      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                              Jan 20 2016, 10:28 am
      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Thomas M. Barr                                           Stephen J. Harants
      Tomas M. Barr & Associates                               Miller & Harants
      Nashville, Indiana                                       New Haven, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Charles E. Gatewood, II, and                             January 20, 2016
      Rita L. Gatewood,                                        Court of Appeals Case No.
      Appellants-Defendants,                                   07A01-1503-EM-108
                                                               Appeal from the Brown Circuit
              v.                                               Court
                                                               The Honorable Judith A. Stewart,
      John A. Gatewood, as Personal                            Judge
      Representative of the Estate of                          Trial Court Cause No.
      Margaret H. Gatewood                                     07C01-1112-EM-42
      Appellee-Plaintiff.



      Mathias, Judge.


[1]   Charles E. Gatewood, II a/k/a Chip (“Chip”) and Rita L. Gatewood (“Rita”)

      appeal the judgment of the Brown Circuit Court in favor of John A. Gatewood,

      as personal representative of the Estate of Margaret H. Gatewood (“the Estate”)
      Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016     Page 1 of 19
      in the Estate’s action against Chip and Rita. On appeal, Chip and Rita

      (collectively “the Defendants”) present two issues for our review, which we

      consolidate and restate as whether the trial court properly applied a

      presumption of undue influence in Chip’s and Rita’s transactions with the

      decedent.


[2]   We affirm.

                                            Statement of Facts

[3]   The decedent in this case, Margaret Gatewood, had three children with her

      husband, Charles Gatewood, Sr., namely: Suzanne Zupancic (“Suzanne”),

      Chip, and John Gatewood (“John”). Margaret also had a granddaughter,

      Laurie Linback (“Laurie”) who was Suzanne’s daughter. Charles, Sr. passed

      away in 1999.

[4]   Chip married Rita in 1984. From that date until 2009, Chip and Rita lived in a

      mobile home on property adjacent to Margaret’s home. Both Chip and Rita

      helped Margaret with mowing and other upkeep on her property, especially

      after the death of Charles, Sr.

[5]   Margaret was an independent and strong-willed woman most of her life. When

      her husband was alive, he and Margaret would make an annual trip to Disney

      World in Florida, staying at a campground at the park from January to March.

      After her husband’s death, Margaret continued to spend the winter months in

      Florida. By 2007, Margaret showed signs of slowing down. Although she was



      Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 2 of 19
      able to live by herself and even travel to Florida, Margaret began to suffer from

      memory loss and had issues maintaining her balance.

[6]   When Margaret was in Florida in the winter of 2007, Laurie reviewed

      Margaret’s checkbook and found checks that had been made but not recorded,

      which was very unusual. She also noticed that some of these unrecorded checks

      had been made out to Chip and Rita when Margaret was in Florida. Shortly

      thereafter, Margaret removed Rita as a signatory from her bank accounts and

      her certificates of deposit and instead added Laurie as a signatory. In April of

      2007, Laurie then obtained power of attorney from Margaret.


[7]   Margaret again made her annual trip to Florida in 2008 with Laurie

      accompanying her, but Margaret’s condition gradually worsened. In the winter

      of 2009, Margaret again made her annual trip to Florida, this time without

      Laurie. Laurie received a call from Margaret’s neighbor in Florida who was

      concerned with Margaret’s welfare. Laurie attempted to contact her

      grandmother in Florida but could not reach her. Concerned for Margaret’s

      wellbeing, Laurie and her mother Suzanne traveled to Florida to check on

      Margaret. There, they found Margaret living in squalid conditions: the home

      was filthy, feces were on the carpet, and Margaret was apparently not taking

      her medications, as the medicines were unopened. Margaret also appeared not

      to have bathed since she had arrived a month ago, and she had lost a substantial

      amount of weight. Laurie and Suzanne cleaned Margaret up and flew back to

      Indiana with her a few days later.



      Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 3 of 19
[8]    Once in Indiana, Laurie took Margaret to her family physician, who referred

       her to neurologist Doctor Abdulkarin Sharba (“Dr. Sharba”). When Dr. Sharba

       examined Margaret on March 11, 2009, she was unable to read or write a

       sentence, and she was disoriented as to both her location and the current year.

       Dr. Sharba diagnosed Margaret with at least moderate dementia.


[9]    With the agreement of all of the family, Margaret was admitted to the

       Methodist Home in Franklin, Indiana, for rehabilitation and physical therapy.

       Chip and Rita claim that they did not intend for Margaret to permanently

       remain in the nursing home and considered the move only temporary.

       Eventually, however, it became more clear that Margaret’s stay in the home

       was going to be long-term, if not permanent. Laurie began to seek guardianship

       over her grandmother in March 2009.


[10]   Margaret, who was still strong-willed, did not wish to remain in the nursing

       home. On April 27, 2009, Margaret was taken to an attorney by Chip and Rita

       where she executed a new power of attorney instrument removing Laurie as her

       attorney-in-fact and naming Chip as her attorney-in-fact. Chip paid the fees for

       preparing this change in the power of attorney. When Laurie learned of the

       change in the power of attorney, she abandoned her efforts to establish a

       guardianship. Laurie turned over to Chip all of Margaret’s financial

       information and papers. Among these was a will that was executed in Laurie’s

       presence. This will was never submitted to probate.




       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 4 of 19
[11]   At the end of April and the beginning of May 2009, Chip moved his mother

       back to her home. Chip and Rita moved out of their mobile home and moved

       in with Margaret. Rita eventually quit her job at a grocery store to help care for

       Margaret, as did Chip after he suffered a heart attack. When Chip and Rita

       were living with Margaret, Margaret’s money was used to pay all of the bills,

       and Chip and Rita paid no rent. They did, however, rent out their mobile home

       for $400 or $500 per month. Once Chip and Rita moved in with Margaret, they

       limited her contact with the other members of the family. Laurie was told that

       she was not allowed to go to the home, and John was only allowed to visit with

       his mother if either Chip or Rita were with him. On occasion, John’s visits were

       even monitored using a baby monitor.


[12]   As his mother’s attorney-in-fact, Chip took care of Margaret’s finances. He

       helped her close certain bank accounts and open other accounts. However, his

       efforts to keep his money and his mother’s money separate were not successful.

       Indeed, Chip admitted that his money and Margaret’s money were “all the

       same.” See Appellant’s App. p. 19. Typically, Chip paid for his mother’s

       expenses out of her accounts, but he sometimes used his and Rita’s accounts

       and reimbursed himself from Margaret’s accounts. Other than some notations

       in the memo lines of the checks such as “food,” Chip did not maintain records

       of how he used his mother’s money.


[13]   Additionally, Rita used two credit cards that were in Margaret’s name. She

       used these cards to pay pharmacy and medical bills and other household

       expenses in addition to almost $5,000 in balance transfers from other credit

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 5 of 19
       cards. Although Rita used these cards mostly for Margaret’s medicine and

       expenses, she also used them to pay for items for herself, with Margaret’s

       permission. Chip, however, was unaware of these cards, and Rita gave the

       credit card bills directly to Margaret who asked her not to discuss the bills with

       Chip.


[14]   Between August 14, 2010, and October of the next year, Chip, acting as

       Margaret’s attorney-in-fact, wrote checks on Margaret’s accounts to himself, his

       auto-repair company, and Cintas, who provided uniforms for Chip’s auto-repair

       company. These checks totaled $5,610. Of this amount, $1,150 noted in the

       check memo line, or were testified to by Chip, as being for food and gas.

       Another $1,000 was for labor Chip performed installing a water systems and

       pump in Margaret’s house. Margaret was aware that Chip and Rita would

       purchase groceries and medicine for her, sometimes with their own funds, and

       Margaret would reimburse them for such expenses.


[15]   Between May 2009 and January 2011, Chip, acting as attorney-in-fact, wrote an

       additional $2,766 of checks and traveler’s checks from Margaret’s account to

       Rita. Although some contained memo notes that they were for items purchased

       for Margaret, others contained no notation. Furthermore, during 2011, checks

       totaling $4,989 were written, purportedly by Margaret, to Rita without any

       notation or other record of their purpose. The checks to Rita increased in

       frequency and amount as Margaret’s condition worsened. Although all of the

       checks bear the name of Margaret as signor, the signatures were not the same

       on all of the checks. As noted by the trial court, however, no handwriting

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 6 of 19
       analysis was submitted into evidence. However, Rita did admit to writing her

       own name on the payee line on all of Margaret’s checks written to her.

[16]   On May 1, 2009, Margaret visited her family physician, Dr. Michael Chitwood

       (“Dr. Chitwood”). During this visit, Margaret was confused and not oriented as

       to time, i.e., Margaret thought the year was 1996. Dr. Chitwood concluded that

       Margaret had dementia but could still live at home with the assistance of Chip

       and Rita.


[17]   On July 2, 2010, Margaret signed a quitclaim deed that conveyed her home and

       real property to herself, Chip, and Rita. The attorney who prepared the deed

       never met Margaret and did not have any opportunity to speak with her

       privately about the deed. One week after executing the deed, Margaret again

       visited Dr. Chitwood. Margaret did not want to eat or drink and was not

       motivated. She was withdrawn, depressed and had “psychomotor slowing,”

       i.e., slowing of thought processes. These were not usual symptoms for

       Margaret. During testing, she could not read something and repeat it five

       minutes later. She also did not know what day it was or who was president.

       Dr. Chitwood diagnosed Margaret with mild to moderate dementia.

[18]   On September 2, 2011, when Margaret was in hospice care near death, Chip,

       acting as Margaret’s attorney-in-fact, added his name to Margaret’s bank

       accounts as a joint owner with right of survivorship. Margaret was not present

       when Chip did this.




       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 7 of 19
[19]   Margaret died on October 18, 2011. Ten days later, Chip filed an application

       for consent to transfer the balance of Margaret’s accounts to his own accounts.

       The balance transferred from Margaret’s savings account was $42,902.74, and

       the balance on the checking account was $663.04.

                                             Procedural History

[20]   On November 16, 2011, the Brown Circuit Court appointed John as the

       personal representative of Margaret’s supervised Estate. On December 19, Rita

       submitted a claim to the Estate for $205,520, for reimbursement for care and

       services she provided to Margaret. Rita claimed that she had cared for Margaret

       sixteen hours per day for four days per week through April 2009, then sixteen

       hours per day for every day from May 2009 to October 17, 2011. Rita later

       admitted that she had worked at the grocery store until March 2010. Thus, prior

       to that date, she could not have provided sixteen hours of care per day for

       Margaret. She also admitted that she did not deduct any of the time she spent

       caring for Chip from the time she claimed she was caring for Margaret. Rita

       later indicated that she abandoned this claim against the Estate.

[21]   Also on December 19, 2011, the Estate filed a claim against Chip and Rita

       alleging that they had exercised undue influence over Margaret. The complaint

       sought an order declaring the quitclaim deed void and recovery of the funds

       received by Chip and Rita in addition to treble damages, costs, and attorney

       fees. A bench trial was held on May 27 – 28, 2014. At the conclusion of the

       trial, the trial court took the matter under advisement, and on October 3, 2014,

       the trial court issued sua sponte findings of fact and conclusions of law. The trial
       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 8 of 19
       court found a presumption of undue influence existed with regard to the

       financial transactions between Margaret and Chip and Rita. The court also

       found that Chip and Rita had not rebutted this presumption and ordered them

       to pay to the Estate: $43,565.78 as reimbursement for Margaret’s checking and

       savings account balances; $700 as reimbursement for checks written by Chip to

       Rita from Margaret’s account; and $4,989 in checks and $550 in traveler’s

       checks to Rita purportedly bearing Margaret’s signature. The trial court also

       ordered that the quitclaim deed be set aside and that Margaret’s real estate be

       transferred back to the Estate.


[22]   Chip and Rita filed a motion to correct error on November 3, 2014. The trial

       court set a hearing on the motion to be heard on January 14, 2015. The Estate

       then filed a motion to strike certain affidavits filed with the motion to correct

       error. At the January 14 hearing, the trial court considered both motions. On

       February 17, the trial court entered an order granting the Estate’s motion to

       strike and denying the Defendant’s motion to correct error. On March 18, 2015,

       Chip and Rita filed their notice of appeal, and this appeal ensued. Additional

       facts will be provided as necessary.

                                            Standard of Review

[23]   Neither party requested that the trial court enter specific findings and

       conclusions. Under such circumstances, our standard of review is well settled:


               Where, as here, the trial court enters findings of fact and
               conclusions there on without an Indiana Trial Rule 52 written
               request from a party, the entry of findings and conclusions is

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 9 of 19
               considered to be sua sponte. Where the trial court enters
               specified findings sua sponte, the findings control our review and
               the judgment only as to the issues those specific findings cover.
               Where there are no specific findings, a general judgment
               standard applies, and we may affirm on any legal theory
               supported by the evidence adduced at trial.


               A two-tier standard of review is applied to the sua sponte findings
               and conclusions made: whether the evidence supports the
               findings, and whether the findings support the judgment.
               Findings and conclusions will be set aside only if they are clearly
               erroneous, that is, when the record contains no facts or inferences
               supporting them. A judgment is clearly erroneous when a review
               of the record leaves us with a firm conviction that a mistake has
               been made. In conducting our review, we consider only the
               evidence favorable to the judgment and all reasonable inferences
               flowing therefrom. We will neither reweigh the evidence nor
               assess witness credibility.


       Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind. Ct. App. 2014) (citations and

       internal quotations omitted).


                                         Discussion and Decision

[24]   Chip and Rita argue that the trial court erred by shifting the burden of proof to

       them to prove that the transaction involving the deed was not the result of

       undue influence. We disagree.


       A. Presumption of Undue Influence

[25]   In Indiana, certain legal and domestic relationships raise a presumption of trust

       and confidence as to the subordinate party on the one side and a corresponding

       influence as to the dominant party on the other. These relationships include,

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 10 of 19
       but are not limited to: attorney and client, guardian and ward, principal and

       agent, pastor and parishioner, husband and wife, and parent and child. In re

       Estate of Allender, 833 N.E.2d 529, 533 (Ind. Ct. App. 2005), trans. denied. In

       such cases, the law will impose a presumption that the transaction was the

       result of undue influence exerted by the dominant party, constructively

       fraudulent, and thus void, if the plaintiff’s evidence establishes: (1) the existence

       of such a relationship, and (2) that the questioned transaction between those

       parties resulted in an advantage to the dominant person in whom trust and

       confidence was reposed by the subordinate. Id. Once the plaintiff’s evidence

       establishes these two elements, the burden of proof then shifts to the dominant

       party who must demonstrate by clear and unequivocal proof that the questioned

       transaction was made at arm’s length and thus valid. Id.


[26]   In a parent-child relationship, the parent is generally considered to be the

       dominant party. Id. However, in many cases involving elderly or otherwise

       infirm parents being cared for by their children, it is the child who is considered

       to be the dominant party. See id. at 533-34 (holding that son was in a dominant

       position vis-à-vis his parents due to his ailing parents’ caretaker); see also Meyer

       v. Wright, 854 N.E.2d 57, 60 (Ind. Ct. App. 2006) (holding that son was in the

       dominant position over his ailing father by reason of being his father’s

       caretaker), trans. denied; Outlaw v. Danks, 832 N.E.2d 1108, 1111 (Ind. Ct. App.

       2005) (holding that nephew who was sole caretaker of his elderly, ailing aunt

       had a fiduciary relationship to her which raised a presumption of undue

       influence).

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 11 of 19
[27]   Here, the Estate presented evidence that Chip and Rita were the dominant

       party in their relationship with Margaret. Ample evidence existed that

       Margaret’s mental abilities were in decline. Her family doctor diagnosed her

       with mild dementia, and a neurologist diagnosed her with at least moderate

       dementia. She had trouble remembering the year and her location. The

       neurologist testified that, in his opinion, Margaret did not have the mental

       capacity to make legal and financial decisions for herself while she was in his

       care. He also testified that Margaret’s condition did not improve while she was

       in the nursing home. In the later years of her life, Margaret was almost

       completely dependent upon Chip and Rita to take care of her. Moreover, after

       Chip and Rita moved in with Margaret, her contact with other members of the

       family was restricted. Laurie was not allowed to visit the home, and her son

       John’s visits were limited and monitored. From this evidence, the trial court

       was well within its discretion to conclude that Chip and Rita were in a

       dominant position vis-à-vis Margaret.

[28]   The next issue we must address is whether any transactions involving Chip

       and/or Rita on the one hand and Margaret on the other resulted in an

       advantage to Chip and Rita, as the parties in whom trust and confidence was

       reposed by Margaret. See In re Estate of Allender, 833 N.E.2d at 533. In general,

       the parties break the transactions into two main groups: the quitclaim deed

       granting Margaret’s real property to Margaret, Chip, and Rita as joint owners,

       and the checks written on Margaret’s accounts to Chip and Rita.




       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 12 of 19
       B. Quitclaim Deed

[29]   With regard to the deed, the Defendants argue no evidence exists that the

       transaction was detrimental to Margaret’s interests because she remained a joint

       owner and continued to live on her own property. This is in response to the trial

       court’s citation to Folsom v. Buttolph, 82 Ind. App. 283, 143 N.E. 258, (1924), in

       which the Appellate Court held that the presumption of undue influence arises

       “if the transaction results beneficially to the person charged, and detrimentally to

       the person in whose name the act was done[.]” (emphasis added).


[30]   More recent opinions of this court, however, require only that the transaction at

       issue benefit the dominant party. See In re Estate of Allender, 833 N.E.2d at 533.

       Even if Folsom was controlling, we cannot say that the transaction involving the

       quitclaim deed did not act to the detriment of Margaret. By means of the

       quitclaim deed, Margaret went from being the sole owner of her home and real

       property to a joint owner. Thus, the transaction was to Margaret’s detriment.

       See In re Estate of Rickert, 934 N.E.2d 726, 730 (Ind. 2010) (holding that burden

       was on attorney-in-fact to prove by clear and convincing evidence that her use

       of her power of attorney to create accounts giving her joint ownership with

       rights of survivorship over decedent’s financial accounts was voluntary and

       fair). Here, the benefit to Chip and Rita is obvious—they obtained not only the

       joint interest in the property but also the right of survivorship over Margaret’s

       house and real property upon her death.


[31]   Chip and Rita further argue, however, that the law does not apply a

       presumption of undue influence when a transaction is made between a parent
       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 13 of 19
       and a child. In Crider v. Crider, 635 N.E.2d 204, 212-13 (Ind. Ct. App. 1994), the

       court noted that our supreme court court has held “‘that no presumption of

       fraud or undue influence arises in a case of conveyance from a parent to a child

       on account of the mere existence of such relation.’” (quoting Westphal v.

       Heckman, 185 Ind. 88, 113 N.E. 299, 301 (1916)).


[32]   Here, the trial court did not apply the presumption of undue influence based

       merely on the fact that the transaction involved a parent and child. The trial

       court did so because the evidence amply demonstrated that Chip and Rita were,

       as noted above, in a dominant position over an ailing Margaret who was

       suffering from dementia at the time.1


[33]   We therefore find Chip and Rita’s reliance on Baker v. McCague, 118 Ind. App.

       32, 75 N.E.2d 61 (1947) (en banc), to be misplaced. In Baker, the decedent, an

       eighty-two-year-old widow, was cared for by her daughter. The decedent

       deeded to this daughter (and another daughter) certain real property, reserving

       for herself the rents, profits, and income during her lifetime. Upon the



       1
         The Estate also argues that Chip was in a fiduciary relationship with Margaret because he held the power of
       attorney. It is generally true that holding of the power of attorney puts the attorney-in-fact in a fiduciary
       relationship. See In re Estate of Allender, 833 N.E.2d at 534; Villanella v. Godbey, 632 N.E.2d 786 (Ind. Ct. App.
       1994). This fiduciary relationship, combined with the transfer of substantial assets, also raises a presumption
       of undue influence. In Re Estate of Allender, 833 N.E.2d at 534; Villanella, 632 N.E.2d at 786; In re Estate of
       Wade, 768 N.E.2d 957, 962 (Ind. Ct. App. 2002). However, as we noted in In re Estate of Compton, 919 N.E.2d
       1181, 1187 (Ind. Ct. App. 2010), Indiana Code section 30-5-9-2(b) abrogates the common law presumption of
       undue influence with respect to certain transactions benefiting an attorney-in-fact. Specifically, a presumption
       of undue influence is now conditioned upon the attorney-in-fact’s actual use of the power of attorney to effect
       the questioned transaction for his benefit, and the benefiting attorney-in-fact is freed from the presumption of
       undue influence so long as the power of attorney is unused in the questioned transaction. Id. Here, we affirm
       the trial court’s judgment based on the dominant parent-child relationship and do not address the issues
       surrounding the presumption of undue influence for those holding the power of attorney.

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016              Page 14 of 19
       decedent’s death, the widow’s remaining children brought an action to have the

       deed set aside. The trial court entered judgment against the plaintiffs. On

       appeal, the court affirmed, noting no presumption of undue influence existed

       merely because the transaction was between a parent and child. Baker, 118 Ind.

       App. at 37, 75 N.E.2d at 64. Moreover, the decedent in Baker had sought out an

       attorney on her own and called the attorney to come to her house, where she

       confided with him alone on two or three occasions. Only then did the attorney

       prepare the deed at issue. Both the widow’s attorney and physician testified that

       she was competent at all times. Id.


[34]   The facts in the present case are markedly different, where Margaret’s

       physician’s testified as to her mental frailty, and where Margaret never even

       met the attorney who prepared the quitclaim deed. Nor can we ignore the

       evidence that other family members were kept away from Margaret and that

       Chip and Rita treated Margaret’s money as their own.


[35]   The same is true for the Defendant’s citation to Teegarden v. Lewis, 145 Ind. 98,

       44 N.E. 9, 12 (1895). In that case, the court declined to apply a presumption of

       undue influence where the evidence established only that the daughter had

       discharged her moral obligation to house and care for her “aged, weak and

       childish” father. First, Teegarden is a rather old case. Even though it has not

       been overruled, it is clear that the law regarding the presumption of undue

       influence has evolved over the past century. Indeed, the court in Teegarden

       seemed hostile to the notion of applying the presumption of undue influence to

       a gift from a parent to a child. See Teegarden, 145 Ind. 98, 44 N.E. at 12 (“The

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 15 of 19
       relation of parent and child, as to presumption of fraud, and the onus of proof

       to rebut the same, in business transactions between them, does not stand upon

       the same footing as the relation of trustee and cestui que trust, guardian and

       ward, attorney and client, principal and agent, and the like relations.”). Since

       Teegarden, however, our courts have applied this presumption where the

       evidence shows that the child was in the dominant position over the parent. See

       In re Estate of Allender, 883 N.E.2d at 533-34; Meyer, 854 N.E.2d at 60. Again,

       the record here contains evidence that Chip and Rita were in a dominant

       position over Margaret, kept her away from other members of the family, and

       used her money as their own.


[36]   Under these facts and circumstances, the trial court did not clearly err in

       applying the presumption of undue influence with regard to the transaction

       involving the quitclaim deed. Therefore, the trial court properly placed on Chip

       and Rita the burden of rebutting the presumption of undue influence by clear

       and convincing evidence. See In re Estate of Allender, 833 N.E.2d at 533. This

       they did not do. In fact, they do not even argue that they successfully rebutted

       the presumption; they claim merely that the trial court erred in applying the

       presumption.

[37]   Still, we acknowledge some evidence might have supported a finding that

       Margaret deeded her real property to Chip and Rita as a natural expression of

       her bounty to the son and daughter-in-law who took care of her during her

       waning years. However, this is evidence that does not favor the trial court’s

       judgment. Considering only the evidence favorable to the trial court’s judgment,

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 16 of 19
       as we must do on appeal, the trial court could reasonably conclude that Chip

       and Rita did not rebut the presumption of undue influence by clear and

       convincing evidence.


       B. Checks and Traveler’s Checks

[38]   Chip and Rita make many of the same arguments regarding the trial court’s

       order for Rita to repay the Estate for $4,989 in checks and $500 in traveler’s

       checks written on Margaret’s accounts to Rita.


[39]   First, the Defendants claim that the trial court should not have shifted the

       burden to the them to rebut the presumption of undue influence. However, as

       noted above, evidence before the court suggested that Chip and Rita were in a

       dominant position vis-à-vis Margaret.2 Moreover, it is apparent that Rita

       benefitted from the checks and traveler’s checks written to her. Accordingly, the

       trial court correctly applied the presumption of undue influence, and the burden

       then shifted to Rita to rebut this presumption. See In re Estate of Allender, 833

       N.E.2d at 533.




       2
         The fact that Rita was Margaret’s daughter-in-law is of no help to Rita. As explained in In re Estate of
       Allender, a fiduciary may not escape the presumption of undue influence simply by funneling the benefits of
       transactions to his family members. 833 N.E.2d at 534 (citing In re Estate of Wade, 768 N.E.2d 957, 964 (Ind.
       Ct. App. 2002), trans. denied). Chip was in the dominant position with Margaret; Rita was Chip’s wife; and
       Rita benefitted from the transactions. This is sufficient to impose the presumption of undue influence. See id.

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016            Page 17 of 19
[40]   Other than her own testimony, which the trial court was under no obligation to

       credit or give substantial weight, Rita provided little to nothing to rebut the

       presumption.


[41]   Instead, the evidence supported the trial court’s decision that the presumption

       of undue influence was not rebutted by clear and convincing evidence. With

       regard to the bank checks, they were written to Rita from Margaret’s accounts

       with no notation as to their purpose. Moreover, as noted by the trial court, the

       signatures on the checks are inconsistent. With regard to the traveler’s checks,

       Rita’s testimony raised at least an inference that she was not being forthright.

       We refer specifically to Rita’s initial denials of ever having received the

       traveler’s checks. See Tr. p. 291. She also claimed not to know where Margaret

       kept her traveler’s checks. Id. at 295. Later in her testimony, however, Rita

       acknowledged that she had cashed the traveler’s checks but claimed to have

       forgotten about them. Id. at 292-93. She also claimed that Margaret had kept

       her traveler’s checks in her purse and gave them to her when she was in the

       nursing home. Id. at 297.


[42]   In short, the trial court did not err in determining that the evidence presented by

       the Estate raised a presumption of undue influence due to Chip and Rita’s

       dominant position vis-à-vis Margaret and their having received benefits from

       the transactions involving Margaret. Also, the trial court did not clearly err in




       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016   Page 18 of 19
       determining that Chip and Rita did not rebut this presumption by clear and

       convincing evidence.3

                                                     Conclusion

[43]   The trial court did not clearly err when it applied the presumption of undue

       influence with regard to the transactions between Chip and Rita on the one

       hand and Margaret on the other. Nor did the trial court clearly err when it

       concluded that Chip and Rita did not rebut this presumption by clear and

       convincing evidence. Accordingly, we affirm the judgment of the trial court.


[44]   Affirmed.


       Baker, J., and Bailey, J., concur.




       3
         The Defendants also claim that the trial court erred to the extent that it invalidated the transactions based
       upon a finding that Margaret was mentally unsound. We consider the trial court’s findings regarding
       Margaret’s diminished mental abilities as informing the trial court’s determination that Chip and Rita were in
       a dominant position over Margaret, not as a separate basis for invalidating the transactions at issue. As
       discussed, sufficient evidence supports the trial court’s judgment in this regard.

       Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016           Page 19 of 19
