                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                            October 16, 2003 Session

                   JACKIE R. CLINE v. EMILY C. PLEMMONS

                Direct Appeal from the Chancery Court for McMinn County
                       No. 19362    Hon. Jerri S. Bryant, Chancellor

                                       FILED JANUARY 23, 2004

                                 No. E2002-02584-COA-R3-CV



This is a dispute between brother and sister over the handling of the affairs as conservators of their
mother. The brother appeals from the Trial Court’s rulings as to compensation, attorney’s fees and
conservatorship. On appeal, we affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.


HERSCHEL PICKENS FRANKS, J. delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and WILLIAM H. INMAN , SR. J., joined.

Jackie R. Cline, Etowah, Tennessee, pro se.

Emily C. Plemmons, Knoxville, Tennessee, pro se.



                                             OPINION


              In this action the Trial Court on February 12, 2001, filed an Order appointing Jackie
Cline as Conservator of the person of Dorothy Cline, his mother, and Emily Plemmons as
Conservator of her mother’s Estate.

               By way of background, the parties have been involved in this action over the personal
and financial care of their disabled mother, Dorothy Cline, since 1997.

                Dorothy Cline is mentally disabled and has other health problems. Her husband cared
for her until July 1997 when he died, and their son, Jackie Cline, who is employed with the U.S.
Postal Service, had moved back home in 1995 to assist with caring for Dorothy.

                The Clines’ daughter, Emily Plemmons, lives in Knoxville, 60 miles from the home
place. In 1998 these parties filed petitions essentially to appoint a conservator of the person and
estate of Dorothy Cline. In May of 1998 the Chancellor declined to appoint a conservator, but
ordered temporary arrangements be made to provide proper care for Ms. Cline. The Court
determined that the daughter had not been able to appropriately visit due to her brother’s control, and
that the brother, Jackie Cline, “appears to have co-mingled his assets with those of his mother”. The
Court ordered the investigation to identify Ms. Cline’s assets.

              The parties engaged in numerous disputes before the Court until the Court entered
an Order on September 18, 2002 which provided in pertinent part:

                       The unauthorized items of furniture bought and previously credited to Cline
               against his claim for sitter’s compensation, and the roof put on the home, shall
               remain in the estate; Cline must show proof of ownership of any other items he
               claims.

                      He was Ordered to furnish the social security numbers of two sitters and
               provide it to Plemmons for use in tax preparation.

                      The Court denied Cline’s request for conservator fees in addition to the
               $1,500.00 which had already been awarded.

                       With respect to Cline’s claim for sitting fees, the Court held that Cline had
               received the benefit of room and board and the value of certain assets which included
               the service station and its improvements, the Court held that in consideration of the
               expenses required to marshal and preserve the assets of the estate, and the costs and
               damage to the estate already caused by Cline by improper handling of financial
               matters, that no additional sitter fees were justified other than those already ordered.

                       Finally, the Court said the tax returns for 1997-2000 were to be amended to
               correct the original returns to the extent possible with the data available.

                Cline on appeal essentially questions all the above rulings by the Court, and
additionally raises as an issue the appointment of Plemmons as the Conservator of the Estate, as well
as the reasonableness of attorney’s fees awarded to Plemmons.

               Our review of findings of fact by the Trial Court is de novo with a presumption of
correctness. Questions of law are reviewed without the benefit of that presumption. Tenn. R. App.
P. 13(d). The abuse of discretion standard requires that a trial court's ruling "be upheld so long as
reasonable minds can disagree as to propriety of the decision made." State v. Scott, 33 S.W.3d 746,
752 (Tenn. 2000).


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                 Cline cites the Internal Revenue Code, 26 U.S.C.A. § 7401 and 7402, and argues the
Trial Court had no authority to order the amendment of tax returns. The section has no application
to this case, but applies to IRS procedure in commencing an action to recover taxes on behalf of the
United States.

                 The Trial Court has the authority to order the parties to follow the law, which in this
case requires a correction of incorrect tax returns, in compliance with federal tax law. Cline argues
that the sitters are self-employed persons and may pay their own taxes as independent contractors,
and that he was simply doing what the sitters requested by not withholding taxes and paying them
in cash. He also contends that the back taxes should not be paid unless this Court ordered it. The
record shows that the Estate has been penalized by the IRS for filing improper tax returns, and the
Trial Court merely ordered that amended returns be filed to correct the returns. This issue is without
merit.

                 As a subset of this issue, the Trial Court ordered that the social security numbers of
the sitters be provided for the purposes of bringing the Estate in compliance with the tax laws. This
issue is likewise without merit.

               Cline argues that he is entitled to be compensated for sitter services, and on appeal
argues there was a contract for these services, but he testified at trial that there was no express
contract with his father or mother to provide personal services for them. There is nothing in the
record to show any intent by Cline at the time he began rendering services to his parents to bill the
Estate or to be paid, and he has asserted this claim only after the differences developed with his
sister. The applicable rule expressed over a century ago by the Supreme Court is well stated in
Gorrell v. Taylor, 64 S.W. 888 (Tenn. 1901) is well settled:

               Children performing services of this character for a parent are presumed to act
               gratuitously, from motives of affection and duty; and, to entitle them to recover
               compensation therefor, the burden is upon them to overcome the presumption by
               showing either an express contract, or such exceptional facts and circumstances as
               will establish an intention on the one part to charge and on the other to pay,
               notwithstanding the relation of kinship.

               The evidence does not preponderate against the Trial Judge’s ruling on this issue.

               As to the issue of compensation for services as a conservator, the Court in an Order
dated January 2, 2002 said:

               Cline has wasted the assets of the ward by continuing to run the service station at a
               deficit and failing to file correct tax returns. In addition, the assets would be better
               served by being managed in a more appropriate manner.

The parties were further warned:

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               The Court further finds that the administrative expenses of the ward’s estate are
               being depleted because of the litigious nature of the relationship between the parties.
               the Court noted for the record that if the parties continued to have numerous
               disagreements, involving needless court time, and litigation concerning aspects of
               this conservatorship, the Court will remove the conservatorship from both parties.
               It is not in the ward’s best interest for her estate to be depleted by funding the
               litigation between the ward’s children.

               Cline also argues the Court erred in splitting the conservatorship with him as
conservator of the person and Plemmons as conservator of the estate. In this regard, the Special
Master recommended that Plemmons be appointed sole conservator. However, it is now obvious
that because of the extreme degree of enmity, these parties apparently cannot work in harmony. A
split conservatorship invites a state of perpetual animosity and chaos, especially in view of the fact
that Cline must look to Plemmons for reimbursement of expenses.

                The Trial Court has broad discretion in appointing and removing conservators, and
we do not disturb such appointments absent abuse of discretion. The record establishes that the
current arrangement has been detrimental to the Estate, and it will be in order and we direct for the
Trial Court to determine anew whether the present arrangement should continue.

               Cline also raises the issue of the award of attorney’s fees to Plemmons.

                The award of attorney’s fees is within the sound discretion of the Trial Court and will
not be disturbed on appeal unless the evidence preponderates against it. Miller v. Miller, 81 S.W.3d
771 (Tenn. Ct. App. 2001). One factor the Court may take into account in awarding attorney’s fees
is the obstructionist tactics and failure to cooperate with discovery or the court’s orders. Gilliam v.
Gilliam, 776 S.W.2d 81, 87 (Tenn. Ct. App. 1988). The evidence demonstrates that the fees were
caused in large part by the contentiousness and obstructionist behavior of Cline, and the Chancellor
so found. We find no abuse of discretion in the award of fees by the Trial Court.

               The remaining issues raised by Cline are without merit.

               On appeal we affirm with instructions.

               The cost of this appeal is taxed to Jackie R. Cline, individually.




                                                       _________________________
                                                       HERSCHEL PICKENS FRANKS, J.




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