Callaway v. Callaway
| Decision Date | 06 August 2010 |
| Docket Number | No. 28A04-0908-CV-467.,28A04-0908-CV-467. |
| Citation | 932 N.E.2d 215 |
| Parties | James D. CALLAWAY, Jason M. Callaway, and Greg R. Callaway, Appellants, v. Hannah CALLAWAY, Truman Callaway, and Debra J. Mathew, Appellees. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
John A. Cremer, Cremer & Cremer, Indianapolis, IN, Attorney for Appellants.
Nana Quay-Smith, Phil L. Isenbarger, Karl L. Mulvaney, Bingham McHale LLP, Indianapolis, IN, Attorneys for Appellees.
James Callaway, Jason Callaway, and Greg Callaway (“the Sons”) appeal from a jury verdict upholding the validity of the Last Will and Testament of John L. Callaway, (“Will”). The Sons present the following issues for our review:
1. Whether the Will was published in accordance with Indiana Code Section 29-1-5-3.
2. Whether the Will was executed and witnessed in accordance with Indiana Code Section 29-1-5-3.
3. Whether the trial court abused its discretion when it rejected the Sons' proposed Jury Instruction No. 1.
We conclude that the evidence is sufficient to support the jury's verdict that the Will was properly published, executed, and witnessed. We further conclude that the trial court did not abuse its discretion when it refused the Sons' proposed jury instruction on the presumption of undue influence. Thus, we affirm.
From 1995 until his death in June 2008, John lived on a forty-acre farm near Worthington. John was 61 when he died and was survived by three adult sons. Jim, his oldest son, lived in Beech Grove. Jim visited with John on the phone, saw him about five times a year at John's mother's home, met him occasionally to hunt or fish, and drove to the farm each Father's day until 2006. In 2007 Jim first saw John at Thanksgiving. Jason, John's middle son, lived in Terre Haute with his wife and two children. John drove to Terre Haute to visit with Jason's family monthly from 1999 to 2006, but he no longer made the drive in 2007. Jason called John about once a month. Greg, John's youngest son, lived in Terre Haute and later in Pendleton. After moving to Pendleton, Greg saw his father when John drove to Elwood, near Pendleton. Greg spoke with John on the phone once every one or two months, and his last visit to the Worthington farm before 2007 was in 2004.
Shortly after his divorce from Jason and Greg's mother in 1999, John met Debra Mathew. John and Debra both loved horses and became acquainted when John visited her crop and horse-breeding farm in Freedom to inquire about a trail horse she was selling. When Debra was treated for cancer in 2003, John assisted her and, eventually, helped her sell her farm. In 2004 Debra bought another farm near John's in Worthington. Although the couple spent much of their time together, they continued to maintain separate residences. The couple's activities included buying, trading, breeding, and riding horses; fishing; breeding dogs; gardening; farming; and visiting family. 2
On September 27, 2007, John drove one hundred miles to the home of Patricia Ogborn in Noblesville to make a will. Patricia, 3 a notary public, and John had known each other a long time, and she would often see him at horse sale barns. Patricia's daughter, Christeen Ogborn, and her grandson, Jeremy Neel, were at the home when John arrived. Christeen had met John a couple of months earlier at the Strawtown Horse Barn. At Ogborn's home, Patricia and John were sitting together in a room in the home when Christeen entered. Christeen was “asked to be a witness” to a document. Christeen asked if John had signed the document, and he replied affirmatively. Christeen then signed as a witness. Christeen saw Patricia notarize and seal the document. Christeen and John then walked out of the house so she could show him her stud horse.
A short time thereafter, Jeremy, Patricia's grandson, was asked to come in from his chores. Jeremy knew that his grandmother sometimes helped people with their wills. Inside he met John for the first time. When Jeremy asked if the signature on the document was John's, the older man answered affirmatively. Jeremy then signed the document as a witness and left the room.
At Thanksgiving in 2007, Jim visited his father. John had a history of being a heavy drinker. At this visit, he was ailing physically but communicating clearly. Jim asked him to stop drinking, and John attempted to do so “cold turkey” that same day after Jim had left. Transcript at 265. But John suffered hallucinations and blacked out, and Debra called an ambulance. When the medics arrived, John was conscious and refused to go to the hospital. John had told Jim he would undergo treatment for alcohol abuse after the holidays, but he did not do so.
In early 2008, John continued with his chores around his farm for a while, but by March he was too ill to work. More than once Debra asked John to see his physician, and on March 17 she insisted. That day, Debra, with the assistance of friend Nancy Judy, drove John to an appointment with his physician, Dr. Rick Halstead, in Mooresville. Dr. Halstead immediately sent John for admission to Westview Hospital in Indianapolis.
John admitted himself to Westview where his treatment was alcohol detoxification. Debra stayed with him and tended to his non-medical needs. On March 20 she informed the Sons of the hospitalization, and they first visited John on March 23. After John completed treatment at Westview, he was transferred to a nursing home for further rehabilitation. John developed medical complications after a couple of days and was subsequently transferred to Terre Haute Regional Hospital on April 10. There he was diagnosed with alcoholic liver disease.
While John was an inpatient in Terre Haute, the Sons petitioned for guardianship. After a week in that hospital, John insisted on going home. He was discharged on April 16 and returned home. From John's home, Debra coordinated his hospice and home therapy visits and either stayed with him or arranged for someone to be with him around the clock. John died on June 9, 2008.
On the day John died, Debra spoke with his Bloomfield attorney, Marilyn A. Hartman. Hartman instructed Debra to retrieve the envelope that John had asked Debra to put in his safe immediately before he left for his March 17 doctor's appointment. The envelope contained the Will executed in Noblesville on September 27. At Hartman's request, Debra faxed the Will to Hartman. Hartman then contacted the funeral home director and informed him that John had a will. And the funeral home director informed the Sons that John had a will.
Nevertheless, on June 11, the Sons filed a petition seeking Jim's appointment as the personal representative of John's estate and alleging that John had died intestate. The Sons did not give notice of the petition to Debra. On June 11 Debra filed a petition for probate of the Will, appointment of personal representative, and unsupervised administration of John's estate. Hartman also learned of the Sons' petition, and on June 12 she filed a verified petition for order ex parte, advising the court that John had died testate and that the funeral home director had informed the Sons of that fact before they had filed their petition. As a result, the court vacated the order appointing Jim as administrator of John's estate and revoked his letters of administration. Also in June, Christeen and Jeremy each executed a Proof of Will. On identical Proofs of Will, the affiants swore that John had acknowledged his signature on the Will to Christeen and Jeremy and that Christeen and Jeremy had signed the Will as witnesses in front of John and each other.
On June 26, James filed a Complaint to Resist the Probate of Will. He amended the complaint on November 7 to add Jim and Greg as plaintiffs and Jason's children as defendants due to their beneficial interest under the Will. The Sons amended the complaint a second time on July 3, 2009. The second amended complaint alleged that John had lacked testamentary capacity and that he was subject to Debra's undue influence; that the Will was not executed in accordance with Indiana Code Section 29-1-5-3(b)(2); that Debra breached her fiduciary duty by using John's funds before his death; and that Debra had converted assets.
Shortly before the complaint was set for trial, the court, at Debra's request, bifurcated the issues of John's testamentary capacity, undue influence, and the execution of the Will from the remaining counts. On July 22, Debra filed her answer, affirmative defenses, and counterclaims. On July 23 the Sons filed their trial memorandum on the presumption of undue influence and Debra's burden of production. And on July 27, Debra filed her trial memorandum objecting to the Sons' proffered jury instruction on the presumption of undue influence.
The jury trial on the issues of testamentary capacity, undue influence, and the validity of the Will began on July 28. Christeen, Jeremy, and others testified at trial. Patricia had died in September 2007, well before trial. In an amended trial order dated July 31, following the close of evidence, the court refused to give the Sons' proposed final instruction number 1 on the presumption of undue influence. The Sons timely objected to the court's refusal to give that instruction. Following deliberations, the jury returned a verdict in favor of Debra. The trial court denied the Sons' oral motion for judgment on the evidence under Trial Rule 50. 4 This appeal ensued. 5
The Sons argue in essence that the evidence is insufficient to support the jury's verdict that the will was properly executed. When reviewing the claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003). The evidence will be viewed and all reasonable inferences will be drawn in favor of the verdict. Id.
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