Carter v. Estate of Davis

• Decision Date: 26 August 2004
• Docket Number: No. 12A02-0401-CV-69.,12A02-0401-CV-69.
• Citation: 813 N.E.2d 1209
• Parties: Russell W. CARTER, Appellant, v. ESTATE OF Everett D. DAVIS, Appellee.
• Court: Indiana Appellate Court

813 N.E.2d 1209

Russell W. CARTER, Appellant, v. ESTATE OF Everett D. DAVIS, Appellee.

No. 12A02-0401-CV-69.

Court of Appeals of Indiana.

August 26, 2004.

Gregg S. Gordon, William J. Dale, Dale & Eke, P.C., Indianapolis, IN, Attorneys for Appellant.

Richard D. Martin, Martin & Stuard Law Office, Frankfort, IN, Attorney for Appellee.

OPINION

BARNES, Judge.

Case Summary

Russell Carter appeals the trial court's denial of his motion to dismiss the administration of Everett Davis' estate ("the Estate") for lack of subject matter jurisdiction. We affirm.

Issue

The sole issue is whether the trial court erred in concluding that it had jurisdiction to administer Davis' estate.

Facts

Davis was born in Clinton County, Indiana, in 1903. He was married in Clinton County in 1925. His wife predeceased him in 1989, and she is buried in Clinton County, where Davis also had a burial plot. Davis worked in Clinton County his entire career and owned real property there until 1991. Davis also had approximately $155,000 on deposit in checking and savings accounts with Farmers Bank in Clinton County, as well as $175,000 in certificates of deposit with that bank. This does not include assets making up the corpus of a revocable trust Davis established with Farmers Bank in 1989 and which was still in existence at the time of his death. He executed a will and six codicils in which he asserted he was a resident of Clinton County, with the last codicil being executed in Clinton County on October 3, 2002. These documents were all stored at a safety deposit box at Farmers Bank.

Beginning in the 1970's, Davis began spending part of each year in a warmer climate state, usually Florida. He ordinarily left Indiana in September or October, then returned in May before Memorial Day in order to place flowers on family gravesites. In 1988 Davis acquired a Florida driver's license, which was last renewed in 2001, although it also appears that Davis concurrently maintained an Indiana driver's license. Davis rented an apartment in Clinton County to which he returned annually after selling his Indiana real estate in 1991. He also was registered to vote in Florida and, beginning in 1990, voted in general elections there, although he did not participate in purely local elections. Davis also annually paid a Florida intangible property tax on land that he was possessing under a 99-year lease and on which he maintained a trailer home. He also had almost $120,000 on deposit with a Sarasota, Florida, bank. He also had deposits in financial institutions in New Jersey and Ohio.

Davis died in Florida on June 16, 2003, leaving total assets of nearly $1.2 million. On June 19, 2003, his long-time attorney and Farmers Bank initiated estate proceedings in Clinton County. On September 26, 2003, Carter, a nephew of Davis through marriage, moved to dismiss the estate proceedings in Clinton County for lack of subject matter jurisdiction. The motion contended that Davis was domiciled in Florida at the time of his death and also had no property in Clinton County at that time, and that a Florida court should administer Davis' estate.¹ At a hearing on the motion, the parties presented conflicting evidence on whether Davis ever intended to return to Indiana when he left for the last time in October 2002. One nephew of Davis', Williams Jenkins, testified that while visiting Davis during the last week of August 2002, Davis said that he was no longer going to rent the apartment he had been renting in Clinton County, but "of course" intended to return "home" to Indiana in May 2003 as he had always done and would rent a furnished apartment in Clinton County instead. Tr. p. 23. Another nephew, Robert Carter (Russell's brother), testified that in October 2002, Davis said he was too old to continue traveling back and forth between Indiana and Florida and intended to live in Florida full-time. On December 29, 2003, the trial court denied Carter's motion to dismiss. He now appeals.

Analysis

Carter contends the trial court lacked the necessary subject matter jurisdiction to administer the Estate because Davis possessed no property in Indiana and was not domiciled in Indiana at the time of his death. Indiana Code Section 29-1-7-1(a) provides:

The venue for the probate of a will and for the administration of an estate shall be:

(1) In the county in this state where the decedent had his domicile at the time of his death.

(2) When not domiciled in this state in any county in the state, where he left any property at the time of his decease; or into which county any property belonging to his estate may have come after his decease.

This court has held that this statute requires domicile of the decedent in Indiana or possession of assets in Indiana before jurisdiction in a general estate proceeding can attach to an Indiana court. Overpeck v. Dowd, 173 Ind.App. 610, 619, 364 N.E.2d 1043, 1049 (1977). We concluded that because the decedents in Overpeck neither were domiciled in Indiana nor possessed any property in Indiana that the letters of administration issued by an Indiana trial court were "void" due to lack of jurisdiction. Id. The Estate on appeal takes issue with Carter construing Overpeck as referring to a lack of subject matter jurisdiction, which admittedly was not clearly specified in the opinion. See Troxel v. Troxel, 737 N.E.2d 745, 750 (Ind.2000) (noting the Overpeck opinion "did not specify whether the probate court lacked subject matter jurisdiction, personal jurisdiction, or jurisdiction over the particular case" but concluding it was "clear that the probate court had neither personal jurisdiction over the [decedents] nor in rem jurisdiction over their estates."). However, we see no indication in the trial court record that the Estate ever challenged Carter's labeling the issue before the court as one concerning subject matter jurisdiction. Instead, it responded to Carter's subject matter jurisdiction claim on the merits. "A party cannot change its theory and on appeal argue an issue that was not properly presented to the trial court." Carmichael v. Siegel, 754 N.E.2d 619, 634 (Ind.Ct.App.2001). We leave for another day the question of whether Indiana Code Section 29-1-7-1 concerns subject matter jurisdiction, personal jurisdiction, or jurisdiction over the particular case, because before the trial court the Estate essentially agreed with Carter that it implicated subject matter jurisdiction.

We next observe that the parties do not agree on the proper standard of review to be applied to the trial court's ruling. Carter contends that the evidence presented with respect to jurisdiction was undisputed and, therefore, we should review the ruling de novo. The Estate responds that the parties presented conflicting evidence on the jurisdictional issue and, therefore, we should reverse the ruling only if we find it to be clearly erroneous. In ruling on a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1), a trial court may consider not only the original pleadings and motion to dismiss but also any affidavits or evidence submitted by the parties. See GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind.2001). "In addition, the trial court may weigh the evidence to determine the existence of the requisite jurisdictional facts." Id. On appeal, the standard of review for Trial Rule 12(B)(1) motions to dismiss is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a "paper record." Id. at 401. If the facts before the trial court are not in dispute, then the question of subject matter jurisdiction is purely one of law and our review is de novo. Id. If the facts before the trial court are in dispute and the trial court conducts an evidentiary hearing, "the court typically engages in its classic fact-finding function, often evaluating the character and credibility of witnesses." Id. In such a situation, we give the trial court's factual findings and judgment deference and we will reverse only if they are clearly erroneous. Id. If the facts are disputed but the trial court rules entirely based upon a paper record, the standard of review on a motion to dismiss for lack of subject matter jurisdiction is again de novo. Id.

In this case, it appears to us that two different standards of review are implicated. With respect to the question of Davis' domicile at the time of his death, we agree with the Estate that resolution of this issue would have required, in part, judging and weighing the credibility of in-court testimony presented by Davis' two nephews as to his intention to return to Indiana in the spring of 2003. Thus, with regard to Davis' domicile, we defer to the trial court's fact-finding ability. However, with respect to whether Davis had any property in Indiana at the time of his death, the parties only presented a "paper record." If the trial court concluded it had jurisdiction because Davis had property in Clinton County at the time of his death, our review of its ruling would be de novo. The trial court, however, issued a general ruling that did not indicate upon which legal theory it based its decision. In such a situation, we examine the record and will affirm the judgment if it can be sustained upon any legal theory supported by the evidence. See Harrison v. Thomas, 761 N.E.2d 816, 819 (Ind.2002).

We first address the question of Davis' domicile at the time of his death. Domicile means "the place where a person has his true, fixed, permanent home and principal establishment, and to which place he has, whenever he is absent, the intention of returning." State Election Bd. v. Bayh, 521 N.E.2d 1313, 1317 (Ind.1988) (quoting Board of Medical Registration and Examination v. Turner, 241 Ind. 73, 80, 168 N.E.2d 193, 196 (1960)). Domicile can be established in one of three ways: "domicile of origin or birth,...