Mulato v. Mulato

• Decision Date: 24 December 1997
• Docket Number: No. 96-3402,96-3402
• Citation: Mulato v. Mulato, 705 So.2d 57 (Fla. App. 1997)
• Parties: 23 Fla. L. Weekly D60 Dorothy MULATO, Appellant/Cross-Appellee, v. Edward MULATO, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 57

705 So.2d 57

23 Fla. L. Weekly D60

Dorothy MULATO, Appellant/Cross-Appellee, v.Edward MULATO, Appellee/Cross-Appellant.

No. 96-3402.

District Court of Appeal of Florida Fourth District.

Dec. 24, 1997.

John H. Pelzer and Daniella Friedman of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant/cross-appellee.

Anthony J. Titone, Fort Lauderdale, for appellee/cross-appellant.

DONNER, AMY STEELE, Associate Judge.

George and Isabelle Mulato were married for over fifty years.They had two children, Dorothy and Edward.In 1977, George and Isabelle each executed their last will and testament.Each left his or her entire estate to the other, and if the other did not survive, in equal shares to Dorothy and Edward.Shortly thereafter, George died.Since the vast majority of the couple's assets were bank accounts and stock certificates held jointly in their names with rights of survivorship, most of George's assets did not pass through probate.

After George's death, Isabelle opened a number of checking and certificates of deposit accounts titled jointly in the names of Isabelle, Dorothy or Edward, with rights of survivorship.Over the next several years, Isabelle changed the title on many of these accounts.

In April 1994, Isabelle died.At the time of her death, three of these original accounts remained open, titled jointly in the names of Dorothy and Isabelle, with rights of survivorship.Dorothy closed these accounts after Isabelle's death and retained the monies.In addition to the three original accounts, two other accounts were in existence at the time of Isabelle's death.One account was titled in the names of Isabelle, Dorothy or Edward, with rights of survivorship, and the other was originally opened in the names of Isabelle in trust for Edward, but title was changed to Isabelle or Dorothy with rights of survivorship.Edward, claiming an interest in both these accounts, froze them.

On her own, Dorothy opened seven accounts, titled jointly in her own name and in Edward's name with rights of survivorship.Shortly after his mother's death, Edward placed a stop order on these seven accounts as well.At the time of trial, six accounts remained frozen in the family bank, five in the names of Dorothy and Edward, and one in the names of Isabelle, Dorothy and Edward with rights of survivorship.The trial court determined that Edward was entitled to one-half of the funds remaining in these six accounts.

The parties also disputed ownership of various stocks held jointly either in the names of Isabelle, Dorothy and Edward, or only Dorothy and Edward.Edward also challenged the sale of some Bell South stock sold prior to Isabelle's death.The stock was held jointly by Isabelle, Dorothy and Edward, but Edward's name was forged on the sell order, and the sale was effectuated without his knowledge.The check for the proceeds from the sale arrived a few days after Isabelle's death, but Edward never received his share of the payment.The trial court ordered that Edward was entitled to one-half of all stocks held jointly, and reimbursement for one-half of the proceeds of the Bell South stock.

Edward also claimed that two deeds quitclaiming Isabelle's interest in a condominium and a multiple dwelling unit to Dorothy were the product of undue influence, and that his mother was not capable of transferring her interest because she lacked present intent.The trial court found both deeds valid.

Dorothy Mulato appeals the final judgment awarding her brother, Edward Mulato, one-half of the bank accounts and stocks held jointly in their names, and $10,000 of money withdrawn by Dorothy from accounts titled in the names of Dorothy and Isabelle Mulato.Dorothy also appeals the trial court's award to Edward of one-half of the proceeds of the sale of the Bell South stock, and she challenges the trial court's refusal to grant her attorney's fees incurred in defending Edward's civil theft claims.Edward cross-appeals, claiming the trial court erred in refusing to award him treble damages and attorney's fees on his civil theft claim, as well as refusing to set aside the quit-claim deeds executed by Isabelle before her death.

We affirm the trial court as to its decision on the quit-claim deeds, attorney's fees, civil theft claim and stock held jointly in the names of Dorothy, Edward and their mother.However, we reverse the trial court's award to Edward of $10,000 of the money Dorothy withdrew from the accounts held in the names of Dorothy and Isabelle, as well as the trial court's award to Edward of one-half the stock and bank accounts, held jointly by Dorothy and Edward with rights of survivorship.

DOROTHY'S SURVIVORSHIP ACCOUNTS

The trial court awarded Edward $10,000 of the monies Dorothy withdrew from accounts held in the names of Dorothy and Isabelle, with rights of survivorship.Dorothy maintains on appeal that she is entitled to all the proceeds from these accounts, by virtue of her survivorship rights.According to section 655.79, Florida Statutes(1995):

[A] deposit account in the names of two or more persons shall be presumed to have been intended by such persons to provide that, upon the death of any one of them, all rights, title, interest, and claim in, to, and in respect of such deposit account ... vest in the surviving person or persons. ...The presumption created in this section may be overcome only by proof of fraud or undue influence or clear and convincing proof a contrary intent. ... notwithstanding the absence of proof of any donative intent or delivery, possession, dominion, control, or acceptance.

§ 655.79(1),(2)(emphasis supplied);see alsoIn re Estate of Combee, 601 So.2d 1165(Fla.1992)(evidence that decedent's will left her entire estate to petitioners did not overcome presumption that decedent intended the proceeds of her account to inure to other account holders upon her death);Davis v. Foulkrod, 642 So.2d 1129(Fla. 4th DCA1994)(error for the trial court to focus on decedent's donative intent), review denied, 652 So.2d 816(Fla.1995).

Two of the accounts from which Dorothy removed funds after her mother's death were originally opened in the names of Isabelle and Dorothy and remained that way until Isabelle's death.Of the other accounts that were originally established jointly in the names of Isabelle, Dorothy and Edward, some of these accounts were closed prior to Isabelle's death; Edward appears not to have received the proceeds from these accounts.As to those accounts that Dorothy closed after Isabelle's death, Dorothy believed she was entitled to the funds by virtue of survivorship rights.Title for each of those accounts was changed from Isabelle, Edward and Dorothy with rights of survivorship, to Isabelle in trust for various grandchildren, then to Isabelle and Dorothy, with rights of survivorship.Isabelle exercised control over these accounts and prior to her death could have closed all these accounts and removed all the funds.The facts presented to the lower court did not demonstrate that Edward overcame the presumption that Dorothy is entitled to all of the funds in the accounts held in the names of Isabelle and Dorothy.

DOROTHY'S BANK ACCOUNTS

We conclude that the trial court erred in awarding Edward one-half of the account balances in the accounts held jointly in the names of Dorothy and Edward, with rights of survivorship.According to section 655.78, the funds in a deposit account in the names of two or more persons may be paid to, or on the order of, either of such persons--unless otherwise expressly provided in a contract, agreement or signature card.However, the presumption that a gift was intended by the depositor of funds into a joint account applies only to the funds remaining at the depositor's death.SeeKatz v. Katz, 666 So.2d 1025, 1027(Fla. 4th DCA), review denied, 675 So.2d 927(Fla.1996).

In order to establish that a non-depositing party is entitled to funds held in a joint account, that party must show: (1) that the depositor/donor had a clear intention to transfer a present interest; (2) delivery by surrender of dominion and control to the donee; and (3) acceptance of the gift by the donee.SeeReiner v. Reiner, 400 So.2d 1292(Fla. 4th DCA1981)(for there to be an inter vivos gift of funds in a joint account, "there must exist an intention that each party shall have a present equal right to withdraw the funds")(quotingChase Fed. Sav. & Loan Ass'n v. Sullivan, 127 So.2d 112(Fla.1960), superseded by statute on other grounds as stated in, Estate of Combee, 601 So.2d at 1165).

Although the accounts are held in the joint names of Dorothy and Edward, Dorothy testified that all the money deposited belonged to her, and that ...