Belmore v. Goldizen ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,978
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ALMA BELMORE,
Appellee,
v.
MARGARET GOLDIZEN and JAY GOLDIZEN,
Appellants.
MEMORANDUM OPINION
Appeal from Dickinson District Court; RYAN W. ROSAUER, judge. Opinion filed September 10,
2021. Affirmed.
Peter Charles Rombold, of Hoover, Schermerhorn, Edwards, Pinaire & Rombold, of Junction
City, for appellants.
Melissa D. Richards, of Weary Davis, L.C., of Manhattan, for appellee.
Before WARNER, P.J., CLINE, J., and WALKER, S.J.
PER CURIAM: After a family meeting to discuss concerns about the mental well-
being of their mother, Alma Belmore, one of Alma's children, Margaret Goldizen,
removed Alma from her long-time residence in Washington and moved her to Kansas,
hiding Alma from Margaret's siblings so Margaret could gain control of Alma's property
and bank accounts. While keeping Alma in an RV on the same property where Margaret
resided with her husband Jay, Margaret persuaded Alma to give her power of attorney
and add Margaret's name to bank accounts and real estate Alma owned. The Goldizens
stopped paying Alma rent, commingled Alma's funds with theirs, and spent Alma's
1
money for their own benefit. After Alma discovered what Margaret had done, she
revoked Margaret's power of attorney and moved in with one of Margaret's siblings. Yet,
even after revocation of this power of attorney, Margaret still tried to deposit proceeds
from the sale of Alma's land into Margaret's personal account and has refused to return
Alma's personal property.
Alma sued the Goldizens to recover her property and unpaid rent. She prevailed on
all claims. The Goldizens now seek to set aside the judgment by challenging the
sufficiency of the evidence and asserting a prior lawsuit in Washington precluded the
court's findings. We are unpersuaded by the Goldizens' arguments and affirm the district
court's well-reasoned and thorough decision.
FACTS
Alma has six adult children—Margaret, George Belmore, Mary Poulin, Gary
Belmore, Edward Belmore, and Robert Belmore. Mary and Margaret live in Kansas, and
the brothers live in Washington. Other than a brief stint in Kansas during this dispute,
Alma has lived in Washington for several decades. Alma's husband, the children's father,
died in 2000.
In 2000, Alma bought property in Abilene, Kansas, to use for rental or investment
purposes. Several years ago, she rented the home on this property to the Goldizens
through an oral lease, for monthly rent of $400. In 2010, Alma executed a quitclaim deed
to Margaret for the Kansas property to limit the size of her estate after a car accident.
They did not record this deed, and Margaret gave the property back to Alma later that
year.
By March 2016, Alma was in the middle state of dementia. She was showing signs
of nonreality-based thinking and paranoia, which all her children admitted noticing. On
2
March 9, 2016, Alma and Margaret met with an attorney in Washington and discussed
drafting estate planning documents for Alma, including a durable power of attorney
naming Robert as Alma's attorney-in-fact and Margaret as the alternate. This attorney
claimed Margaret called her the next day, instructing her to list Margaret as Alma's
attorney-in-fact and switch Robert to alternate.
On March 12, Alma's children (except Mary) gathered in Washington to discuss
Alma's deteriorating health and ability to manage her affairs. After this meeting,
Margaret persuaded Alma that her sons intended to place her in a care home so they
could take control of her property. Margaret then moved Alma and her belongings to
Kansas, where she began living in an RV on the Kansas property. The Goldizens
continued living in the house located on this property, but they stopped paying rent after
taking custody of Alma.
Until this time, Alma lived in a home she owned in Pierce County, Washington.
Margaret hid the move from her siblings. They only learned of it after Margaret went to
her brother George's office and told him Alma had left Washington hours earlier with
Margaret's former daughter-in-law, Tisha Whatley, and she would now be living in
Kansas.
On March 14, a hand-written quitclaim deed was recorded in Washington,
transferring ownership of Alma's Washington property to Alma and Margaret as joint
tenants with a right of survivorship. Alma claimed she only signed this deed because
Margaret yelled at her and demanded that she sign various documents. Alma claimed she
did not understand what she was signing. On March 17, Alma signed another hand-
written quitclaim deed transferring ownership of Alma's Kansas property from Alma to
Alma and Margaret in joint tenancy with a right of survivorship. Again, Alma alleged she
did not understand what she was signing and only acquiesced because Margaret yelled at
3
her and demanded that she immediately sign the deed. Margaret gave no consideration
for either of these deeds.
On March 14, $47,153.85 was withdrawn from Alma's checking and savings
accounts. Sometime that month, Margaret's name was added to these accounts. These
funds are not completely accounted for. Also in March, Alma opened three accounts at
Central National Bank (where the Goldizens bank) and deposited $10,648.18. Funds were
later withdrawn from these accounts which are also unaccounted for.
On March 24, Alma signed durable power of attorney documents naming
Margaret as her attorney-in-fact, and Jay as her alternate, for financial and healthcare
decisions. Margaret also prepared and had Alma sign documents which terminated
George's lease of a building on Alma's Washington property, which George had held for
over a decade, along with restraining orders against Margaret's siblings.
After Alma moved to Kansas, Alma's sons were unable to contact her. They
became concerned because Margaret had a history of drug use and financial reliance on
Alma. The sons filed a Petition for Temporary Order of Protection for a Vulnerable Adult
in Pierce County, Washington, on March 30, 2016, alleging that Alma was a vulnerable
adult in need of protection from Margaret. The Pierce County District Court granted a
temporary order, but it ultimately dismissed the case on June 1, 2016, after Alma alleged
she could manage her affairs and trusted Margaret. Later, Alma claimed she only made
these assertions because "she had not yet realized or uncovered [Margaret]'s intentions."
Whatley testified Margaret significantly influenced Alma's written allegations in
Washington by telling her what to write.
At some point, Alma noticed she was no longer receiving mail, including her bank
statements. She asked Margaret to take her to the bank, but Margaret refused. While
Margaret was away, Alma went to the bank and learned a great deal of her money was
4
missing. She discovered Margaret had been using her credit cards, too, leaving Alma with
a balance of a little over $23,000. Alma first moved in with Mary in Kansas, then later
moved back to Washington to live with her sons. Margaret has refused to return Alma's
personal belongings.
Alma executed documents revoking Margaret's appointment as attorney-in-fact in
February 2017. Margaret was notified by text message and letter. Alma's Washington
property was sold around this time. The proceeds of the sale were nearly $325,000.
Despite being notified about Alma's revocation of the power of attorney, Margaret tried
to deposit a check for the proceeds from the sale into her personal checking account.
Margaret endorsed the check as attorney-in-fact for Alma. Alma's bank was aware of the
power of attorney revocation and prevented Margaret from placing the money in her
individual account.
Margaret still had possession of the 2010 quitclaim deed from Alma, which she
filed on May 2, 2017. She said she had purchased, rather than rented, the property from
Alma and paid it off in 2012. She said she waited so long to file the deed because she and
Alma had agreed they would keep Alma's name on the property for tax purposes.
Alma sued Margaret in Kansas for: (1) breach of fiduciary duty as attorney-in-
fact, (2) undue influence (for coercing Alma to change the ownership of her Kansas and
Washington real property), (3) conversion of Alma's personal property and money, and
(4) breach of oral contract for Margaret's failure to pay rent. Alma filed an amended
petition two days later, adding Jay as a defendant for the conversion and breach of oral
contract claims.
In January 2018, Alma and Edward, Alma's attorney-in-fact at the time, moved to
substitute Edward as plaintiff in the lawsuit under K.S.A. 2020 Supp. 60-225. The
Goldizens objected to Edward serving in this role. The parties agreed to substitute an
5
attorney, Catherine Craft, as plaintiff instead. Craft was recommended by a local judge
who had unsuccessfully tried to mediate the parties' dispute.
After a lengthy trial, the district court issued a 12-page memorandum decision,
ruling in Alma's favor on all four counts. The court made several factual findings and
incorporated its assessment of various witnesses and evidence into those findings. The
court found Margaret's testimony unbelievable and "incredible." It found she had
exploited Alma and even altered evidence to try to bolster her position in the lawsuit.
ANALYSIS
The Goldizens do not challenge the district court's findings that Margaret breached
her fiduciary duties to Alma when serving as her attorney-in-fact or that the Goldizens
breached their oral lease to rent the Kansas property. Instead, they challenge the district
court's decision to invalidate Alma's transfers of personal and real property to Margaret
based on its finding that those transfers resulted from Margaret's exercise of undue
influence over Alma. We are thus charged with determining, without reweighing
evidence or reassessing witness credibility, if the district court's findings were supported
by substantial competent evidence. Under this standard, "substantial evidence" is '"such
legal and relevant evidence as a reasonable person might accept as being sufficient to
support a conclusion.'" Cresto v. Cresto, 302 Kan. 820, 835, 358 P.3d 831 (2015).
The finding of undue influence is supported by substantial evidence.
The district court invalidated the real estate deeds after finding they stemmed from
Margaret's undue influence over Alma. When making this finding, the district court
applied the test from Cresto. There, the Kansas Supreme Court found a presumption of
undue influence can be established by showing that (1) the person who is alleged to have
exerted undue influence was in a confidential and fiduciary relationship with the person
6
executing the document and (2) there were "suspicious circumstances" surrounding the
making of the document. If this presumption is established, the burden then shifts to the
opposing party to rebut the presumption. 302 Kan. at 834; see In re Estate of Moore, 53
Kan. App. 2d 667, 682, 390 P.3d 551 (2017), aff’d 310 Kan. 557, 448 P.3d 425 (2019).
As the district court noted, the Goldizens did not contest that Margaret was in a
confidential and fiduciary relationship with Alma. Nor do they contest this fact on appeal.
Instead, they focus their attack on the court's affirmative finding of suspicious
circumstances surrounding the execution of the deeds and its negative finding that the
Goldizens failed to rebut the presumption of undue influence. In doing so, they basically
survey each paragraph of the court's opinion, contesting how the district court weighed
the evidence and assessed the credibility of the witnesses.
We cannot reweigh the evidence or reassess the credibility of the witnesses on
appeal. And as to the district court's negative finding that the Goldizens failed to rebut the
presumption of undue influence, we cannot "'nullify a trial judge's disbelief of evidence
nor can [we] determine the persuasiveness of evidence which the trial judge may have
believed.'" Cresto, 302 Kan. at 845. In fact, "'[a]bsent arbitrary disregard of undisputed
evidence or some extrinsic consideration such as bias, passion or prejudice the finding of
the trial judge cannot be disturbed.'" 302 Kan. at 845.
Many of the Goldizens' complaints relate to the weight the district court placed on
the evidence and its witness credibility decisions. A common theme in their brief is to
accuse the district court of "disregarding" or "ignoring" evidence that supported the
Goldizens. Yet it is apparent from the court's opinion that it considered the Goldizens'
evidence and simply found it to be less credible than the evidence supporting the claims
in the petition.
7
One such complaint is the Goldizens' challenge to the district court's finding that
Alma was suffering from dementia in March 2016. The Goldizens argue the district
court's findings about Alma's mental state "are starkly inconsistent with the record." They
point out that Alma was found competent by Dr. Heather Bloesser, by the attorney who
executed the deeds, and by the Washington court. While there was disputed evidence on
this point, substantial evidence upholds the district court's finding.
As the district court noted, the purpose of the family meeting in March 2016 was
to address concerns about Alma's progressing dementia. Their concerns included Alma's
accusations that George was stealing her things when she had just misplaced them and
her increasing suspiciousness. Whatley testified that on their way to Washington to get
Alma, Margaret told her that Alma was not doing well and was showing signs of
dementia. At trial Margaret admitted she was "sure" Alma was in the early stages of
dementia at the time of the meeting, though she later denied having any concerns about
Alma's mental state in 2016.
The Goldizens also argue the district court ignored the evidence establishing that
Margaret bought the Abilene house from Alma. Again, the court did not ignore evidence,
it just placed more weight on other evidence that supported its findings. And the record
supports the court's holding that Alma and Margaret had a rental agreement rather than a
purchase agreement. Alma bought the house intending to use it as a rental property.
Multiple people testified that Margaret rented the house from Alma. Indeed, Margaret
continued to make payments to Alma for the property even after she purportedly paid for
it in full in 2012. This evidence all supports the court's finding.
Another common theme in the Goldizens' brief is their assertion that the district
court must believe Alma's 2016 statements about her intentions and state of mind because
she was found competent in Washington, leading to the dismissal of that case. For
example, they argue the Kansas district court cannot question Alma's decision to deed her
8
properties to Margaret as a joint tenant because Alma was found competent when she
executed those deeds. However, as noted below, the Washington judgment has no
preclusive effect on the claims here. The Washington filings and dismissal were simply
evidence, like the other evidence presented at trial, which the court weighed and found
unpersuasive. For example, the court discounted the Washington matter since no
evidentiary hearing was held. It also found Alma's March 2016 medical evaluation,
offered in Washington, was outweighed by other evidence, such as the fact that the
children, including Margaret, had concerns about Alma's mental state at that same time—
so much so, that they met in March 2016 to discuss their concerns.
The Goldizens also incorrectly presume the district court must find Alma
incompetent before it could find Margaret exercised undue influence over her. This is not
true. Alma only had to establish that suspicious circumstances surrounded the property
transfers to create the presumption of undue influence. The court looked to both Alma's
and Margaret's actions in finding such a presumption was created and in finding the
Goldizens failed to rebut it. For example, the court found it significant that Margaret
moved Alma out of Washington in secret, tried to hide Alma from her siblings, and by
arranging for Alma to terminate George's longtime lease and take out restraining orders
against her siblings.
While Margaret testified that she moved Alma's cash into her personal account and
added herself as a joint tenant on Alma's real estate to "protect" these assets, the district
court pointed out such measures were unnecessary. Once Margaret had Alma's power of
attorney, she could adequately protect Alma's interests without transferring ownership
interest in that property to herself.
This case shares similarities with Cresto, 302 Kan. 820. There, Francis Cresto
established a revocable trust in 1997 naming his three children and two stepchildren as
beneficiaries. He updated it several times throughout the years to account for his
9
stepdaughter's death and his marriage to Kathleen Cresto. Francis' children and
stepchildren remained beneficiaries through the amendments. In 2007, Francis allegedly
contacted an attorney, who was in a romantic relationship with Kathleen's daughter, and
"informed her that he now wanted to remove his children and stepdaughter as the
beneficiaries from his estate plans." 302 Kan. at 826. The attorney prepared a new will
that bequeathed all Cresto's property to Kathleen and, if Kathleen did not survive Francis,
to Kathleen's children. The new trust document made similar changes. Because the
attorney was not licensed in Kansas, Francis also had a Kansas attorney who served as
local counsel. The local attorney reviewed the new estate documents with Francis and
Kathleen and determined there was no doubt that Francis was competent to execute the
documents and that he was making his own decision. He did not believe Kathleen tried to
improperly influence Francis. The documents were executed in 2008. Francis died in
2010. Francis never told his children that he disinherited them from his estate plan.
Two of Francis' children sued to invalidate Francis' will and trust, claiming they
stemmed from undue influence. They stipulated Francis "was of sound mind at the time
he executed the 2008 estate planning documents." 302 Kan. at 827. The district court
found evidence of suspicious circumstances that supported a presumption of undue
influence, which Kathleen failed to rebut. Thus, the district court voided the will and
trust. 302 Kan. at 829.
When affirming the district court, the Kansas Supreme Court acknowledged
Kathleen's argument that the district court ignored "the undisputed evidence that
Decedent was very strong-willed and organized; he was articulate with a sharp mind; he
was detail-oriented and meticulous; he was competent at the time he executed his 2008
estate planning documents; and he initiated the 2008 changes before he was diagnosed
with prostate cancer." 302 Kan. at 845. The court found the facts highlighted by Kathleen
"would be compelling evidence in support of rebutting the presumption of undue
influence, if the district court had either found them to be true or ignored them." 302 Kan.
10at 847. But the court disagreed with Kathleen's assertion that the district court ignored
evidence, rather, the court simply was not persuaded by it. What Kathleen was really
asking the court to do on appeal was "to reweigh and reassess the evidence," which the
court declined to do. 302 Kan. at 845.
The Goldizens' arguments fail for the same reasons as the defendants' in Cresto.
The district court did not ignore evidence, it just placed little weight on the evidence
offered by the Goldizens. Assessing the weight of the evidence is within the purview of
the district court, not this court.
The Washington case has no preclusive effect on the Kansas case.
The Goldizens also challenge the district court's finding of undue influence by
claiming Alma was competent when she transferred her property interests to Margaret in
2016. They argue the doctrines of res judicata and collateral estoppel "prevented the
Court from reassessing whether Alma was competent in 2016 when she transferred
interests in her real and personal property to Margaret and whether or not these transfers
should be set aside due to undue influence exercised by Margaret upon Alma." Whether
the doctrines of res judicata or collateral estoppel apply is a question of law subject to de
novo review. In re Care & Treatment of Sporn, 289 Kan. 681, 686, 215 P.3d 615 (2009).
The elements of the two doctrines are as follows:
"An issue is res judicata when four conditions concur: (1) identity in the thing
sued for, (2) identity of the cause of action, (3) identity of persons and parties to the
action, and [4] identity in the quality of persons for or against whom claim is made. The
requirements of collateral estoppel are: (1) a prior judgment on the merits which
determined the rights and liabilities of the parties on the issue based upon ultimate facts
as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity;
and (3) the issue litigated must have been determined and necessary to support the
11
judgment. [Citations omitted.]" Regency Park v. City of Topeka, 267 Kan. 465, 478, 981
P.2d 256 (1999).
There are several problems with the Goldizens' argument. First, the issues in
Washington differed from those in Kansas: The Washington case addressed Alma's
competency, while the Kansas case addressed whether Margaret exercised undue
influence over Alma. In Washington, George had to establish that Alma was a vulnerable
adult along with establishing she had been financially exploited. In Kansas, Alma only
had to establish undue influence. As explained above, the Goldizens are wrong in arguing
a person must be adjudged incompetent before he or she can prevail in an action for
undue influence. See Cresto, 302 Kan. at 832-34.
Additionally, the doctrines of both res judicata and collateral estoppel require the
parties to be the same or in privity. That element is missing here. Margaret was the
defendant in both actions, but the plaintiffs were different. In Washington, the petition
was filed by George on behalf of Alma. George, not Alma, carried the burden of proof.
Alma opposed the allegations in Washington, and her interests were aligned with
Margaret there. Yet, in Kansas, Alma and Margaret's interests are opposed, and Alma
now claims she was mistaken in her opposition to the Washington case.
The Washington case was filed on March 30, 2016, and dismissed without an
evidentiary hearing on June 1, 2016. It did not address any of the Goldizens' actions after
its dismissal (which the district court found suspicious), such as their commingling of
Alma's funds with theirs and then spending it on themselves, using Alma's credit cards
for their own personal benefit, taking Alma's personal property and refusing to return it,
discontinuing rent payments shortly after taking custody of Alma, Margaret trying to
deposit the proceeds from the sale of Alma's Washington property into Margaret's
personal account on February 7, 2017 (even after knowing she no longer had Alma's
power of attorney), Margaret's filing of the 2010 Kansas deed on May 2, 2017, and her
12
alteration of evidence to try to bolster her case. The dismissal in Washington also appears
to have been influenced by Alma's opposition, which Whatley testified was significantly
influenced by Margaret, who told her what to say. Last, as the district court aptly noted,
the medical testimony in Kansas presented a more complete picture of Alma's mental
health, particularly given her condition (dementia) and the later findings of her doctors.
The district court did not err in considering the Washington case simply as evidence,
along with the other evidence presented by the parties. It had no preclusive effect on the
issues addressed by the Kansas court.
Appointment of a guardian ad litem
The Goldizens conclude their appeal by briefly arguing the district court erred in
failing to appoint a guardian ad litem (GAL) for Alma. Yet no party requested
appointment of a GAL, and their argument that the court had to do so sua sponte turns on
a mistaken interpretation of K.S.A. 2020 Supp. 60-217.
During the Kansas litigation, Alma and Edward, her attorney-in-fact, moved to
substitute Edward as plaintiff pursuant to K.S.A. 2020 Supp. 60-225(b) and K.S.A. 2020
Supp. 60-217(c)(2). Under K.S.A. 2020 Supp. 60-225(b), when "a party becomes an
incapacitated person, the court may, on motion permit the action to be continued by or
against the party's representative as provided in subsection (c) of K.S.A. 60-217, and
amendments thereto." K.S.A. 2020 Supp. 60-217 provides:
"(c) Minor or incapacitated person. (1) With a representative. The following
representatives may sue or defend on behalf of a minor or an incapacitated person:
(A) A general guardian;
(B) a committee;
(C) a conservator; or
(D) a like fiduciary.
13
"(2) Without a representative. A minor or an incapacitated person who does not
have a duly appointed representative may sue by a next friend or by a guardian ad litem.
The court must appoint a guardian ad litem, or issue another appropriate order, to protect
a minor or incapacitated person who is unrepresented in an action."
The Goldizens objected to the appointment of Edward to represent Alma's
interests, but they did not argue the appointment of some third party to represent Alma
was unwarranted. The district court substituted attorney Catherine Craft as plaintiff in the
case, but noted she was not serving as a GAL. Craft was apparently recommended for the
position by a judicial mediator the parties had used for a failed mediation.
Our review of the record does not reveal any objection from the Goldizens to
Craft's appointment, nor have the Goldizens identified any such objection. While they
claim on appeal they "understood" Craft would be appointed as a GAL, the district court
specifically explained that Craft would only be standing in as plaintiff and would not
serve as a GAL. The record does not reveal any objection from the Goldizens after the
court provided this explanation, nor does it reveal any request for the appointment of a
GAL.
The Goldizens now claim the district court abused its discretion in appointing
Craft as substitute plaintiff because they claim K.S.A. 2020 Supp. 60-217(c)(2) required
appointment of a guardian ad litem under the circumstances. Yet this section only applies
to parties who are unrepresented, and Alma had given Edward her power of attorney
before even filing the lawsuit. Thus, Alma was represented by a fiduciary in the
litigation. See Mitchelson v. Bolton, No. 67,770, 1993 WL 13965376, at *3 (Kan. App.
1993) (unpublished opinion) ("The act of designating one person with a general power of
attorney establishes a fiduciary relationship between those parties."). Further, even if
subsection (c)(2) applied, the district court adhered to the statute by appointing Craft as
substitute plaintiff. The statute does not require appointment of a GAL, as the Goldizens
14
claim. Rather, it allows the court to appoint a next friend, such as Craft, or to "issue
another appropriate order" to protect the incapacitated person. K.S.A. 2020 Supp. 60-
217(c)(2). Craft was a neutral third party and no concerns arose during the case that
would suggest her appointment failed to protect Alma's interests in the case. Alma's
rights were not "abrogated due to lack of proper representation" by Craft's appointment.
See Brice-Nash v. Brice-Nash, 5 Kan. App. 2d 332, 335, 615 P.2d 836 (1980).
The Goldizens did not seek appointment of a GAL, nor have they shown the
district court erred in failing to appoint one. They also have not shown any prejudice to
the parties without a guardian ad litem in this matter. This claim provides no basis to
overturn the district court's judgment.
Affirmed.
15