Matter of Elsie Swearingen v. Dryden

• Decision Date: 06 February 2001
• Citation: 42 S.W.3d 741
• Parties: (Mo.App. W.D. 2001) . In the Matter of Elsie Verlene Swearingen, Plaintiff, Delores Jean Goodson, Appellant, v. Gary Dryden, Respondent, John Vohs, Respondent, Robert Dryden, Defendant WD57929 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

42 S.W.3d 741 (Mo.App. W.D. 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

In the Matter of Elsie Verlene Swearingen, Plaintiff, Delores Jean Goodson, Appellant, v. Gary Dryden, Respondent, John Vohs, Respondent, Robert Dryden, Defendant

WD57929

Missouri Court of Appeals Western District

Handdown Date: 02/06/2001

Appeal From: Circuit Court of Holt County, Hon. Glen Alan Dietrich, Judge

Counsel for Appellant: Howard D. Lay

Counsel for Respondent: John Lawrence Vohs

Opinion Summary: Appellant Delores Jean Goodson filed a Petition to Discover Assets in a joint account that her mother, Elsie Verlene Swearingen, holds with Goodson's son, Respondent Gary Dryden. Dryden and Respondent John Vohs, Swearingen's conservator, contended below, and the trial court found, that on the particular facts of this case, Goodson did not have standing to bring the petition, because she has no legally protectible interest in her mother's joint account, either as Swearingen's guardian, attorney-in-fact, or individually. As such, the court authorized Vohs, as conservator, to pay attorney's fees and expenses incurred by Dryden in defending the joint account, and it denied Goodson's motion to terminate the conservatorship. Goodson appeals individually and on behalf of Swearingen.

AFFIRMED.

Division Two holds: This Court affirms the trial court's judgment dismissing Goodson's petition to discover assets. Because Goodson's Points Relied On were not properly preserved on appeal, this Court reviews for plain error and finds that Goodson did not have standing to bring the petition, either as her mother's attorney-in-fact or as her mother's guardian. This Court declines to reach the issue whether the trial court erred in finding Goodson did not have standing in her capacity as her mother's heir-at-law to bring this discovery of assets proceeding, in light of Goodson's failure to develop this argument as required by Rule 84.04. Additionally, this Court finds that Goodson showed no basis for termination of the conservatorship, and this Court affirms the trial court's judgment that authorized Vohs, as conservator, to pay attorney's fees and expenses incurred by Dryden in defending the joint account.

Opinion Author: Laura Denvir Stith, Judge

Opinion Vote: AFFIRMED. Smart, P.J. and Ellis, J. concur.

Opinion:

Appellant Delores Jean Goodson filed a Petition to Discover Assets in a joint account that her mother, Elsie Verlene Swearingen, holds with Ms. Goodson's son, Respondent Gary Dryden. The probate court granted the motion to dismiss filed by Mr. Dryden and Respondent John Vohs, who is Ms. Swearingen's conservator, finding that Ms. Goodson lacked standing to bring a petition for discovery of assets. It also authorized Mr. Vohs, as conservator, to pay attorney's fees and expenses incurred by Mr. Dryden in defending the joint account, and denied her motion to terminate the conservatorship. Ms. Goodson appeals individually and on behalf of Ms. Swearingen. Because we find that Ms. Goodson did not have standing to bring the petition to discover assets, and that she showed no basis for termination of the conservatorship, we affirm the trial court's judgment dismissing her petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 1993, Elsie Verlene Swearingen opened an account with A.G. Edwards & Sons in the approximate amount of $400,000. The account agreement created a joint account in the names of Ms. Swearingen and her grandson, Gary Dryden. The agreement provided that Ms. Swearingen and Mr. Dryden held the account as "joint tenants with rights of survivorship and not as tenants in common." (emphasis in original). The joint account agreement also stated that Ms. Swearingen and Mr. Dryden appointed each other as her/his agent and attorney-in-fact regarding the joint account:

In consideration of A.G. Edwards & Sons, Inc. (Edwards) maintaining a joint account for the undersigned, [Ms. Swearingen and Mr. Dryden] the undersigned, jointly and severally, appoint each other agent and attorney in fact regarding the joint account; . . . to deposit, withdraw and receive payment or delivery of money and other negotiable instruments, securities and other property; to deposit assets of either joint tenant to the joint account; . . . and generally to deal with Edwards on behalf of the joint account as fully and completely as necessary, all without notice to the others interested in this account.

Ms. Swearingen was diagnosed with Alzheimer's disease in October 1995, when she was approximately age 75. In November 1995, Ms. Swearingen signed a durable power of attorney making Ms. Goodson, Ms. Swearingen's only living child, her attorney-in-fact. In January 1997, Ms. Goodson filed a lawsuit on behalf of Ms. Swearingen, in the Circuit Court of Buchanan County, Missouri, against Mr. Dryden and A.G. Edwards, seeking to establish that, as attorney-in-fact for her mother, she had the right to withdraw funds from the joint account Ms. Swearingen had with Mr. Dryden.

While the latter case was still pending, on April 28, 1998, Ms. Goodson filed a petition asking that she be appointed as guardian and conservator for her mother because her mother was unable by reason of mental incompetence to care for her daily needs or to manage her business affairs. In August 1998, the Probate Division of the Circuit Court of Holt County, Missouri, entered its Judgment of Total Incapacity and Total Disability for Ms. Swearingen. The court appointed Ms. Goodson as guardian of her mother's person, but declined to appoint her as conservator for her mother, finding that if Ms. Goodson were appointed conservator of the estate, she "would have a clear conflict of interest, as she seeks access to the account for the sole purpose of inheriting a portion thereof herself."

In support of its ruling, the court found that Ms. Goodson had sought access to the A.G. Edwards' account assets so that she could not only control and distribute them, but also so that she could receive a portion of the assets upon Ms. Swearingen's death. The court found that the facts established that Ms. Goodson expended her mother's funds on attorney's fees in order to pursue her own suit to control the assets of the estate. The court also found that, in her capacity as attorney-in-fact, Ms. Goodson had purchased two annuities from her husband's business with her mother's money, in the sums of $30,000 and $25,000, that Ms. Goodson's husband received more than $3,000 in commissions for selling the annuities, and that Ms. Goodson was the primary beneficiary of the annuities. These facts caused the court to find that Ms. Goodson had a conflict of interest with her mother regarding the funds in the joint account. For this reason, the court appointed Respondent John Vohs, Ms. Swearingen's attorney, as conservator of Ms. Swearingen's estate.

On May 13, 1999, Ms. Goodson filed the Petition to Discover Assets that is the subject of this appeal, naming as defendants Mr. Dryden (the joint tenant of the account) and Mr. Vohs (the conservator). Ms. Goodson brought the petition in three capacities -- as attorney-in-fact for her mother, as her mother's guardian, and individually. At the hearing on the petition, Ms. Goodson sought not only to discover assets, but also to terminate the conservatorship so that she could obtain control over Ms. Swearingen's estate in her capacities as Ms. Swearingen's daughter, guardian, and attorney-in-fact. Mr. Vohs opposed Ms. Goodson's petition on the basis that there was no allegation that the monies held in the A.G. Edwards account were presently needed for the care, maintenance, or use of Ms. Swearingen; that Ms. Goodson had admitted on numerous occasions that she intended to remove the funds from the A.G. Edwards account for her own purposes; and, in particular, that her purpose in bringing the action was to get the funds out of the account so that they would not be subject to Mr. Dryden's rights as joint tenant of the account with right of survivorship. That way, the funds would be part of the estate which she would inherit when her mother died.On October 25, 1999, the Probate Court entered its Judgment and Order granting Mr. Dryden's and Mr. Vohs' motions to dismiss Ms. Goodson's Petition to Discover Assets. The court held that Ms. Goodson lacked standing to bring the action either as Ms. Swearingen's guardian, attorney-in-fact, or individually. The court also authorized Mr. Vohs, as conservator, to pay attorney's fees and expenses incurred by Mr. Dryden in defending the joint account, in the amount of $41,166.18, and refused to terminate the conservatorship. Ms. Goodson now appeals.

II. STANDARD OF REVIEW

When reviewing a trial court's grant of a motion to dismiss "we engage in an essentially de novo review of an issue of law." Jordan v. Willens, 937 S.W.2d 291, 293 (Mo. App. W.D. 1996). See Summitt by Boyd v. Roberts, 903 S.W.2d 631, 633 (Mo. App. W.D. 1995). We assume as true all of the plaintiff's averments and all reasonable inferences therefrom "treating all facts alleged as true and construing the allegations favorably to the plaintiff." Jordan, 937 S.W.2d at 293; Consolidated Financial Investments, Inc. v. Manion, 948 S.W.2d 222, 223 (Mo. App. E.D. 1997). We make no attempt to reweigh the credibility or persuasiveness of the facts alleged. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). Rather, we review the petition to determine whether it invokes principles of substantive law and whether the facts alleged, if proven, would entitle the plaintiff to relief. Jordan, 937 S.W.2d at 293; Carr v. Anding, 793 S.W.2d 148, 149 (Mo. App. E.D. 1990).

Where a point has not been properly preserved, we review only for plain error under Rule 84.13. Plain error review is proper in civil cases only if we find that "the error has affected the parties' rights so substantially that a miscarriage of justice...