Bailey v. Eikert

210 So. 3d 862
CourtLouisiana Court of Appeal
DecidedDecember 7, 2016
DocketNo. 50,853-CA
StatusPublished
Cited by1 cases

This text of 210 So. 3d 862 (Bailey v. Eikert) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Eikert, 210 So. 3d 862 (La. Ct. App. 2016).

Opinions

DREW, J.

| í Laura Eikert Bailey, Tracy Eikert O’Quin, and Paul J. Eikert (“the Eikert children”) appeal from two judgments denying their motions to traverse the descriptive list for the estate of their father, Martin Paul Eikert. For the following reasons, we affirm.

The issue in this case is whether the trial court erred in finding that two transfers of funds from the separate property of Martin Eikert to the separate property of Eikert’s third wife, Ann Kelly Eikert, were valid donations.

Martin Eikert was a resident of Bastrop, Louisiana; his working career was spent doing forestry with International Paper (“IP”). He was married three times. During his first marriage, to Rae Eikert, he had three children: Laura, Tracy, and Paul. Martin was married to his third wife, Ann Kelly Eikert, for approximately 17 years prior to his death in 2013. At the [864]*864time of Martin’s death, Ann was employed as a registered nurse; Martin was retired.

Martin and Ann had a separate property regime, although they kept a joint checking account at Kaufman Credit Union (“Kaufman”) to pay household expenses. Martin had a substantial separate property estate that included the house in Bastrop where he and Ann lived, almost half a million dollars in a tax-deferred retirement account held at JP Morgan Chase,1 and about $250,000 in cash that he kept at Kaufman in a savings account. In March 2003, Martin executed a will leaving his home to Ann and “the balance of my estate” to his three children.

|2For at least the last year of his life, Martin suffered from severe COPD. According to Paul, Martin required oxygen 24 hours a day, had great difficulty in speaking, was unable to drive and was only able to walk short distances. On January 12, 2013, Martin was admitted to the intensive care unit at Glenwood Regional Medical Center because of complications from his condition.

On January 18, 2013, while Martin was in the hospital, there were several transactions in the Eikerts’ accounts at Kaufman. First, $26,208.89 was moved from Martin’s separate account into Martin and Ann’s joint account, leaving a balance of $225,005 in Martin’s separate account. The Kaufman employee who performed the transfer, Barbara Andrews, did not know Martin and did not know that Martin was in the hospital at the time. Kaufman had no written record concerning who requested the transfer. However, Ms. Andrews explained that transfers of money between Kaufman accounts were commonly done by phone. Ms. Andrews had no independent memory of the transaction but believed that the request must have been made by telephone, Although some of the Kaufman tellers had “signature pads” that allowed them to write “phone” for telephone transfers,2 Ms, Andrews’ computer was not so equipped.

The cell phone records from Martin and Ann’s phones do not show any call to the bank around the time of this transaction. Paul testified that there was no phone in the intensive care unit where Martin was hospitalized, but Ann said “as well as I can recall, yes, there was a phone there.”

|sMs. Andrews said that even though she did not remember the call, she would not have performed the transfer from Mr. Ei-kert’s account unless she had satisfied herself that the person on the phone was indeed Martin Eikert. She also said that if someone other than Martin had physically come into the bank and requested the transfer, she would not have done the transaction. Paul Eikert testified that had Martin been able to use the phone, he would have been gasping for breath because of his condition on this date, and the Eikert children offered a physician’s impression of what Martin would have sounded like had he used the phone.

Four hours later on January 18, 2013, $26,208.89 was moved from the Eikerts’ joint account into Ann Eikert’s separate Kaufman account. The bank had no written record of who requested this transfer, and Cynthia Bowe, the Kaufman employee who performed the transfer, said that she had no independent memory of who requested the transfer; she did not remember speaking with either Martin or Ann, [865]*865Ms. Bowe said that either Martin or Ann Eikert had the authority to request the transfer as this was a joint account.

Finally, also on January 18, 2013, a certificate of deposit was created at Kaufman in the amount of $225,000. That CD, in Martin’s name, specified that upon Martin’s death, the money would go to the Eikert children, not to Ann Eikert. Ms. Andrews explained that only Martin could have authorized the creation of the CD and the transfer of money out of his account. The creation of the CD left $5 in Martin’s separate account.

Ann Eikert testified that she did not see Martin make a call to Kaufman related to the January 18 transfer, but she said that Martin “would have had to make a phone call” because “I couldn’t have done it.” She also | ,(Said that she understood that Martin called Kaufman “several times that day.”

Ann had no memory of making contact with Kaufman employees regarding the January 18 transfers. Ann explained that Martin told her that “he did want me to have a portion of ... part of the money” and that Martin told her that he was giving her the funds “because he wanted me to have it.” Ann said that Martin told her “I talked to the credit union and told them my wishes.” She testified:

Q: So your position is that you had no participation whatsoever prior to learning of the call—your position of Mr. Eikert making a phone call to the credit union, you had no participation with the credit union employees with regard to the transfer—
A: In January.
Q:—on January 18th that those funds, how they got in your separate savings account?
A: No.

Martin was discharged from the ICU on January 21, 2013, and moved into a skilled care unit. Beginning on February 4, 2013, Martin and Ann had several discussions with JP Morgan Chase about how to handle Martin’s 401(k). There are notes and recordings from these calls. During the first call, initiated by Ann, the bank representative confirmed with Martin that Ann had permission to speak with the bank, and Ann told JP Morgan Chase that Martin wanted to roll his IRA over to a local credit union. On February 5, 2013, Ann called JP Morgan Chase again, and Martin also spoke with the representative, saying that he wanted to roll the money into an IRA and start taking money out. The notes from this call state:

Mr. Eikert said what he is trying to do is leave that money to the children[.]

|sThe notes also indicate that Martin was speaking with difficulty. The bank employee informed the Eikerts that Martin had to make a required minimum distribution of $18,207.17, and Martin decided to have 10% of that withheld for federal taxes. On February 6, 2013, Ann called back again, and after confirming with Martin that Ann had the right to speak with the bank employee, Ann went ahead with the rollover, instructing JP Morgan Chase to perform the transfer. JP Morgan Chase sent three3 checks to the Eikerts by postal mail.

Martin Eikert was discharged from the skilled care unit on February 11, 2013, and [866]*866went back to live at his home with Ann. Ann testified that while Martin was home, he reviewed his credit union statement dated January 31, 2013.

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Bluebook (online)
210 So. 3d 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-eikert-lactapp-2016.