Nicholas v. Nicholas, 88,765

Citation66 P.3d 929,31 Kan.App.2d 457
Decision Date18 April 2003
Docket NumberNo. 88,765,88,765
PartiesARTHUR E. NICHOLAS, Executor of the Estate of Sheryl A. Nicholas, deceased, Appellant, v. RUBY E. NICHOLAS, Appellee, and SHERYL A. NICHOLAS v. RUBY E. NICHOLAS.
CourtCourt of Appeals of Kansas

J. Eugene Balloun, Celia K. Garrett, and Brenda R. Mesker, of Shook, Hardy & Bacon, L.L.P., of Overland Park, and John R. Toland, of Toland & Thompson, L.L.C., of Iola, for appellant.

Ted E. Knopp, of Ted E. Knopp, Chtd., of Wichita, and Charles H. Apt, III, of Apt & Apt, L.L.P., of Iola, for appellee.

Before RULON, C.J., PIERRON and MARQUARDT, JJ.

MARQUARDT, J.:

Arthur E. Nicholas, the son of Sheryl A. Nicholas and the executor of Sheryl's estate, appeals the trial court's denial of his motion for summary judgment and the grant of summary judgment to Ruby E. Nicholas. We affirm.

Ruby and Sheryl were married on December 4, 1972. Ruby had two children from her previous marriage; Frank and Paula Laurenzana. Sheryl had two children from his previous marriage; Arthur E. Nicholas and Susan A. Johnson. No child was born to Ruby and Sheryl.

In 1998, Sheryl was diagnosed with melanoma and told that he had less than a 50 percent chance of surviving 4 additional years. On May 9, 2000, Ruby filed for divorce and obtained an ex parte temporary restraining order prohibiting either party from disposing of any assets of the parties "except in the normal course of business."

On July 18, 2000, Sheryl executed a will devising all of his property in equal shares to Arthur and Susan, and named Arthur as executor of his estate. During July 2000, Sheryl executed a transfer on death (TOD) form changing the beneficiary of the Van Kampen funds from Ruby to Arthur and Susan. He also executed a TOD form to transfer the Edward Jones account to Arthur and Susan, and a pay on death (POD) form transferring the funds of a checking account in the Iola Bank and Trust Company (Iola Bank) to Arthur. In August 2000, Sheryl changed the primary beneficiary of his Ameritas life insurance policy from Ruby to Arthur.

On July 26, 2000, Sheryl filed a cross-petition for divorce and a motion for an emergency divorce. On August 14, 2000, Sheryl filed a motion to sever the joint tenancy property he owned with Ruby. On August 31, 2000, Sheryl also filed suit against Ruby for invasion of privacy and trespass alleging that Ruby broke into his home and removed various documents and financial records. Sheryl demanded the return of the documents and sued for damages in excess of $50,000.

On September 6, 2000, the district court denied Sheryl's motion for an emergency divorce but granted his motions to file a cross-petition for divorce and to modify the restraining order. At the hearing, Sheryl's counsel reserved argument on the motion to sever the joint tenancies. Trial was set for October 3, 2000.

The parties attempted to negotiate a settlement agreement. On September 27, 2000, Sheryl executed a property settlement and separation agreement (Agreement) which he believed to be consistent with the terms of a previous offer made by Ruby. On September 29, 2000, Sheryl executed the "Sheryl A. Nicholas Revocable Trust Agreement" (Trust) with Arthur and Susan as equal beneficiaries. Sheryl funded the Trust with all of his personal property and certain real property.

Sheryl died on October 1, 2000, at the age of 83. On October 3, 2000, Arthur filed a motion for an order to restrain Ruby from disposing of any property listed in the Agreement, and to admit Sheryl's will to probate. The probate court acknowledged that Ruby agreed to advise the estate of the transfer of any assets owned by Sheryl and Ruby in joint tenancy.

Sheryl's will was admitted to probate on December 11, 2000, as his last will and testament after Ruby withdrew her objections. Arthur was appointed executor of Sheryl's estate. On December 21, 2000, Arthur filed suit against Ruby alleging that: (1) Ruby refused to deliver one-half of the property titled in joint tenancy with Sheryl to the estate; and (2) Ruby breached the Agreement by refusing to release property to Arthur. Ruby acknowledged the existence of Sheryl's revised will. However, Ruby asserted that the majority of marital property was held in joint tenancy with rights of survivorship and denied that Sheryl's actions succeeded in terminating their joint tenancies. Ruby also responded that she had neither approved nor executed the Agreement.

On April 13, 2001, Ruby filed an application to amend her answer and join Arthur and Susan as additional party plaintiffs. Ruby's first amendment also served as her counterclaim and cross-claim. She alleged that Sheryl's attempts to sever joint tenancy interests and changing or naming beneficiaries on accounts and his life insurance policy violated the restraining order and were fraudulent under K.S.A. 33-201 et seq., the Kansas Uniform Fraudulent Transfer Act. Ruby asked the district court to impose a constructive trust on those funds transferred by Sheryl "outside the normal course of business" to Arthur and Susan in violation of the restraining order.

Arthur responded that the district court did not have personal jurisdiction over Susan or himself, as individuals. He argued that the district court did not have subject matter jurisdiction over the Van Kampen funds, the Edward Jones account, or the Ameritas life insurance policy because the funds were situated and paid from locations outside of Kansas to parties residing outside of Kansas. The Iola Bank checking account was in the possession of the special administrator and had not been disbursed. Further, Arthur maintained that Ruby claimed these four accounts in ongoing probate proceedings. There is no indication that a hearing was held to address Ruby's motion.

Both parties filed motions for summary judgment on their respective claims. Ruby argued that: (1) Sheryl's actions did not sever the joint tenancies; (2) Sheryl violated the restraining order when he completed forms to transfer funds upon his death for the Van Kampen funds, the Iola Bank checking account, and the Edward Jones account; (3) Sheryl further violated the restraining order by changing the beneficiary of his Ameritas life insurance policy; (4) the proposed Agreement did not bind the parties because Ruby did not sign or execute the Agreement and, without her signature, the Agreement violated the homestead laws of Kansas and the statute of frauds; and (5) Sheryl's invasion of privacy claim did not survive his death.

Arthur's motion for summary judgment argued that: (1) the restraining order did not prohibit severance of the parties' joint tenancies; (2) Sheryl acted properly in changing the beneficiary on the Ameritas life insurance; (3) Sheryl acted properly in executing a TOD form for the Edward Jones account; (4) Sheryl acted properly in executing POD forms for the Van Kampen account and the Iola checking account; (5) the Agreement signed and executed by Sheryl was binding on the parties; and (6) the invasion of privacy claim survived Sheryl's death.

On February 15, 2002, the parties signed a stipulation as to the joint or several ownership of Ruby and Sheryl's personal and real property. It was effective as of the date of Sheryl's death.

In its March 14, 2002 order, the district court granted summary judgment in favor of Ruby, noting: (1) title to the accounts should remain as they existed when the court issued the restraining order on May 9, 2000; (2) the Agreement did not bind the parties because it had not been agreed to by Ruby, or approved by the court prior to Sheryl's death, which abated the divorce proceeding; and (3) Sheryl's invasion of privacy claim did not survive his death. Arthur filed a timely appeal. After deciding issues dispositive of Arthur's suit and Sheryl's invasion of privacy claim, the district court issued an order consolidating those two cases.

Arthur filed a temporary restraining order on April 1, 2002. The district court issued its order on July 1, 2002, initially dissolving all prior restraints on the property. However, the order indicated that Ruby was restrained from "gifting or spending one-half of the joint tenants' personal property." Ruby was allowed to make estate plans and testamentary dispositions. Arthur was instructed to post a supersedeas bond in the amount of $152,674 to cover 125 percent of the value of the Ameritas life insurance policy and the Van Kampen fund which were at the disposal of Arthur or Susan.

On July 15, 2002, Arthur filed a motion with this court to modify the July 1, 2002, stay of enforcement of the judgment entered by the district court. This court instructed the district court to hold a hearing for the limited purpose of determining: (1) whether an accounting of assets should be ordered; (2) whether property should be redistributed to restore the parties' interests; and (3) which measures, if any, should be taken to protect those interests during the pendency of the appeal. A hearing was held on August 29, 2002. The parties were unable to agree on a journal entry and the case was reset for a hearing on November 6, 2002.

On November 7, 2002, the district court issued its order listing certain assets to be restrained from any direct or indirect acts intended to liquidate, retitle, transfer, or remove them from the jurisdiction of the court.

In addition, the district court denied Arthur's request for restoration of Sheryl's one-half interest in the joint tenancy property. Counsel for the parties were ordered to immediately provide a copy of the district court's order to all entities and individuals to ensure that the orders concerned with the restrained property are followed.

I. Were Moot Issues Decided by the District Court?

The district court ruled that Sheryl's "various efforts at modifying the title to various accounts" violated the ex parte restraining order. K.S.A. 2002 Supp. 60-1607 allows a district court to make and enforce orders...

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2 cases
  • Nicholas v. Nicholas
    • United States
    • United States State Supreme Court of Kansas
    • January 30, 2004
    ...all entities and individuals to ensure that the orders concerned with the restrained property are followed." Nicholas v. Nicholas, 31 Kan. App. 2d 457, 462-63, 66 P.3d 929 (2003). On appeal, a majority of the Court of Appeals panel affirmed the district court. Nicholas, 31 Kan. App. 2d at 4......
  • Bennett v. Emerson Electric Company, No. 02-3094.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 15, 2003
    ...agree is controlling), "there must be a `meeting of the minds on all essential terms' to form a binding contract." Nicholas v. Nicholas, 66 P.3d 929, 937 (Kan. Ct. App. 2003); Dougan v. Rossville Drainage Dist., 15 P.3d 338, 352 (Kan. 2000) (same). In our view, the evidence cited by the dis......

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