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PATTERSON v. PATTERSON (59839)


PATTERSON v. PATTERSON


April 16, 1999
Record No. 981185

Paul Patterson

v.

Dana Bruce Patterson, Executor OF THE ESTATE OF
ERNESTINE PATTERSON, ET AL.

FROM THE CIRCUIT COURT OF ALBERMARLE COUNTY
Arthur W. Sinclair, Judge Designate
Present: All the Justices
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.


In this appeal, we consider whether the trial
court properly determined that a certificate of deposit
registered in the joint names of a husband and wife with right of
survivorship was the sole property of the wife and, upon her
death, became part of her estate.

BACKGROUND

On May 1, 1995, nineteen days before her death,
Ernestine J. Patterson was informed by her husband, Paul
Patterson, that he had found a bank in Richmond that was paying a
higher interest rate than she was currently receiving on money
she had on deposit with Crestar Bank in Charlottesville.
Ernestine Patterson, accompanied by her daughter Carolyn Dale
Patterson, went to Crestar Bank and endorsed for payment a
$100,000 certificate of deposit (the Crestar certificate)
registered in her name alone. Crestar Bank issued a
cashier’s check payable to Ernestine Patterson in the face
amount of the certificate. Ernestine Patterson endorsed this
check and permitted Paul Patterson to take the check to Citizens
Federal Bank in Richmond.

On that same day, Paul Patterson deposited the
funds in Citizens Federal Bank and obtained a $100,000
certificate of deposit (the Citizens Federal certificate) titled
"*PAUL PATTERSON OR ERNESTINE PATTERSON JTWROS*."
Ernestine Patterson never signed a signature card or otherwise
ratified the creation of a joint interest in the Citizens Federal
certificate.

Ernestine Patterson died testate on May 20,
1995. By her will, she devised her separate real property to
Carolyn Patterson and Dana Bruce Patterson, her son. The residue
of her estate was divided and distributed two-thirds to Janet P.
Steppe, another daughter, and one-third to Paul Patterson. Dana
Patterson qualified as executor of his mother’s estate on
May 23, 1995.

This suit originated as a bill of complaint
filed by Paul Patterson on November 27, 1995, seeking an
accounting of his deceased wife’s augmented estate in order
to determine his elective spousal share of that estate. Code
Sect. 64.1-16.1. The bill of complaint named Paul and
Ernestine Patterson’s three children as respondents;
however, only Dana Patterson and Janet Steppe (hereafter, the
respondents) entered appearances. In addition to their answer,
the respondents filed a cross-bill on behalf of the estate
seeking return of the $100,000 proceeds from the Crestar
certificate plus the accrued interest, asserting that the
transfer of these funds to the Citizens Federal certificate was
the result of undue influence and coercion by their father. In
the alternative, they contended that the transfer did not
constitute a valid gift.

On May 14, 1997, the respondents filed a motion
to dismiss the bill of complaint asserting that a prior order
extending the time in which Paul Patterson could make an election
to take a spousal share had not been timely entered. The trial
court sustained the motion and dismissed the bill of complaint
with prejudice.
[1] The cross-bill remained pending on the trial
court’s docket.

On August 11, 1997, the trial court held a
hearing on the cross-bill. At that hearing, Carolyn Patterson
testified about the extended estrangement between Paul Patterson
and the Pattersons’ children. She further testified that her
mother had been in poor health and had suffered from
Parkinson’s disease, cancer, and glaucoma. These infirmities
interfered with Ernestine Patterson’s ability to transact
her affairs, so that Carolyn Patterson had to assist her mother
in paying bills and writing letters.

Carolyn Patterson further testified that on May
1, 1995, her father told her to drive her mother to a branch of
Crestar Bank where they would meet him to transact some business.
On the way to the bank, Ernestine Patterson told her daughter
"to ‘watch and see what [I] sign[].’" When
they arrived at Crestar Bank, Paul Patterson met them in the
parking lot and had Ernestine Patterson endorse the Crestar
certificate, which he then took into the bank. A short time later
he returned with the cashier’s check for the proceeds, which
Ernestine Patterson also endorsed. Paul Patterson then left in
his own vehicle, and Carolyn Patterson drove her mother home.

Dana Patterson testified that his mother’s
parents had transferred real property to his mother during their
lifetimes as her separate estate. He further testified that she
had received monetary inheritances from her parents upon their
deaths. Neither Dana Patterson nor Paul Patterson was able to
testify about the amount of these inheritances.

Mary Catherine Wheeler, a friend and former
co-worker of Ernestine Patterson’s, testified that
"Ernestine was afraid of Paul. She also loved him very
much." Shortly before her death, Ernestine Patterson told
Wheeler "that she wanted her property to go to her children
and that she had a certificate and she wanted her children to
have that." Wheeler further testified that Ernestine
Patterson told Wheeler that "Paul had forced her to go to
the bank and sign the certificate over to him."

Paul Patterson testified that he and his wife
maintained separate checking accounts and divided responsibility
for their living expenses. He further testified that he
controlled the couple’s investments and that he would
"invest a hundred thousand dollars ($100,000) in my name and
then I would put money in Ernestine’s name in the same
institution . . . [s]o that they would be insured"
up to the maximum FDIC insurance on each account. He conceded
that Ernestine Patterson had inherited money, in addition to real
estate, from her parents and testified that "I have no
idea" of the amount involved.

Regarding the May 1, 1995 transactions, Paul
Patterson testified that on the prior evening when the couple was
alone Ernestine Patterson "told me [that] I might as well
get [the Crestar certificate] and put it in my own name." He
further testified that he "would not take Ernestine’s
name off" a new certificate of deposit, so he used the
proceeds of the Crestar certificate to obtain the Citizens
Federal certificate in their names jointly with right of
survivorship.

In an opinion letter dated February 3, 1998,
the trial court reiterated a prior ruling, which had not to that
point been incorporated into the record, that there was
insufficient evidence to prove that Paul Patterson had obtained
the Citizens Federal certificate from Ernestine Patterson through
undue influence, coercion, or duress. The trial court further
found, however, that Paul Patterson’s own evidence
established that the Crestar certificate was his wife’s sole
property. That being so, the trial court concluded that
"Mrs. Patterson endorsed the [Crestar] certificate for the
sole purpose of permitting her husband to reinvest the proceeds
for a better yield and that no gift was involved."
Accordingly, in the final order, incorporating by reference the
reasoning of its opinion letter, the trial court entered judgment
for the respondents and awarded $100,000 plus the accrued
interest from the Citizens Federal certificate to the estate. We
awarded Paul Patterson this appeal.

DISCUSSION

Paul Patterson first maintains that the trial
court erred in finding that the Crestar certificate of deposit
was Ernestine Patterson’s sole property. Rather, he asserts
that the evidence supports his contention that the certificate
was a marital asset and that Ernestine Patterson was merely a
"nominal holder." Swan v. Swan’s Ex’r,
136 Va. 496, 519, 117 S.E. 858, 865 (1923). We disagree.

Although the burden was on the respondents to
show that the funds originally deposited in Ernestine
Patterson’s name in Crestar Bank were her sole property, the
trial court looked principally to Paul Patterson’s own
testimony to establish that fact. Specifically, the trial court
found his testimony that his wife told him that she wanted him to
have the money on deposit at Crestar Bank "leaves no doubt
as to the ownership of the Crestar certificate." "No
litigant can successfully ask a court or jury to believe that he
has not told the truth. His statements of fact and the necessary
inferences therefrom are binding upon him." Massie v.
Firmstone
, 134 Va. 450, 462, 114 S.E. 652, 656 (1922). Thus,
while Paul Patterson may have sought to establish that his wife
was merely a nominal holder of a marital asset, his case cannot
rise above his own testimony that the Crestar certificate was
solely subject to the control and wishes of his wife. This
evidence, in conjunction with the evidence presented by the
respondents, supports the trial court’s determination that
the Crestar certificate was Ernestine Patterson’s sole
property.

Paul Patterson next contends that Code
Sect. 6.1-125.5 mandates reversal of the trial court’s
decision because under that statute "[s]ums remaining on
deposit at the death of a party to a joint account belong to the
surviving party or parties as against the estate of the decedent
unless there is clear and convincing evidence of a different
intention at the time the account is created."
[2] He further cites Code Sect. 6.1-125.3 which
provides that "a joint account between persons married to
each other shall belong to them equally . . . unless
. . . there is clear and convincing evidence of a
different intent." Relying on these statutory provisions, he
argues that in the absence of clear and convincing evidence to
the contrary he is entitled to a presumption that his wife
intended the Citizens Federal certificate to belong to him at her
death. He argues that because the trial court found no undue
influence, coercion, or duress, there necessarily was no clear
and convincing evidence that his wife did not intend for the
certificate to belong solely to him at her death.

Paul Patterson’s reliance upon these
statutes is misplaced. These statutes, and particularly the
presumption they provide which he seeks to assert here, are not
applicable under the facts of this case because there is no
evidence in the record that Ernestine Patterson was ever aware of
the nature of the Citizens Federal certificate. She did not sign
a signature card or otherwise ratify the creation of a joint
interest in this certificate. Moreover, there is simply no
evidence in the record that Ernestine Patterson was aware of the
existence of this certificate even though the proceeds of her
Crestar certificate were used to create it. Thus, the dispositive
issue before the trial court was whether Ernestine Patterson made
a gift of all or part of her Crestar certificate to her husband.
Absent such a gift, Paul Patterson has no right to the Citizens
Federal certificate.

The elements necessary to make a gift inter
vivos
of personal property are well established. See
generally
Taylor v. Smith, 199 Va. 871, 874, 102
S.E.2d 160, 162 (1958). Here, the critical issue in dispute,
whether Ernestine Patterson intended to make a gift to her
husband, was one of fact to be determined by the trial court. In
such instances, great deference is accorded a trial court’s
factual findings. This is so because the judge, as fact finder,
sees and hears the witnesses and, therefore, is better able to
determine their credibility and weigh their testimony. Tuomala
v. Regent University
, 252 Va. 368, 375, 477 S.E.2d 501,
505-06 (1996). Accordingly, we hold that the trial court’s
determination that Ernestine Patterson did not intend to make a
gift to her husband when she endorsed for payment the check
representing the proceeds from her Crestar certificate is not
plainly wrong or without adequate evidence to support it and,
thus, will not be disturbed on appeal. Code Sect. 8.01-680; Tauber
v. Commonwealth
, 255 Va. 445, 452, 499 S.E.2d 839, 843
(1998).

CONCLUSION

For these reasons, we will affirm the judgment
of the trial court awarding $100,000 plus accrued interest to the
estate.

Affirmed.

 

FOOTNOTES:

[1] Paul Patterson has not assigned error
to this aspect of the trial court’s judgment.

[2] Code Sect. 6.1-125.1(1) provides
that "‘Account’ means a contract of deposit
of funds between a depositor and a financial institution, and
includes a . . . certificate of deposit."

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