Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
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.


ATTORNEYS FOR APPELLANTS:                          ATTORNEY FOR APPELLEE:

BRYAN RUDISILL                                     S. ANTHONY LONG
Rockport, Indiana                                  Long & Mathies
                                                   Boonville, Indiana
MARK K. PHILLIPS
Boonville, Indiana                                                           FILED
                                                                          Feb 14 2012, 9:36 am


                               IN THE                                             CLERK
                                                                                of the supreme court,
                                                                                court of appeals and
                                                                                       tax court

                     COURT OF APPEALS OF INDIANA

RICHARD WILLIAMS, AS PERSONAL                      )
REPRESENTATIVE OF THE ESTATE OF                    )
MARY LEE ENLOW, Deceased, and                      )
VICKIE LEE WILLIAMS,                               )
                                                   )
       Appellants-Defendants,                      )
                                                   )
               vs.                                 )        No. 87A05-1104-PL-235
                                                   )
KEVIN HEAVNER, AS PERSONAL                         )
REPRESENTATIVE OF THE ESTATE OF                    )
NORMAN HEAVNER, Deceased,                          )
                                                   )
       Appellee-Plaintiff.                         )


                  APPEAL FROM THE WARRICK SUPERIOR COURT
                      The Honorable Robert R. Aylsworth, Judge
                           Cause No. 87D02-0511-PL-387


                                        February 14, 2012
            MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge


                            STATEMENT OF THE CASE

      Appellants-Defendants, Richard Williams, as personal representative of the Estate

of Mary Lee Enlow, Deceased, and Vickie Lee Williams (collectively, the Williamses),

appeal the trial court‘s judgment in favor of Appellee-Plaintiff, Kevin Heavner, as

personal representative of the Estate of Norman Heavner, Deceased, with respect to the

transfer of certain assets from Norman Heavner (Norman) to Mary Lee Enlow (Mary)

upon Norman‘s death.

      We affirm.

                                       ISSUES

      The Williamses present four issues on appeal, which we consolidate and restate as

the following two issues:

   (1) Whether the trial court abused its discretion when it concluded that Mary was not

      entitled to certain monetary withdrawals from a bank account jointly owned by

      Mary and Norman prior to Norman‘s death; and

   (2) Whether the trial court abused its discretion when it concluded that Mary was not

      entitled to the proceeds of certain annuities and insurance policies because of

      undue influence.




                                           2
                           FACTS AND PROCEDURAL HISTORY1

        Mary and Norman met after Mary placed a newspaper advertisement seeking male

companionship in a local newspaper. They met for the first time on or about December

31, 2002 and immediately began living together. At the time of their meeting, Mary was

76 years of age and Norman was 78 years of age; both Mary and Norman had been

involved in several prior relationships.

        In the Spring or Summer of 2004, Norman met with Randy Voight (Voight) a

financial advisor at Edward Jones, who helped Norman with several change of

beneficiary requests. Specifically, on or about June 1, 2004, Norman executed an annuity

policy change form to make Mary the beneficiary of his Transamerica Life Insurance.

Also, on or about November 24, 2004, Mary recorded with the Warrick County

Recorder‘s Office a Request for Change of Beneficiary to an AXA Equitable Life

insurance policy in Norman‘s name.

        Mary and Norman also had a joint bank account. On December 30, 2004, Mary

withdrew $8,903.50 to prepay her funeral arrangements. Also, on January 5, 2005, Mary

withdrew $3,620.93 from their joint account. She transferred from the joint account

$18,000 on January 13, 2005 and another $2,000 on February 4, 2005.

        On February 11, 2005, Norman died. On June 1, 2005, Kevin Heavner (Heavner),

one of Norman‘s surviving children, opened an estate on Norman‘s behalf.                               On




1
 We remind both parties that the Statement of the Facts section of an appellate brief is not an appropriate
place to litigate or develop argument but rather should contain the facts relevant to the issues presented
for review. See Ind. Appellate Rule 46(A)(6).


                                                    3
November 14, 2005, Mary died and Richard Williams (Williams), Mary‘s son-in-law,

was appointed the personal representative of Mary‘s estate.

          On November 1, 2005, Heavner, as personal representative of Norman‘s estate,

filed a Complaint against Mary2 and Mary‘s daughter, Vickie Lee Williams. In his

Complaint, Heavner alleged undue influence and fraud in the change of beneficiary on

Norman‘s insurance policies and in the withdrawal of money from Mary and Norman‘s

joint bank account. A bench trial was conducted on October 27-30, 2008; December 1-2,

2008; February 26, 2009; November 16-17, 2009; June 22, 2010; and November 22,

2010. On January 28, 2011, the trial court issued its findings and conclusions, entering

judgment in favor of Heavner. On February 28, 2011, the Williamses filed a motion to

correct error, which was denied on March 22, 2011.

          The Williamses now appeal. Additional facts will be provided as necessary.

                                    DISCUSSION AND DECISION

                                          I. Standard of Review

          Here, the trial court entered findings of fact and conclusions of law. As such, we

apply a two-tiered standard of review: first, we determine whether the evidence supports

the findings and, second, whether the findings support the judgment. Meyer v. Wright,

854 N.E.2d 57, 59 (Ind. Ct. App. 2006), trans. denied. The trial court‘s findings and

conclusion will be set aside only if they are clearly erroneous. Id. Findings of fact are

clearly erroneous when the record lacks any evidence or reasonable inferences from the

evidence to support them. Id. A judgment is clearly erroneous when it is not supported

2
    Upon her death, Mary was substituted by Williams, the personal representative of her estate.


                                                      4
by the findings of fact. Id. at 60. Put another way, a judgment is clearly erroneous when

a review of the record leaves us firmly convinced that a mistake has been made. Id. In

determining whether the findings or judgment are clearly erroneous, we consider only the

evidence favorable to the judgment and all reasonable inferences flowing therefrom. Id.

Moreover, we will not reweigh the evidence or assess witness credibility. Id.

                             II. Joint Bank Account Transfers

       First, the Williamses contend that the trial court erred by awarding Heavner the

sums that Mary had transferred from the account she owned jointly with Norman.

Specifically, the trial court concluded

       8. Count VI (motion to set aside transfer of Fifth Third Bank accounts) –
       [Heavner] has proved by a preponderance of the evidence that [Mary] did
       on December 30, 2004 pay from funds in [Norman‘s] Fifth Third account
       the amount of $17,863.70 for prepaid funeral expenses for herself and
       [Norman], the sum of $8,903.50 paid toward her own prepaid funeral
       expenses through Browning Funeral Home in Evansville, Indiana.
       Although by this time [Mary] was shown on accounts 759 and 852 as a
       joint owner with [Norman], the evidence establishes that all funds in these
       accounts originated from [Norman] and none of these funds originate from
       [Mary]. As such, [Heavner] is entitled to judgment in this count in the
       amount of $8,903.50 plus prejudgment interest at the rate of 8% per annum
       from December 30, 2004 to the date of this judgment.

       ***

       10. Count VIII (complaint to set aside transfer of checking account
       proceeds) – [Heavner] has proved by a preponderance of the evidence the
       right to judgment as to the amounts taken by [Mary] from [Normans‘s]
       account number 759 and 852 prior to his death on February 11, 2005. Even
       though she was shown as a joint owner of these accounts at that time, as
       stated before the evidence shows that all funds in these accounts originated
       with [Norman], and none originated with [Mary]. As such, [Heavner] is
       entitled to judgment in this count for the $3,620.93 taken by [Mary] to
       close account number 852 on January 5, 2005, the $18,000.00 transferred
       from account number 759 to [Mary‘s] account number 5473 on January 4,


                                            5
       2005. [Heavner] is also entitled to recover prejudgment interest at the rate
       of 8% per annum on each of these amounts from the date of each transfer to
       the date of this judgment on Count VIII.

(Appellant‘s App. pp. 17-18).

       In response to the trial court‘s judgment, the Williamses assert that based on the

evidence that Mary and Norman lived as husband and wife even though they were never

married and Norman‘s indication not to leave any property to his children, it was

Norman‘s intent ―that Mary should be able to use the account assets as her own.‖

(Appellant‘s Br. p. 11).

       In Indiana, the nature of joint accounts is statutorily defined in Ind. Code § 32-17-

11-17. In particular, I.C. § 32-17-11-17(a) stipulates the ownership of joint accounts

during the lifetime of the account owners as ―[u]nless there is clear and convincing

evidence of a different intent, during the lifetime of all parties, a joint account belongs to

the parties in proportion to the net contributions by each party to the sums on the

deposit.‖   In other words, the general rule is joint ownership in proportion to the

respective contributions unless a different intent can be shown.

       In support of their argument that Mary and Norman indicated a different intent, the

Williamses point to testimony establishing the shared affection and care between Mary

and Norman and their living together as if they were husband and wife. They also focus

on testimony by David Krueger (Krueger), Mary and Norman‘s accountant, who testified

during trial that

       This is oh, roughly six months after they were living together, and this is
       what she told me. She said that [Norman] didn‘t want his children to
       inherit anything, and that he wanted her, and she said, either to have his


                                              6
        money or take care of his money for him. Which I thought was unusual
        ‗cause they didn‘t know each other very long.

(Appellant‘s App. p. 274).

        Based on this evidence, we do not find that the applicability of the general rule has

been avoided. A simple reference by Krueger to Mary‘s self-serving statements is not

enough to evince a clear and convincing ―different intent.‖3 See I.C. § 32-17-11-17(a).

Moreover, turning to the ownership of the joint account in proportion to the contribution

by each party, we note that the Williamses do not refer us to any evidence establishing

that Mary financially contributed to the joint account—nor does the record contain any—

or that the sums transferred by Mary were used to take care of Norman‘s needs.

Therefore, the trial court‘s findings and conclusions are not clearly erroneous and we will

not disturb the trial court‘s judgment.

                                        III. Undue Influence

        Next, the Williamses dispute the trial court‘s conclusion that Heavner ―has proved

by a preponderance of the evidence the right to a judgment‖ regarding the Transamerica

Life Insurance Company annuity and the proceeds of the AXA Equitable Policy.

(Appellant‘s App. p. 19). During his lifetime, Norman was the sole owner of an annuity

with Transamerica Life Insurance Company and with AXA Equitable Company. Prior to

his death, Mary, acting as Norman‘s attorney-in-fact, executed a change of beneficiary

form naming herself the primary beneficiary to the proceeds of both policies. After


3
  Although the Williamses also point to similar testimony by Randy Voight (Voight), Norman‘s financial
advisor, Voight‘s testimony relates to the change in beneficiaries on Norman‘s insurance policies, not to
the joint account.


                                                   7
Norman‘s death, Heavner challenged this change of beneficiary on the basis of fraud and

undue influence. Specifically, Heavner noted that during her deposition testimony prior

to her death, Mary admitted to signing Norman‘s name to the Power-of-Attorney she

used to get the primary beneficiary changed. However, in its judgment, the trial court

expressly stated that

       5. [] [Heavner] proved by a preponderance of the evidence that [Mary]
       altered, forged or wrongfully created one or more documents purportedly
       created or signed by [Norman], including a purported power of attorney
       showing an execution date of the 8th of September. The evidence further
       proves by a preponderance of the evidence that [Mary] copied and
       transferred notary blocks/acknowledgments from one document to another
       during the time she and [Norman] cohabited with one another. Even with
       this finding by the court, the existence or non-existence of a valid power of
       attorney does not relate to or affect the court‘s findings and judgment on
       the most significant issues un this case, since they were not generated by
       her use of a purported power of attorney.

(Appellant‘s App. p. 16). Moreover, after excluding Mary‘s fraud in the creation of a

Power-of-Attorney, the trial court was silent with regard to the actual basis of its

conclusion that Heavner was entitled to the proceeds of both policies and merely noted

that Heavner had proved by a preponderance of the evidence the right to a judgment. As

Heavner alleged both fraud and undue influence in his Complaint and both parties briefed

the issue based on undue influence, we will proceed under the assumption that the trial

court found undue influence in the change of beneficiary on both insurance policies.

       In Indiana, various legal and domestic relationships raise a presumption of

confidence and trust as to the subordinate party on the one hand and a corresponding

influence as to the dominant party on the other. In re Estate of Wade, 768 N.E.2d 957,

961 (Ind. Ct. App. 2002). These relationships include, among others, attorney and client,


                                            8
guardian and ward, principal and agent, pastor and parishioner, and parent and child. In

re Supervised Estate of Allender v. Allender, 833 N.E.2d 529, 533 (Ind. Ct. App. 2005),

reh’g denied, trans. denied.4 However, this list is not necessarily exhaustive. Id. In such

cases, if the plaintiff‘s evidence establishes (a) the existence of such a relationship and

(b) the questioned transaction(s) between the parties resulted in an advantage to the

dominant party in whom the subordinate party had placed his or her trust and confidence,

the law imposes a presumption that the transaction was the result of undue influence

exerted by the dominant party, constructively fraudulent and, therefore, void. Meyer, 854

N.E.2d at 60.      The burden of proof then shifts to the dominant party to rebut the

presumption by clear and unequivocal proof that the questioned transaction was made at

arm‘s length and was thus valid. Id. Undue influence has been defined as ―the exercise

of sufficient control over the person, the validity of whose act is brought into question, to

destroy his free agency and constrain him to do what he would not have done if such

control would not have been exercised.‖ Id.

                             A. Existence of Fiduciary Relationship

        In this case, a fiduciary relationship existed between Mary, as caregiver, and

Norman, as the recipient of Mary‘s care. The record establishes that Mary did the

household chores, she got water for him when he needed it—even though he was able to

get it himself—and answered the phone ―even if the phone was sitting next to []

4
  The relationship of husband and wife is no longer included in this category. See Womack v. Womack,
622 N.E.2d 481, 483 (Ind. 1993) (stating that presumption of undue influence is an antiquated rule of law
and holding that courts of this state no longer recognize presumption of undue influence in transaction
between spouses such that the burden of proof is with a spouse seeking to set aside a transaction to
establish that the other spouse exercised undue influence). Here, although Mary and Norman held
themselves out as husband and wife, they were not actually married.


                                                   9
Norman.‖ (Appellant‘s Suppl. App. p. 30). When Norman incurred physical problems

getting around the house, Mary put in a wheelchair ramp, installed handrails in the

hallways, and replaced the carpet so Norman could continue to reside in her house.

When Norman was hospitalized, Mary stayed overnight at the hospital and helped feed

him. Moreover, when questioned about the relationship, Krueger stated that based on his

observations Mary was dominant in the relationship as ―she did all that talking. She

brought in all the paperwork . . . and [Norman] – [Norman] said very little.‖ (Appellant‘s

App. p. 276). We find that the existence of this fiduciary relationship coupled with the

transfer of substantial assets from Norman to Mary as beneficiary of his insurance

policies, resulted in an advantage to Mary, raising the presumption of undue influence.

                                B. Rebuttal of Presumption

        Because the presumption of undue influence is raised, the burden of proof shifts to

the Williamses to establish by clear and unequivocal proof that the questioned

transactions were made at arm‘s length and thus valid. See Meyer, 854 N.E.2d at 60. To

satisfy this burden, the Williamses refer to the testimony of several individuals with close

ties to both Mary and Norman who stated that the relationship was one of mutual respect

and affection and was presented to the outside world as a committed relationship

tantamount to marriage.

        Also, Randy Voight (Voight), Norman‘s financial adviser at Edward Jones, stated

that on several occasions, Norman had told him that ―he did not have a good relationship

with his children, and wanted to change all of his beneficiaries[.]‖ (Appellant‘s App. p.

567).    Voight also testified that when Norman was completing the beneficiary


                                            10
designation for his Edward Jones account5, he overheard Mary encouraging Norman to

leave something to his children. Norman refused and asked Mary to leave the room.

Likewise, Wanda Powell, a financial services representative with Fifth Third Bank who

notarized Norman‘s signature on the Edward Jones paperwork, stated that she would not

have notarized the signature if she had perceived Norman to be incompetent or under

duress.

        The evidence further reflects that prior to meeting Norman, Mary typically visited

her daughter every five to six weeks, After Norman started to reside with her, he refused

to make the trip, therefore, Mary stopped going as well. While Norman was living with

Mary, Mary‘s only grandson, who she was close to, got married in Las Vegas. Mary did

not attend the wedding because Norman did not want to go, even though her daughter

offered to pay for her and Norman‘s travel and accommodations.

        In response, Heavner draws this court‘s attention to the testimony of Arlene Berry

(Berry), Norman‘s daughter. Berry stated that when Norman gave her money Mary

―wouldn‘t say too much in front of me at first, she‘d give him a look, and then he told me

that he caught hell for [it].‖ (Appellant‘s App. p. 97). She added that she was not

allowed to see her father alone.            Phyllis Hughes (Hughes), one of Mary‘s tenants,

testified that the assistant pastor of Mary‘s church ―got Norman‘s money through Mary.

He got his house paid off. Mary overpaid for it, giving the pastor‘s wife some of

Norman‘s money too. She used Norman‘s money to buy a truck for him.‖ (Transcript p.


5
 It should be noted that the trial court‘s award of the proceeds of the Edward Jones account to Mary is not
disputed by Heavner on appeal.


                                                    11
336). Hughes also stated that after she gave her deposition in this case, Mary came up to

her and told her that she had blown ―it now, I‘m going to lose all that money, everything,

because of you.‖ (Tr. p. 338). Mary would get angry and on one occasion, Mary took

out a gun and pointed it toward her own head. Leedra Adams (Adams), also one of

Mary‘s tenants, testified that immediately prior to Hazel Moore‘s (Moore) deposition,

Adams drove Mary to the bank where she withdrew $3,000. When she returned to

Adam‘s car, Moore contacted Mary on her cell phone and Mary told her that ―I have the

$3,000.‖ (Tr. p. 385). When Adams inquired after Mary‘s plans for the $3,000, Mary

responded ―you can‘t know nothing about none of this[.]‖ (Tr. p. 385). Finally, Heavner

references Krueger‘s statement during trial that based on his observations Mary was the

dominant party in the relationship.

       Mindful of our standard of review, we cannot say that we are firmly convinced

that a mistake has been made. Although a presumption of undue influence arose because

Mary was in a fiduciary relationship with Norman at the time of the questioned

transactions, and the transactions benefitted her; we find that the evidence presented by

the Williamses did not rebut the presumption. We affirm the trial court.

                                      CONCLUSION

       Based on the foregoing, we find that the trial court did not abuse its discretion

when it concluded that Mary was not entitled to certain monetary withdrawals from a

bank account jointly owned by Mary and Norman prior to Norman‘s death; and the trial

court did not abuse its discretion when it concluded that Mary was not entitled to the

proceeds of certain annuities and insurance policies because of undue influence.


                                           12
     Affirmed.

FRIEDLANDER, J. and MATHIAS, J. concur




                                   13
