Lillian Clayton Salvatore, Guardian of Lois G. Clayton v. Frederick Paul Clayton, Jr., Conservator for Lois G. Clayton

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

IN RE: THE CONSERVATORSHIP )

FILED

February 2,

OF LOIS G. CLAYTON ) 2005

)

LILLIAN CLAYTON SALVATORE, ) Cecil Crowson,

Guardian of Lois G. Clayton, et al., ) Jr.

) Appellate Court Clerk

Plaintiffs/Appellees, )

) Rutherford Probate

)

VS. )

) Appeal No.

) 01-A-01-9310-PB-00476

FREDERICK PAUL CLAYTON, )

JR., Conservator for Lois G. )

Clayton, et al., )

)

Defendant/Appellant. )

APPEAL FROM THE PROBATE COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

THE HONORABLE DAVID LOUGHRY, JUDGE

For the Plaintiffs/Appellees: For the Defendant/Appellant:

Richard Dance Richard F. LaRoche, Sr.

DANCE, DANCE & LANE Murfreesboro, Tennessee

Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

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.

I.

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

1

She stated specifically that it was her “intention that my step-daughters . . . are to share

my estate equally with my son.”

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office of the Clerk of the Circuit Court for Opaloosa 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

Opaloosa 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 Opaloosa 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

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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 Opaloosa 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

2

Tenn. Code Ann. § 35-50-107(a)(2)(E) permits persons related by blood or marriage to

serve as guardians or conservators of incompetent persons regardless of their residence.

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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 Opaloosa 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 filed 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.

II.

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

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of the guardianship proceedings pending in Florida and because of the manner in

which Ms. Clayton was brought into Tennessee.

A.

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 simply a person’s

present place of abode, Brown v. Hows, 163 Tenn. 178, 182, 42 S.W.2d 210, 211

(1931), or it may mean a person’s legal residence or domicile. Brown v. Brown,

150 Tenn. 89, 91-92, 261 S.W. 959, 959-60 (1924); Coke v. Coke, 560 S.W.2d

631, 633 (Tenn. Ct. App. 1977). Since these two meanings have significantly

different legal consequences, we must decide the meaning of the term as it appears

in Tenn. Code Ann. § 34-13-101(b).

When used to refer to a person’s place of abode, the term “residence” does

not require that the person intend to remain at that particular place. Brown v.

Hows, 163 Tenn. at 182, 42 S.W.2d at 211. However, when used to refer to a

person’s domicile or legal residence, the term indicates a particular place where

a person has a permanent home and to which the person has a concurrent intention

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to return and to remain. Denny v. Sumner County, 134 Tenn. 468, 473-74, 184

S.W. 14, 16 (1915); Snodgrass v. Snodgrass, 49 Tenn. App. 607, 611, 357 S.W.2d

829, 831 (1961). A person may have more than one residence but may have only

one domicile or legal residence. Bearman v. Comatsos, 215 Tenn. 231, 236, 385

S.W.2d 91, 93 (1964); Middle Tenn. Elec. Membership Corp. v. State ex rel.

Adams, 193 Tenn. 513, 516, 246 S.W.2d 958, 959 (1952); Svoboda v. Svoboda,

61 Tenn. App. 444, 449, 454 S.W.2d 722, 724 (1969).

A person cannot acquire a new domicile or legal residence without first

abandoning another. Denny v. Sumner County, 134 Tenn. at 474, 184 S.W. at 16;

McElhaney v. McElhaney, 647 S.W.2d 643, 644 (Tenn. Ct. App. 1982).

Accordingly, to change domicile or legal residence, a person must: (1) actually

change his or her residence to a new place; (2) intend to abandon his or her old

domicile; and (3) intend to establish a new domicile at the new residence. Denny

v. Sumner County, 134 Tenn. at 474, 184 S.W. at 16; Sparks v. Sparks, 114 Tenn.

666, 668, 88 S.W. 173, 174 (1905). A person who is mentally incompetent cannot

voluntarily change domicile or legal residence because he or she does not have the

requisite intent either to abandon their old domicile or to acquire a new one. In

re Chaffee, 211 Tenn. 88, 92, 362 S.W.2d 467, 469 (1962); Hannon v. Hannon,

185 Tenn. 307, 309-10, 206 S.W.2d 305, 306 (1948).

Our responsibility when construing a statute is to ascertain and to give

effect to the statute’s purpose without unduly restricting or expanding the statute’s

coverage beyond its intended scope. Tibbals Flooring Co. v. Huddleston, 891

S.W.2d 196, 198 (Tenn. 1994); Roseman v. Roseman, 890 S.W.2d 27, 29 (Tenn.

1994); Bruce v. Hamilton, 894 S.W.2d 274, 278 (Tenn. Ct. App. 1994). Our

search for a statute’s purpose begins with the words of the statute itself. If the

statute is unambiguous, we need only enforce the statute as written. Carson Creek

Vacation Resorts, Inc. v. State, 865 S.W.2d 1, 2 (Tenn. 1993); Hamblen County

Educ. Ass’n v. Hamblen County Bd. of Educ., 892 S.W.2d 428, 432 (Tenn. Ct.

App. 1994). If, however, a statute is ambiguous, we may invoke the various rules

of statutory construction, Stewart Title Guar. Co. v. McReynolds, 886 S.W.2d 233,

235 (Tenn. Ct. App. 1994) (no reason to resort to rules of construction when the

statutory language is clear and plain); Davenport v. Chrysler Credit Corp., 818

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S.W.2d 23, 27 (Tenn. Ct. App. 1991), and we may consider the existing law, the

circumstances contemporaneous with the enactment of the statute, the

circumstances inducing the statute’s enactment, and the evil sought to be

addressed. Still v. First Tenn. Bank, 900 S.W.2d 282, 284 (Tenn. 1995).

The legislative history of a statute can provide insight into the purpose of

an ambiguous statute. Universal Computer Co. v. Olsen, 677 S.W.2d 445, 447

(Tenn. 1984); Watts v. Putnam County, 525 S.W.2d 488, 492 (Tenn. 1975).

Accordingly, courts confronted with statutory language that conveys more than

one meaning may consider the legislative debates surrounding the statute’s

enactment. Chapman v. Sullivan County, 608 S.W.2d 580, 582 (Tenn. 1980); City

of Oak Ridge v. Roane County, 563 S.W.2d 895, 899 (Tenn. 1978).

A statute is ambiguous if it is capable of conveying more than one meaning.

Evans v. Young, 201 Tenn. 368, 381, 299 S.W.2d 218, 224 (1957); Atlantic Coast

Line R.R. v. Richardson, 121 Tenn. 445, 460, 117 S.W. 496, 499 (1908). We find

Tenn. Code Ann. § 34-13-101(b) to be ambiguous because the term "county of

residence" has more than one meaning. Accordingly, we must choose the meaning

of "county of residence" that is the most consistent with the statute's purpose.

The legislative debates with regard to the enactment of Tenn. Code Ann. §

34-13-101(b) in 19923 provide no insight into the intended meaning of “county of

residence.” During the hearings before the House Judiciary Committee, the bill’s

sponsor was asked whether the term “residence” referred to the disabled person’s

domicile. Regrettably, the sponsor did not answer the question responsively. He

stated only that “in the appointment of a conservator, the hearing should be

brought in the county of residence of the alleged disabled person.”

In the absence of legislative history or contextual sign posts, we must base

our construction of Tenn. Code Ann. § 34-13-101(b) on the nature and purpose of

conservatorship proceedings. The purpose of a conservatorship proceeding is to

protect the person and property of a disabled person. Walker v. Graves, 174 Tenn.

336, 341, 125 S.W.2d 154, 156 (1941); Tenn. Code Ann. § 34-13-107(3), (4)

3

Act of April 20, 1992, ch. 794, § 40, 1992 Tenn. Pub. Acts 407, 421.

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(Supp. 1994). The court itself is ultimately responsible for the disabled persons

who come under its care and protection, Hinds v. Buck, 177 Tenn. 444, 448, 150

S.W.2d 1071, 1072 (1941); In re Ellis, 822 S.W.2d 602, 607 (Tenn. Ct. App.

1991), and thus conservators act as the court’s agent and are under the court’s

supervision.

Because of the fiduciary nature of the responsibilities, the court with the

closest ties to the disabled person and his or her family and property should be the

court that exercises jurisdiction in a conservatorship proceeding. As a general

matter, the court of the disabled person’s domicile will have the closest ties to the

disabled person and will be most able to exercise control over the disabled person,

the conservator, and the disabled person’s family and property.

Courts from other jurisdictions called upon to construe statutes similar to

Tenn. Code Ann. § 34-13-101(b) have equated a disabled person’s “residence”

with his or her domicile. In re Schley, 1 N.Y.S. 2d 306, 307 (App. Div. 1938);

Powell v. Judd, 203 S.W.2d 871, 873 (Tex. Ct. App. 1947); Owens v. Stovall, 64

S.W.2d 360, 362 (Tex. Ct. App. 1933). Similarly, a majority of jurisdictions,

deferring to the courts of the disabled person’s domicile, have declined to take

jurisdiction over disabled persons who have been found in their territorial

jurisdiction. In re Estate of Mosier, 54 Cal. Rptr. 447, 449 (Cal. Ct. App. 1961);

Rickey v. People, 267 P.2d 1021, 1024 (Colo. 1954); Sorrells v. Sorrells, 274

S.E.2d 314, 316-17 (Ga. 1981); In re Olerich's Estate, 176 N.E.2d 549, 550-51

(Ill. App. Ct. 1961); Sumrall's Comm. v. Commonwealth, 172 S.W. 1057, 1059

(Ky. Ct. App. 1915); Turner v. Turner, 637 S.W.2d 764, 767 (Mo. Ct. App. 1982);

In re Guardianship of Fisher, 632 N.E.2d 533, 535 (Ohio Ct. App. 1993); In re

Gray's Estate, 250 P. 422, 423-24 (Okla. 1926); In re Sylvester, 598 A.2d 76, 81-

82 (Pa. Super. Ct. 1991); Petty v. Petty, 592 S.W.2d 423, 427 (Tex. Ct. App.

1979); Town of Carlton v. State Dept. of Pub. Welfare, 74 N.W.2d 340, 341-42

(Wis. 1956); Layton v. Pribble, 105 S.E.2d 864, 868-69 (Va. 1958).4

4

Other states have exercised jurisdiction over disabled persons who are present in their

jurisdiction. In re Guardianship of Powers, 841 S.W.2d 626, 627 (Ark. 1992); In re Mickler’s

Guardianship, 163 So. 2d 257, 259-60 (Fla. 1964); In re Miller, 620 P.2d 800, 803 (Kan. 1980);

In re Guardianship of Campbell, 11 N.W.2d 786, 789 (Minn. 1943).

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We have determined that the majority rule is most consistent with

Tennessee’s understanding of the role and purpose of a conservatorship

proceeding. Accordingly, we hold that the term “county of residence” in Tenn.

Code Ann. § 34-13-101(b) means the county of the disabled person’s legal

residence or domicile and that our courts cannot exercise personal jurisdiction in

proceedings to appoint a conservator over disabled persons who just happen to be

within their territorial jurisdiction.5

Ms. Clayton had become incompetent by July 1992 before Ms. Salvatore

moved her to Raleigh, North Carolina. She remained incompetent when Mr.

Clayton spirited her away from the nursing home in Raleigh and placed her in a

nursing home in Rutherford County. Ms. Clayton has not regained her faculties

since being brought to Rutherford County in January 1993. Even though Ms.

Clayton has been physically present in Rutherford County, she is not there of her

own volition. She lacks the mental capacity to appreciate her surroundings or to

change her domicile. Therefore, her legal residence or domicile is Opaloosa

County, Florida, her last domicile while she was competent. Since she can have

only one domicile, Ms. Clayton’s domicile is Opaloosa County rather than

Rutherford County, Tennessee or Raleigh, North Carolina.

Since Ms. Clayton is a legal resident of Opaloosa County, we find that

Rutherford County is not her “county of residence” for the purpose of Tenn. Code

Ann. § 34-13-101(b). Therefore, we find that the probate court properly dismissed

Mr. Clayton’s petition for the appointment of a conservator.

B.

Even if the probate court could have acted on Mr. Clayton’s petition for the

appointment of a conservator, it properly declined to do so under the facts of this

case. The probate court was not faced with an emergency situation requiring

immediate judicial intervention in order to protect Ms. Clayton or her estate. Ms.

Clayton’s physical and mental conditions were stable, and Mr. Clayton had no

5

Our decision in this case applies to conservatorship proceedings pursuant to Tenn. Code

Ann. §§ 34-13-101, -109 (Supp. 1994). It does not affect the court's inherent jurisdiction to

make temporary orders to protect a disabled person in emergency situations.

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reliable evidence that Ms. Salvatore was about to waste or dissipate Ms. Clayton’s

property.

Approving Mr. Clayton’s conduct in this case would set an unfortunate

precedent for future cases. Intra-family hostility is disruptive and inimical to a

disabled person’s best interests. Granting Mr. Clayton’s petition in light of his

conduct, no matter how well-motivated, would signal this court’s approval of this

type of behavior. Mr. Clayton had other recognized, less disruptive avenues

available to challenge Ms. Salvatore’s care of his mother short of surreptitiously

removing her from the nursing home in North Carolina and bringing her to

Tennessee.

In addition, the probate court should have deferred to the on-going Florida

guardianship proceedings on the basis of judicial comity. Comity is a

discretionary doctrine by which the courts of one state may, out of deference and

respect, give effect to the decisions of the courts of another state even when they

are not required to do so by the Full Faith and Credit Clause of the United States

Constitution. Chapman Chem. Co. v. Reichhold Chem., Inc., Shelby Eq. No. 8,

slip op. at 3, 12 T.A.M. 23-7 (Tenn. Ct. App. April 24, 1987) (No Tenn. R. App.

P. 11 filed). It may be granted or withheld depending on the particular facts, laws,

and policies present in an individual case. Hyde v. Hyde, 562 S.W.2d 194, 196

(Tenn. 1978). Our courts need not extend comity to the decisions of the courts of

other states if they are contrary to our law or public policy. Paper Prods. Co. v.

Doggrell, 195 Tenn. 581, 585, 261 S.W.2d 127, 129 (1953); Finley v. Brown, 122

Tenn. 316, 335, 123 S.W. 359, 364 (1909).

We have carefully reviewed Florida’s statutes dealing with guardians and

conservators and find no conflicts with our statutes protecting the person and

property of incompetent persons. We also find no jurisdictional defect in the

proceedings in the Opaloosa County Circuit Court. Opaloosa County remains Ms.

Clayton’s legal residence and the place where her property is located. Since the

Opaloosa County Circuit Court first acquired and still retains jurisdiction over Ms.

Clayton’s property, we find that the probate court properly declined to act on Mr.

Clayton’s petition for the appointment of a conservator in Tennessee.

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III.

As a final matter, we turn to Ms. Salvatore’s request that Mr. Clayton be

required to account for Ms. Clayton’s property while she has been in Rutherford

County. The probate court ordered Mr. Clayton to file an accounting even though

it determined that it never acquired jurisdiction over Ms. Clayton. We have

concluded that requiring Mr. Clayton to account for his use of his mother’s

property is appropriate under the facts of this case.

The courts are ultimately responsible for the property of persons for whom

they appoint conservators or guardians. Hinds v. Buck, 177 Tenn. at 448, 150

S.W.2d at 1072. They retain continuing control over guardians and conservators

because the persons who accept these appointments become “quasi-officials” of

the court appointing them. See Logan v. Graper, 155 Tenn. 565, 568, 4 S.W.2d

955, 956 (1927). Part of this control includes the authority to order an accounting

when a conservatorship is terminated. Tenn Code Ann. § 34-13-108(e) (Supp.

1994).

Even though the probate court eventually determined that it did not have

jurisdiction to appoint a conservator for Ms. Clayton, it was the probate court’s

order, and nothing else, that justified Mr. Clayton’s control over his mother’s

assets since January 1993. Thus, Mr. Clayton has been an officer of the court

from the time of his appointment as his mother’s conservator. Now that the

probate court is withdrawing Mr. Clayton’s authority to act as his mother’s

conservator, it may require him to account for his use of his mother’s property.

IV.

We affirm the dismissal of the petition for the appointment of a conservator

and the order directing Mr. Clayton to account for his use of his mother’s

property. We remand the case to the probate court for whatever other proceedings

may be required and tax the costs of this appeal to Frederick P. Clayton, Jr. and

his surety for which execution, if necessary, may issue.

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__________________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

HENRY F. TODD, PRESIDING JUDGE

__________________________________

SAMUEL L. LEWIS, JUDGE

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