Gulmen v. Gulmen , 913 S.W.2d 852 ( 1995 )

CHARLES B. BLACKMAR, Senior Judge.

This appeal is from the ruling on post-decretal motions in the dissolution case of Suleyman Gulmen, husband and father, and Guner Gulmen, wife and mother. Funda Gulmen, the parties’ adult daughter was allowed to intervene. The father sues on behalf of the parties’ son, Tolga, born November 4, 1976. The father and the daughter seek accounting for the proceeds of two accounts with the brokerage firm of A.G. Edwards & Sons, one styled “Guner Gulmen, Custodian for Funda Gulmen under the UGTMA Missouri,” and the other styled “Guner Gulmen, Custodian for Tolga Gulmen under the UGTMA Missouri.” The accounts were established in 1987 and 1988.

Both parents had earned income in six figures at the time the decree of dissolution was entered in 1991. See Gulmen v. Gulmen, 851 S.W.2d 37 (Mo.App.1993). The court “reluctantly” granted legal custody of the children to the father and required the mother to pay child support. The decree also provided that the mother was to pay one half of the actual cost of post-secondary education for each child, for a maximum of eight semesters. It identified the parties’ separate property, divided the marital property, and expressly provided that mother was to continue as custodian of the two accounts with Edwards described above, stating the value of the daughter’s account at $26,640 and of the son’s at $38,467. It also provided that the father was to remain as custodian of two similar accounts established by him, in which the stated balances were much smaller.

We need not delve deeply into the problems of visitation and collection following the entry of the decree, or into the other matters drawn into question in the post-decretal proceedings. The father sought, on behalf of the son, an accounting of the son’s custodial account and the daughter sought, in an intervening petition, an accounting for her custodial account. Both appeal from the denial of the relief sought.

The mother testified at the hearing on the motions that representatives of Edwards told her that she could use the accounts as she saw fit. She also testified that nobody told her that there were any restrictions on the accounts, that there was no discussion about termination of the accounts, that she did not intend to make a gift to either of her children, and that there was no discussion with anyone at Edwards about the fact that she was making a gift. She denied filling out or signing the application forms for opening either account. She acknowledged her signature on backup withholding forms for each account, but said that the forms were blank at the time she signed them and did not then contain the designation, “Guner Gulmen Custodian for Funda M. Gulmen under Mo. Uniform Gifts to Minor Act,” or a similar designation for the account for Tolga. She admitted receiving monthly statements for each account, each bearing a designation of the account as a custodial account, in the manner indicated above for the backup withholding certificates. She also, both before and after the entry of the decree, endorsed checks made payable to “Guner Gulmen, c/f Funda M. Gulmen under the Mo Unif Trans to Minors Act,” and endorsed similar checks bearing the designation of Tolga’s account.

The mother withdrew $24,731.55 from the daughter’s account between July 6, 1990 and February 3, 1993, and said that she paid all of the funds to the father for the daughter’s college education and expenses. She withdrew $11,285 from the account for the son between January 27 and February 3 of 1993. She used some of these funds to pay back child support and to secure the release of her automobile, which had been seized by the sheriff at the father’s instance because of her failure to pay child support and tuition expenses. She said that she did not use any of the funds in either account for her personal expenses. She testified at one point that she thought that she was entitled to use the accounts in any way she chose “for the benefit of the children,” and elsewhere that she had earned the money and felt that she could use it as she saw fit.

The trial judge, who was not the judge who entered the decree of dissolution, denied the father’s and the daughter’s claims for accounting, making extensive findings. He indicated that he believed the mother’s testimony and, in accordance with Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) we accept his judgment of credibility. He does not find, however, that no gift was intended. He states that “the Uniform Gift to Minors Act may have been involved in setting up the two accounts at A.G. Edwards,” and that the mother “was not a sophisticated business person and was not told that she couldn’t dispose of the accounts in the manner that same were disposed of.” The court expressly directed that she remain as custodian for the son’s account, which implicitly rejects any contention that no effective gift was made. He denied the prayer for accounting, finding that “all monies withdrawn by [mother] were properly expended by her on behalf of [son and daughter.]” We conclude that the initial decree of dissolution confirmed the status of the two accounts as custodial accounts under the Uniform Transfer to Minors Act, that neither the record nor the court’s findings demonstrate a full and complete accounting, and that the case must be reversed and remanded for further proceedings.

Our General Assembly adopted the Missouri Uniform Transfers to Minors Act in 1985, replacing the Uniform Gifts to Minors Act then in effect. Both statutes have the purpose of facilitating inter vivos gifts to minors, unencumbered by restrictions on investments, formal accounting, and the like. Under § 404.087.2 RSMo 1986, the sometime use of “gifts” rather than “transfers” in describing the custodial arrangement is of no significance, and the provisions of the new statute apply.

The pertinent portions of the statute read as follows:

404.011 Transfer of Property to a minor by transferring to a custodian, effect — power limitations — Property may be transferred to a person, who is a minor on the date of the transfer, by transferring the property to a custodian for the minor under sections 404.005 to 404.094.

404.014. Present transfer of property, effect — A present transfer of property to a custodian for a minor ... is irrevocable and indefeasibly vests ownership of the property in the minor subject to the custodianship provided in sections 404.005 to 404.094 for the benefit of the minor....

404.047. Transfer of property to custodian, procedure, forms — receipt for delivery of property deemed a release — 1. The designation of a custodian and transfer of property to the custodian shall be made in the following manner:

(2) If the subject of the custodianship is money or an unregistered security, by having it paid or delivered to a broker or financial institution for the account of the person designated custodian followed in substance by the words: “as custodian for . (name of minor) under the Missouri Transfer to Minors Law[.]”

Sec. 404.051 Powers of custodian, limitation termination of custodianship, when, procedure degree of care required for custodial property.

2. The custodian may deliver, pay over to the minor for expenditure by the minor, or expend for the minor’s benefit, so much of the custodial property as the custodian determines advisable for the use and benefit of the minor, without court order and without regard to the duty or ability of the custodian to the custodian’s individual capacity or of any other person to support the minor, or any other income or property of the minor.

4. Any delivery, payment or expenditure under subsections 2 and 3 of this section is in addition to, not in substitution for, and does not affect, the obligation of any person to support the minor.

5.(1) To the extent that the custodial property has not been expended, the custodian shall deliver the custodial property, in an appropriate manner, free of the custodianship, as follows:

(a) To the minor on attaining the age of twenty-one years_

Chapter 404 RSMo 1986.

The respondent mother seeks to justify the trial court’s disposition by arguing that the burden is on the donee to establish a gift, and that the trial judge concluded that the father (on behalf of the son) and the daughter failed to sustain this burden. We do not so read the trial judge’s findings. He expressly recognized the custodial designation, substantially in the form prescribed by the statute. Our courts have provided little authority about the governing statute, but consensus appears in decisions from other states and, in the spirit of § 404.081 RSMo 1986, and the concept of uniform laws, we are persuaded that these decisions are legally sound and should be followed. By these authorities the establishment of an account in statutory form establishes a prima facie showing of gift, without further evidence. See Heath v. Heath, 143 Ill.App.3d 390, 97 Ill.Dec. 615, 493 N.E.2d 97 (1986); Gordon v. Gordon, 70 A.D.2d 86, 419 N.Y.S.2d 684 (1979); Golden v. Golden, 434 So.2d 978 (Fla. Dist.Ct.App.1983). Even if the mother did not sign any written instrument establishing the accounts, her receipt of monthly statements designating the accounts as custodial over a period of years, her endorsement of checks designating the accounts as custodial, and the express recognition of the accounts in the decree of dissolution are sufficient to establish the prima facie case.

The cases just cited hold that the prima facie case can be rebutted by “clear and convincing” evidence that no gift was intended. The “clear and convincing” standard is addressed to the trial judge. Estate of Oden, 905 S.W.2d 914 (Mo.App.1995). It is appropriately applied in cases such as this one, in which there is a challenge to the apparent disposition of property. The sense of the cases is that the designation of an account as custodial is not to be set aside lightly. There is no indication as to whether or not the trial judge applied this standard to the present record, or as to where he considered the burden of proof to lie. Because of the special circumstances of this case, however, we find it unnecessary to pursue the matter further. The reason is that the law of the case was established in the initial decree of dissolution.

That decree expressly recognized the accounts in question as custodial accounts, and directed that the mother continue as custodian of these accounts. The court likewise recognized the father as custodian of two accounts established by him. The mother should not now be permitted to depart from this determination, which was an essential part of the decree. Had the mother’s present contention that no gift was intended been a sound one, then the property in the accounts would necessarily constitute marital property because, by her admission, it was the product of her earnings. Any want of understanding on the part of the mother as to her rights and obligations regarding the accounts would be of no significance because she was represented by counsel in the dissolution proceedings and her counsel was responsible for explaining the terms of the decree and the significance of its several portions to her. By suffering the decree to be entered and not challenging it by motion or appeal, she necessarily recognized that the property in the two accounts was subject to the terms of the Missouri Uniform Transfer to Minors Act, and that her custodianship may be scrutinized in accordance with the provisions of that act. She should not be allowed, in the light of the decree, to set up any personal understanding she might have had to avoid compliance with her obligations under the governing statute.

There remains for consideration the trial judge’s express finding that “all monies withdrawn by [mother] from said accounts and subsequently expended by [mother] were properly expended by her on behalf of [daughter] and [son].” If this finding was supported by the evidence and is legally sound, then sufficient accounting might have been afforded. The mother’s testimony as to the use of the funds in the son’s account to pay child support decreed against her and to secure release of her car from a levy of execution under a support judgment raises questions under § 404.051.4 RSMol986. There is also a question as to whether the payments out of the daughter’s fund were for educational expenses which, under the decree, the mother was obliged to bear out of her own funds. The trial court, in framing the dissolution decree, necessarily knew of the funds available in the custodial accounts. Enough has been shown to require a detailed accounting for each withdrawal and each expenditure, under the statutory requirements, and particularly subsections 2 and 4 of § 404.051 RSMol986. This accounting should proceed in the court below. It is not appropriate, on the present record, to dispose of the ease finally in accordance with Rule 84.14. We express no opinion as to whether the present record requires any finding of violation of statutory duty as to any individual item. Those determinations should abide the accounting. The trial court may also determine, following the accounting, whether there are circumstances indicating that the mother should be replaced as custodian for the son.

The order overruling the motions for accounting is reversed and the case is remanded for accounting as indicated and for further proceedings consistent with this opinion. Costs of this appeal are assessed against the respondent mother.

CRANE, C.J., concurs. SIMON, J., dissents in separate dissenting opinion.