Osborne v. Boatmen's National Bank of Springfield

732 S.W.2d 242, 1987 Mo. App. LEXIS 4245
CourtMissouri Court of Appeals
DecidedJune 23, 1987
DocketNo. 14845
StatusPublished
Cited by5 cases

This text of 732 S.W.2d 242 (Osborne v. Boatmen's National Bank of Springfield) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osborne v. Boatmen's National Bank of Springfield, 732 S.W.2d 242, 1987 Mo. App. LEXIS 4245 (Mo. Ct. App. 1987).

Opinion

HOLSTEIN, Judge.

This case is an appeal from the probate division of the Circuit Court of Dallas County, Missouri. Pauline Osborne (“Claimant”) filed a claim in the sum of $30,000.00 against the Estate of G.C. McDowell, for services alleged to have been performed by the claimant during the lifetime of G.C. McDowell (“Decedent”). Claimant appeals a judgment denying her any relief. We affirm the judgment of the trial court.

The issues raised in the brief of claimant, while somewhat convoluted, are that the trial court erred' (1) in finding that the claimant did not expect to be paid for the services which she provided, (2) in finding that a family relationship existed between the decedent and the claimant, (3) in finding that there was no evidence of the terms of a contract or agreement between the decedent and no evidence of the extent and duration of the services rendered by the claimant, and (4) in finding that a $10,-000.00 legacy to claimant in the decedent’s will was intended by the decedent to pay her for any services which she performed.

Pursuant to a request by the estate, the trial court filed findings of fact and conclu[244]*244sions of law. . The trial court found, and the record supports, the following facts:

Decedent had been separated from his wife for sometime prior to 1983. Commencing in 1983, claimant became decedent’s girlfriend. The relationship flourished and by January of 1984, claimant and decedent were spending most of their time together. They had discussed marriage, but knew that nothing could come of such discussions until decedent obtained a divorce. A divorce was pending at the time of his death.

In each other’s company, they would cook meals, run errands, travel and to a large extent, live together. Claimant admitted the relationship was “primarily social”. Claimant and decedent had sexual intercourse during their relationship. Until April of 1985, decedent was receiving injections to improve his sexual potency.

During the times that claimant and decedent were living together, all expenses were paid by the decedent.

The decedent and claimant took two pleasure trips together in the summer of 1984. The first was to Tennessee, Louisiana and Arkansas for six days. The second trip was taken to Iowa for three days. The Iowa trip was made to attend a reunion of claimant’s family. All expenses of both trips, including motel rooms in which the parties cohabited, were paid by the decedent.

Decedent was apparently in good health until November of 1984, when his health began to deteriorate as a result of an infection of his jaw. While he was no longer as robust as before, decedent was still able to move about and travel. Claimant and decedent made several trips to Columbia and Kansas City in early 1985 for surgical, therapeutic and follow-up care related to the decedent’s jaw infection. On all trips made by the decedent and claimant together, the claimant drove. When traveling with another person, it had been decedent’s practice to have his companion drive, as he did not enjoy driving, even when in good health.

On April 15, 1985, decedent executed his will which has now been admitted to probate. That will made provision for a $10,-000.00 legacy to claimant.

On May 19, 1985, claimant left on an extended visit to her son’s home in Minnesota. During her absence, the decedent discussed his intentions to talk to claimant about compensating her for services with Larry and Donna Slack. Decedent told the Slacks about the provision in the will. He stated that he intended to pay the claimant and then to omit claimant as a beneficiary under the will.

On June 19, 1985, G.C. McDowell died.

The trial court concluded that a “family relationship” existed between claimant and decedent; and, as a result, the presumption existed that any services rendered were gratuitous. The trial court also concluded that claimant had failed to present evidence of a specific contract because no evidence existed of the extent or duration of the services, and no evidence existed that the decedent intended to pay the claimant other than by way of the cash legacy. The court further found that even if the claimant had met her burden of proof, the legacy of $10,000.00 constituted full payment for the services rendered.

Claimant’s first, second and third points on appeal are interrelated and, for the sake of continuity, will be treated together.

If a family relationship exists, there is a presumption that any services performed are rendered gratuitously even though the claimant entertained the hope of payment, unless the claimant can show by direct evidence, or evidence from which it may be reasonably inferred, that there was an agreement or mutual understanding the claimant was to be remunerated. Jaycox v. Brune, 434 S.W.2d 539, 544 (Mo.1968); Estate of Sanders, 719 S.W.2d 947, 949 (Mo.App.1986). For a family relationship to exist, there must be (1) a social status, (2) a head of the family who has the right, at least in a limited way, to direct or control those gathered in the household, (3) the head of the household must be obligated either legally or morally to support the other members, and (4) there must be a corresponding state of at least partial de[245]*245pendence on other members for support. Smith v. Estate of Sypret, 421 S.W.2d 9, 14 (Mo.1967); Schanz v. Estate of Terry, 504 S.W.2d 653, 656 (Mo.App.1974). It is not essential that there be a kinship or meretricious cohabitation between an unmarried man and woman residing together to have a family relationship. Schanz v. Estate of Terry, supra, at 657. In ordinary cases, both the existence of a family relationship, if there was one, and whether there was an agreement or understanding that services would be paid for, are factual questions. Jaycox v. Bruñe, supra; Schanz v. Estate of Terry, supra, at 657.

In reviewing court tried cases, we are limited by the ubiquitous rule in Murphy v. Carron, 536 S.W.2d 30, 31 (Mo. banc 1976). The judge in a court tried case may believe all, part or none of the testimony of a witness, and on appeal we give due regard to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01(c). Arnott v. Kruse, 730 S.W.2d 597 (Mo.App.1987).

Here there is ample evidence to demonstrate that the relationship between claimant and decedent was primarily, if not exclusively, social. Decedent directed and controlled claimant’s activities in the same limited way that most “heads of households” do in our society: by asking and receiving claimant’s cooperation in performing household duties, driving on trips and providing the comfort of her society. Decedent obviously recognized at least a moral duty to support claimant by being a provider, paying travel expenses and returning claimant’s affections. Such evidence was substantial evidence of a family relationship.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Martin v. Dodson
878 S.W.2d 513 (Missouri Court of Appeals, 1994)
Looney v. Davis
802 S.W.2d 192 (Missouri Court of Appeals, 1991)
Estate of Moore
802 S.W.2d 192 (Missouri Court of Appeals, 1991)
Holliday v. Hawkins
775 S.W.2d 349 (Missouri Court of Appeals, 1989)
Peoples v. Hamilton
747 S.W.2d 251 (Missouri Court of Appeals, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
732 S.W.2d 242, 1987 Mo. App. LEXIS 4245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborne-v-boatmens-national-bank-of-springfield-moctapp-1987.