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In re Conservatorship of Addison

Court of Appeals of Mississippi

January 9, 2018

IN THE MATTER OF THE CONSERVATORSHIP OF CHARLES ADDISON: CYNTHIA SHENELL JACKSON A/K/A CYNTHIA ADDISON JACKSON APPELLANT
v.
DOUG TOUCHSTONE, CONSERVATOR, WILLIAM ADDISON A/K/A WILLIE ADDISON, AND AUBREY ADDISON APPELLEES

          DATE OF JUDGMENT: 11/18/2015

         AMITE COUNTY CHANCERY COURT HON. DEBBRA K. HALFORD

          ATTORNEY FOR APPELLANT: SANFORD E. KNOTT

          ATTORNEYS FOR APPELLEES: ALTON LAMAR WATTS, GARY L. HONEA, JOHN BENJAMIN ROWLEY TODD BRENTLEY OTT

          BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.

          WILSON, J.

         ¶1. This is a case about joint ownership of bank accounts and certificates of deposit. From 1975 to 1999, Charlie Addison made his daughter, Cynthia Addison Jackson, a joint owner of several of his bank accounts and CDs. Cynthia was still in high school when Charlie opened the first of these accounts. In 2011, Charlie's mental and physical health had declined, and he needed a conservator. The chancellor appointed Cynthia conservator of Charlie's person and appointed the Pike County Chancery Clerk conservator of Charlie's estate. The chancellor also ordered the funds in the joint accounts and CDs to be transferred to a conservatorship account for "safekeeping." Cynthia appealed, arguing that the chancellor should have appointed her conservator of her father's estate. However, Charlie passed away while the appeal was pending. Cynthia and the conservator then filed a joint motion to dismiss the appeal as moot, which this Court granted.

         ¶2. After Charlie's death, Cynthia filed a motion in the chancery court requesting the return of the funds that had been transferred to the conservatorship account. She maintained that she was the rightful owner of the funds as the surviving joint owner of the accounts and CDs from which they had been transferred. The chancellor denied Cynthia's motion and ruled that the funds were the property of Charlie's estate. Cynthia appealed.

         ¶3. We hold that Cynthia was a joint owner with rights of survivorship of the funds held in the joint accounts and CDs, that her interest in the funds was not destroyed by their transfer to conservatorship accounts, and that she did not abandon her claim to the funds when she agreed to dismiss her prior appeal as moot. Accordingly, we reverse and render judgment in favor of Cynthia.

         FACTS AND PROCEDURAL HISTORY

         ¶4. Charlie and his wife, Margie Mae, had two sons, Aubrey Addison and Willie Addison, and one daughter, Cynthia. Cynthia is fifty-eight years old and has lived in Pike County or Amite County for most of her life. Willie is seventy-four years old. It appears that he now lives in McComb, although he previously lived out of state and the record is not clear as to when he moved to Mississippi. Aubrey has lived in California since the early 1960s and is now approximately seventy-five years old. He rarely saw his parents in the last few years of their lives. Margie Mae passed away on May 3, 2012. Charlie passed away on January 9, 2014, at the age of ninety-six. As noted above, this appeal concerns certain bank accounts and CDs that Charlie established prior to his death.

         ¶5. In 1975, Charlie opened a savings account at First National Bank (now known as Trustmark National Bank) that named Cynthia as a joint owner. At that time, Charlie had moved to Wisconsin for work, and Cynthia was living with relatives in Mississippi while she finished high school. In the 1980s and 1990s, Charlie established additional accounts and CDs that named Cynthia as a joint owner. Charlie provided all of the funds for these accounts and CDs. Cynthia wrote checks on and made deposits to and withdrawals from the accounts, but only at Charlie's direction.

         ¶6. In 1993, Charlie and Margie Mae moved back to Mississippi and lived less than a mile from Cynthia for the rest of their lives. After he returned to Mississippi, Charlie continued to maintain and create accounts and CDs that named Cynthia as a joint owner. Cynthia saw her parents almost daily, but it is undisputed that Charlie remained independent, active, and competent to manage his own affairs for many years after he returned to Mississippi.

         ¶7. In April 2010, Charlie executed (1) a durable general power of attorney designating Cynthia as his attorney-in-fact; (2) a deed conveying 140 acres in Amite County to Cynthia; and (3) a will. The will was sealed, and Cynthia and her husband, John, testified that they had not seen it and did not know what it provided. John testified that Charlie made the appointment with the attorney himself. John testified that he drove Charlie to the attorney's office because Charlie asked him to do so; however, he did not attend the appointment with Charlie or ask him why he needed to see a lawyer. Cynthia testified that she did not ask her father to sign the power of attorney, deed, or will. According to Cynthia, Charlie did not tell her about the documents until after he had signed them, and he warned her that her brothers "were going to cause problems."

         ¶8. Cynthia testified that by July 2011, Charlie "was not what he used to be" mentally, and she became concerned that Willie would try to convince Charlie to cut timber on his land. She was also worried that Willie would take Charlie to a bank and persuade him to withdraw funds from his accounts. Cynthia testified that she and her family were going to be out of town for several days, so she moved over $204, 000 from joint accounts owned by her and Charlie to her personal bank account. She claimed that she did this to prevent Willie or anyone else from taking advantage of her father.

         Petition for Appointment of a Conservator and Temporary Order

         ¶9. On December 20, 2011, Willie filed a petition in the Amite County Chancery Court to appoint a conservator for Charlie's person and estate.[1] Willie alleged that Cynthia should not be appointed conservator because she had exercised undue influence over Charlie. Aubrey joined Willie's petition. Cynthia subsequently filed an answer and cross-petition for appointment of a conservator. Cynthia agreed that a conservator should be appointed for Charlie's person and estate, and she asked the court to appoint her as conservator.

         ¶10. On June 7, 2012, the chancellor entered a temporary order appointing Pike County Chancery Clerk Doug Touchstone[2] as conservator for Charlie's estate and Cynthia as conservator over Charlie's person. The order also directed Cynthia to "deliver" all relevant "financial documents"-including all checking accounts, savings accounts, and CDs-to Touchstone within seven days and "enjoined [Cynthia] from disposing of any [CDs] or funds" in any account "that came from Charlie." The chancellor also ordered Cynthia to account for the approximately $204, 000 that she had removed from the joint accounts.

         ¶11. On July 9, 2012, Touchstone filed a motion to compel Cynthia to comply with the court's order to turn over financial documents and return Charlie's money. Cynthia's response stated that she had returned the funds to the joint accounts on June 25, 2012, and that the court-appointed guardian ad litem (GAL) was already in possession of the financial documents. The funds were transferred from the joint accounts to new conservatorship accounts by September 14, 2012.

         The Guardian Ad Litem Report

         ¶12. Willie and Aubrey told the GAL[3] that they had not visited with Charlie in 2012 and were reluctant to visit him at Cynthia's home. Their primary concerns were the power of attorney and deed that Charlie signed in April 2010 and the funds that Cynthia transferred to her personal account. Willie and Aubrey did not believe that Charlie had the capacity in April 2010 to sign a deed or a power of attorney. The GAL concluded that the deed and transfer of funds "appear[ed] suspect, " "at least on their face." However, he also concluded that all three children appeared to be "motivated by genuine concern for their father."

         ¶13. The GAL met with Cynthia, her husband, and Charlie at Charlie's home, a "small house/apartment" located directly behind Cynthia's home. Cynthia had the apartment built in 2012 so that she could care for her parents. Previously, Cynthia and her husband had cared for her parents by living temporarily in a camper parked next to her parents' home. The GAL found that Charlie's new home was clean, neat, and comfortable.

         ¶14. The GAL reported that Charlie was well cared for and in fair physical condition, although he was feeble. Charlie knew his birth year, although he was unable to state his age. Charlie seemed to think that he was still at his home in Amite County, rather than at his daughter's residence in Pike County. Charlie also seemed unsure whether he owned or ever had owned any land, and he tried to avoid answering questions about the land.

         ¶15. The GAL recommended that Cynthia be required to comply with the court's prior order to return the transferred funds, that the court hire a CPA to examine all of Charlie's financial records, that Charlie receive regular visits from a home health agency, and that Willie and Aubrey be allowed to visit their father at his home.

         The Conservatorship Hearing and Order

         ¶16. At a hearing on September 11, 2012, all parties and the GAL agreed that Charlie required a conservator for his person and estate and that Cynthia should continue to act as conservator over his person. The only dispute was whether Touchstone or Cynthia should be conservator over Charlie's estate.

         ¶17. Cynthia testified about the joint accounts that she held with her father. She stated that she made withdrawals from and deposits to the accounts while her parents lived in Wisconsin based on her father's instructions. She readily acknowledged that the money in the accounts belonged to her father. She stated that she always considered it his money but that he "trusted" her and "wanted [her] to be over [the money]." She further testified: "By him putting it in my name that meant I would make the decisions about what was to be done with the money." She intended to use the money to "take care of [him], whatever his needs" might be. She testified that she did not "know the law on" what would happen to any money that remained after Charlie died.

         ¶18. Cynthia testified that around July 2011, she first noticed that her father's mind seemed to be getting weaker-it "was not what it used to be." She became concerned that, in her absence, Willie might convince Charlie to cut timber or transfer money out of his bank accounts. She claimed that she had to go to Arkansas on July 15, 2011 to help her daughter move to do a student internship, [4] so before she left town, she transferred $204, 000 from accounts jointly owned by her and Charlie to her personal account.

         ¶19. Cynthia admitted that she had not yet provided Touchstone with all relevant financial documents. She also admitted that she had paid her father's sitters from a joint account despite the court's order not to dispose of any of his funds. She testified that she had not understood the court's order to prohibit such payments.

         ¶20. The chancellor ruled from the bench that Touchstone would remain as conservator of Charlie's estate and that Cynthia would remain as conservator of Charlie's person. In her bench ruling, the chancellor criticized Cynthia's failure to turn over financial documents and comply with prior court orders. The chancellor also questioned the credibility of some aspects of Cynthia's ...


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