Jolly v. Clarkson

• Decision Date: 28 January 2005
• Docket Number: No. 26118.,26118.
• Citation: 157 S.W.3d 290
• Parties: Evelyn JOLLY, Natural Mother and Next Friend of Ashley Rae Jolly, minor, Plaintiff-Appellant, v. Steven R. CLARKSON, Defendant-Respondent.
• Court: Missouri Court of Appeals

157 S.W.3d 290

Evelyn JOLLY, Natural Mother and Next Friend of Ashley Rae Jolly, minor, Plaintiff-Appellant, v. Steven R. CLARKSON, Defendant-Respondent.

No. 26118.

Missouri Court of Appeals, Southern District, Division Two.

January 28, 2005.

Application for Transfer Denied February 22, 2005.

Application for Transfer Denied April 5, 2005.

Donald W. Ingrum, Allman, Ingrum, Wilson & Akers, L.L.C., Branson, MO, for appellant.

Richard L. Schnake, Neale & Newman, L.L.P., Springfield, MO, for respondent.

KENNETH W. SHRUM, Judge.

Plaintiff seeks reversal of a judgment that rejected her effort to void two beneficiary deeds made by Rollen H. Clarkson ("Grantor"). Plaintiff claims Grantor lacked the requisite mental capacity to make the deeds. Grantor's son ("Defendant") was the beneficiary named in the deeds. Plaintiff maintains the trial court used the wrong "mental capacity standard" to decide this case adversely to her. Plaintiff also urges reversal because the trial court failed to make requested findings of fact that Plaintiff claims were relevant. This court affirms.

Plaintiff is the mother of Ashley Rae Jolly ("Ashley") who was born February 5, 1991. Plaintiff was not married when Ashley was born. After Grantor died intestate on November 15, 2000, the probate division of the Taney County circuit court ruled Grantor was Ashley's father. That adjudication is final and unappealed.

In addition to Ashley, Grantor sired other children, namely Defendant, born November 1, 1956 (legitimate), and Sue Burdette ("Sue"), born November 5, 1948 (illegitimate).

On two separate occasions in 1995, Grantor executed and recorded beneficiary deeds. These deeds described various tracts of land owned by Grantor. Defendant was named as beneficiary in both instruments, and Grantor's designation of Defendant as beneficiary was not revoked before Grantor's death.

In 2003, Plaintiff, acting as Ashley's next friend, sued Defendant seeking a declaration that the subject beneficiary deeds were void. She alleged Grantor was not of "sound mind" when he made the deeds in that he "(1) was not able to know the persons who were the natural object of his bounty, as he did not recognize Ashley as his daughter, or he (2) could not intelligently weigh and appreciate his natural obligations to Ashley."

Evidence in this case came from Plaintiff, her daughter Ashley, Grantor's son (Defendant), Grantor's daughter (Sue), and Michael Merrell (Grantor's attorney). Detailed accounts of this evidence are given later as we analyze Plaintiff's various claims of trial court error. Suffice it to say, Plaintiff's primary evidentiary effort was to prove Grantor never openly acknowledged Ashley as his daughter.

After making extensive findings of fact and conclusions of law, the trial court ruled Plaintiff had not met her burden of proving Grantor lacked the requisite mental capacity to make the subject deeds. This appeal followed.

STANDARD OF REVIEW

As with most other non-jury cases, review of a suit to set aside a deed because of alleged mental incapacity of the grantor is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Robertson v. Robertson, 15 S.W.3d 407, 411 (Mo.App.2000). Thus, the judgment is to be affirmed unless it is not supported by substantial evidence, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. An action to set aside a deed is an extraordinary proceeding in equity requiring evidence to support that result that is clear, cogent, and convincing. Id. at 419[6]. A judgment in a case such as this is presumed correct and the appellant has the burden of proving it erroneous. Id. at 411[2]. We defer to the trial court's assessment of credibility. Id. at 411[3].

DISCUSSION AND DECISION

Plaintiff's first point maintains the trial court erred when it did not void the subject deed. She argues the court used the wrong standard of mental capacity in making its adjudication. Specifically, Plaintiff claims the court mistakenly used the standard of mental capacity required of the grantor of a deed given for consideration, whereas it should have used the standard of mental capacity required of the grantor of a deed in which no consideration is given, i.e., a gift deed.

One premise underlying Plaintiff's first point is that the applicable mental capacity test for the grantor of a beneficiary gift deed should be the same as that applied to the execution of wills. Although this court finds no Missouri case so holding when the challenged instrument is a beneficiary deed, that certainly is the rule often expressed when the questioned conveyance is by warranty or quit claim deed. See, e.g. McFarland v. Brown, 193 S.W. 800, 804 (Mo.1917).

The requisite mental capacity that a grantor must have to make a valid gift deed has been expressed as follows:

"The law differentiates between the mental capacity required of grantor making a deed as a part of the arms-length business transaction and the mental capacity required when grantor is receiving but the satisfaction of heart and mind which comes from benefiting those near and dear to him. In the latter instance if he has sufficient mental capacity to know the extent of his property, his relatives and their respective claims on his bounty, the demands of the law have been satisfied."

McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 704 (1950) (emphasis supplied). See also Jones v. Thomas, 218 Mo. 508, 117 S.W. 1177, 1186-87 (1909); Robertson, 15 S.W.3d at 415. No logical reason exists for using a different mental capacity standard for the maker of a beneficiary gift deed than for the maker of other gift deeds. We hold, therefore, that the mental capacity test espoused in McCoy attends here.

With this finding made, we look further into Plaintiff's "wrong mental capacity standard" claim. In developing this argument, Plaintiff concedes there is case law holding that the mental capacity required to make a valid business deed is higher than that required to make a valid gift deed. See, e.g., Storm v. Marsh, 418 S.W.2d 179, 185 (Mo.1967); Gruetzmacher v. Hainey, 373 S.W.2d 45, 50[4] (Mo.1963). However, Plaintiff in her reply brief says that "begs the question."¹ She maintains that the gift deed grantor mental capacity standard has elements not in the business deed grantor standard, specifically, the gift deed grantor must have sufficient mental capacity to (1) know the persons who are the natural objects of his bounty and (2) "intelligently weigh and appreciate his natural obligations to those persons and know [he was] giving his property to the persons mentioned in the [deed]" at that time. See In re Estate of Hague, 894 S.W.2d 684, 688 (Mo.App.1995) (holding these are two factors in a four-part testamentary capacity analysis).

With this as her premise, Plaintiff then uses Points II, III, and IV in her brief to argue that the trial court's alleged error (using the wrong standard) is obvious in that the trial court's findings of fact and conclusions of law addressed only two of the factors in the Hague analysis, i.e., a finding that Grantor "understood the ordinary affairs of life and knew the nature and extent of his property at the time the ... deeds were executed." According to Plaintiff, the trial court's error lies in the fact it made no findings on the two additional parts of the Hague analysis, i.e., the two factors first mentioned above.

We pause here to note Plaintiff timely requested that the trial court make findings of fact on these controverted issues.² Such a request is authorized by Rule 73.01(c).³ Plaintiff's second, third, and fourth points urge reversal and remand because the trial court did not honor that request. Since deciding the Rule 73.01(c) issues first will either render Point I moot, or shorten our analysis of Point I, we address Points II, III, and IV at this time.

Rule 73.01 governs cases tried without a jury. In pertinent part, subsection (c) thereof provides that "[i]f a party so requests, the court shall ... prepare and file a brief opinion containing a statement of the grounds for its decision ... and shall[] include in the opinion findings on the controverted fact issues specified by the party."

Ordinarily, a case will be remanded for production of findings if the court did not comply with a properly drafted and timely filed findings request filed per Rule 73.01(c). Hammons v. Ehney, 924 S.W.2d 843, 850 [17] (Mo.banc 1996); In re Marriage of Flud, 926 S.W.2d 201, 204 (Mo.App.1996). However, there is an exception to this rule. Specifically, an appellate court can affirm a judgment without remand despite a trial court's non-compliance with Rule 73.01(c) if the trial court record supports affirmance. Hammons, 924 S.W.2d at 850[17].⁴ "This is based upon the idea that the complaining party has failed to show prejudice." Id. Alleged error only leads to reversal if it is both error and prejudicial. Bank of America, N.A. v. Stevens, 83 S.W.3d 47, 56 (Mo.App.2002). Rule 84.13(b), Supreme Court Rules (2004).⁵

Our examination of this record will be made with the above principles in mind, as well as the following. Plaintiff has the burden of proving Grantor lacked the mental capacity to make a valid deed at the very time the deeds were signed. McCoy, 227 S.W.2d at 704; Schneider v. Johnson, 207 S.W.2d 461, 466[4] (Mo.1948); Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46, 54 (1936). Moreover, "the proof to justify setting a deed aside must be clear, cogent and convincing." Robertson, 15 S.W.3d at 415 [17]. This means that the court should be "clearly convinced of the affirmative of the proposition to be proved." Id."Evidence, to be clear and convincing, must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." Id. at 415[18].

Here, lawyer Merrell testified he...