Conservatorship of Clayton, In re
| Decision Date | 22 September 1995 |
| Citation | 914 S.W.2d 84 |
| Parties | In re the CONSERVATORSHIP OF Lois G. CLAYTON. Lillian Clayton SALVATORE, Guardian of Lois G. Clayton, et al., Plaintiffs/Appellees, v. Frederick Paul CLAYTON, Jr., Conservator for Lois G. Clayton, et al., Defendant/Appellant. |
| Court | Tennessee Court of Appeals |
Appeal from the Probate Court for Rutherford County at Murfreesboro; David Loughry, Judge.
Richard Dance, Dance, Dance & Lane, Nashville, for Plaintiffs/Appellees.
Richard F. LaRoche, Sr., Murfreesboro, for Defendant/Appellant.
This appeal involves a dispute over the conservatorship of an elderly woman suffering from Alzheimer's Disease. The woman's son moved his mother to Tennessee against the wishes of his stepsister who had been appointed guardian in Florida, and filed an action in the Rutherford County Probate Court to be named conservator. The stepdaughter objected to her stepbrother's petition and demanded an accounting of her stepmother's property. The probate court dismissed the son's petition and ordered an accounting. The son asserts on this appeal that the probate court had jurisdiction over his petition. We have determined that the probate court properly dismissed the son's petition for the appointment of a conservator and properly ordered the son to account for his use of his mother's assets.
Lois G. Clayton lived in Okaloosa County, Florida. She had one child and two stepchildren. Frederick Clayton, Jr., her son, lived in Christiana, Tennessee. Lillian Clayton Salvatore and Margaret Clayton Bozian, her two stepdaughters, lived in Okaloosa County, Florida and Atlanta, Georgia respectively. Mr. Clayton was approximately fifteen years younger than Ms. Salvatore, his older stepsister.
In February 1989, Ms. Clayton retained counsel and prepared a will under Florida law. She appointed Ms. Salvatore as her personal representative and essentially divided her estate equally among her son and two stepdaughters. 1 She also stated that she desired Ms. Salvatore to be appointed as her guardian should she ever require one.
Ms. Clayton was living with Ms. Salvatore in January 1992. Fearing that her health was failing, she retained the same attorney who had drafted her will to prepare a formal declaration appointing Ms. Salvatore as the guardian of her property should she ever become incapacitated. This declaration was filed in the office of the Clerk of the Circuit Court for Okaloosa County. At the same time, Ms. Clayton executed a durable power of attorney appointing Ms. Salvatore as her attorney-in-fact and vesting in her broad authority with regard to her financial and medical affairs.
A short time later, Ms. Clayton filed a petition in the Circuit Court for Okaloosa County requesting the appointment of a guardian of her property because she was "incapable of the care, custody and management of her estate by reason of age or physical infirmity." On March 17, 1992, the circuit court entered an order appointing Ms. Salvatore as guardian for specific property owned by Ms. Clayton, including (1) a house in Shalimar, Florida valued at $62,000, (2) stock valued at $15,375, and (3) various cash accounts containing $115,878.
Ms. Salvatore found it increasingly difficult to care for her stepmother as Ms. Clayton's mental faculties failed. In July 1992, she filed a notice in the Circuit Court for Okaloosa County stating that her stepmother's mental condition had "deteriorated to the point where [she] ... is unable to handle [Ms. Clayton] ... by herself." She also notified the court that she had moved Ms. Clayton to a nursing home in Raleigh, North Carolina where Ms. Salvatore's children lived and that she intended to move there herself to be near her stepmother. Ms. Salvatore also informed the court that "[a]ll [Ms. Clayton's] ... accounts will be retained in Florida and the Guardian will continue to comply with the Florida guardianship law and rules of procedure and shall be subject to the order of the Florida court with respect to the guardianship."
Mr. Clayton visited his mother in the Raleigh nursing home from time to time. In November 1992, Ms. Clayton broke her hip in a fall and was hospitalized for two weeks and was then moved to another facility for rehabilitation. Mr. Clayton visited his mother in the hospital and talked with her caregivers by telephone on many occasions. He became concerned when his mother's nurses reported that she was not eating or responding well to therapy.
Mr. Clayton visited his mother on January 2, 1993. He decided that he could provide his mother better care than Ms. Salvatore. Accordingly, he removed Ms. Clayton from the nursing home under the pretext that he was driving her to Ms. Salvatore's home for a visit and drove her back to Murfreesboro where he placed her in the Murfreesboro Health Care Center. Mr. Clayton did not consult Ms. Salvatore about moving his mother to Murfreesboro.
On January 8, 1993, Mr. Clayton filed a petition in the Rutherford County Probate Court requesting appointment as his mother's conservator. He supported the petition with two physicians' affidavits stating that Ms. Clayton's memory and judgment were impaired and that she was incapable of managing her own affairs or of making judgments concerning her own well-being. The petition stated that Ms. Clayton was a "resident" of the Murfreesboro Health Care Center and that Mr. Clayton was her "only surviving child." It did not disclose the Florida guardianship proceedings, identify Ms. Salvatore or Ms. Bozian, or state the circumstances under which Ms. Clayton had been brought to Murfreesboro. Neither Ms. Salvatore nor Ms. Bozian were served with copies of this petition.
The probate court appointed a guardian ad litem for Ms. Clayton, and on January 12, 1993, the guardian filed a report recommending that Mr. Clayton be appointed as his mother's conservator. The guardian alluded to the Florida proceedings, but his report does not indicate that he had discussed Ms. Clayton's circumstances with Ms. Salvatore. The probate court filed an order on January 15, 1993, appointing Mr. Clayton conservator and ordering him to intervene in the Florida proceeding to demand an accounting and to terminate the management of Ms. Clayton's affairs in Florida.
Armed with the probate court's order, Mr. Clayton retained Florida counsel and sought to terminate the proceedings in the Circuit Court for Okaloosa County. On April 12, 1993, Ms. Salvatore requested permission to intervene in the Tennessee proceeding. She requested the probate court to set aside its order appointing Mr. Clayton as his mother's conservator, to declare her Ms. Clayton's guardian in accordance with Tenn.Code Ann. § 35-50-107(a)(2)(E) (Supp.1994), 2 and to require Mr. Clayton to account for Ms. Clayton's property since he removed her from the nursing home in Raleigh.
On May 21, 1993, the Circuit Court for Okaloosa County entered an order denying Mr. Clayton's motion to remove Ms. Salvatore as guardian of Ms. Clayton's property and to authorize him to manage his mother's property. The court also stayed all proceedings with regard to terminating Ms. Salvatore's guardianship pending a final order in the Tennessee proceeding.
At the conclusion of a hearing on September 10, 1993, the probate court announced that it did not have jurisdiction to entertain Mr. Clayton's petition because Ms. Clayton continued to be a resident and domiciliary of Florida and because the Florida court had already acquired jurisdiction over her. On September 13, 1993, it entered an order, dismissing Mr. Clayton's petition, withdrawing its orders appointing a guardian ad litem and appointing Mr. Clayton as his mother's conservator, and directing Mr. Clayton to file an accounting.
Ms. Salvatore made arrangements to return Ms. Clayton to the nursing home in Raleigh as soon as the probate court issued its decision. On September 16, 1993, Mr. Clayton obtained an ex parte temporary restraining order preventing Ms. Salvatore from removing her mother from the Murfreesboro Health Care Center. The probate court later declined to dissolve this restraining order, and this court also declined to set aside the restraining order pending Mr. Clayton's appeal.
Mr. Clayton asserts that the probate court erred by dismissing his petition to be appointed his mother's conservator. He argues that the petition was proper because his mother was "residing" in Rutherford County when it was filed. We have determined that the probate court correctly decided that Ms. Clayton was not a resident of Rutherford County for the purpose of Tenn.Code Ann. § 34-13-101(b) (Supp.1994). We have also determined that the probate court should have stayed its hand, even if Ms. Clayton was a resident of Rutherford County, because of the guardianship proceedings pending in Florida and because of the manner in which Ms. Clayton was brought into Tennessee.
The controlling legal issue in this case is whether Ms. Clayton was a resident of Rutherford County when Mr. Clayton filed his petition for the appointment of a conservator. Tenn.Code Ann. § 34-13-101 provides:
(a) Actions for the appointment of a conservator may be brought in a court exercising probate jurisdiction or any other court of record in any county in which there is venue.
(b) An action for the appointment of a conservator shall be brought in the county of residence of the alleged disabled person.
Because of Tenn.Code Ann. § 34-13-101(b), venue is jurisdictional in conservatorship proceedings, and probate and other local trial courts should not exercise jurisdiction over the person or property of disabled persons who are not residents of the county within their territorial jurisdiction.
The conservatorship statutes do not define "county of residence" for the purpose of determining venue. The term "residence" may mean...
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