¶15. 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, etc."

         ¶16. 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 ...


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