Coffman v. Long

KENNEDY, Judge. Bess Brooks Long was found by the trial court to be incompetent and incapable of managing her property and caring for herself. The public administrator of Clay [543] County was appointed the guardian of her person and estate. The alleged incompetent appeals. She was represented in the competency hearing and upon this appeal by her court-appointed attorney. Also appealing from the judgment is one Louie Doyle. Mr. Doyle apparently appeals as a “reputable citizen of the county in which the hearing occurred”. Sec. 472.170, RSMo (Supp.1981). He also took an active part in the hearing, including filing an affidavit requesting a change of judge. Mr. Doyle operates Mrs. Long’s farm in partnership with her, and has been managing her affairs. Appellants claim there is no substantial evidence to support the trial court’s judgment of incompetency. We find, however, that the judgment is supported by substantial evidence and affirm the same. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). The criterion for assessing the sufficiency of the evidence to prove a person’s incompetence is thus set out by Judge Turnage in Matter of Armstrong, 573 S.W.2d 141, 144 (Mo.App.1978): The test by which such sufficiency is to be measured as to its sufficiency is set out in In Re Delany, 226 S.W.2d 366, 376[6] (Mo.App.1950) as follows: “[f]or one to be held of unsound mind so as to be disqualified from the control of his own property, there must be such mental impairment as to render him incapable of understanding and acting with discretion in the ordinary affairs of life .... and there is no basis for an adjudication that one is of unsound mind and incapable of managing his affairs unless it is shown that his powers of reasoning and comprehension have been so far destroyed or reduced by mental weakness resulting from one cause or another that he is incapable of knowing and appreciating the nature and consequences of his acts in respect to his own conduct and the management of his property. Harrelson v. Flournoy, 229 Mo.App. 582, 78 S.W.2d 895.” With that criterion in mind we proceed to examine the evidence. The alleged incompetent at the time of the competency hearing, beginning in August, 1981, was 92 years of age. She had been a nursing home patient for more than two and a half years at the time. Her husband had died in January, 1978. She had continued to reside in her own home in Smithville for about a year after her husband’s death, then had entered the nursing home after a hospital stay. She resided in the Kendallwood Nursing Home in Clay County for about a year, then was moved to the Lawson Nursing Home where she was located at the time of the hearing. Mrs. Long apparently had only collateral relatives, one of whom was the petitioner, Edna Coffman. Mrs. Coffman was a first cousin of Mrs. Long. She lived in Chicago. She had visited in Mrs. Long’s home from time to time over a period of 50 years, usually spending a week or 10 days there. In January of 1978, at the time of Mr. Long’s death, she had spent a month with Mrs. Long and had most recently visited her in May, 1981, in the nursing home at Lawson. Mrs. Coffman had visited Mrs. Long twice in a period of a few days in May, each visit for an hour to an hour and a half. Mrs. Coffman said that Mrs. Long was in much worse condition than she had been in February, 1978, when she had last seen her. When Mrs. Coffman showed up at the nursing home, Mrs. Long did not recognize her until she identified herself. She testified that Mrs. Long was unable to remember events of the past; said that her home in Smithville was just like it was when she walked out of it, when the house had in fact been sold by Mr. Doyle acting under a power of attorney; did not know where she was with reference to Smithville; was unable to dress herself; could not see and was hard of hearing; was confined to a wheelchair; said her eyesight was gone and her mind was gone. The most telling testimony was given by Mrs. Nadine Shaffer, a second cousin to Mrs. Long. She had maintained close contact with Mrs. Long over a period of a great many years. Mrs. Shaffer had visited Mrs. Long many times during the period of ap [544] proximately one year that Mrs. Long was in the Kendallwood Nursing Home in Clay County. She visited her less frequently after she moved to the Lawson Nursing Home in December, 1979, but she had visited her four times at the Lawson location. One of those visits was in the company of Mrs. Coffman in May of 1981. Mrs. Shaffer testified that she would identify herself to Mrs. Long when she went to visit her, and Mrs. Long would recognize her. She said that she and the members of her family as they visited Mrs. Long would identify themselves. Mrs. Shaffer testified to Mrs. Long’s behavior and her appearance during her visits to her at the nursing home. She said that Mrs. Long would quickly forget who Mrs. Shaffer was; Mrs. Long would forget where she was in conversation, that her mind would “trail off” or “wander off”; that Mrs. Long said that she could not hear or think; that she was poorly groomed; said she still owned her Smithville house, and wanted Mrs. Shaffer to go to the house and get her D.A.R. certificate and get a number from it; that she was “very disoriented”; “could not follow for any length of time in your conversation”, “very frail”. Mrs. Shaffer said it was very difficult to establish conversation with Mrs. Long; that Mrs. Long was not able to recall recent events; that she repeatedly asked the same questions, and that they were not coherent. Mrs. Shaffer said that during the Kendallwood period Mrs. Long would recognize Mrs. Shaffer when she came to visit, but after being moved to Lawson she no longer would recognize her. Scotty Shaffer, a son of Nadine Shaffer, corroborated the testimony of Mrs. Coff-man and of his mother, Mrs. Shaffer. Dr. Trimble, testifying from the diagnoses that other physicians had made, said that Mrs. Long was suffering from hypertensive cardiovascular disease and vertigo and senile dementia intra and extra cranial atherosclerosis with infarction of the right temporal and parietal lobes. Both Dr. Trimble and Dr. Barth, who observed Mrs. Long later, said that she was suffering from organic brain syndrome or senile dementia, which is a rather non-specific diagnosis. Neither of them expressed a positive opinion as to whether she was competent to handle her business affairs. Mrs. Long’s affairs had been handled, as before noted, by appellant Louie E. Doyle. Mr. Doyle testified that his wife, Ada, was a cousin of Mrs. Long. While Mr. Long was still alive, in 1977, according to Doyle’s testimony, Mr. and Mrs. Long got in touch with him to assist them. He was helping Mr. and Mrs. Long with their affairs before Mr. Long’s death, and that Mrs. Long insisted that he continue to help her with her affairs after Mr. Long’s death on January 20,1978. About six months later Mrs. Long went to the bank and put Mr. Doyle’s and his wife’s names on her accounts with her. Mr. Doyle testified that he entered into a partnership with Mrs. Long about two years before the hearing, which would have been in mid-1979. At some point Mrs. Long executed a power of attorney in Mr. Doyle’s favor. Under this power of attorney Mr. Doyle conveyed the Smithville house to a Mr. and Mrs. Eads in June of 1981, and sold and conveyed a 103-acre tract to a Mrs. Crenshaw for $188,000. He also sold a 90-acre tract to Earl Moore for $153,000, sold 26 acres to a Mr. Krill for $53,000, and sold 10 acres to Mr. McFadden for $20,000. Whether the last three conveyances were made under the power of attorney is not clear. The partnership between Mr. Doyle and Mrs. Long seems to have been an informal affair. Doyle said that Mrs. Long brought into the partnership about a thousand acres of land, $6,000 in cash and a little bit of machinery. The living expenses of both partners were taken out of the partnership account. Mr. Doyle has built a residence on the farm at a cost of $200,000, which is occupied by himself and his wife. He testified that the building of this house was approved by Mrs. Long, and originally it was intended that she live there with Mr. and Mrs. Doyle. The cost of the house, $200,000, was borrowed and a mortgage given on 73.5 acres [545] where the newly-constructed house is located, to secure the payment of the same. This $200,000 was an obligation of Mrs. Long. There is no testimony whether the documents evidencing this debt and mortgage were executed by Mr. Doyle under a power of attorney or by Mrs. Long herself. A statement of Bess Long’s “approximate” assets and liabilities as of August 12, 1981, prepared by Louie Doyle, shows other notes of $80,000 and of $20,494 as liabilities. The $30,000 note is designated “farm one-half” and the $20,494 note is designated “farm machinery one-half”. These may be partnership notes. Mr. Doyle’s testimony presents a somewhat different picture of Mrs. Long’s condition than does the testimony of petitioner’s witnesses. His testimony presents her as acute in business matters, able to confer intelligently about the operation of the partnership business, and one who had initiated some of the far-reaching actions of the partnership. Mr. Doyle said that she had directed the sale of her Smithville residence to the purchasers, Mr. and Mrs. Eads. Mrs. Long herself was called as a witness. She seemed oriented as to time and place, but was vague on many points. She said that she hadn’t lately counted up how much land she had and didn’t know how much she had. She didn’t know whether any of it had been sold and she guessed she owned about as much land as she ever had. She said, however, that her house at Smithville had been sold. She knew that there had been a house built on her farm. She did not know how much it had cost but knew that it was expensive. She didn’t believe she owed any money. She expressed confidence in Louie Doyle and was satisfied with his management of her money. She had some cousins, she said, and she named Emma Coffman as one of them, but she was unable to remember the others. It is clear from the foregoing summary of the evidence of the case that there was substantial evidence from which the trial judge could conclude that Mrs. Long was no longer competent to manage her affairs and to care for herself. The testimony of Mrs. Shaffer and other of Mrs. Long’s relatives who had maintained frequent contact with her through the years showed Mrs. Long to be physically feeble and without the mental faculties to deal even with simple daily affairs, let alone engagement in a general partnership involving extensive farming operations. It is worth noting that on at least one occasion when Mrs. Coffman and Mrs. Shaffer were paying a visit to Mrs. Long, that Mrs. Long thought that she still had her residence in Smithville and even directed Mrs. Shaffer to go there to secure some information from a document. At the time of the trial she did not know that four tracts of her farm real estate, in addition to the Smith-ville house, had been sold, and her farm acreage reduced by 236 acres. She did not know that she owed any money, when the fact was, according to Mr. Doyle’s testimony, she owed $200,000 for the house which had been built on the place for Mr. and Mrs. Doyle’s residence, in addition to two partnership notes. Appellants argue that the opinions of Emma Coffman, Mrs. Nadine Shaffer and Scotty Shaffer, that Mrs. Long was not mentally competent to handle her affairs, did not constitute substantial evidence of the fact. It is true that the naked opinions of these witnesses would probably not have supported the trial court’s judgment of incompetency, Dowling v. Luisetti, 173 S.W.2d 381, 385-86 (Mo.1943), Matter of Armstrong, 573 S.W.2d 141, 145 (Mo.App.1978), but each one of these witnesses detailed facts upon which their opinions were based. Even without the opinions expressed by the witnesses, the trial judge could have drawn the same conclusion from the facts testified to by the witnesses. Appellants complain about what they call the remoteness of some of the facts testified to by the witnesses, the most remote of which was January 20, 1978, 43 months prior to the date of the hearing. In each case, however, Mrs. Long’s deterioration was traced to a time as recently as May, 1981, only three months prior to the [546] commencement of the hearing. Appellants have no justifiable complaint on the grounds of remoteness of the court’s consideration of testimony of facts as far back as January 20,1978 (which was the date of the death of Mrs. Long’s husband). Although at some point evidence may become so remote in time as to be inadmissible, it is generally said, in cases like this, that remoteness goes to the weight to be given to testimony, not to its admissibility. The weight to be accorded to the testimony which is criticized as too remote is a prerogative of the trier of fact. 29 Am.Jur.2d, Evidence, § 253 (1967); Conrad, Modern Trial Practice, § 28 (1956); State v. Woods, 508 S.W.2d 297, 300 (Mo.App.1974). The court did not err in admitting the criticized testimony. The cases cited by the appellant, Matter of Armstrong, supra; In Re Delany, 226 S.W.2d 366 (Mo.App.1950); Harriford v. Harriford, 336 S.W.2d 113 (Mo.App.1960), are all clearly distinguishable upon the facts and it is not necessary to make a point-by-point comparison between the case before us and any of those cases. In the case before us, one could select testimony which if believed and given a certain weight as over against testimony to the contrary, would lead to an opposite judgment. But credibility and weight of conflicting testimony are for the fact trier, and our task is at an end when we decide, as we have, that there was substantial evidence to support the trial court’s judgment. Murphy v. Carron, 536 S.W.2d at 32; Graff v. Triple B Development Corp., 622 S.W.2d 755, 756 (Mo.App.1981). The judgment is affirmed. WASSERSTROM, J., concurring. MANFORD, P.J., dissenting in separate opinion.