In Re Conservatorship of John Martin Muldoon ( 2020 )

06/25/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 2, 2020
IN RE CONSERVATORSHIP OF JOHN MARTIN MULDOON
Appeal from the Probate Court for Cumberland County
No. 2018-PF-6184 Larry Michael Warner, Judge
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No. E2019-01621-COA-R3-CV
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This appeal arises from a petition to appoint a conservator under Tennessee Code
Annotated section 34-1-121. The petitioner/wife was originally appointed as conservator
of respondent/husband in October 2018. Thereafter, the parties could not agree on an
appropriate Statement of Evidence. The trial court ordered a new hearing so a court
reporter could be present to provide a Transcript of Evidence. The respondent filed an
appeal to this Court, which was dismissed for lack of appellate jurisdiction due to the
non-final order. A new hearing took place in July 2019. The trial court found petitioner
met her burden under Tennessee Code Annotated sections 34-1-101(7) and 34-1-126 and
appointed the petitioner as conservator over the respondent’s person and property. The
respondent appealed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed
and Remanded.
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and FRANK G. CLEMENT JR., P.J., M.S., joined.
Jonathan Roy Hamby, Crossville, Tennessee, for the appellant, John Martin Muldoon.
Jeffrey A. Vires, Crossville, Tennessee, for the appellee, Catherine Sanders Muldoon.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
I. FACTS & PROCEDURAL HISTORY
Catherine Sanders Muldoon (“Petitioner”) and John Martin Muldoon
(“Respondent”) have been married for over 37 years and reside in Cumberland County,
Tennessee. In 2016, Respondent suffered a severe stroke that left him paralyzed on the
entire left side of his body.
On April 9, 2018, Petitioner filed a petition for emergency relief to become
Respondent’s temporary conservator. In her emergency petition, Petitioner stated
Respondent’s stroke rendered him unable to care for himself, his property, or make
healthcare decisions. Petitioner presented with her petition two signed letters from
practicing physicians and one sworn physician’s report which purported to comply with
the requirements of Tennessee Code Annotated section 34-3-105(c). The doctors’
statements indicated that Respondent’s stroke2 caused him to suffer cognitive
impairment, or vascular dementia.3
On April 9, 2018, the probate court granted the petition and appointed Petitioner
as the temporary conservator over Respondent’s person and property, subject to a final
hearing on the need for a conservator. Prior to the final hearing, the court appointed a
guardian ad litem (William T. Ridley) and an attorney ad litem (Cynthia Fields Davis) for
Respondent.4 Mr. Ridley met with Respondent and concluded that he understood the
nature of the petition and his rights. Respondent further expressed that he agreed that he
needed a conservator, but stated he did not want Petitioner to be appointed as such due to
fears that she would steal his money. Despite Respondent’s contentions, Mr. Ridley
concluded that Respondent required a conservator and that it was in his best interest for
Petitioner to serve as such.
Independent medical examinations of Respondent were conducted by Dr. Dwight
Willett and Dr. Elizabeth Petty. In his report, Dr. Willett listed “loss of executive
function” and “mild dementia” among Respondent’s disabilities. Dr. Willett also stated
Respondent was “[u]nable to take care of himself, either financially, physically, or
opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
2
A “stroke” is defined as “any neurologic deficit caused by disease of or damage to the blood
vessels in the brain which lasts for more than 24 hours.” 1 Attorneys Medical Advisor § 16:11.
Generally, “the damage caused by a stroke is the result of interruption of blood supply to a portion of the
brain.” Id. The term “cerebrovascular accident” is used interchangeably with “stroke.” Id.
3
Vascular dementia is defined as “a progressive cognitive dysfunction caused by stroke.”
Nikolaos Scarmeas, Vascular Dementias, in Merrit’s Neurology 432, 432 (Elan D. Louis et al. eds., 13th
ed. 2015).
4
With the court’s permission, attorney Kevin Poore was substituted as Respondent’s counsel on
November 26, 2018.
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nutritionally.” Dr. Willet also opined that Respondent “believes he can care for himself,
but he can’t.” Dr. Petty’s report stated that Respondent should have a conservator
appointed, that he needed 24-hour supervision, and that “[h]e has poor insight into the
nature of his disability and what his needs are.” Dr. Petty recommended that Respondent
be appointed a conservator for all of his financial affairs and healthcare decisions. A
hearing on the petition was held on October 22, 2018, and the trial court entered an order
appointing Petitioner as conservator. In response, Respondent filed a notice of appeal.
In preparing the appellate record, the parties disagreed over the appropriate
Statement of the Evidence. On February 16, 2019, the probate court heard arguments to
determine the Statement of Evidence. The trial judge stated he did not have a personal
recollection of the case and therefore could not rule upon an appropriate Statement of the
Evidence. Over Petitioner’s objection, the court ordered that a new hearing would be
held with a court reporter present. This Court then dismissed Respondent’s pending
appeal for lack of appellate jurisdiction due to the trial court’s order not being final. See
In re Conservatorship Muldoon, No. E2018-02116-COA-R3-CV, 2019 WL 2402938
(Tenn. Ct. App. June 6, 2019).
The new hearing took place on July 31, 2019. Prior to the hearing, an additional
medical examination report by Dr. Petty was submitted to the probate court. Dr. Petty’s
report restated her earlier conclusions. Both parties testified at the hearing, in addition to
Respondent’s former caretaker, Lorie Jewel. Petitioner testified as to Respondent’s
stroke, his subsequent disabilities, her attempts to care for him at home, Respondent’s
increase in erratic behavior, and her inability to retain caregivers at their home. Petitioner
testified that there were at least twelve at-home caregivers at various times over a seven
and one-half month period. She stated that Respondent’s perception of reality was
negatively affected by his stroke, that he became paranoid and irrational, and that she
began worrying for her safety after Respondent made several physical threats towards
her. Even with her aid, Petitioner stated that Respondent “has to have a tremendous
amount of help in order to do anything.” She testified that Respondent had fallen several
times at home, requiring EMS or the fire department to be called to his aid. Eventually,
Petitioner became unable to care for Respondent at their home, so Respondent was
moved into a senior care facility. Throughout her testimony, Petitioner expressed
concerns regarding Respondent’s ongoing paranoia and lack of connection with reality.
She described one occasion where Respondent was “covered in blood” as he was
“profuse[ly] bleeding,” but Respondent refused to go to the hospital. Despite the past
troubles, Petitioner is satisfied with the current facility where Respondent resides. She
believes “[h]e is stable” and “well taken care of.”
Ms. Jewel, a Certified Nursing Assistant, testified to her prior experiences caring
for Respondent. She stated Respondent needed help with “pretty much everything . . .
from the moment he woke up until the moment he went to bed.” She also testified that he
was physically and mentally unable to care for himself and refused to follow the
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directions of doctors. Even when Respondent was being cared for in his home, Ms. Jewel
stated he would refuse to take his medications. Ms. Jewel corroborated Petitioner’s
testimony regarding Respondent’s paranoia and aggression. Ms. Jewel described
instances where knives and guns were removed from Respondent’s possession.
In response to Petitioner and Ms. Jewel, Respondent testified on his own behalf.
Initially, Respondent asserted that he did not want a conservator and believed he could
cure his physical disabilities with certain exercises. Later in his testimony, Respondent
admitted that he needed assistance but wanted to live in and be cared for at his home.
Respondent’s main concern regarding the care facility was its high financial cost. He
stated that if he was appointed a conservator, he did not want it to be Petitioner because
“her ideas don’t agree with mine.” Respondent also requested to be able to make his own
purchases and medical decisions.
In its oral ruling, the probate court stated that the proof was “overwhelming” and
found the appointment of a conservator to be necessary. The court appointed Petitioner
as the conservator, stating that she is given priority as Respondent’s wife; that she has
taken the necessary steps to care for and protect him; that she tried to retain quality
caregivers for their home; and that a public conservator would not be cost-effective. On
August 8, 2019, the probate court entered a written order appointing Petitioner as
conservator over Respondent’s person and property. The court stated Petitioner’s powers
as conservator included, but were not limited to, those listed in Tennessee Code
Annotated section 34-3-107(a)(2)(A)–(P).
With the court’s permission, Mr. Poore filed a motion to withdraw as counsel,
which the court granted. On September 6, 2019, the court appointed Jonathan R. Hamby
as Respondent’s new attorney ad litem.5 Respondent timely appealed.6
II. ISSUE PRESENTED
Respondent presents one issue for review on appeal:
1. Whether the trial court erred in appointing a conservator for the Respondent,
John Martin Muldoon.
5
Attorney Kevin R. Bryant was appointed prior to Mr. Hamby, but Mr. Bryant withdrew shortly
thereafter due to a conflict in the case.
6
Respondent’s notice of appeal indicates it was filed on September 10, 2019. Under Tennessee
Rules of Appellate Procedure 4, 20(a), and 21(a), Respondent had until September 9, 2019, to file a
timely notice of appeal. This Court issued a show cause order to determine if Respondent’s appeal was
timely. In response, Respondent explained that he mailed the notice of appeal with a commercial delivery
service on September 9, 2019, making it timely under Tennessee Rule of Appellate Procedure Rule 20(a).
We agree.
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At the very end of Respondent’s brief, he eludes to other points of contention.
Therein, he takes issue with the trial court not considering whether partial supervision
was appropriate and the Court not expressly stating whether Petitioner’s supervision
would be “full-time” or “part-time.” Respondent does not cite any authority to support
these contentions and presents only a “skeletal argument.” As a result, we deem these
issues waived. As our Supreme Court has stated:
It is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her, and where a party fails to
develop an argument in support of his or her contention or merely
constructs a skeletal argument, the issue is waived.
Sneed v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn.
2010). See also El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009) (“Issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible
argument in [a] skeletal way, leaving the court to put flesh on its bones.”).
For the following reasons, we affirm the trial court’s decision.
III. STANDARD OF REVIEW
In civil actions where the trial court determines the facts, factual findings are
reviewed de novo with a presumption of correctness, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010);
Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). Questions of law are reviewed de
novo with no presumption of correctness. In re Sidney J., 313 S.W.3d 772, 774 (Tenn.
2010); Crye-Leike, Inc. v. Carver, 415 S.W.3d 808, 815 (Tenn. Ct. App. 2011) (citing
Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)).
A court’s determination of a ward’s best interests is reviewed under an abuse of
discretion standard. Crumley v. Perdue, No. 01-A-01-9704-CH00168, 1997 WL 691532,
at *2 (Tenn. Ct. App. Nov. 7, 1997). “An abuse of discretion occurs when a court strays
beyond the applicable legal standards or when it fails to properly consider the factors
customarily used to guide the particular discretionary decision.” Lee Medical Inc. v.
Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007)). Meaning, a court abuses its discretion “when it ‘applie[s] an incorrect
legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001) (alternations in original) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn.
1999)). “The abuse of discretion standard does not permit the appellate court to
substitute its judgment for that of the trial court.” Id. (citing Myint v. Allstate Ins. Co.,
970 S.W.2d 920, 927 (Tenn. 1998)).
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IV. DISCUSSION
“Because of the importance of autonomy, it is well-settled that the law presumes
that adult persons are sane, rather than insane, and capable, rather than incapable, to
direct their personal affairs until satisfactory evidence to the contrary is presented.” In re
Conservatorship of Groves, 109 S.W.3d 317, 329–30 (Tenn. Ct. App. 2003) (footnotes
omitted) (“In re Groves”). In order for a court to appoint a conservator over an
individual’s person or property, the petitioner must prove two elements: “(1) that the
individual for whom the conservatorship is sought ‘is fully or partially disabled,’ and (2)
that the individual for whom the conservatorship is sought ‘is in need of assistance from
the court.” In re Conservatorship of Davenport, No. E2004-01505-COA-R3-CV, 2005
WL 3533299, at *7 (Tenn. Ct. App. Dec. 27, 2005) (citing Tenn. Code Ann. § 34-1-126).
Both elements must be proven by clear and convincing evidence. Tenn. Code Ann. § 34-
1-126; In re Lawton, 384 S.W.3d 754, 761 (Tenn. Ct. App. 2012); In re Groves, 109
S.W.3d at 330. Clear and convincing evidence “eliminates all serious or substantial
doubt concerning the correctness of the conclusions to be drawn from the evidence.
Evidence satisfying this standard will produce in the fact-finder’s mind a firm belief or
conviction regarding the truth of the factual propositions sought to be established by the
evidence.” In re Groves, 109 S.W.3d at 330 (citations omitted). Once a petitioner has
met this burden, “the trial court is then charged with responsibility for determining
whether the appointment [of a conservator] is in the respondent’s best interest.” In re
Lawton, 384 S.W.3d at 761.
Tennessee Code Annotated section 34-1-101(14) defines a “person with a
disability” as “any person eighteen (18) years of age or older determined by the court to
be in need of partial or full supervision, protection, and assistance by reason of mental
illness, physical illness or injury, developmental disability, or other mental or physical
incapacity.”7 Determining whether a person has a disability is often a contested issue.
Further, the fact that an individual is found to have a disability does not automatically
lead to the conclusion that he or she will need a conservator. In re Conservatorship of
Perry, No. M2018-00971-COA-R3-CV, 2020 WL 469377, at *3 (Tenn. Ct. App. Jan. 29,
2020) (citing In re Groves, 109 S.W.3d at 331).
In determining whether the appointment of a conservator is necessary, “the pivotal
inquiry involves not merely the diagnosis [of the illness, injury, or condition] but also the
effect that the illness, injury, or condition has had on the capacity of the person for whom
a conservator is sought.” In re Groves, 109 S.W.3d at 331. “A respondent’s need for a
conservator [may] depend[] on his or her capacity to perform necessary tasks, a capacity
7
Prior to this section’s amendment in 2013, the legislature used the term “disabled person”
instead of “person with a disability.” See e.g., In re Lawton, 384 S.W.3d at 761; In re Conservatorship of
Tate, No. M2010-01904-COA-R3-CV, 2011 WL 6935342, at *3 (Tenn. Ct. App. Dec. 29, 2011).
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which may or may not be affected by the respondent’s disability.” In re Conservatorship
of Perry, 2020 WL 469377, at *3 (citing In re Groves, 109 S.W.3d at 333). Further, a
person’s capacity may not be static. See Reid ex rel. Martiniano v. State, 396 S.W.3d
478, 494–95 (Tenn. 2013); In re Groves, 109 S.W.3d at 333–34.
A person’s capacity includes both “functional capacity” and “decision-making
capacity.” Reid ex rel. Martiniano, 396 S.W.3d at 495; In re Conservatorship of Perry,
2020 WL 469377, at *3; In re Groves, 109 S.W.3d at 334. An extensive discussion on
this topic was given in the oft-cited opinion In re of Groves, 109 S.W.3d 317. Functional
capacity is “a person’s ability to take care of oneself and one’s property.” In re Groves,
109 S.W.3d at 334. Taking care of oneself “include[s] personal hygiene, obtaining
nourishment, mobility, and addressing routine healthcare needs.” Id. When determining
whether a person has functional capacity, a broad examination should be made rather
than focusing on isolated incidents. Id. at 334–35. Caring for one’s property means the
person has the “ability to manage personal property, real property, and finances.” Id. at
335. In contrast, decision-making capacity is a person’s “ability to make and
communicate decisions with regard to caring for oneself and one’s property.” Id. at 334.
It is comprised of four central abilities: “(1) to take in and understand information, (2) to
process the information in accordance with his or her own personal values and goals, (3)
to make a decision based on the information, and (4) to communicate the decision.” Id.
at 335. Decision-making capacity is not lacking merely because a person makes a single
unconventional or regrettable decision. Id. “[C]hoices that are based on deranged or
delusional reasoning or irrational beliefs may signal decision-making incapacity.” Id. at
336.
Upon analyzing the record before us, we must agree with the trial court that the
proof shows that Respondent is in need of a conservator. Petitioner and Ms. Jewel each
testified at length on Respondent’s inability to complete essential tasks, including
walking; using the restroom; eating; dressing; and bathing. Based on their testimony, it is
clear that Respondent needs care “from the moment he [wakes] up until the moment he
[goes] to bed.” While Respondent testified that he could complete certain minor tasks on
his own, including showering while sitting; brushing his teeth; and making telephone
calls, the trial court appears to have placed greater weight on the testimony of Petitioner
and Ms. Jewel. As an appellate court who must rely heavily on the weight and faith the
trial court places on witnesses, we find no clear and convincing evidence that indicates a
contrary determination should be made. See, e.g., Wells v. Tenn. Bd. of Regents, 9
S.W.3d 779, 783 (Tenn. 1999) (stating “appellate courts will not re-evaluate a trial
judge’s assessment of witness credibility absent clear and convincing evidence to the
contrary”); Mach. Sales Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638,
643 (Tenn. Ct. App. 2002) (stating “[t]he weight, faith, and credit to be given to any
witness’s testimony lies in the first instance with the trier of fact, and the credibility
accorded will be given great weight by the appellate court”). Petitioner’s and Ms.
Jewel’s testimony indicates Respondent’s inability to care for himself is constant,
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regardless of whether he is at home or in a care facility. It is clear that Respondent lacks
the functional capacity necessary to care for himself. See In re Groves, 109 S.W.3d at
334–35.
There was also ample testimony on Respondent’s lack of decision-making
capacity. Petitioner and Ms. Jewel testified that Respondent is frequently paranoid and
delusional. Both witnesses expressed concerns regarding his ability to make decisions on
his own, referencing his refusal to take his medications. Particularly concerning was the
instance where Respondent was described as bleeding so profusely that he was “covered
in blood” yet refused to obtain medical attention. Acting this irrationally indicates
Respondent lacks the decision-making capacity necessary to act in his own best interest.
See id. at 335–36.
There is no evidence in the record that preponderates against the trial court’s
finding that Respondent is a “person with a disability” within the meaning of Tennessee
Code Annotated section 34-1-101(14). Respondent lacks the physical and mental
capacity necessary to care for himself or make decisions on his own behalf. As a result,
Petitioner has proven the requirements of section 34-1-126 by clear and convincing
evidence. We further agree that the proof supports the appointment of Respondent’s wife
as his conservator. As noted by the trial court, Petitioner and Respondent have been
married for over 37 years; she has played an active role in helping care for Respondent
since his stroke; and she continues to visit with Respondent and use his funds to care for
him. Therefore, it cannot be said that the trial court’s decision to appoint Petitioner as
conservator over Respondent’s person and property was an abuse of discretion. See
Tenn. Code Ann. § 34-3-103 (giving the spouse of the person with a disability priority
when appointing a conservator); In re Conservatorship of Davenport, 2005 WL 3533299,
at *19 (stating a trial court’s decision on who to appoint as conservator is reviewed
“under the abuse of discretion standard of review”). This decision appears to be
necessary and one that is in the best interest of Respondent. See In re Lawton, 384
S.W.3d at 761; Crumley, 1997 WL 691532, at *2.
V. CONCLUSION
We affirm the trial court and remand for further proceedings as may be necessary.
Costs of this appeal are taxed to appellant, John Martin Muldoon, for which execution
may issue if necessary.
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CARMA DENNIS MCGEE, JUDGE
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