Tinker Fed. Credit Union v. Grant

• Decision Date: 16 August 2016
• Docket Number: Case Number: 114176
• Citation: 391 P.3d 766
• Parties: TINKER FEDERAL CREDIT UNION, Plaintiff, v. Jimmy D. GRANT, Defendant/Appellant, Bishop L. Berryhill and Camden L. Berryhill, Defendants/Appellees, and Kenneth Boulware, Sheila Mosley-Boulware and Suzann M. Grant, Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

391 P.3d 766

TINKER FEDERAL CREDIT UNION, Plaintiff,

v.Jimmy D. GRANT, Defendant/Appellant,Bishop L. Berryhill and Camden L. Berryhill, Defendants/Appellees,andKenneth Boulware, Sheila Mosley-Boulware and Suzann M. Grant, Defendants.

Case Number: 114176

Court of Civil Appeals of Oklahoma, Division No. 4.

Decided: August 16, 2016

Mandate Issued: February 7, 2017

Steven L. Parker, Tecumseh, Oklahoma, for Defendant/Appellant.

Luke Gaither, GAITHER LAW OFFICE, Henryetta, Oklahoma, for Defendants/Appellees.

JANE P. WISEMAN, PRESIDING JUDGE:

¶ 1 Jimmy D. Grant appeals a trial court order (1) finding he improperly converted funds from a guardianship estate to his own account, and (2) directing payment of the funds to the beneficiaries of the ward's account from which the funds were taken. We are asked to address whether this resulted from trial court error or an abuse of discretion. We find it did not and affirm its decision.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On January 22, 2014, Grant was appointed guardian of Kenneth Lee Boulware. Sheila Mosley-Boulware had previously acted as Boulware's guardian. On January 7, 2015, Tinker Federal Credit Union (TFCU) filed a petition for interpleader stating Boulware had checking and savings accounts at TFCU and two minor children, BLB and CLB, were named as beneficiaries of the accounts. TFCU alleged that, since the time Grant presented the guardianship order to TFCU, he attempted to amend the beneficiary designation for Boulware's accounts, but TFCU refused to change the beneficiary designations. TFCU alleged that after it denied Grant's request, "Grant transferred a substantial portion of the assets held in Kenneth Lee Boulware's accounts into accounts in Jimmy D. Grant's name alone" and designated Suzann M. Grant as the beneficiary. Due to the conflicting claims for the money from the accounts, TFCU asserted it "cannot make payment or designation of the money and accounts without assuming responsibility of determining doubtful questions of fact and law" and being subject to lawsuits. TFCU asked that it be allowed to pay the money to the clerk of court.

¶ 3 In its January 7, 2015 order, the trial court directed Grant, Sheila Mosley-Boulware, BLB, CLB, and Suzann Grant to respond to TFCU's interpleader request and state what claim they have to the accounts or against other parties. A hearing was set on February 9, 2015, for these defendants to appear and show cause: (1) why TFCU should not be discharged from the action after paying the funds into court; (2) why the "defendants should not be permanently enjoined from making any further claim against TFCU related to the referenced account"; and (3) why the court should not award TFCU its costs and attorney fees.

¶ 4 Sheila Mosley-Boulware answered stating she "has no objection to the money being interplead ... for the Court to determine how the funds should be distributed" or for TFCU to be discharged once the funds were deposited with the court.

¶ 5 In his answer, Grant alleged that he is Boulware's guardian; Boulware made a will (attached to Grant's answer showing that it had been witnessed by Grant's attorney and presented to a judge); all accounts remain in Boulware's name and would remain so until his death; and Grant had no objection to the discharge of TFCU. He asked to "be able to transfer monies within [TFCU] as he sees fit subject to supervision by [the court]."

¶ 6 Boulware's will dated June 24, 2014, leaves his two children $ 10 each. He leaves Tiffany Jo Berryhill, as trustee for CLB and BLB, $ 10,000 for each child for his education, to be held in trust until his 22nd birthday. The will states that the trust funds have been established at TFCU. Boulware devises specific real estate to Grant, leaves him a judgment recorded in Okfuskee County, and bequeaths Grant the remainder and residue of his estate.

¶ 7 Suzann Grant filed an answer stating she is Grant's daughter, she is aware that Grant made her the beneficiary of Boulware's accounts, she makes no claim to any of the monies and does not expect to do so, and she has no objection to the discharge of TFCU. She asked the court to dismiss her from the lawsuit.

¶ 8 Tiffany Robertson¹ , as mother and next friend of BLB and CLB, filed an answer and a cross claim against Grant admitting TFCU's claims and alleging Grant abused his power and breached his fiduciary duty to Boulware when he tried to change the beneficiaries on Boulware's bank accounts. Robertson asked that Grant be removed as guardian and enjoined from any further use of Boulware's assets until his removal.

¶ 9 In its order on the interpleader petition, the trial court directed TFCU to deposit the contents of all of Boulware's accounts into the trust account of BLB's and CLB's attorney, Luke Gaither. After depositing the funds, TFCU was to be discharged from the action. Pursuant to the order, TFCU deposited $ 165,621.48 into Gaither's trust account. The court awarded $ 1,000 to the law firm representing TFCU to be deducted from the funds deposited in Gaither's account, and ordered Grant to retain two of Boulware's social security checks totaling $ 6,000 plus $ 1,000 from the funds deposited in Gaither's account. Grant was ordered to pay an outstanding attorney fee of $ 2,500 Boulware owed to Jeremy Pittman arising from Boulware's previous divorce action with Sheila Mosley-Boulware.

¶ 10 According to Grant, Boulware died on March 10, 2015. On April 16, 2015, Grant filed a final report on Boulware's guardianship. He claimed in the report that Boulware directed him to transfer the money from the checking account which listed BLB and CLB as beneficiaries "to a different account where it would not be subject to the payment on death beneficiary clause." He stated that on November 18, 2014, he transferred $ 95,291.87 to an account so CLB and BLB "would not be the beneficiaries on a payment on death account."

¶ 11 A hearing on the final account was held on May 20, 2015. Grant testified that when the court appointed him guardian, Boulware was going through a divorce from Sheila Ann Mosley. Grant said that while he was taking care of business at TFCU related to the divorce, he learned that BLB and CLB "were beneficiaries of [Boulware's] entire account." Grant stated that Boulware had three accounts. He claimed he had a conversation with Boulware about the accounts, and as a result of that conversation, Grant talked to a TFCU representative who told him BLB and CLB "were beneficiaries over the entire checking and everything." Grant "asked her about how we go about to get what [Boulware] wanted done, and she said he would have to come in and do it." Grant testified, "I went back later and found out that I could withdraw money out of the account as long as I left some in the account for the boys, which I did." Grant stated he left $ 30,000 for the boys. He claimed:

I transferred the rest into another account with, it was supposed to have been headed just like the old account with a different beneficiary. And the lady that fixed it out did not put Boulware's own name on it, and I asked her why. I said Mr. Boulware's name is not on here, and she said I can't put it on, I did not ask her a question of why or when.

He acknowledged his name was on the account.

¶ 12 Grant told the court that he discovered the content of Boulware's will the same day he passed away, March 10, 2015. He stated Boulware "probably made fifteen or twenty [wills] in the last fifteen years [he has] known [Boulware]." Grant did not know exactly how much Boulware left BLB and CLB, but Boulware "always told [Grant] he left them fifteen thousand dollars apiece" which is "the reason [Grant] left thirty thousand dollars with them being the full beneficiaries on the death beneficiary, [so that] they could get them right at his death time."

¶ 13 On cross-examination, Grant testified he did not know he was "practically the sole beneficiary of this estate until after Mr. Boulware's death." He stated that Boulware told him to change the beneficiary on the TFCU account and to designate Grant's daughter, Suzann Grant, as the beneficiary. In his last two years, Boulware was in a nursing home, and Grant's sister lived at Boulware's farm and acted as a "sitter." Grant's brother also lived in Boulware's former home and the two "have cleaned and taken care of the place and kept it up for the rent."

¶ 14 Grant acknowledged there were no beginning account balances listed in the accounting he provided the court. The court questioned Grant about the amounts he charged for services he provided for Boulware. The court refused to approve the final accounting because "[g]uardians are not allowed to charge for things" for which Grant charged Boulware because "[g]uardians are paid by statute."

¶ 15 Arlene Gregg, a member service officer for TFCU, testified that she talked to Boulware about his accounts and Boulware told her he wanted to leave BLB and CLB $ 10,000 each. On cross-examination, she testified that at some point, the transactions by Grant "raised a red flag." When Grant moved the funds from one account to another, someone noticed and attorneys for TFCU then filed the interpleader action. When asked about Boulware by the court, Gregg stated she believed he was capable of managing his own affairs and "[h]e didn't have anyone speak for him" because "[h]e spoke for himself." On cross-examination, when asked if Boulware "knew how to change his beneficiary on the payable on death account," Gregg replied, "He would know how. He's done it before."

¶ 16 The journal entry of judgment filed July 14, 2015, in part provides:

2. All funds which are the subject of this action were improperly converted from the Guardianship estate into account(s) in the Guardian's name. Such improper conversion caused the Payable On Death beneficiaries of the Ward's account, [BLB] and [CLB] (minor children), to be excluded as beneficiaries while the Ward was incapacitated.

3. The transfer by the Guardian from the Ward's

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