Peoples v. Hamilton

LOWENSTEIN, Judge. This case involves a claim for services against an estate. A bench trial resulted in an award of $95,000 to the claimant Josephine Peoples for services rendered to the decedent of the personal representative. Those services were for nursing, housework, cooking and washing and cleaning from September, 1977 until July 31, 1985. Peoples met the decedent Habermehl, a widower, at a VFW party in 1977. She moved into his residence and acted as cook and housekeeper until his death in July of 1985. During that period he was in various stages of poor health and at various times hospitalized. He was incapacitated for broken ribs and then with a brain tumor and lung cancer. In the spring of 1982 he became physically unable to return to his job. She testified they slept in separate bedrooms and had no sexual relationship. The two did take several trips together and attended social functions together. Longtime friends and neighbors of Ha-bermehl all appeared on behalf of respondent. The only witnesses for the appellant were the personal representative himself and a person to evaluate the value of services Peoples performed. They testified Habermehl referred to and treated her as his housekeeper and nurse or as someone taking care of him. They observed her [253] tend to his medical needs and keep his house clean. The several witnesses told of her cutting the grass, continually cleaning up the carpet after his dog, cooking all his meals, running his errands and doing all the housework. None saw or knew of Peoples and Habermehl sleeping together, or even showing any affection toward each other. Peoples received no compensation. Habermehl made her the beneficiary on two contracts of life insurance totalling some $24,000. She testified as to being promised something in Habermehl’s will. A friend of Habermehl’s for 28 years took the stand and said the decedent had told him in both 1983 and 1984 of Habermehl’s intent to take financial care of Peoples if she stayed with and continued to take care of him. No evidence was presented as to joint bank accounts or joint ownership of property. The witness who took the fishing and other trips with Peoples and Ha-bermehl testified Peoples did the cooking, cleaning and packing and the loading of the boat. All these witnesses were extensively cross-examined by the personal representative’s attorney as to their testimony as to sleeping arrangements, show of affection, extent of duties, and the nature of Haber-mehl’s expectation to pay and Peoples expectation to receive something in a will or trust for services. The personal representative’s primary point on appeal is Peoples and Habermehl lived in a “family relationship,” and she did not present evidence of any agreement she was to be compensated for her services. A threshold inquiry must be made as to whether a “family relationship” existed between the claimant and the deceased. If such a relationship is shown by the estate there is a presumption the person in a family relationship performed the services without expectation of repayment. Ellinwood v. Estate of Lyons, 731 S.W.2d 23, 26 (Mo.App.1987). To constitute a family there must be present the following four elements: (1) a social status, (2) there must be a head who has a right, at least in a limited way, to direct and control those gathered into the household, and (3) this head must be obligated either legally or morally to support the other members, and (4) there must be a corresponding state of at least partial dependence of the other members for this support. Ellinwood, supra, at 27. The trial judge in the case at bar did not find a family relationship and found claimant did not render the services gratis, and that the decedent intended to pay the claimant for her services. Peoples and Haber-mehl were not related, and not married. The court found her services were valuable, and performed continuously over a period of 411 weeks, much of the time which he was in poor health. Once a claimant establishes services of the character and kind performed, the estate bears the burden of showing they were performed gratuitously. Morris v. Retz, 413 S.W.2d 544, 548-49 (Mo.App.1967). When the elements of a family relationship are not proved by the estate there is a presumption of an agreement for compensation and the burden is on the estate to show the services were gratuitous. Buchweiser v. Estate of Laberer, 695 S.W.2d 125, 128 (Mo. banc 1985), Ellinwood, supra, at 27. The trial judge was correct in finding the appellant failed to establish a family relationship. As in Morris v. Retz, supra, there was a total absence of evidence of the all important third element, that is of any obligation of Habermehl to support Peoples. 413 S.W.2d at 550. The first point is denied. In his other point the personal representative claims, “the amount of $95,000 awarded to claimant is unreasonable.” The respondent offered the testimony of an expert witness who was employed by home health care provider. The witness testified the respondent would have received a net of $106,360 for the eight years of service. The personal representative presented an expert who testified it was common for elderly in Kansas City to “swap” these type of services for room and board. As the trier of fact, the trial judge was free to believe all, part or none of the [254] testimony of a witness and on appeal due regard is given to the opportunity of the court to assess witness credibility. Osborne v. Boatmen’s National Bank of Springfield, 732 S.W.2d 242, 245 (Mo.App.1987). The claimant provided services to Habermehl for which she was entitled to payment, the amount of which was within the knowledge of the trier. Ellinwood, supra. The judgment was within the range of the evidence and will not be disturbed. Oldham’s Farm Sausage Co. v. Salco, Inc., 633 S.W.2d 177, 184 (Mo.App.1982). The estate bore the burden of showing a family relationship, Ellinwood, supra, and the burden of showing the services were gratitious, Buchweiser, supra. The evidence here did not support a favorable conclusion to the estate. The judgment is affirmed.