      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                         Sep 08 2017, 6:30 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                      CLERK
                                                                          Indiana Supreme Court
      purpose of establishing the defense of res judicata,                   Court of Appeals
      collateral estoppel, or the law of the case.                             and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      April L. Edwards                                          Steven E. Ripstra
      Boonville, Indiana                                        Ripstra Law Office
                                                                Jasper, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Traci Kron,                                              September 8, 2017

      Appellant,                                               Court of Appeals Case No.
                                                               74A01-1702-EU-348
              v.                                               Appeal from the Spencer Circuit
                                                               Court.
                                                               The Honorable Jon A. Dartt, Judge.
      Donna Sherman, as Personal                               Trial Court Cause No.
      Representative of the                                    74C01-1512-EU-45
      Unsupervised Estate of Alan
      Kron, Deceased,
      Appellee.




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Traci Kron appeals the trial court’s partial denial of her Petition to Enforce

      Terms of Will. Donna Sherman, as Personal Representative of the


      Court of Appeals of Indiana | Memorandum Decision 74A01-1702-EU-348 | September 8, 2017     Page 1 of 9
      Unsupervised Estate of Alan Kron, Deceased, cross-appeals the trial court’s

      decision. We reverse and remand with instructions.


                                                     Issue
[2]   Traci raises two issues, but one restated issue is dispositive of this appeal:

      whether the trial court erred in ordering Sherman to pay Traci funds from a

      bank account Alan Kron owned jointly with his brother, William Kron.


                               Facts and Procedural History
[3]   William Kron and Alan Kron farmed their family’s land together, jointly

      owning all assets. In 2009, they opened a joint account (“the account”) with

      Hoosier Hills Credit Union, into which Alan deposited farm funds and from

      which Alan paid the farm’s bills. The account was governed by a contract

      called a “membership application agreement,” the relevant terms of which we

      discuss in more detail below. Ex. Vol. 1, Stipulated Ex. B.


[4]   Years later, Alan and Traci began a romantic relationship. On March 18, 2015,

      he withdrew $20,000 from the account to purchase a truck for Traci. On June

      15, 2015, he withdrew $81,487.54 from the account to pay off a mortgage on

      property that had been owned by Traci, which they intended to use as their

      marital home.


[5]   Alan and Traci executed a pre-nuptial agreement on July 20, 2015. The

      agreement stated that if Alan predeceased Traci, Traci would “receive Alan’s

      share of the Hoosier Hills Credit Union checking account jointly owned with


      Court of Appeals of Indiana | Memorandum Decision 74A01-1702-EU-348 | September 8, 2017   Page 2 of 9
      William Kron.” Id., Petitioner’s Ex. 1. Alan and Traci married on July 22,

      2015.


[6]   On September 4, 2015, Alan executed a Last Will and Testament. Pursuant to

      the will, Alan granted to Traci his “share in a Hoosier Hills Credit Union

      checking account owned jointly with my brother, William Kron.” Appellant’s

      App. Vol. 2, p. 17. Alan appointed William as his personal representative and

      further appointed Donna Sherman, his sister, to serve as an alternate personal

      representative if William was unable or unwilling to serve.


[7]   Alan died suddenly on November 21, 2015. On that date, the account had a

      balance of $102,446.62.


[8]   On December 1, 2015, Donna Sherman filed a petition to probate a lost or

      destroyed will and for appointment of personal representative. Sherman

      claimed the September 4, 2015 will was lost or destroyed. She further claimed

      William was unwilling to serve as personal representative. The trial court

      appointed Sherman as personal representative.


[9]   On February 2, 2016, Traci filed a Petition to Enforce Terms of Will, to which

      she attached a copy of the will. She claimed she was entitled to one-half of the

      account’s value. Sherman filed a response denying Traci’s claim. The court

      held an evidentiary hearing over the course of several days. The court

      appointed a guardian ad litem to represent William’s interests in the

      proceeding.



      Court of Appeals of Indiana | Memorandum Decision 74A01-1702-EU-348 | September 8, 2017   Page 3 of 9
[10]   On January 24, 2017, the court issued an order. The court determined that

       although William would normally receive the entire account balance after

       Alan’s death, Alan, “express[ed] contrary intent” in the prenuptial agreement

       and the will. Id. at 7. The court determined Traci was entitled to receive some

       funds from the account, but considering Alan’s withdrawals for Traci’s benefit

       (the car and the mortgage payoff), she was entitled to receive only $492.57. The

       court further ordered Sherman to pay Traci $3,500 for her attorney’s fees

       because Traci brought a good faith claim. This appeal followed.


                                    Discussion and Decision
[11]   Traci argues the trial court correctly determined that she is entitled to a share of

       the account but erred in concluding William’s withdrawals from the account

       should be deducted from her share. Sherman argues, among other claims, that

       she cannot give Traci funds from the account because William has a right of

       survivorship and is entitled to the entire account.


[12]   The parties differ on the standard of review this Court should use to evaluate

       the case. Traci argues the trial court sua sponte issued findings of fact and

       conclusions thereon. Sherman argues the trial court issued a general judgment,

       and this Court should review the parties’ claims accordingly. We need not

       resolve this disagreement because, with respect to the account, we are being

       asked to apply the law to undisputed facts. Thus, our standard of review is de

       novo whether we are addressing findings of fact or a general judgment. See In re

       Marriage of Gertiser, 45 N.E.3d 363, 369 (Ind. 2015) (in review of findings and


       Court of Appeals of Indiana | Memorandum Decision 74A01-1702-EU-348 | September 8, 2017   Page 4 of 9
       conclusions, questions of law reviewed de novo); Hutchison v. Trilogy Health

       Servs., LLC, 2 N.E.3d 802, 805 (Ind. 2014) (in review of general judgment,

       questions of law reviewed de novo).


[13]   Before turning to the merits of the parties’ claims, Tracy states Sherman has

       waived for appellate review any claim that William is entitled to the entire

       account per a right of survivorship. Specifically, Tracy asserts Sherman did not

       raise the claim in the trial court.


[14]   Appellate review presupposes that a litigant’s arguments have been raised and

       considered in the trial court. Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49,

       53 (Ind. 2013). Thus, an argument or issue not presented to the trial court is

       generally waived for appellate review. GKC Ind. Theatres, Inc. v. Elk Retail Inv’rs,

       LLC, 764 N.E.2d 647, 651 (Ind. Ct. App. 2002). The rule of waiver in part

       protects the trial court; it cannot be found to have erred as to an issue or

       argument that it never had an opportunity to consider. Id.


[15]   In this case, William’s guardian ad litem, Bryan Rudisill, argued to the trial

       court that William was entitled to all funds in the account because it was a joint

       account with a right of survivorship, and neither William nor Alan intended to

       alter the right of survivorship when the account was opened in 2009. Tr. Vol. 2,

       pp. 49-50. Rudisill also cited the governing statute, which we discuss in more

       detail below. Id. at 104. Further, the trial court was clearly aware of the issue

       because it stated in the final order, “Normally, upon the death of one joint

       account owner, the other owner would be the owner of all of the account.”


       Court of Appeals of Indiana | Memorandum Decision 74A01-1702-EU-348 | September 8, 2017   Page 5 of 9
       Appellant’s App. Vol. 2, p. 7. The survivorship issue was presented to the trial

       court, and Sherman has not waived this issue for appellate review.


[16]   Addressing the question of joint survivorship requires us to consider the

       governing statutes and the contract that governs the account. It is useful to

       recount our rules of statutory and contract construction. In the interpretation of

       statutes, our goal is to determine and give effect to the intent of the legislature

       that promulgated it. Porter Dev., LLC v. First Nat. Bank of Valparaiso, 866 N.E.2d

       775, 778 (Ind. 2007). Our primary resource for this determination is the

       language used by the legislature. Id. Similarly, in interpreting a written

       contract a court will attempt to determine the intent of the parties at the time

       the contract was made as disclosed by the language used to express their rights

       and duties. First Fed. Sav. Bank of Ind. v. Key Mkts., Inc., 559 N.E.2d 600, 603

       (Ind. 1990).


[17]   Where a statute is unambiguous, the Court will read each word and phrase in

       its plain, ordinary, and usual sense, without having to resort to rules of

       construction to decipher meanings. Porter Dev., 866 N.E.2d at 775. When the

       terms of a contract are drafted in clear and unambiguous language, we will also

       apply the plain and ordinary meaning of that language and enforce the contract

       according to those terms. Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937

       (Ind. 2012).


[18]   According to Indiana Code section 32-17-11-17 (2009), “Unless there is clear

       and convincing evidence of a different intent, during the lifetime of all parties, a


       Court of Appeals of Indiana | Memorandum Decision 74A01-1702-EU-348 | September 8, 2017   Page 6 of 9
       joint account belongs to the parties in proportion to the net contributions by

       each party to the sums on deposit.” Further, “Sums remaining on deposit at

       the death of a party to a joint account belong to the surviving party or parties as

       against the estate of the decedent unless there is clear and convincing evidence

       of a different intention at the time the account is created.” Ind. Code § 32-17-11-18

       (2009) (emphasis added). “A right of survivorship arising . . . from the express
                                                                                1
       terms of the account . . . cannot be changed by will.” Id.


[19]   Based on the plain language of the statutes, if the joint owners of an account

       intended for the account to be distributed to someone other than the surviving

       party or parties, there must be clear and convincing evidence of a different

       intent when the account was opened. In other words, Indiana Code section 32-

       17-11-18 creates a statutory presumption that a survivor to a joint account is the

       intended receiver of the proceeds in that account, and a challenger must rebut

       the presumption. Dean v. Pelham, 899 N.E.2d 662, 666 (Ind. Ct. App. 2008),

       trans. denied.

[20]   Alan and William opened the account in 2009, and the membership application

       agreement states, in relevant part:

                The owners of this account hereby agree with each other and
                with said Credit Union that all sums now paid in on shares or
                heretofore or hereafter paid in on shares by any and all of said
                joint owners to their credit as such joint owners with all


       1
         Owners of an account may later alter the rights of survivorship as set forth in the account agreement, but
       such a change must be submitted to the financial institution in writing, during an owner’s lifetime. Ind. Code
       § 32-17-11-19 (2002). None of the parties argue that Alan followed the statutory process to alter the right of
       survivorship.

       Court of Appeals of Indiana | Memorandum Decision 74A01-1702-EU-348 | September 8, 2017            Page 7 of 9
               accumulations thereon, are and shall be owned by them jointly,
               with right of survivorship and be subject to the withdrawal or
               receipt of any of them, and payment to any of them or the
               survivor or survivors shall be valid and discharge said Credit
               Union from any liability for such payment. The joint owners
               also agree to the terms and conditions of the account as
               established by the Credit Union from time to time.

       Ex. Vol. 1, Stipulated Ex. B.


[21]   Based on the plain language of the contract, the account was jointly owned and

       the owners had a right of survivorship. None of the parties submitted any

       evidence, let alone clear and convincing evidence, that Alan or William had

       any contrary intent in 2009 when the account was opened.


[22]   William, as the survivor, was entitled to all funds in the account upon Alan’s

       death regardless of Alan’s statements in his prenuptial contract or his will. See

       Decker v. Zengler, 883 N.E.2d 839, 845 (Ind. Ct. App. 2008) (decedent’s

       statement in will that joint bank accounts were to be divided among all children

       did not affect the right of survivorship; joint owner was entitled to receive all

       funds under the terms of the account), trans. denied. The trial court erred by

       ordering Sherman to share the account’s funds with Traci because William, not

       Sherman, owned the account. See In re Estate of Herin, 40 N.E.3d 495, 500 (Ind.

       Ct. App. 2015) (no error in determining estate lacked ownership rights over

       certificate of deposit accounts; challenger failed to prove by clear and

       convincing evidence an intent to alter the right of survivorship in the accounts

       when they were opened).



       Court of Appeals of Indiana | Memorandum Decision 74A01-1702-EU-348 | September 8, 2017   Page 8 of 9
[23]   Sherman specifically states she “is not seeking to recover the funds Alan

       withdrew” from the account for Traci’s truck and Alan and Traci’s marital

       home. Appellee’s Br. p. 6. This disclaimer is appropriate because the funds do

       not belong to Sherman in any event. In addition, Sherman does not assert the

       trial court erred in awarding attorney’s fees to Traci in recognition of her good

       faith claim, so that part of the judgment stands. We reverse and remand with

       instructions to the trial court to otherwise vacate its prior order and to issue a

       new order stating neither Sherman nor Traci are entitled to any proceeds from

       the Hoosier Hills Credit Union account.


                                                Conclusion
[24]   For the reasons stated above, we reverse the judgment of the trial court and

       remand with instructions.


[25]   Reversed and remanded.


       Baker, J., and Barnes, J., concur.




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