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In re Estate of Kolf

Court of Appeals of Mississippi

October 22, 2019

IN THE MATTER OF THE ESTATE OF DOROTHEA KOLF, DECEASED:
v.
STAN AUTHEMENT, EXECUTOR APPELLEE PETER A. KOLF APPELLANT

          DATE OF JUDGMENT: 11/16/2017

          HANCOCK COUNTY CHANCERY COURT HON. SANFORD R. STECKLER TRIAL JUDGE

          ATTORNEY FOR APPELLANT: MICHAEL JOSEPH YENTZEN

          ATTORNEY FOR APPELLEE: CLEMENT S. BENVENUTTI

          BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ.

          BARNES, C.J.

         ¶1. Peter and Dorothea Kolf were married on June 14, 2008. The couple executed a premarital agreement (Agreement), indicating their intent to keep assets acquired prior to marriage as separate property. The Agreement also provided that the couple would maintain a joint account for their living expenses. The couple established two joint accounts-one at The First Bank and one at Hancock Bank. Dorothea's income (her social security and pension) went into The First Bank account; Peter's income went into the Hancock Bank account. Dorothea also had an individual savings account with Keesler Credit Union (Keesler). On August 7, 2008, Dorothea executed a durable power of attorney appointing Peter as her attorney-in-fact for financial purposes.

         ¶2. Dorothea was diagnosed with lung cancer in March 2016. In May 2016, she discontinued chemotherapy treatment and began hospice care. Peter withdrew $5, 000 from Dorothea's Fidelity Investments (Fidelity) IRA in June 2016 and another $20, 000 in August 2016, reportedly because Dorothea had recently turned 70½ and was required to take a minimum required distribution (MRD) under the IRA's terms. Of the money withdrawn, $15, 500 was deposited into the joint account at The First Bank; the remaining $9, 500 went to the Internal Revenue Service (IRS) for taxes.[1] Peter did transfer $3, 250 from the first MRD to Dorothea's Keesler account in June 2016.

         ¶3. Dorothea died on September 3, 2016, and her son, Stan Authement, was appointed as executor under the terms of her will shortly thereafter. Authement filed a motion to compel the return of estate assets and other relief with the Hancock County Chancery Court on November 8, 2016, asserting that the IRA funds transferred to the joint account at The First Bank belonged to the estate, not Peter, and requesting that Peter provide an inventory of all estate assets from Dorothea's home.[2] The motion also contended certain personal property-a diamond ring that had belonged to Peter's first wife and new home appliances-constituted gifts to Dorothea from Peter and were, therefore, estate assets. On January 12, 2017, Peter filed a probate claim, requesting $4, 219 for funds expended for Dorothea's funeral expenses. He also filed an estate accounting.

         ¶4. On March 24, 2017, the chancery court entered an "Order Freezing Assets of Estate, Compelling Inventory and Accounting and Other Relief," nunc pro tunc to January 23, 2017. The order required Peter to provide an accounting of all funds held or expended from The First Bank account from January 1, 2016, to the date of the accounting. Although the order prohibited Peter from filing a joint tax return for 2016, he did file a joint tax return on March 5, 2017; so Authement filed a motion for contempt on May 17, 2017, and a motion for attorney's fees.

         ¶5. Hearings were held on June 15, 2017, and September 14, 2017. On June 29, 2017, the chancery court ordered that the funds in the Keesler savings account be distributed to the account's beneficiary, Stephanie Skojac, Dorothea's daughter.

         ¶6. The chancery court entered a final judgment on November 16, 2017, that Dorothea lacked the capacity to make informed decisions after May 1, 2016. Therefore, the IRA funds ($25, 000) withdrawn from Dorothea's IRA account "must be returned" to the estate, minus $8, 511.37 in legitimate expenditures, for a total award of $16, 488.63 to Dorothea's estate. The chancery court also held that the diamond ring and the appliances were part of the estate. Because Peter was found in contempt for filing the 2016 tax return, he was ordered to pay $900 in attorney's fees for the contempt, as well as one-half of Authement's attorney's fees ($5, 240.50) "resulting from his wrongful acts in depriving the estate of estate assets." Peter appeals the judgment. Finding the court erred in failing to award Peter credit for monies he transferred to Dorothea's Keesler account, we reverse and render in part, but affirm in all other respects.

         STANDARD OF REVIEW

         ¶7. Our review of a chancery court's judgment is limited. Whitley v. Love (In re Estate of Whitley), 129 So.3d 260, 262 (¶5) (Miss. Ct. App. 2013) (citing Howard v. Gunnell, 63 So.3d 589, 597 (¶16) (Miss. Ct. App. 2011)). We will not disturb the chancery court's decision on appeal absent a finding that the court was "manifestly wrong, clearly erroneous, or the [court] applied an erroneous legal standard." Id. Questions of law, however, are reviewed de novo. Id. (citing Rousseau v. Rousseau, 910 So.2d 1214, 1217 (¶8) (Miss. Ct. App. 2005)).

         DISCUSSION

         I. Whether the chancery court erred in awarding the Appellee the IRA funds from The First Bank joint account.

         A. Dorothea's Ability to ...


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