McDermot v. Doner
| Decision Date | 14 October 2021 |
| Docket Number | No. SD 36775,SD 36775 |
| Citation | 637 S.W.3d 402 |
| Parties | Joyce Camp MCDERMOT, personally, and as beneficiary and successor trustee under the Barbara J. Hilderbrand Revocable Trust Agreement dated January 11, 2005, as Amended and Restated, Plaintiff-Appellant, v. David DONER and Stephanie Doner, et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Attorney for Appellant: Timothy S. Davis of Branson, MO.
Attorney for Respondents: Cordelia F. Herrin of Cassville, MO, and David A. Payne of Aurora, MO.
This declaratory judgment action was filed after plaintiff Joyce Camp McDermot (McDermot) was replaced as successor trustee and beneficiary of the Barbara J. Hilderbrand Revocable Trust dated January 11, 2005 (Trust) in a separate guardian/conservatorship action (hereinafter referred to as Conservatorship).1 After the death of Barbara Hilderbrand (Hilderbrand), McDermot filed the underlying eight-count petition. In her second amended petition, she named the following persons and entities as defendants: David Doner (David) and his wife, Stephanie Doner (Stephanie), personally and as trustees of the DSD Trust; Susan Baddley (Susan) and her husband, Robert Baddley, personally and as trustees of the Baddley Family Trust; Nancy Morrill (Nancy) and her husband, Greg Morrill, personally and as trustees of the Gregory and Nancy Morrill Trust; Rebecca Baddley; and the American Humane Association. Hereinafter, we refer to all these persons and entities collectively as Defendants. David, Susan and Nancy were Hilderbrand's nephew and nieces, respectively.2 Following a bench trial, the court made the following decisions relevant to this appeal: (1) on Counts 1-3, the court declined to grant declaratory relief to McDermot because it would not terminate the uncertainty or controversy giving rise to this proceeding; and (2) on Counts 4-7, the court found in favor of the Defendants named in those counts.
On appeal, McDermot presents seven points. In Points 1-3, 5 and 6, McDermot contends the trial court erred by refusing to enter a declaratory judgment voiding or changing certain rulings made by the judge in the Conservatorship, and by other trial courts in related cases. Point 4 contends the trial court erred by failing to make specific findings. Point 7 contends the trial court erred by refusing to quiet title to Hilderbrand's residence in favor of McDermot. Finding no merit in any of these points, we affirm.
"We view the evidence in the light most favorable to the trial court's judgment, disregarding any contrary evidence and inferences." Estate of Lindner , 621 S.W.3d 567, 570 n.1 (Mo. App. 2021) ; see Miller v. Culton , 617 S.W.3d 879, 880 (Mo. App. 2021). The trial court is free to believe some, all, or none of the evidence, and we defer to the trial court on matters of credibility. Miller , 617 S.W.3d at 880 ; In re Marriage of Morgan , 624 S.W.3d 407, 411 (Mo. App. 2021). In accordance with these principles, the following evidence was adduced at trial.
McDermot was a former neighbor and caretaker of Hilderbrand. In April 2011, Hilderbrand executed a durable power of attorney (DPOA) appointing McDermot as her attorney in fact, should Hilderbrand be deemed incompetent to manage her finances. McDermot then opened a new joint account at Ozark Mountain Bank in the names of "Hilderbrand or [McDermot.]" McDermot put her name on this account so McDermot "could write checks after [Hilderbrand] got sick." A May 2012 bank statement for this joint account showed balances of $123,509 in checking and $140,006 in certificates of deposit (CDs).
In June 2012, Hilderbrand executed a sixth amendment to the Trust, appointing McDermot as the successor trustee upon Hilderbrand's death, resignation or incompetency. The amendment also designated McDermot as the sole beneficiary, awarding her 100% of the Trust proceeds.3
On July 17, 2012, McDermot was interviewed by Janelle Turney (Turney), an investigator with the Missouri Department of Health and Senior Services. McDermot said that she and Hilderbrand decided that, in exchange for McDermot's care, Hilderbrand would pay McDermot "a small $300 mth sum and when she passes she will get the house and 2 $25,000 CD's." McDermot later told Turney that, shortly after Turney last visited, a doctor "signed to activate the DPOA for [McDermot.]"
In July 2012, David received a call from McDermot's former husband, Warren Camp. Camp warned David that Hilderbrand might be in danger. David became concerned that Hilderbrand was being left alone without food, water or proper care. He first called Hilderbrand, but no one answered the phone. David then called his two sisters, Susan and Nancy. On September 17, 2012, David made a hotline report to senior investigators.
On September 19, 2012, Kaye Schneider (Schneider), a social worker with Taney County Senior Services, responded to the hotline report. Schneider went to Hilderbrand's home. McDermot answered the door, but she would not allow Schneider to enter the home. When McDermot was told that law enforcement would be called, she allowed Schneider into the house and reluctantly permitted Schneider to visit with Hilderbrand alone. Hilderbrand said that she did not know her family was trying to reach her and would welcome calls or visits. According to Hilderbrand, McDermot told her that: (1) Hilderbrand's family members had not tried to get in touch with her and they did not care about her; and (2) McDermot "is the only one who cares about her." When Hilderbrand was asked to sign a HIPPA form, she declined at first. She said that she would have to ask McDermot if it "was alright for her to sign" and that she "does not want to make [McDermot] mad if she signs the form." As Schneider was leaving, McDermot said she was acting as "Hilderbrand's power of attorney" and had a copy of the document giving her that authority. McDermot refused, however, to provide that document to Schneider.
On September 21, 2012, Susan and Stephanie attempted to visit Hilderbrand on her birthday. McDermot would not let them enter the house. According to Stephanie, McDermot said, "[i]f your Aunt Bobbie hears you, she's going – she has a phone in her hand and she's going to call the police and have you arrested." Susan and Stephanie then went to the living room windows, where they saw Hilderbrand in her hospital bed. They waved and blew kisses to Hilderbrand, who waved and "feebly" blew kisses back.
Nancy also attempted to visit Hilderbrand. Unable to reach Hilderbrand by phone, Nancy called McDermot and left a message saying she was coming to visit Hilderbrand on her birthday. In response, McDermot sent Nancy a text stating that the police would be called if she came to visit. Nancy did travel to Missouri as planned, but she did not go to visit Hilderbrand.
On September 27, 2012, David filed a petition for appointment of a guardian and conservator for Hilderbrand. At a hearing held October 4, 2012, the probate court appointed Taney County Public Administrator Carol Davis (Davis) as Hilderbrand's "guardian and conservator on an emergency basis." The docket entry read: "Order hand delivered to Ms. Davis to take action immediately."
On October 5, 2012, Davis went to Hilderbrand's home with a police officer. The door was locked and there was no response to her knock. Davis walked around the home and saw through a window Hilderbrand lying in a bed. A note on the door stated that Hilderbrand did not want visitors. McDermot arrived and, after speaking with the officer, allowed Davis and the officer to enter the house. McDermot told Davis that Hilderbrand only had a week to live. Hilderbrand was "totally unresponsive" and had been alone in the home. Later, Hilderbrand told Davis that Hilderbrand knew "she was taking morphine
, and didn't want to take it unless she had to."
On November 7, 2012, Davis was appointed full guardian and conservator for Hilderbrand. The inventory filed in the Conservatorship indicated that Hilderbrand had assets totaling $890,547. The September 2012 Ozark Mountain Bank statement showed checks signed by McDermot, payable to cash, totaling $700. The statement showed balances in the joint account of $129,321 in checking and $250,007 in CDs.
On November 27, 2012, a motion was filed for appointment of a successor trustee. Notice of a hearing on the matter, set for December 12, 2012, was sent to McDermot. Following the hearing, Davis was appointed successor trustee for the Trust, replacing McDermot as successor trustee. The order appointing successor trustee stated that, because of Hilderbrand's incapacity to serve as trustee and "conflicts" under the Trust, "there is a need for someone neutral to be appointed[.]"
After Davis took over as Hilderbrand's guardian, Hilderbrand lived for over a year. Davis arranged for Hilderbrand's home care 24 hours per day, so she was never alone again. Davis also made sure family members were able to visit. Hilderbrand was able to get out of bed into a wheelchair, then to use a walker, and later to walk on her own. No longer bedridden, Hilderbrand was very active during the last year of her life. She went with her family to see a show and out to eat. She also went for rides in a caretaker's convertible. Photos were admitted in evidence, depicting Hilderbrand both when she was first discovered unresponsive in her home, and a year later, smiling and eating cake on her birthday. Social worker Schneider, who had responded to the hotline call, noted during a later visit that Hilderbrand, while under Davis’ care, "was happy[,] clean and alert." Hilderbrand told Schneider that she "was afraid of [McDermot], that she did not want [McDermot] back into her home[.]"4
In January 2013, Davis filed a motion for authority to amend the Trust. With respect to the Trust beneficiaries, Davis had...
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...evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." McDermot v. Doner , No. SD36775, 637 S.W.3d 402, 411 (Mo. App. Oct. 14, 2021), reh'g and/or tra nsfer denied (Nov. 2, 2021) (citing Murphy , 536 S.W.2d at 32 ); accord Karney v. Dep't of Labo......