Decker v. Zengler, 74A01-0707-CV-322.
| Decision Date | 02 April 2008 |
| Docket Number | No. 74A01-0707-CV-322.,74A01-0707-CV-322. |
| Citation | 883 N.E.2d 839 |
| Parties | Marlene DECKER, Appellant-Respondent, v. David K. ZENGLER, Special Administrator of the Estate of Frances L. Hebling, Deceased, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
J. William Bruner, Boonville, IN, Attorney for Appellant.
Robert R. Faulkner, Evansville, IN, Attorney for Appellee.
Marlene Decker appeals the trial court's grant of summary judgment to her siblings, Kathleen Kleeman, Dennis Avery, Linda Hall, and Diana Cornell (collectively, "the Siblings"), and to the Estate of Frances L. Helbling, by its administrator, David Zengler ("the Estate"). Decker raises one issue, which we revise and restate as whether the trial court erred by granting the motion for summary judgment filed by the Siblings and the Estate and by denying Decker's motion for summary judgment. On cross appeal, the Siblings and the Estate raise one issue, which we revise and restate as whether the trial court abused its discretion by striking certain affidavits. We reverse and remand.1
The relevant facts designated by the parties follow.2 Decker and the Siblings are the children of Frances L. Helbling. At the time Helbling died, Helbling and Decker had three joint accounts: two created in 1998 and a third created in 2002. On May 25, 2005, Helbling executed a will providing that "the rest, residue and remainder of [her] property, real, personal and mixed, including but not limited to [her] residence, vehicle, furniture and household goods, [her] late husband's gun collection, and [her] bank accounts" be divided equally among her five children. Id. at 81. After Helbling died on December 10, 2005, a petition for probate of her will was filed.
On January 9, 2006, the Siblings filed a Petition to Compel Delivery of Estate Property asking the trial court to declare the joint accounts to be property of the Estate. On March 2, 2007, the Siblings filed a motion for summary judgment, which the Estate later joined, designating, in part, the affidavits of Dennis Avery and Glen Cornell as evidence. Decker filed motions to strike the affidavits of Dennis Avery and Glen Cornell and also filed a cross motion for summary judgment.
After a hearing on the motions, the trial court granted summary judgment to the Siblings and the Estate, denied Decker's motion for summary judgment, and entered the following order:
1. Decker's . . . motion to strike the affidavit of Glen Cornell is denied, with the exception of paragraph 7 that contains a hearsay statement purportedly made by the decedent Mrs. Helbling, and offered to prove the truth of the matter asserted. Decker's motion is denied as to paragraphs 4, 5 and 6 of the Cornell affidavit, but is granted with regard to paragraph 7 of the same.
2. Decker's . . . motion to strike the affidavit of Dennis Avery is granted, as paragraph 3 contains a purported statement made by [Helbling] and offered to prove the truth of the matter stated within that paragraph. As such, upon objection, the purported statement would not be admitted into evidence and, since the Avery affidavit is based wholly upon this hearsay statement, the same should be stricken pursuant to Decker's motion.
3. Pursuant to Trial Rule 56(C) of the Indiana Rules of Trial Procedure, the court finds the designated evidentiary matter shows there is no genuine issue as to any material fact and the motions for summary judgment filed by [the Siblings] . . . and [the Estate] . . . should be granted with regard to the [bank] accounts . . . such that [Zengler] is entitled to recover and shall recover from [Decker] the money in [Helbling's] accounts at [the bank] at the time of her death. . . .
4. Decker's . . . motion for summary judgment in her favor is, accordingly, in all respects denied as to her purported ownership of the [bank] accounts. . . .
5. Based upon the court's reasoning above, there is no just reason for delay, and the court expressly directs entry of judgment in this matter for [the Estate] against [Decker], such that [Zengler] shall proceed to recover from [Decker] the money held in [Helbling's] accounts . . . at the time of her death. . . .
The issue is whether the trial court erred by granting the motion for summary judgment filed by the Siblings and the Estate and by denying Decker's motion for summary judgment.3 Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(c); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974.
The fact that the parties made cross motions for summary judgment does not alter our standard of review. Hartford Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 291 (Ind.Ct.App.1997), trans. denied. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id. Where a trial court enters findings of fact and conclusions thereon in granting a motion for summary judgment, as the trial court did in this case, the entry of specific findings and conclusions does not alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions thereon. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.
Decker argues that the Siblings and the Estate have failed to overcome the statutory presumption that funds held in a joint account belong to the surviving party. Ind.Code § 32-17-11-18 provides that "[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created." Thus, Ind.Code § 32-17-11-18 creates the presumption that a survivor to a joint account is the intended receiver of the proceeds in the account. In re Estate of Banko, 622 N.E.2d 476, 480 (Ind.1993) (discussing Ind.Code § 32-17-11-18 (formerly codified as Ind.Code § 32-4-1.5-4(a)). "In order to defeat this presumption, a party challenging the survivor's right to the proceeds must present clear and convincing evidence that the decedent at the account's creation did not intend the joint tenant to receive the proceeds or that the intent of the decedent changed before death and the decedent by written order informed the financial institution of this change." Id. (). Consequently, the burden of proof remained with the Siblings and the Estate to establish by clear and convincing evidence that, at the creation of the joint accounts, Helbling did not intend for Decker to receive the funds remaining at her death, or, alternatively, that Helbling's intent to create the right of survivorship later changed, and she notified the financial institution by written order of the change.
Our review of the designated evidence reveals that, at the time Helbling died Helbling and Decker had three joint accounts.4 Several years after Decker and Helbling opened the joint accounts, Helbling executed a will providing that all of her property, including money in her bank accounts, be divided equally among her five children. Decker never deposited money in the joint accounts. She did not disclose to the Siblings that her name was on the accounts. She stated in a deposition that she did not know her mother's intent in including her name on the accounts. Decker disclosed no interest in the bank accounts during her divorce from Roger Decker. Decker obtained no money or property from Helbling during Helbling's life. According to Glen Cornell, shortly after Helbling's death, Decker told him that the bank accounts were rightly the property of the residuary devises set forth in the will, but Decker denies that this conversation took place.
Although the Siblings and the Estate make much of the fact that Helbling executed a will shortly before she died dividing the money in her accounts evenly among the five children, a right of survivorship cannot be changed by will. Ind. Code § 32-17-11-18(e). It is also of no significance that Decker claimed that she received no property from Helbling until Helbling's death or failed to disclose an interest in the bank accounts during her divorce from Roger Decker, because, under Ind.Code § 32-17-11-17(a), "a joint account belongs to the parties in proportion to the net contributions by each party to the sums on deposit." Because Decker made no deposits in the accounts, none of the funds belonged to her while Helbling was alive.
The only evidence designated by the Siblings and the Estate that remotely touches on the issue of Helbling's intent at the creation of the joint accounts is the affidavit of Glen Cornell, in which Cornell stated: "I am also aware of the facts and circumstances surrounding the addition of [Decker's] name to [Helbling's] bank account [sic] and am aware of the fact that it was done for a convenience only for Decker to assist Helbling in paying her bills and banking transactions."5 Appellant's Appendix at 33. Affidavits supporting or opposing summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to...
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