Beck v. Beck, 14722

• Decision Date: 28 April 1987
• Docket Number: No. 14722,14722
• Citation: 728 S.W.2d 703
• Parties: Goldie BECK, Respondent, v. Larry BECK and Sue Beck, Appellants.
• Court: Missouri Court of Appeals

Page 703

728 S.W.2d 703

Goldie BECK, Respondent, v. Larry BECK and Sue Beck, Appellants.

No. 14722.

Missouri Court of Appeals,

Southern District,

Division One.

April 28, 1987.

Ronald D. White, Rolla and Joseph W. Rigler, Joplin and J. Max Price, Salem, for appellants.

Mark Roberts, Steelman, Hearne & Hearne, Salem, for respondent.

CROW, Chief Judge.

Goldie Beck ("plaintiff") sued her only child, Larry Beck ("Larry"), and Larry's wife, Barbara Sue Beck ("Sue"), seeking, among other relief, the declaration of a constructive trust on nine certificates of deposit and one parcel of real estate.

A non-jury trial produced a judgment declaring Larry and Sue (henceforth referred to collectively as "defendants") constructive trustees "as to the entire principal" of eight certificates of deposit, and constructive trustees as to the principal of a ninth certificate "to the extent of [p]laintiff's contribution" thereto. The aggregate amount of principal for which the constructive trust was impressed was $82,710.28. The judgment also declared that defendants were constructive trustees as to certain interest due plaintiff on the nine certificates, in the aggregate amount of $14,594.39. Additionally, the judgment declared that defendants were constructive trustees for plaintiff as to all cash and currency held in defendants' safety deposit box, to the extent of the two sums set forth above.

In regard to the real estate--a "brick building" in Ellington, henceforth referred to as "the Ellington property"--the judgment declared that Larry held legal title thereto as a joint tenant with plaintiff. The judgment further declared that Larry held his interest as constructive trustee for the use and benefit of plaintiff, that plaintiff was entitled to have "sole legal title" to said property conveyed to her, and that plaintiff was entitled to exclusive possession thereof. The judgment commanded both defendants to execute a deed conveying all their right, title and interest in the Ellington property to plaintiff, and provided that if defendants failed to do so within ten days, the judgment would have the effect of such a conveyance.

Defendants appeal, challenging only the portion of the judgment pertaining to the Ellington property; they do not attack any portion of the judgment regarding the certificates of deposit or the contents of their safety deposit box. Defendants' assignments of error are easier understood after a synopsis of the evidence.

Plaintiff, age 68 at time of trial, ¹ is the widow of Eugene Beck (Larry's father), who died June 18, 1962. When Eugene died, he and plaintiff owned--presumably as tenants by the entirety--two farms in Reynolds County. Plaintiff testified, without contradiction, that she sold the farms in 1962 and 1963, receiving a total of $45,000, part of which she invested in certificates of deposit "in the name of Goldie Beck or Larry Beck," and part of which she invested in "mutual funds."

Plaintiff recounted that she suffered a "nervous breakdown" in 1963, for which she was hospitalized in St. Louis, receiving psychiatric care and shock therapy.

In 1966, as we understand plaintiff's testimony, she used some of the money she had received from the sale of the farms to purchase the Ellington property, title to which was apparently taken in her name alone. Plaintiff explained, "I lease it out as a post office." Plaintiff testified, and Larry conceded, that at all times since the Ellington property was purchased, plaintiff has received all the rental income from it, paid the insurance and taxes on it, and reported all such amounts on her income tax return.

As the years went by, plaintiff maintained her investments in certificates of deposit, continuing to have each one issued in the joint names of herself and Larry. Plaintiff received all the interest from the certificates, and reported it on her income tax return. She kept the certificates in a "lock box at the bank," which was likewise carried in both names. Asked why she used both names, plaintiff answered, "Larry wanted me to put his name on everything so that if, so it wouldn't have to go through the probate court if anything happened to me and so that he could take, get into the box or take care of the business, whatever had to be done like doctor bills or hospital bills."

In 1977, plaintiff, who had been working as a cook in various restaurants for several years, suffered a broken arm, and also experienced another "nervous condition." These afflictions caused her to take up residence with defendants ² in their home at Salem where, according to Larry, plaintiff remained approximately nine months. During this period, on November 30, 1977, plaintiff executed a general warranty deed conveying the Ellington property to herself and Larry as joint tenants, and plaintiff also executed a power of attorney which, according to the transcript, authorized Larry "to deal with" the Ellington property. There was a conflict in the evidence as to how this came about.

Neither side specified any fact issues for the trial court to resolve, and the trial court filed no findings of fact. Consequently, all fact issues must be considered as having been found in accordance with the result reached. Rule 73.01(a)(2), Missouri Rules of Civil Procedure (17th ed. 1986); Mills v. Cameron Mutual Insurance Co., 674 S.W.2d 244, 249 (Mo.App.1984); Hazlett v. Clark, 652 S.W.2d 135, 136 (Mo.App.1983). With that in mind, we set out only the evidence favorable to plaintiff regarding the origin of the 1977 deed and power of attorney.

Plaintiff testified, "... I was sick whenever [Larry] went down and had this deed, all this wrote up and the power of attorney and everything, and he come up there and got me and told me I needed to go down there and sign some papers and I did, and whenever I signed them, well, I found out this is what I signed." According to plaintiff, the two instruments were prepared by an attorney whom she had not previously met. The purpose of the documents, in plaintiff's words, was: "... so that Larry could take care of the business if I was sick and couldn't do it or couldn't get down there and so that in case of my death, why it would automatically go to him." Plaintiff insisted she did not ask Larry to have the documents prepared. Plaintiff testified, "He done it and he requested me to go sign it."

Nothing of consequence occurred the next four years, during which plaintiff continued to receive the interest from all certificates of deposit titled jointly in her and Larry's names, and the rental income from the Ellington property.

In April, 1982, plaintiff had nine jointly titled certificates of deposit in the lock box she shared with Larry. Unbeknown to plaintiff, Larry removed the certificates from the box, and stashed them in another lock box, rented in his name and Sue's. Asked how she discovered this, plaintiff testified: "He come home, he was really, he was drunk and he throwed his lunch pale [sic]. I was cooking dinner for him. He throwed his lunch pale [sic] over in the sink where I was fixing the food and he told me he had got my goddamned money, got my goddamned title and he said, now I am going to declare you incompetent and I am going to take every goddamned thing you got."

This incident, according to plaintiff, occurred at defendants' house. Plaintiff explained that she was cooking dinner there because Sue was sick.

Larry's excuse for seizing the certificates was that on several occasions he had seen one Bob Ferrell at plaintiff's house, and on one such occasion had "caught him in my mother's bed." Larry maintained he took the certificates soon afterward "[b]ecause I didn't want someone running off with my money."

Plaintiff admitted that Ferrell had been in bed at her house on the occasion described by Larry, but plaintiff insisted she was not in bed, and that she was going to sleep in another room. Plaintiff added that this incident took place after Larry had commandeered the certificates.

As we comprehend the record, Larry kept the nine certificates in his and Sue's lock box from the time he seized them until July 23, 1983. On that date, Larry signed nine promissory notes, each payable to First National Bank of Salem. As collateral for each note, Larry pledged a separate certificate. Each note was in the identical amount of the certificate securing it, and each note was due on the maturity date of the certificate securing it, so that the proceeds of such certificate would pay such note.

With the proceeds of the nine notes--a total of $87,905.42 as we understand the testimony--Larry purchased two certificates of deposit, each bearing his and Sue's names, one for $50,000 and one for $37,905.42. The interest earned by these two certificates went to Larry and Sue. Larry later shifted the borrowed money into other investments, and ultimately spent an undetermined amount. As the portion of the judgment pertaining to the certificates of deposit is not in issue on this appeal, we need not attempt to trace each dollar. Instead, we focus on the Ellington property, the subject of this appeal.

Defendants' first assignment of error maintains that the imposition of a constructive trust on the Ellington property was against the weight of the evidence and unsupported by substantial evidence, in that imposition of a constructive trust requires proof of fraud or undue influence, and the evidence at trial was insufficient to support a finding of fraud or undue influence. Defendants insist the evidence established that plaintiff executed the 1977 deed to herself and Larry "as a sort of estate planning device," and that her reason for attempting to regain sole ownership of the Ellington property was Larry's seizure of the certificates of deposit four and a half years later.

In support of that contention, defendants direct us to the following excerpt from plaintiff's testimony:

"Q. ... Now from and after November of 1977, up until April of 1982,...