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Lowry v. Fenzel

Court of Appeals of Georgia

February 24, 2015

LOWRY
v.
FENZEL

Reconsideration denied March 27, 2015 -- Cert. applied for.

Joint accounts. Fulton Superior Court. Before Judge Baxter.

Judgment affirmed in part and reversed in part.

William G. Maston, for appellant.

Michael E. McLaughlin, for appellee.

McMILLIAN, Judge. Phipps, C. J., and Ellington, P. J., concur.

OPINION

Page 523

McMillian, Judge

Heather E. Lowry (" Lowry" ), as administratrix for the estate of William B. Lowry, appeals from the trial court's grant of summary judgment to defendant Roberta K. Fenzel f/k/a Roberta K. Lowry (" Fenzel" ), directing that Fenzel has the right to funds held in various accounts upon the death of her ex-husband, William B. Lowry (" decedent" ). Lowry also asserts as error the trial court's failure to grant her motion to strike the affidavit of a witness submitted by Fenzel in support of her motion for summary judgment. For the reasons that follow, we affirm in part and reverse in part.

" Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met." (Citations and punctuation omitted.) Rollins v. Rollins, 329 Ga.App. 768, 772 (3) (a) (766 S.E.2d 162) (2014). And in our de novo review of the grant of a motion for summary judgment, we view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant. Id.

The relevant facts are largely undisputed. Fenzel and decedent were married on May 6, 1995. On October 1, 2008, Fenzel and decedent executed a " Settlement Agreement" that was incorporated into the " Final Judgment and Decree of Divorce" entered by the Superior Court of Cobb County on October 9, 2008. Decedent died intestate on March 14, 2011, and Lowry, his niece, was appointed the administratrix of his estate. At the time of his death, decedent held several checking and investment accounts with various financial institutions as follows:

1. Ameriprise Financial Services, Inc. brokerage account in the amount of $225,116.49 (" Ameriprise" );
2. Atlanta Postal Credit Union draft checking account and certificates of deposit totaling $174,424.34 (" APCU" );
3. GEMC Federal Credit Union checking account in the amount of $51,734.98 (" ...

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