Opinion
No. 15–P–349.
08-02-2016
Donna PETIT v. Mary Jane PETIT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Roger Petit (the decedent) died intestate in June, 2011, after suffering a stroke in August, 2007. He was survived by his second wife, the defendant, Mary Jane Petit (Mary), and several children from his first marriage, including the plaintiff, Donna Petit. Donna, as petitioner for appointment as special administrator of the decedent's estate, filed a three count verified complaint in equity seeking an order from the Probate and Family Court requiring Mary to return certain assets Donna asserts Mary converted from the estate.
Because the parties share a surname, we refer to them by their first names.
After a bench trial, the judge found Mary liable to Donna for the conversion of property that was held jointly by the decedent and Donna, and which had a collective worth valued at $65,248.64. The judge's order and amended judgment also determined that Mary is the joint owner of the decedent's bank accounts with a right of survivorship in those accounts. Donna filed a postjudgment motion for reimbursement of costs and attorney's fees incurred on the basis of having secured a favorable judgment as to count one. The judge denied the motion after hearing.
While there is an initial discrepancy in the judge's findings, it was corrected in the order and amended judgment in which he found that Mary converted a $30,000 General Motors Acceptance Corporation bond; certain stock of four entities, collectively worth $32,558.98; and, a Franklin Templeton Investments check in the amount of $2,689.66.
In this consolidated appeal, Donna challenges the judge's decision as to counts two and three of the complaint. She asserts the judge erred in finding that: (1) the decedent intended to give Mary a right of survivorship in his bank accounts; (2) Mary was not a bailee of the decedent's coin collection from the time of his stroke until his death; and, finally, (3) a fiduciary relationship did not exist between Mary and the decedent. Donna also appeals from the judge's order denying her costs and attorney's fees. For the reasons that follow, we affirm.
The record appendix includes only excerpts from the trial transcript. “[W]e shall assume, therefore, that the parties agree that those excerpts contain all the testimony material to our decision.” Goldie's Salvage, Inc. v. Selectmen of Walpole, 31 Mass.App.Ct. 726, 732 (1992).
1. Bank accounts. “It is settled that the transaction of creating a joint bank account with the right of survivorship must be taken at face value unless evidence shows that the parties did not so intend.” Desrosiers v. Germain, 12 Mass.App.Ct. 852, 855 (1981), citing DePasqua v. Bergstedt, 355 Mass. 734, 736 (1969). “The finding as to the intent of the alleged donor when a joint bank account was created is a pure question of fact.” Desrosiers, supra at 856. “The burden of proof is on the party who contends that the transaction is not to be taken at face value. The evidence must be assessed in its entirety, and the trial court's assessment of it will be rejected only if ‘clearly erroneous .’ “ Ibid. (citation omitted).
Here, the decedent's act of adding Mary's name to his accounts on September 5, 2007, created a rebuttable presumption that he intended to make an inter vivos gift to Mary. See id. at 855. Donna, who contends the decedent added Mary's name only as a matter of convenience, bears the burden of establishing that the transaction is not to be taken at face value. See id. Assessing the evidence in its entirety, we perceive no clear error in the judge's findings. See ibid. The only evidence in support of Donna's claim was testimony that the decedent expressed to Donna on multiple occasions, prior to his stroke and the creation of the joint accounts, that his estate would be divided among his children. Contrast ibid. (sufficient evidence to show that the decedent lacked donative intent where “statements were made contemporaneously or nearly so with the creation of the joint accounts”). Here, there was no evidence of a will or other written expression of such testamentary intent. The judge was free to discredit Donna's bald testimonial assertions. See Wakefield v. Hegarty, 67 Mass.App.Ct. 772, 774 (2006) (“A judge's assessment of the quality of the testimony is entitled to considerable weight because he ... is in the best position to judge the weight and credibility of the evidence”). While the evidence did establish that Mary accessed the accounts to pay the decedent's bills, it failed to further establish that the accounts were created for that sole purpose. Accordingly, we perceive no error in the judge's findings.
2. Coin collection. The judge's finding that Mary was not a bailee of the decedent's coin collection was also not clearly erroneous. “[A] bailment arises only upon delivery of the property sought to be bailed, ‘and at least some degree of control over that property, to the putative bailee.’ “ Royal Ins. Co. v. Marina Indus., Inc., 34 Mass.App.Ct. 349, 351 (1993), quoting from Sewall v. Fitz–Inn Auto Parks, Inc., 3 Mass.App.Ct. 380, 382 (1975). An “actual” delivery occurs where there is “a transfer of possession.” Harding v. Eldridge, 186 Mass. 39, 42 (1904). Here, the evidence establishes that the decedent remained in possession of the coins. The decedent instructed Mary to move the collection upstairs so that he would have better access to the coins after his stroke. Mary purchased safes to store the coins at the decedent's request. Because there is no evidence that the decedent transferred possession of the coins to Mary, the law of bailment is inapplicable. See generally King v. Trustees of Boston Univ., 420 Mass. 52, 59–60 (1995). Accordingly, we see no error in the judge's conclusion that Mary is not liable as a bailee for the value of the missing coins.
3. Fiduciary relationship. We are unpersuaded by Donna's contention that a “de facto fiduciary relationship” was created when the decedent added Mary as a coowner of his bank accounts. “Whether a relationship of trust and confidence exists is a question of fact, ... and may be found on evidence indicating that one person is in fact dependent on another's judgment in business affairs or property matters.” Michaud v. Forcier, 78 Mass.App.Ct. 11, 15 (2010) (quotation omitted). One is not a fiduciary by virtue of being a family member, but a family member can become a fiduciary if a decedent is dependent on her in financial affairs. Cleary v. Cleary, 427 Mass. 286, 292–293 (1998).
Here, the evidence established that the decedent was not dependent on Mary's judgment in his financial affairs. See ibid. Several witnesses testified that the decedent was of sound mind at the time he added Mary as a coowner of the accounts and remained competent until shortly before his death. Even after the stroke, Mary obtained the decedent's assent before paying any bills, and the decedent was aware of all the withdrawals made from the jointly held accounts. The decedent thus exercised his judgment in managing his financial affairs until he entered the nursing home shortly before his death. Where the judge's finding was supported by the evidence, we discern no error.
We also reject Donna's claim that the judge was clearly erroneous in finding that Mary did not become a fiduciary by virtue of the power of attorney the decedent is alleged to have executed here.
4. Attorney's fees. Finally, Donna claims the judge erred in refusing to award her attorney's fees and costs pursuant to G.L. c. 215, § 45. We disagree. The judge possesses a broad degree of discretion in whether to award costs and attorney fees. His decision “may be presumed to be right and ordinarily ought not to be disturbed.” Matter of the Estate of King, 455 Mass. 796, 805 (2010), quoting from Smith v. Smith, 361 Mass. 733, 738 (1972). Given the discretionary nature of § 45, nothing in the record suggests the judge erred in refusing Donna's request.
Donna also appeals from the denial of her request for attorney's fees and costs under G.L. c. 231, § 6F. Because Donna failed to raise this claim with the single justice in the first instance, as the statute requires, this avenue of appeal is not properly before us and we do not address it. See G.L. c. 231, § 6G.
To the extent that we do not specifically address other arguments raised in the briefs, they have not been overlooked. Rather, we see nothing requiring further discussion. Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Order and amended judgment affirmed.
Order dated August 12, 2014, denying motion for attorney's fees and costs pursuant to G.L. c. 215, § 45, affirmed.