Maloy v. Stuttgart Memorial Hospital

John E. Jennings, Chief Judge. Stuttgart Memorial Hospital obtained a judgment against Mrs. Beulah Maloy for $7,700.00. On September 16,1991, the hospital served a writ of garnishment on Farmers and Merchants Bank bf Stuttgart, seeking to garnish two certificates of deposit totaling $8,600.00 held jointly by Mrs. Maloy and her mother, India Ola Glover. Mrs. Maloy filed a motion to quash the writ, alleging that the money represented by the certificates belonged solely to her mother. The court held a hearing on the motion. Mrs. Glover testified that she was the mother of three children, Beulah Maloy, Bill Glover, and Leola Jolly. She said that she sold various items of personal property after her husband died in 1978. On the advice of a banker she put the money in certificates of deposit. She said she “tried to divide it evenly into the kids’ names so if I went into a nursing home it would be the kids.” Mrs. Glover testified that none of her children had ever taken any money from the certificates of deposit. On cross-examination she stated that she had put her children’s names on the certificates “to keep the money away from other people, if I go to a nursing home or something like that, because I had always heard that they can take your home or whatever money you have and I didn’t want that to happen.” She testified that she knew the children “could get [the money] right now if they want to,” but that she trusted them not to do so. Mrs. Glover’s son, Billy, testified that Mrs. Glover had never told him the money was his and that he never considered the money to belong to anyone other than her. Mrs. Maloy testified that the money represented by the certificates was her mother’s and that she had never “exercised or evidenced any ownership or control” of the money during the past thirteen years. On this evidence the trial judge, without comment, denied the motion to quash the writ of garnishment. The sole argument on appeal is that this was error. We find no error and affirm. The leading case in this state on the garnishment of joint bank accounts is Hayden v. Gardner, 238 Ark. 351, 381 S.W.2d 752 (1964). In Hayden the supreme court adopted the view “that the joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other.” The court held that “all of the joint bank account was prima facie subject to garnishment, and that the burden was on each joint depositor to show what portion of the funds he or she actually owned.” It is true that certificates of deposit are subject to the same rules as other personal property when the question is whether a valid inter vivos gift has been made. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992). When the question is whether a gift has been made, the donee has the burden of proving by clear and convincing evidence all of the elements of an inter vivos gift, including actual delivery. See Irvin, supra; Wright v. Union National Bank, 307 Ark. 301, 819 S.W.2d 698 (1991); Phipps v. Wilson, 251 Ark. 377, 472 S.W.2d 929 (1971). But these are cases where the alleged donee is seeking to establish a gift. In the case at bar the hospital was not required to prove an inter vivos gift from Mrs. Glover to Mrs. Maloy. It was not necessary to do so in view of the holding in Hayden v. Gardner that the joint account was prima facie subject to garnishment; i.e., there is a presumption that the money is owned by the judgment debtor. The hospital was not obliged to prove actual delivery, nor any other element of an inter vivos gift. Instead, the burden was on the joint account holders to persuade the court that Mrs. Maloy did not own the money represented by the certificate of deposit. Hayden, supra. In the case at bar all of the witnesses who testified had an interest in the outcome of the litigation — Mrs. Maloy and Mrs. Glover were parties. The trier of fact is not required to accept the testimony of an interested witness. See Jones v. State, 308 Ark. 555, 826 S.W.2d 233 (1992). The trial court may also accept portions of the witnesses’ testimony and reject other portions. White v. State, 39 Ark. App. 52, 837 S.W.2d 479 (1992). Mrs. Glover’s testimony that she intended to put the money beyond the reach of her own creditors supports the trial judge’s decision. On the evidence presented we cannot say the trial court’s decision was clearly erroneous. Affirmed. Mayfield, Cooper, and Rogers, JJ., dissent. Robbins, J., concurs.