Estate of Volmer v. Volmer

832 So. 2d 615, 2002 WL 31831528
CourtCourt of Appeals of Mississippi
DecidedDecember 10, 2002
Docket2001-CA-01110-COA
StatusPublished
Cited by9 cases

This text of 832 So. 2d 615 (Estate of Volmer v. Volmer) 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
Estate of Volmer v. Volmer, 832 So. 2d 615, 2002 WL 31831528 (Mich. Ct. App. 2002).

Opinion

832 So.2d 615 (2002)

In the Matter of the ESTATE OF Shirley Wright VOLMER: Joseph K. Volmer, Executor, Appellant
v.
John S. VOLMER and Eleanor J. Volmer Patterson, Appellees.

No. 2001-CA-01110-COA.

Court of Appeals of Mississippi.

December 10, 2002.

*617 Joe Morgan Wilson, Sanatobia, for appellant.

George McFall, Southaven, William Bolton Seale, Memphis, TN, for appellee.

Before KING, P.J., BRIDGES AND LEE, JJ.

KING, P.J., for the Court:

¶ 1. The will of Shirley M. Volmer was contested and successfully set aside in the Chancery Court of DeSoto County. The proponent of the will, Joseph K. Volmer, appeals. Finding an absence of abuse of the chancery court's discretion, we affirm the chancellor's decision.

Facts

¶ 2. In February 1999, Mrs. Volmer executed a will devising her property among her three living children, Joseph K. Volmer, John A. Volmer, and Eleanor Volmer Patterson. Her husband and a son, William T. Volmer, predeceased her. Attorney Kevin O'Brien drafted the will Mrs. Volmer executed. In late May, 1999, Joseph Volmer contacted his mother's attorney, Kevin O'Brien, and informed him of his mother's desire to modify her February 1999 will. Specifically, Joseph Volmer informed O'Brien that his mother wanted to eliminate the provision of her current will which left a life estate in her home to her daughter Eleanor Volmer Patterson. O'Brien testified that he prepared the revision but did not personally speak with Mrs. Volmer about it.

¶ 3. After preparing the new will, O'Brien gave the draft will to Joseph Volmer along with a letter of instruction for its execution. In June 1999, Ms. Volmer was hospitalized and diagnosed with pancreatic cancer at a terminal stage. Joseph Volmer made the arrangements for execution of the will by coordinating the presence of witnesses and a notary. The will was executed in the hospital on June 18, 1999. She passed away on July 20, 1999.

¶ 4. Joseph Volmer, as executor of his mother's estate, submitted the new will for probate. His brother and sister initiated an action contesting the will on the grounds of undue influence and a lack of testamentary capacity. The chancery court set aside the will on the grounds of *618 undue influence, and held that the matter of testamentary capacity need not be addressed because of its ruling on undue influence.

Issues

¶ 5. Joseph Volmer raises the following issues in this appeal:

1. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION IN HAVING THE APPELLANT REMOVED FROM THE COURT DURING THE PROCEEDINGS INVOLVED IN THIS MATTER.
2. WHETHER THE CHANCELLOR MADE AN ERROR OF LAW IN FINDING A PRESUMPTION OF UNDUE INFLUENCE PRIOR TO FINDING THAT A CONFIDENTIAL RELATIONSHIPS EXISTED BETWEEN THE APPELLANT AND THE DECEDENT.
3. WHETHER THE CHANCELLOR ERRED IN OVERSTATING FACTS NOT IN EVIDENCE AND IGNORING CERTAIN FACTS IN EVIDENCE.

Resolution of the Issues

1. Removal from the courtroom

¶ 6. Joseph Volmer was removed from the courtroom on instructions by the chancellor because of unruly conduct. The chancellor admonished Joseph Volmer about certain conduct which was disruptive to the court proceedings, and requested that he discontinue that behavior. With the second admonition, the chancellor warned Joseph Volmer that should he persist in that conduct, he would be removed from the courtroom. Joseph Volmer continued his behavior and was escorted out of the courtroom by the bailiff. In ordering Joseph Volmer removed from the courtroom the chancellor stated

I have twice warned you before this time. You have sat there and you have laughed twice while this witness is testifying. I'm not going to permit you to interrupt or intimidate a witness. I'm going to ask the bailiff to take you and sit you back in that courtroom back there and remove you from these proceedings until such time as I determine that you can come back and behave.

When Volmer's attorney was cross-examining John Volmer, one of the Appellees, the chancellor paused in the proceedings to give Joseph Volmer's attorney the opportunity to consult with him in order that counsel could effectively cross-examine the witness. Counsel consulted with Joseph Volmer and returned to cross-examine the witness John Volmer. Joseph Volmer now claims that his expulsion from the courtroom prevented effective cross-examination of John Volmer, and thereby prejudiced his case. Joseph Volmer suggests that his presence was essential in the courtroom, so that as he heard the testimony, he could suggest questions to be asked of the witness.

¶ 7. We have reviewed the record regarding Joseph Volmer's instances of misconduct cited by the chancellor and find no prejudice occurred as a result of his removal from the courtroom. The chancellor has the authority to maintain proper decorum in his courtroom. Unif. Ch. Ct. R. 1.01. We review the exercise of that authority under an abuse of discretion standard. McNeil v. Hester, 753 So.2d 1057 (¶ 21) (Miss.2000). Having been twice warned that his remarks, gestures and laughter during the testimony were improper, Joseph Volmer was well informed of what actions were required, if he were to remain in the courtroom. He deliberately ignored the chancellor's directives, and after an appropriate warning was removed from the courtroom. We *619 cannot say that the chancellor abused his discretion in doing so.

¶ 8. Notwithstanding Joseph Volmer's disruptive behavior, the chancellor paused in the proceeding to afford the opportunity for consultation between Joseph Volmer and his attorney before cross-examination of opposing witnesses. Given Joseph Volmer's intentional disruptive behavior in the courtroom and the chancellor's efforts at assuring that trial would proceed with Joseph Volmer's input through consultation with his counsel, this Court finds no abuse of the chancellor's discretion.

2. Confidential relationship

¶ 9. Joseph Volmer argues on appeal that the chancellor erred in failing to find a confidential relationship existed between Joseph Volmer and his mother, Shirley Volmer, before deciding that Joseph Volmer exerted undue influence over his mother and therefore setting aside the will.

¶ 10. A chancellor's findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous, or where it is determined that the chancellor applied an erroneous legal standard. Tinnin v. First United Bank, 570 So.2d 1193, 1194 (Miss.1990). If the chancellor's findings are supported by substantial, credible evidence in the record, this Court will not reverse. Id.

¶ 11. Here, Joseph Volmer challenges the chancellor's failure to make a specific finding that a confidential relationship existed before moving on the matter of whether the presumption of undue influence applied. While the chancellor did not, in his opinion, use the words "confidential relationship," the chancellor did state:

A presumption of undue influence arises where a beneficiary actively participates in the procurement, preparation or execution of the will. Croft. v. Alder, 237 Miss. 713, 115 So.2d 683 (1959). In the case at bar, there can be no doubt with respect to the will in question, the beneficiary, Joseph K. Volmer, took any and all steps necessary for the procurement and execution of the will. There is no evidence whatsoever that the ultimate testatrix participated in anything other than the signing of the will.

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Cite This Page — Counsel Stack

Bluebook (online)
832 So. 2d 615, 2002 WL 31831528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-volmer-v-volmer-missctapp-2002.