Dean v. Kavanaugh
| Decision Date | 24 January 2006 |
| Docket Number | No. 2004-CA-01144-COA.,2004-CA-01144-COA. |
| Citation | 920 So.2d 528 |
| Parties | Katherine V. DEAN, Appellant v. John Kelly KAVANAUGH, Individually, and as Administrator of the Estate of Robert C. Kavanaugh, Deceased, Appellee. |
| Court | Mississippi Court of Appeals |
Kathleen Fitzgerald Treadwell, Landman Teller, Vicksburg, attorneys for appellant.
Kenneth B. Rector, Vicksburg, attorney for appellee.
Before KING, C.J., CHANDLER and ISHEE, JJ.
CHANDLER, J., for the Court.
¶ 1. Katherine Dean and Robert Kavanaugh were involved in a romantic relationship but were never officially married. Kavanaugh died on October 22, 2000, after a long period of poor health. Dean cared for Kavanaugh during his illnesses. Kavanaugh had three sons from a prior marriage, and they were his sole heirs at law.
¶ 2. Approximately one year before his death, Kavanaugh opened a joint checking account with Dean. Approximately four months before his death, Kavanaugh opened a second joint account with Dean. When Kavanaugh died, Dean told Kavanaugh's sons that he had died virtually penniless. Dean later disclosed the existence of the earlier joint account, which she divided equally between herself and Kavanaugh's sons, but she did not disclose the existence of the second account.
¶ 3. Kavanaugh's children sued to recover the proceeds from the second joint account. The Warren County Chancery Court found that a confidential relationship existed between Dean and Kavanaugh and that Dean had failed to rebut the presumption of undue influence. Accordingly, the court granted the relief Kavanaugh's sons requested. Dean appeals, raising the following issues:
I. WHETHER A CONFIDENTIAL RELATIONSHIP EXISTED BETWEEN DEAN AND KAVANAUGH
II. WHETHER DEAN SUCCESSFULLY REBUTTED THE PRESUMPTION OF UNDUE INFLUENCE
¶ 4. Finding no error, we affirm.
FACTS
¶ 5. Katherine Dean began a romantic relationship with Robert Kavanaugh in October of 1984. The two of them had known each other for many years prior to that time. In 1990, Dean and Kavanaugh began living together. Although they never officially married, they held themselves out to be husband and wife. Kavanaugh had three children from a prior marriage, John Kelly Kavanaugh, Michael Kavanaugh, and Patrick Kavanaugh. Dean had one daughter from a prior marriage, Lillian Parrish.
¶ 6. Kavanaugh was diagnosed with skin cancer on multiple occasions. During that time, Dean changed the dressings on his cancers and the linens on his bed every evening. Dean also rubbed salve on the cancers at night. The cancers eventually required surgery and radiation. Dean transported Kavanaugh to the hospital for the medical procedures and tended to his medical needs when he returned home.
¶ 7. In 1996, Kavanaugh had a gangrenous gall bladder, bleeding ulcers, and renal failure. Dean cared for Kavanaugh during these episodes.
¶ 8. In 1997, Dr. George Kilgore determined that Kavanaugh's right artery was completely blocked and that his artery was not supplying blood to his brain. As a result, Kavanaugh began having problems talking and communicating. Dr. Kilgore and Dr. George Habeeb performed surgery on Kavanaugh. Upon Kavanaugh's discharge from the hospital, Dr. Habeeb stated that Kavanaugh's "mental status [has] improved and he has no further neurological deficits."
¶ 9. In 1998, Kavanaugh was diagnosed with colon cancer. A tumor was removed in January of 1999. In 1999, the cancer spread to his liver and lungs and he was declared terminally ill.
¶ 10. Kavanaugh's health deteriorated substantially in 2000, the year of his death. Beginning in February of 2000, Kavanaugh was prescribed medication for cancer-related pain and "tumor fever." On July 11, 2000, Dr. Habeeb found that Kavanaugh could no longer take anticoagulation medication for his cerebrovascular disease "because he is very weak and he is at risk for falling down." In the summer of 2000, Kavanaugh was confined to a wheelchair because of his physical weakness. Kavanaugh had difficulty speaking and the vision in his left eye was impaired to the extent that he could read only very large print. Kavanaugh's weight dropped from 194 pounds on January 18, 2000 to 135 pounds on September 1, 2000. As of September 1, 2000, Dr. Habeeb stated that Kavanaugh was under hospice care, on oxygen, and taking the morphine drug MS Contin.
¶ 11. During all of Kavanaugh's illnesses, Dean assisted Kavanaugh with bathing, using the restroom, cutting his nails, cutting his hair, and shaving. She washed his clothes, cooked his food, and assisted him with his medications and other medical care. She accompanied him to obtain medical treatment, was present in the room while the procedures were performed, took him to the emergency room, and stayed with him during his periods of hospitalization.
¶ 12. Kavanaugh died on October 22, 2000. He was eighty-one years old at the time of his death. His three sons were his sole heirs at law.
¶ 13. Kavanaugh opened a checking account, account number 066-020-2, at Merchants National Bank, now BancorpSouth Bank, on November 22, 1982. On July 27, 1999, Kavanaugh added Dean to the checking account. According to Dean, this was done to enable Dean to "be able to pay his (Kavanaugh's) bills." At that time, Kavanaugh had terminal cancer and Dean was his caregiver. At the time the joint ownership was created, the account had a balance of $103,498.74.
¶ 14. On May 9, 2000, Dean drove Kavanaugh to the bank again so that Kavanaugh could close an account in the name of "Robert C. Kavanaugh, Trustee for Patrick H. Kavanaugh." The proceeds of the account, totaling $106,163.56, were deposited into account number 066-020-2.
¶ 15. On August 7, 2000, Dean drove Kavanaugh to the bank, and Kavanaugh withdrew $100,000 from account number 066-020-2, and placed the proceeds into account number 371298. On the day Kavanaugh died, account number 066-020-2 contained a balance of $121,827.96. Shortly after Kavanaugh died, Dean transferred $5,000 from account number 066-020-2 and placed the proceeds into her personal checking account. On January 3, 2001, she withdrew $17,000 from the account to purchase a new automobile. Dean did not deposit any of her personal funds into account number 066-020-2 at any time.
¶ 16. On June 22, 2000, Kavanaugh went to BancorpSouth and opened account number 371298, held jointly with Dean. The initial deposit of $24,220.26 came from the proceeds of a certificate of deposit owned by Kavanaugh. On June 26, 2000, Kavanaugh closed an account in the name of "Robert C. Kavanaugh, Trustee for John Kelly Kavanaugh." The balance of the account, totaling $105,583.53, was transferred into account number 371298. On the date of Kavanaugh's death, account number 371298 contained a balance of $230,442.43. On January 23, 2001, Dean transferred the balance of the account in the amount of $216,438.33 into an account that Dean held jointly with her daughter. She closed the account on February 20, 2001. Dean did not deposit any of her personal funds into account number 371298 at any time.
¶ 17. Kavanaugh owned two pieces of real property in Warren County. Dean convinced Kavanaugh to give her a twenty-five percent interest in the real property. Kavanaugh prepared and signed a deed that conveyed to Dean twenty-five percent of his real property, with Kavanaugh's sons receiving, in equal shares, the remaining seventy-five percent of the property.
¶ 18. Immediately after Kavanaugh's death, Dean told Kavanaugh's sons that he had gambled away all of his money and died virtually penniless. Dean also destroyed all of Kavanaugh's bank records. However, on January 18, 2001, Kavanaugh's sons confronted Dean about their father's bank accounts, at which time she disclosed the existence of account number 066-020-2. She divided the balance of the account, $92,851.90, with the three Kavanaugh children, retaining one-fourth of the account balance for herself. This arrangement was acceptable to Kavanaugh's children because their father had told them repeatedly that he wanted Dean to receive one-fourth of the assets. Dean, however, did not disclose that $100,000 had been transferred from account number 066-020-2 to account number 371298. In addition, she did not disclose the existence of account number 371298.
¶ 19. John Kavanaugh, the administrator of the estate, filed suit against Dean demanding the return of $216,438.33 in funds in checking account number 371298, the $5,000 withdrawn on November 14, 2000, and the $17,000 withdrawn on January 3, 2001. The Warren County Chancery Court found that a confidential relationship existed between Kavanaugh and Dean and that Dean failed to overcome the presumption of undue influence. Accordingly, the court granted the relief requested by the Kavanaugh children.
ANALYSIS
¶ 20. On appeal, this Court does not reverse a chancellor's findings when there is substantial evidence supporting those findings. Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987). This Court accepts all facts and reasonable inferences which support the chancellor's findings. Id. The findings will not be disturbed unless the chancellor abused his discretion, was manifestly wrong, or applied an erroneous legal standard. Bowers Window and Door Co. v. Dearman, 549 So.2d 1309, 1313 (Miss.1989).
¶ 21. The contestant has the burden of proving the existence of a confidential relationship. In re Estate of Dabney, 740 So.2d 915, 919(¶ 12) (Miss.1999). The Mississippi Supreme Court has articulated factors to be considered in determining if and when a confidential relationship exists. These factors include (1) whether one person has to be taken care of by another; (2) whether one person maintains a close relationship with another; (3)...
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