In re Conservator of Charles E. Rowe

Crossville, Tennessee conservatorship lawyers represented the parties.

In January 2023, Petitioner filed in the Trial Court a petition for a conservatorship over her husband, Respondent, who then was 76-years old. Petitioner alleged that Respondent and she married in 1996, and that the couple had moved to Tennessee from New York in August 2022. She further alleged that she was Respondent's duly appointed attorney-in-fact pursuant to a power of attorney and that Respondent was estranged from his children, Daughter and Charles Rowe, Jr. ("Son"). Petitioner explained that Respondent had been diagnosed with Alzheimer's disease and dementia and that he had been evaluated by a psychologist and doctor in New York. Petitioner alleged that Respondent needed a conservator of his person and property and requested that the Trial Court appoint her as his conservator. A week later, the Trial Court appointed Sherrill Rhea as Respondent's guardian ad litem ("the GAL").



Prior to Petitioner's initiation of this action, Daughter had filed a petition for conservatorship over Respondent in New York in October 2022. Daughter filed a motion to intervene and a motion to continue in the Trial Court. She alleged that her petition for conservatorship had been pending in New York at the time Petitioner filed her action in the Trial Court. She further alleged that the New York court still retained jurisdiction over the matter, that a "Certified Court Evaluator" in New York had recommended that Daughter be appointed as conservator for Respondent, and that Respondent had not established residency in Tennessee when Petitioner filed her petition. She withdrew her New York petition after a virtual hearing on January 12, 2023, when the "Court Evaluator made a different statement to the Court regarding jurisdiction." The Trial Court granted Daughter's motion to intervene.



Daughter filed a counter-petition and a response to the petition. She denied that Petitioner was Respondent's lawful wife and alleged that Respondent never divorced his first wife, Irene Rowe ("First Wife"), Daughter's mother. She admitted that Petitioner "moved" Respondent to Tennessee in August 2022, adding that Petitioner moved him to Tennessee without informing his children while he was "rehabbing from surgery in a rehabilitation center in New York." She further denied any estrangement between Respondent and herself and that Petitioner was Respondent's duly appointed attorney-in-fact. Given the alleged invalidity of Petitioner's marriage to Respondent, Daughter claimed that she had statutory priority to be appointed Respondent's conservator. Daughter further claimed that Respondent was afraid of Petitioner and had not wanted to move to Tennessee. She also alleged that Petitioner told Son that "there was a life insurance policy taken out in 2007 that was supposed to go at least in part to the COUNTER Petitioner and [Son]" and that Son could "kiss that goodbye" in August 2022.



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In March 2023, the GAL filed her report, reflecting that she discussed Daughter's concerns with Respondent. According to the GAL, Respondent responded as follows:



He shrugged me off and said that he wished his kids would leave him alone. He is with his wife and that is where he wants to be. I met with the Respondent privately on numerous occasions during this case. The Respondent always had the same reaction when I talked to him about Dawn and Christopher [R]owe. The Respondent wishes for this lawsuit to be over and wants to be left alone.



The GAL further found that Respondent showed "absolutely no fear and seems comfortable and at ease around" Petitioner. Despite Son's accusations that Petitioner had drained Respondent's bank accounts, the GAL reviewed Respondent's accounts and concluded that there was "nothing out of the ordinary in terms of expenditures or unusual transactions."



The GAL cited a medical examination report by Maria Stubbs, M.D., in which Dr. Stubbs concluded that Respondent's mental condition was "poor and that there was no rehabilitation plan feasible." The GAL also reported that Respondent had another "seizure/stroke" in January 2023. The GAL concluded that Respondent lacked the "mental capacity to make sound judgments concerning his finances, business matters, and health related decisions," was in need of a conservator, and that Petitioner would be an appropriate conservator.



Dr. Stubbs's medical examination report was entered into evidence as an exhibit at trial. Dr. Stubbs's report reflected that she believed Respondent to be in poor mental condition and to be suffering from Alzheimer's dementia and multi-infarct dementia. Dr. Stubbs indicated that, in her professional opinion, Respondent needed a fiduciary for his physical well-being, fiduciary to handle his financial affairs, fiduciary to consent to medical treatment, and fiduciary to consent to relocation.



Trial was held on March 17 and June 12, 2023. At trial, Petitioner; Daughter; First Wife; and Richard Calcagno, a process server, testified. Petitioner testified about Respondent's and Daughter's relationship. From her perspective, Daughter never visited Respondent and was interested only in his money. She also explained that they moved to Tennessee because Respondent was a retired corrections officer and Petitioner feared retaliation from released inmates. She also complained of high housing costs in New York. She indicated that Respondent wanted to move as well. They visited friends from church in Crossville, Tennessee in June 2022 and decided to move there.



As for Respondent's Alzheimer's and dementia symptoms, Petitioner explained that she began noticing his symptoms in 2019 and that he was diagnosed in 2020. She explained that he had suffered a stroke in August 2022 while they were still living in New



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York. She further attributed the stroke to his failure to take his medication, testifying: "I would give him his medicine. And then I'd turn around to maybe wash the dishes or do something and he wasn't taking it. He was throwing the medicine away and I didn't know it." She further testified that Respondent is "cognizant of things" and "not totally like in La La land," but that he cannot "really put together all of what's going on." When asked whether Respondent was "more cognizant in August" than he was at the time of trial, Petitioner responded: "No.... He's about the same as he was then." They moved to Tennessee on August 25 or 26 of 2022.



With respect to the history of her relationship with Respondent, Petitioner testified that their relationship began in 1976 while he was married to his first wife, unbeknownst to Petitioner. Petitioner discovered Respondent's marriage and ended her relationship with him in 1986. They rekindled their relationship after Respondent informed Petitioner of his divorce from First Wife, and they married in 1996.



Daughter contested much of Petitioner's testimony. She denied that she was ever estranged from Respondent but acknowledged that there were periods of time where they did not communicate. She also claimed that she never asked for or received any money from Respondent. She further testified that Petitioner did not want Daughter and Respondent to have a relationship, and that Respondent tried to keep his relationship with Daughter a secret from Petitioner. She also testified that she believed Petitioner was abusing Respondent after she witnessed Petitioner poke him in the chest while he was in the hospital. According to Daughter, Petitioner moved Respondent straight to Tennessee from the nursing home where he was recovering from his stroke. In addition to her testimony, Daughter's counsel introduced multiple recordings of conversations between Daughter and Respondent.



Mr. Calcagno testified that he was a retired FBI agent and had been hired by Daughter's attorney in New York to serve Respondent with "some court papers." Mr. Calcagno detailed his interaction with Respondent and Petitioner at their home in Tennessee. At the door, Respondent smiled and moved to accept the papers from Mr. Calcagno, but Petitioner became "very angry" and said, "No, no, no" and "Don't take anything." Respondent's demeanor then changed. Mr. Calcagno testified that



Respondent then lowered his head and appeared intimidated. After Mr. Calcagno left the papers at Petitioner's feet, Petitioner told Mr. Calcagno "to go to hell" and take his mother with him.



First Wife testified and was adamant that Respondent and she never divorced, although they had been separated since her move to Florida in 1996. She also stated that at one point Respondent and she renewed their vows in Florida. She could not remember when they renewed their vows but indicated that it was thirty years ago. She also testified that a New York court had ordered Respondent to pay her child support. Daughter testified that Respondent had told her that First Wife had initiated and obtained



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the divorce. Daughter introduced as exhibits five certified copies of "Record of No Divorce" from the five boroughs of New York City, reflecting that there was no record of divorce for Respondent and First Wife.



On August 10, 2023, the Trial Court entered a judgment appointing Petitioner as conservator over Respondent and appointing Daughter as a standby conservator. The Trial Court determined that it had subject matter jurisdiction over the matter, explaining the following:



Testimony from Ms. Janice Rowe was that she began to notice issues with Mr. Rowe in 2018-2019. In 2020 he was diagnosed with Alzheimer's Disease. She indicated that he is on medication to slow the progression and it has worked well. She indicates that he does have trouble with his memory and therefore she is responsible for making sure he takes all of his required medication for his host of physical ailments. She also indicates Mr. Rowe was a "techie" but now has problems with his iPhone because he forgets his passcode. The Rowe's visited Tennessee in June 2022 prior to their move in late August of 2022. It is during this June 2022 trip it is alleged that the intent to move to Tennessee was formed. Even prior to the June trip to Tennessee, Ms. Rowe testified that they intended to move from New York due to various reasons including crime and high rent prices. She testified that they looked at other States, but again due to high cost of living, they decided to move to Tennessee. Unlike [In re Conservatorship of] Clayton [, 914 S.W.2d 84 (Tenn. Ct. App. 1995)], there was never a prior finding that Mr. Rowe was incompetent to either manage his property or person. The Court knows of no way, absent specific medical proof of Mr. Rowe's incompetency from before the June Tennessee visit, or compelling testimony of his alleged incompetency prior to June 2022, that it can look back in time and decide if Mr. Rowe was incompetent at the time either intent to move was formed or when the move to Tennessee actually occurred. A diagnosis of Alzheimer's certainly does not equate to incompetency at the time of diagnosis. The only medical proof the court has before it is the January 17, 2023 report of Dr. Maria Stubbs finding Alzheimer's dementia and that the respondent is in poor mental health.... Absent prior medical proof or Court findings of incompetency this Court finds that Mr. Rowe had the ability to change his domicile from New York to Tennessee and therefore Cumberland County is the "county of residence" for the purpose of Tenn. Code Ann. §34-13-101(b).



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The Trial Court further found that Respondent was either partially or fully disabled and in need of assistance. With respect to priority of appointment, the Trial Court found that Petitioner took priority because she was Respondent's wife.[1] The Trial Court determined that Daughter had not proven by cogent and convincing evidence that Respondent's and Petitioner's marriage was invalid. The Trial Court found First Wife credible but noted that she had struggled with her memory. Although the Trial Court acknowledged the five copies of "Record of No Divorce" from New York, the Trial Court found that it was possible that First Wife divorced Respondent in Florida, given that she had lived there for the past 26 years.



The Trial Court further determined that it was in Respondent's best interest that Petitioner be appointed his conservator, noting that the GAL had reported no concerns with Petitioner or any unusual transactions to indicate some ulterior financial motive on her part. The Trial Court also found that Petitioner had an impressive grasp of Respondent's medical conditions and medications. The Trial Court appointed Daughter as a standby conservator, finding her to be a credible witness who clearly loved Respondent. The Trial Court taxed the costs of the cause, including Petitioner's attorney's fees and the GAL fees against the property of the Respondent. The Trial Court taxed Daughter her own attorney's fees incurred.



Daughter filed a notice of appeal. Thereafter, Petitioner filed a motion to alter or amend the judgment, asking the Trial Court to instead tax costs to Daughter and to reconsider appointing Daughter as a standby conservator. Daughter also filed a motion to alter or amend, asking the Trial Court to reconsider its finding of subject matter jurisdiction and, alternatively, its appointment of Petitioner as conservator. She also asked the Trial Court to tax all costs, including her attorney's fees, to Petitioner, as well as grant her the right to have contact and visitation with Respondent.



As reflected in an order entered in October 2023, the Trial Court chose not to alter or amend the substance of its judgment. However, the Trial Court did award Daughter weekly phone calls and monthly in-person visits with Respondent, hospital visits, and medical updates. The Trial Court also decided to split the GAL's fees evenly between Daughter and Petitioner.



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In re Rowe, E2023-01236-COA-R3-CV (Tenn. App. Oct 18, 2024)

For the foregoing reasons, we conclude that the Trial Court did not have subject matter jurisdiction to hear the petition for conservatorship. We accordingly vacate the Trial Court's final judgment appointing Petitioner as Respondent's conservator but affirm the Trial Court's allocation of costs. We remand to the Trial Court for further proceedings consistent with this Opinion, including the entry of an order dismissing this matter due to lack of subject matter jurisdiction and for the collection of costs below. Costs on appeal are assessed against the appellee, Janice Peters-Rowe.