Traci Kron v. Donna Sherman, as Personal Representative of the Unsupervised Estate of Alan Kron, (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Sep 08 2017, 6:30 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
April L. Edwards Steven E. Ripstra
Boonville, Indiana Ripstra Law Office
Jasper, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Traci Kron, September 8, 2017

Appellant, Court of Appeals Case No.
74A01-1702-EU-348
v. Appeal from the Spencer Circuit
Court.
The Honorable Jon A. Dartt, Judge.
Donna Sherman, as Personal Trial Court Cause No.
Representative of the 74C01-1512-EU-45
Unsupervised Estate of Alan
Kron, Deceased,
Appellee.

Sharpnack, Senior Judge

Statement of the Case
[1] Traci Kron appeals the trial court’s partial denial of her Petition to Enforce

Terms of Will. Donna Sherman, as Personal Representative of the

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 Unsupervised Estate of Alan Kron, Deceased, cross-appeals the trial court’s

decision. We reverse and remand with instructions.

Issue
[2] Traci raises two issues, but one restated issue is dispositive of this appeal:

whether the trial court erred in ordering Sherman to pay Traci funds from a

bank account Alan Kron owned jointly with his brother, William Kron.

Facts and Procedural History
[3] William Kron and Alan Kron farmed their family’s land together, jointly

owning all assets. In 2009, they opened a joint account (“the account”) with

Hoosier Hills Credit Union, into which Alan deposited farm funds and from

which Alan paid the farm’s bills. The account was governed by a contract

called a “membership application agreement,” the relevant terms of which we

discuss in more detail below. Ex. Vol. 1, Stipulated Ex. B.

[4] Years later, Alan and Traci began a romantic relationship. On March 18, 2015,

he withdrew $20,000 from the account to purchase a truck for Traci. On June

15, 2015, he withdrew $81,487.54 from the account to pay off a mortgage on

property that had been owned by Traci, which they intended to use as their

marital home.

[5] Alan and Traci executed a pre-nuptial agreement on July 20, 2015. The

agreement stated that if Alan predeceased Traci, Traci would “receive Alan’s

share of the Hoosier Hills Credit Union checking account jointly owned with

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 William Kron.” Id., Petitioner’s Ex. 1. Alan and Traci married on July 22,

2015.

[6] On September 4, 2015, Alan executed a Last Will and Testament. Pursuant to

the will, Alan granted to Traci his “share in a Hoosier Hills Credit Union

checking account owned jointly with my brother, William Kron.” Appellant’s

App. Vol. 2, p. 17. Alan appointed William as his personal representative and

further appointed Donna Sherman, his sister, to serve as an alternate personal

representative if William was unable or unwilling to serve.

[7] Alan died suddenly on November 21, 2015. On that date, the account had a

balance of $102,446.62.

[8] On December 1, 2015, Donna Sherman filed a petition to probate a lost or

destroyed will and for appointment of personal representative. Sherman

claimed the September 4, 2015 will was lost or destroyed. She further claimed

William was unwilling to serve as personal representative. The trial court

appointed Sherman as personal representative.

[9] On February 2, 2016, Traci filed a Petition to Enforce Terms of Will, to which

she attached a copy of the will. She claimed she was entitled to one-half of the

account’s value. Sherman filed a response denying Traci’s claim. The court

held an evidentiary hearing over the course of several days. The court

appointed a guardian ad litem to represent William’s interests in the

proceeding.

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[10] On January 24, 2017, the court issued an order. The court determined that

although William would normally receive the entire account balance after

Alan’s death, Alan, “express[ed] contrary intent” in the prenuptial agreement

and the will. Id. at 7. The court determined Traci was entitled to receive some

funds from the account, but considering Alan’s withdrawals for Traci’s benefit

(the car and the mortgage payoff), she was entitled to receive only $492.57. The

court further ordered Sherman to pay Traci $3,500 for her attorney’s fees

because Traci brought a good faith claim. This appeal followed.

Discussion and Decision
[11] Traci argues the trial court correctly determined that she is entitled to a share of

the account but erred in concluding William’s withdrawals from the account

should be deducted from her share. Sherman argues, among other claims, that

she cannot give Traci funds from the account because William has a right of

survivorship and is entitled to the entire account.

[12] The parties differ on the standard of review this Court should use to evaluate

the case. Traci argues the trial court sua sponte issued findings of fact and

conclusions thereon. Sherman argues the trial court issued a general judgment,

and this Court should review the parties’ claims accordingly. We need not

resolve this disagreement because, with respect to the account, we are being

asked to apply the law to undisputed facts. Thus, our standard of review is de

novo whether we are addressing findings of fact or a general judgment. See In re

Marriage of Gertiser, 45 N.E.3d 363, 369 (Ind. 2015) (in review of findings and

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 conclusions, questions of law reviewed de novo); Hutchison v. Trilogy Health

Servs., LLC, 2 N.E.3d 802, 805 (Ind. 2014) (in review of general judgment,

questions of law reviewed de novo).

[13] Before turning to the merits of the parties’ claims, Tracy states Sherman has

waived for appellate review any claim that William is entitled to the entire

account per a right of survivorship. Specifically, Tracy asserts Sherman did not

raise the claim in the trial court.

[14] Appellate review presupposes that a litigant’s arguments have been raised and

considered in the trial court. Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49,

53 (Ind. 2013). Thus, an argument or issue not presented to the trial court is

generally waived for appellate review. GKC Ind. Theatres, Inc. v. Elk Retail Inv’rs,

LLC, 764 N.E.2d 647, 651 (Ind. Ct. App. 2002). The rule of waiver in part

protects the trial court; it cannot be found to have erred as to an issue or

argument that it never had an opportunity to consider. Id.

[15] In this case, William’s guardian ad litem, Bryan Rudisill, argued to the trial

court that William was entitled to all funds in the account because it was a joint

account with a right of survivorship, and neither William nor Alan intended to

alter the right of survivorship when the account was opened in 2009. Tr. Vol. 2,

pp. 49-50. Rudisill also cited the governing statute, which we discuss in more

detail below. Id. at 104. Further, the trial court was clearly aware of the issue

because it stated in the final order, “Normally, upon the death of one joint

account owner, the other owner would be the owner of all of the account.”

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 Appellant’s App. Vol. 2, p. 7. The survivorship issue was presented to the trial

court, and Sherman has not waived this issue for appellate review.

[16] Addressing the question of joint survivorship requires us to consider the

governing statutes and the contract that governs the account. It is useful to

recount our rules of statutory and contract construction. In the interpretation of

statutes, our goal is to determine and give effect to the intent of the legislature

that promulgated it. Porter Dev., LLC v. First Nat. Bank of Valparaiso, 866 N.E.2d

775, 778 (Ind. 2007). Our primary resource for this determination is the

language used by the legislature. Id. Similarly, in interpreting a written

contract a court will attempt to determine the intent of the parties at the time

the contract was made as disclosed by the language used to express their rights

and duties. First Fed. Sav. Bank of Ind. v. Key Mkts., Inc., 559 N.E.2d 600, 603

(Ind. 1990).

[17] Where a statute is unambiguous, the Court will read each word and phrase in

its plain, ordinary, and usual sense, without having to resort to rules of

construction to decipher meanings. Porter Dev., 866 N.E.2d at 775. When the

terms of a contract are drafted in clear and unambiguous language, we will also

apply the plain and ordinary meaning of that language and enforce the contract

according to those terms. Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937

(Ind. 2012).

[18] According to Indiana Code section 32-17-11-17 (2009), “Unless there is clear

and convincing evidence of a different intent, during the lifetime of all parties, a

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 joint account belongs to the parties in proportion to the net contributions by

each party to the sums on deposit.” Further, “Sums 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.” Ind. Code § 32-17-11-18

(2009) (emphasis added). “A right of survivorship arising . . . from the express
1
terms of the account . . . cannot be changed by will.” Id.

[19] Based on the plain language of the statutes, if the joint owners of an account

intended for the account to be distributed to someone other than the surviving

party or parties, there must be clear and convincing evidence of a different

intent when the account was opened. In other words, Indiana Code section 32-

17-11-18 creates a statutory presumption that a survivor to a joint account is the

intended receiver of the proceeds in that account, and a challenger must rebut

the presumption. Dean v. Pelham, 899 N.E.2d 662, 666 (Ind. Ct. App. 2008),

trans. denied.

[20] Alan and William opened the account in 2009, and the membership application

agreement states, in relevant part:

The owners of this account hereby agree with each other and
with said Credit Union that all sums now paid in on shares or
heretofore or hereafter paid in on shares by any and all of said
joint owners to their credit as such joint owners with all

1
Owners of an account may later alter the rights of survivorship as set forth in the account agreement, but
such a change must be submitted to the financial institution in writing, during an owner’s lifetime. Ind. Code
§ 32-17-11-19 (2002). None of the parties argue that Alan followed the statutory process to alter the right of
survivorship.

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 accumulations thereon, are and shall be owned by them jointly,
with right of survivorship and be subject to the withdrawal or
receipt of any of them, and payment to any of them or the
survivor or survivors shall be valid and discharge said Credit
Union from any liability for such payment. The joint owners
also agree to the terms and conditions of the account as
established by the Credit Union from time to time.

Ex. Vol. 1, Stipulated Ex. B.

[21] Based on the plain language of the contract, the account was jointly owned and

the owners had a right of survivorship. None of the parties submitted any

evidence, let alone clear and convincing evidence, that Alan or William had

any contrary intent in 2009 when the account was opened.

[22] William, as the survivor, was entitled to all funds in the account upon Alan’s

death regardless of Alan’s statements in his prenuptial contract or his will. See

Decker v. Zengler, 883 N.E.2d 839, 845 (Ind. Ct. App. 2008) (decedent’s

statement in will that joint bank accounts were to be divided among all children

did not affect the right of survivorship; joint owner was entitled to receive all

funds under the terms of the account), trans. denied. The trial court erred by

ordering Sherman to share the account’s funds with Traci because William, not

Sherman, owned the account. See In re Estate of Herin, 40 N.E.3d 495, 500 (Ind.

Ct. App. 2015) (no error in determining estate lacked ownership rights over

certificate of deposit accounts; challenger failed to prove by clear and

convincing evidence an intent to alter the right of survivorship in the accounts

when they were opened).

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[23] Sherman specifically states she “is not seeking to recover the funds Alan

withdrew” from the account for Traci’s truck and Alan and Traci’s marital

home. Appellee’s Br. p. 6. This disclaimer is appropriate because the funds do

not belong to Sherman in any event. In addition, Sherman does not assert the

trial court erred in awarding attorney’s fees to Traci in recognition of her good

faith claim, so that part of the judgment stands. We reverse and remand with

instructions to the trial court to otherwise vacate its prior order and to issue a

new order stating neither Sherman nor Traci are entitled to any proceeds from

the Hoosier Hills Credit Union account.

Conclusion
[24] For the reasons stated above, we reverse the judgment of the trial court and

remand with instructions.

[25] Reversed and remanded.

Baker, J., and Barnes, J., concur.

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