Demoville v. Johnson

856 So. 2d 607, 2003 Miss. App. LEXIS 558
CourtCourt of Appeals of Mississippi
DecidedJune 17, 2003
DocketNo. 2002-CA-00150-COA
StatusPublished
Cited by1 cases

This text of 856 So. 2d 607 (Demoville v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Demoville v. Johnson, 856 So. 2d 607, 2003 Miss. App. LEXIS 558 (Mich. Ct. App. 2003).

Opinion

BRIDGES, J.,

for the court:

¶ 1. Dixie DeMoville Johnson (Dixie) filed a petition for appointment of conservator in the Chancery Court of Lee County, Mississippi, seeking an appointment of a conservator over the person and estate of her mother, Mrs. Margie DeMoville. The petition was filed as a result of her mother’s failing mental health and the belief that Margaret DeMoville (Margaret), Dixie’s younger sister, was transferring assets from the estate to herself for her own benefit.

¶ 2. Margaret filed an answer opposing the appointment of a conservator and during the course of the proceedings, she also moved “to stay all proceedings in this case, and to consolidate these matters with the will contest which would follow upon the death of Mrs. DeMoville.”

¶ 3. Following three days of testimony and a chance to observe Mrs. DeMoville during the trial, the chancellor appointed Bill Benson as conservator of Mrs. DeMo-ville’s estate and Margaret as conservator [609]*609of Mrs. DeMoville’s person. Margaret appeals to this Court regarding the chancellor’s decree.

STATEMENT OF THE ISSUE

I. WHETHER THE CHANCELLOR PROPERLY APPOINTED A CONSERVATOR OVER THE ESTATE OF MRS. MARGIE ALLEN DEMO-VILLE.

II. WHETHER THE CHANCELLOR PROPERLY APPOINTED A DISINTERESTED THIRD PARTY, BILL BENSON, RATHER THAN MARGARET DEMOVILLE.

FACTS

¶ 4. Mr. John DeMoville died in 1984 leaving a sizable estate to his widow, Mrs. Margie DeMoville and her daughters, Dixie and Margaret. The estate was never divided or distributed, but was converted into a partnership managed by Mrs. De-Moville, with Margaret’s assistance. In 1998, Mrs. DeMoville began showing signs of failing mental capacity due to Alzheimer’s disease. In October of 2000, Mrs. DeMoville moved in with Margaret. It was also around this time that Dixie began to question the management of the business and questioned Margaret’s decision not to engage an estate planner. Dixie also became convinced that Margaret was hiding information from her, and asked to see bank records, but Margaret refused to produce any records. The familial relationship swiftly declined after that. Finally, in 2001, Dixie filed suit seeking an accounting of all the assets and petitioned for conservatorship of Mrs. DeMoville. The chancellor appointed Margaret as conservator of Mrs. DeMoville and appointed Bill Benson, Lee County Chancery Clerk, conservator of Mrs. DeMoville’s estate.

ANALYSIS

I. WHETHER THE CHANCELLOR PROPERLY APPOINTED A CONSERVATOR OVER THE ESTATE OF MRS. MARGIE ALLEN DEMO-VILLE.

¶ 5. The applicable standard of review is that findings of the chancellor are to be reviewed “in the light most favorable to the appellee where there is substantial evidence supporting the chancellor’s ruling.” Wilbourne v. Wilbourne, 748 So.2d 184, 186(¶ 3) (Miss.Ct.App.1999). A chancellor’s “findings of fact on conflicting evidence cannot be disturbed on appeal unless it can be said with reasonable certainty that his findings were manifestly wrong and against the overwhelming weight of the evidence.” Harvey v. Meador, 459 So.2d 288, 293 (Miss.1984).

¶ 6. Miss.Code Ann. § 93-13-251 (Rev.1994) governs the petition to appoint a conservator of Mrs. DeMoville’s estate. It states:

If a person by reason of advanced age, physical incapacity or mental weakness is incapable of managing his own estate, the chancery court of the county wherein such person resides may, upon the petition of such person or of one or more of his friends or relatives, appoint a conservator to have charge and management of the property of such person, and if the court deems it advisable, also to have charge and custody of the person subject to the direction of the appointing court.

Thus, under this statute, a conservator may be appointed if an individual is “incapable of managing his own estate.” Margaret asserts that dissipation of Mrs. DeMo-ville’s property must be proven in order for a conservator to be appointed. However, this is contrary to Mississippi law and [610]*610is illogical. To require everyone seeking an appointment of a conservator to prove that the person at issue was being cheated by someone goes far beyond anything required in the statute.

¶ 7. In Harvey, the court adopted a “management competency test” with regard to the application of § 93-13-251 which states:

A test of management competency can be answered by considering the factors of: ability to manage, or improvident disposition, or dissipation of property, or susceptibility to influence or deception by others, or similar factors.

Harvey, 459 So.2d at 292 (emphasis added). There is nothing in the above quote that states that a chancellor is required to consider or find each of these factors in order to appoint a conservator. The chancellor may find just one to be sufficient for an appointment of a conservator.

¶ 8. In Conservator of Eldridge v. Sparkman, 813 So.2d 753, 757(¶ 14) (Miss.Ct.App.2001), the court, in applying the Harvey management competency test, considered not only Mrs. Eldridge’s age, but also her physical and mental health and her confused testimony in upholding the establishment of a conservator. The Court found that there was no abuse of discretion by the chancellor in appointing a conservator because the evidence “established that Mrs. Eldridge’s ability to manage her affairs had been affected.” Id. at 757(¶ 14).

¶ 9. Based on the aforementioned case law, the overriding question in determining whether a conservator should be appointed is a person’s ability to manage his or her own property. Mrs. DeMoville’s undisputed medical condition of severe dementia renders her incapable of managing her own property. Such findings, that she is unable to manage her own property, are supported by two treating physicians, Dr. Ken Davis and Dr. Jan Goff.

¶ 10. The record clearly supports the finding that Mrs. DeMoville’s medical condition made her incapable of managing her own business matters. The evidence in the record was overwhelming that Mrs. DeMoville suffers from severe dementia.

¶ 11. Dr. Ken Davis, one of the doctors who saw Mrs. DeMoville, testified in his deposition that his impression, based on mental status testing performed, was that Mrs. DeMoville was suffering from “mild to moderate dementia, most likely of the Alzheimer’s type.” Later, when Dr. Davis saw Mrs. DeMoville in a subsequent hospital admission, he found her condition to be one of “dementia that’s moderate to severe.”

¶ 12. Another doctor, Dr. Jan Goff, who saw Mrs. DeMoville while the case was pending, testified that Mrs. DeMoville was incapable of exercising any sort of judgment. When Dr. Goff was asked, during a deposition, as to the degree of her cognitive functions impairment, he responded, “severe, severe, severe, unable to do much except for the very basic, maybe some self care things, but nothing requiring any judgment.”

¶ 13. Even Margaret herself testified that her mother “needs help now ... because she has declined very much.” And finally, the chancellor was able to observe Mrs. DeMoville during the proceedings and questioned her in chambers. In regards to her testimony, the chancellor remarked, “I seriously question whether Mrs.

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Related

In Re Conservator for Demoville
856 So. 2d 607 (Court of Appeals of Mississippi, 2003)

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856 So. 2d 607, 2003 Miss. App. LEXIS 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demoville-v-johnson-missctapp-2003.