Kelly v. Roby (In re Estate of Roby), 2010–CA–00639–COA.

• Decision Date: 28 June 2011
• Docket Number: No. 2010–CA–00639–COA.,2010–CA–00639–COA.
• Citation: 84 So.3d 786
• Parties: In the Matter of The ESTATE OF Jimmy Dale ROBY, Deceased: Hilda Jane Roby Kelly, Appellant v. Theresa A. ROBY, Mary Phyfer d/b/a SRT Investments, Garon Roby, Shane Roby And Sharon Roby Sargent as Administratrix of The Estate of Jimmy Dale Roby, Deceased, Appellees.
• Court: Mississippi Court of Appeals

84 So.3d 786

In the Matter of The ESTATE OF Jimmy Dale ROBY, Deceased: Hilda Jane Roby Kelly, Appellant

v.Theresa A. ROBY, Mary Phyfer d/b/a SRT Investments, Garon Roby, Shane Roby And Sharon Roby Sargent as Administratrix of The Estate of Jimmy Dale Roby, Deceased, Appellees.

No. 2010–CA–00639–COA.

Court of Appeals of Mississippi.

June 28, 2011.

Rehearing Denied March 27, 2012.

Rhett R. Russell, Tupelo, attorney for appellant.

Theresa A. Roby, pro se.

David E. Flautt, Oxford, Anthony Rhett Wise, Robert Q. Whitwell, Ashland, attorneys for appellees.

Before LEE, C.J., BARNES and MAXWELL, JJ.

BARNES, J., for the Court:

¶ 1. Hilda Jane Roby Kelly filed a petition for execution with the Monroe County Chancery Court seeking the sale of real property that was owned by Jimmy and Theresa Roby, her deceased ex-husband and his widow, in order to satisfy a judgment of $6,000 that Jimmy owed Hilda. Named as defendants in the petition were Theresa;¹ Theresa's sister, Mary Phyfer d/b/a SRT Investments; and, in a subsequent amended petition, the estate of Jimmy Roby—Sharon Roby Sargent, Shane Roby, and Garon Roby ("the Roby children" or "the Estate"). In the petition, Hilda claimed her judgment should be treated as a lien against parcels of real property owned by Jimmy and Theresa prior to his death, and which had been conveyed by four deeds to SRT Investments, a company owned by Mary. The deeds were executed by Jimmy and Theresa prior to Hilda's judgment being awarded; however, the deeds were not recorded until after Jimmy's death and after Hilda's enrollment of her judgment.

¶ 2. On Hilda's "Motion For Default Judgment or In The Alternative Summary Judgment," the chancery court held that the deeds were void as to Hilda's judgment since the deeds were recorded subsequent to Hilda's judgment. However, as Hilda had not executed on her judgment prior to Jimmy's death, the property passed to Theresa through right of survivorship and was not part of Jimmy's probate estate. The chancellor ordered that any judgment owed to Hilda must be paid from the personal property of Jimmy's estate and denied Hilda's motion for summary judgment. Hilda filed a motion to alter judgment, which the chancellor denied, and Hilda now appeals. We affirm the chancellor's judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. On December 10, 1979, Jimmy and Hilda were divorced in Pontotoc County Chancery Court, and Jimmy was ordered to make child-support payments for the couple's minor son, Shane Roby. Between June 1, 1995, and April 11, 1998, Jimmy was in arrearage for the child-support payments to Hilda. In the meantime, Jimmy had married Theresa, his fourth wife. Between 1986 and 1995, Jimmy and Theresa had acquired five parcels of real property in Monroe County, Mississippi via four warranty deeds. Two of the deeds vested title in Jimmy and Theresa as joint tenants; the other two as tenants by the entirety; therefore, all four deeds included the right of survivorship.² On December 1, 1997, Jimmy and Theresa executed four promissory notes and "Real Estate Deeds of Trust" on this property, which secured a $200,000 indebtedness in favor of SRT Investments, an unincorporated business entity operated by Theresa's sister, Mary.³ These deeds of trust were recorded in the Monroe County Chancery Clerk's land records on February 11, 1998. Theresa later testified that the deeds of trust were executed because Jimmy and Theresa had acquired substantial financial debt, and Mary often provided the couple with monetary assistance.

¶ 4. On March 3, 1999, Jimmy and Theresa executed, but did not record, four warranty deeds which conveyed title of the five parcels of real property to SRT Investments. However, Jimmy and Theresa continued to live on the property. On March 30, 1999, in response to a motion filed by Hilda, Jimmy was found in contempt for failing to pay child support, and Hilda was awarded a judgment for $6,000. Hilda enrolled the judgment in Monroe County on May 28, 1999.

¶ 5. On August 4, 2002, Jimmy died without Hilda's judgment being satisfied. On August 20, 2002, Mary recorded the four March 3, 1999 warranty deeds.⁴ Then, on September 13, 2004, two years after Jimmy's death and five years after the enrollment of her judgment, Hilda petitioned the court for sale of the subject property to satisfy her $6,000 judgment. She named Theresa and Mary d/b/a/ SRT Investments as defendants, claiming that at the time of his death, Jimmy "held ownership interest in and to each of the ... parcels of property." Hilda filed a motion for default/summary judgment on March 16, 2005.⁵ On June 10, 2005, Hilda amended her petition, with permission by the court, to include the Roby children as defendants since they were Jimmy's heirs-at-law. Again, Hilda claimed that Jimmy "had ownership interest in and to the ... real properties as of his August 4, 2002, demise" and concluded that property should be subject to execution as her "valid lien" had priority over any claim by SRT Investments.

¶ 6. On October 6, 2005, the Roby children joined Hilda's request to recognize her judgment as a lien. Then, on October 21, 2005, the Roby children opened Jimmy's estate, appointing Sharon as administratrix. The Estate filed several petitions for relief against Theresa, alleging improper use or disposal of personal assets contained in Jimmy's estate. On September 20, 2006, the Estate, again joined by Hilda, filed an objection to Mary's alleged claim to the real property as a creditor and requested that the March 3, 1999 conveyances be set aside. On October 23, 2009, addressing the various petitions filed by the Estate, the chancellor entered an "Opinion and Judgment of Personal Property of Estate." In the order, the chancellor entered a judgment against Theresa in favor of the Estate for the value of $113,300, including interest.⁶

¶ 7. On November 3, 2009, the chancery court entered its "Opinion and Judgment on Petition for Writ of Execution and Other Relief," finding that under Mississippi Code Annotated section 89–5–3 (Rev.1999), "the deeds recorded after the enrollment of Hilda's judgment against the decedent would be void as to Hilda." See Miss.Code Ann. § 89–5–3 (stating that a conveyance of land is void to a creditor unless the lien or judgment is recorded with the chancery court clerk "in the same manner that other conveyances are required to be acknowledged or proved and recorded."). Further, the chancellor noted that "a creditor may not proceed against the realty of a decedent until the decedent's personal property is exhausted" and that sufficient estate assets existed to satisfy Hilda's outstanding judgment. However, "[a]nticipating the personalty of the estate may be insufficient to satisfy the outstanding lien and other creditors," the chancellor also found that since Jimmy and Theresa were joint tenants with rights of survivorship, the real property in question was "no longer subject to execution by Jimmy's judgment creditor[.]"⁷ As Theresa obtained full title to the property through survivorship upon Jimmy's death, the property did not pass to the estate. The chancery court also noted the Estate's numerous petitions for relief, including its objection to Mary's claim as an alleged creditor, were not properly before the court at that time and were not considered in its judgment.⁸ The chancellor concluded by noting that the opinion was "not res judicata as to the efficacy of Hilda's judgment lien nor of the alleged indebtedness due under the deeds in trust in dispute."

¶ 8. Hilda filed a motion to alter or amend the judgment of the chancery court. In her motion, Hilda argued that section 89–5–3 meant that the conveyances are valid and binding from Jimmy and Theresa to Mary d/b/a SRT Investments and do not "adverse[ly] affect" Hilda's judgment lien. Thus, she claimed Jimmy and Theresa had no ownership of the subject property as of Jimmy's death; rather, "Mary held title and ownership to the subject real property subject to the judgment lien of Hilda."⁹ In her response to Hilda's motion, Mary argued that the deeds were void under section 89–5–3, meaning "that none of the joint tenancies terminated and no title passed to Mary Phyfer that would be superior to Hilda's judgment lien" and that Hilda's right to execute "no longer existed" after Jimmy's death. The chancery court, denying Hilda's motion, aptly noted that Hilda is not a party, heir or subsequent purchaser to the deeds; therefore, the deeds are not valid as to her. Further, even assuming that her judgment did attach, Jimmy conveyed his title; therefore, no interest "remained therein to which Hilda's judgment could attach[.]" Hilda now appeals.¹⁰ Finding no abuse of discretion in the chancellor's denial of Hilda's motion, we affirm the chancery court's judgment.

STANDARD OF REVIEW

¶ 9. A chancellor's findings "are subject to an abuse-of-discretion standard on review." Carlisle v. Allen, 40 So.3d 1252, 1256 (¶ 20) (Miss.2010) (citing Barton v. Barton, 790 So.2d 169, 175 (¶ 17) (Miss.2001) ). Unless the chancellor findings are "manifestly wrong, clearly erroneous, or applied the wrong legal standard[,]" they will not be disturbed on appeal. Miller v. Parker McCurley Props., L.L.C., 36 So.3d 1234, 1239 (¶ 9) (Miss.2010) (quoting Powell v. Campbell, 912 So.2d 978, 981 (¶ 8) (Miss.2005)). "Questions of law, however, are reviewed de novo." Id. (citation omitted).

ANALYSIS

¶ 10. In its opinion resolving the petition for execution, the chancery court determined that the March 3, 1999, conveyances to SRT Investments were void as to Hilda's judgment since the warranty deeds were not recorded until after Hilda had enrolled her judgment. Section 89–5–3 provides that all conveyances of lands "shall be void as to all creditors ... unless they be acknowledged or proved and lodged with the clerk of the chancery court of the proper county, to be recorded in the same manner that other conveyances are required to be acknowledged or proved and recorded....