                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                            Assigned On Brief January 28, 2005

              IN RE: CONSERVATORSHIP OF ALVIN A. MOORE

                   Direct Appeal from the Probate Court for Shelby County
                            No. C-9628     Donn Southern, Judge



                    No. W2004-01828-COA-R3-CV - Filed March 30, 2005


Separate petitions for the appointment of conservator were filed, one by the two nieces of the
disabled person and the other by a daughter. Notwithstanding the statutory preference given to the
daughter, the probate court determined that it was in the best interest of the disabled person to grant
the petition filed by the nieces. We affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed; and
                                       Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Nathan S. Moore, Nashville, Tennessee, for the appellant, Mary Scott.

Charles E. Rich, Memphis, Tennessee, for the appellees, Virginia Quinley and Kaye Wages.

                                             OPINION

        This controversy results from the filing of competing petitions for the appointment of a
conservator of the person and estate of Alvin A. Moore. Virginia Quinley and Kaye Wages, nieces
of Mr. Moore, petitioned the court to appoint them as co-conservators. The petition recites that Ms.
Quinley is a resident of Mississippi and Ms. Wages resides at 5287 Airview in Memphis, Tennessee.
The affidavits of two physicians were filed, each stating that they were of the opinion that Alvin A.
Moore is a disabled person and unable to manage his personal and financial affairs and
recommended that a conservator be appointed for those purposes. The petition further recites that
Mr. Moore, age 73, presently resided at 5287 Airview, Memphis, Tennessee. It further recites that
Mr. Moore has been diagnosed with paranoid schizophrenia and is in such mental and physical
condition that he is not competent to either manage and control himself or his property and financial
affairs. Following the filing of this petition, the probate court entered an order appointing attorney
Russell S. Glass as Guardian ad Litem to represent and defend the interest of Mr. Moore.
        Shortly after the appointment of the Guardian ad Litem, a petition was filed by Mary Scott,
the daughter of Mr. Moore, requesting that she be appointed conservator of his person and property.
This petition recites that Ms. Scott resides in Franklin, Tennessee and states that Mr. Moore’s other
children, along with his former wife and the mother of his children, Mary Moore, joined in support
of the petition of Mary Scott.

         The court below heard evidence in this matter on April 20, 2004 and determined that, at the
time of the hearing, Mr. Moore was a 74 year old resident of Shelby County, Tennessee. The court
found that he was a disabled person within the meaning of Tennessee Code Annotated § 34-1-
101(7)1 by reason of mental illness and physical disability. The court found the petition of Kaye
Wages and Virginia Quinley to be well taken and the petition of Mary Scott not well taken. The
court found Kaye Wages and Virginia Quinley as fit to serve as co-executors of the person and
property of Alvin A. Moore, that it was in the best interest of Mr. Moore, considering the state of his
ill health, that he remain where he currently resides at 5287 Airview, Memphis, Tennessee, in the
care of Kaye Wages and Virginia Quinley. The court noted the statutory priority of appointing a
child of the disabled person over other relatives, but felt in this case that it was not in the best interest
of the disabled person, Mr. Alvin A. Moore. The statute is clear that the priority of persons to be
considered for appointment is subject to the court’s determination of what is in the best interest of
the disabled person.

        Ms. Scott perfected a timely appeal and contends that the trial court erred in failing to follow
the statutory priority of Tennessee Code Annotated § 34-3-103 which provides as follows:

         Priority of persons to be considered for appointment. – Subject to the court’s
         determination of what is in the best interests of the disabled person, the court shall
         consider the following persons in the order listed for appointment of the conservator:
                (1)      The person or persons designated in a writing signed by the alleged
         disabled person;
                (2)      The spouse of the disabled person;
                (3)      Any child of the disabled person;
                (4)      Closest relative(s) of the disabled person; and
                (5)      Other person(s).

Tenn. Code Ann. § 34-3-103 (2001).

        Our standard of review in this non-jury case is de novo upon the record of the proceedings
below and there is no presumption of correctness with respect to the trial court’s conclusions of law.
Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996); and Tenn. R. App. P. 13(d). The trial
court’s factual findings are, however, presumed to be correct and we must affirm such findings


         1
          “‘Disabled person’ means 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[.]” Tenn. Code Ann. § 34-1-101(7) (2001).

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absent a preponderance of evidence to the contrary. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87 (Tenn. 1993).

         Because the trial judge is in a better position to weigh and evaluate the credibility of the
witnesses who testify orally, the 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. In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

        The appellant argues that the trial court’s determination of Mr. Moore’s best interest is not
supported by medical proof. She is correct in that the record before us does not contain any medical
reports with the exception of the two physician affidavits heretofore discussed. In reviewing the
record, it appears that the facts are largely undisputed. The parties are in agreement that Mr. Moore
suffered a debilitating stroke in February of 20022; that he suffers from paranoid schizophrenia and
that he is in need of a conservator.

       Kaye Wages testified that her husband, Jimmy Wages, stayed with Mr. Moore “every hour
of the day” as someone had to be with him 24 hours a day. She further testified that Virginia
Quinley and Jean Waters stayed with Mr. Moore approximately one weekend per month so that she
and Mr. Wages could have a weekend off. She further testified that Billy Wages stays with Mr.
Moore when she and Mr. Wages have to go to the grocery store. Home health care aides give Mr.
Moore his bath Monday through Friday. Ms. Wages testified that Mr. Moore came to live with her
and her husband in May 2002 and they had cared for him since that time.

        Mary Scott testified that she lives with her husband in Franklin, Tennessee, and that if the
court saw fit to grant her petition, Mr. Moore would be living in Fairview, Tennessee, with his son,
Cliff Moore and his wife. She testified that Cliff Moore’s wife did not work and would take care
of Mr. Moore on a day-to-day basis.

        Virginia Quinley testified that Mr. Moore is paralyzed on his right side, has a tube in his
bladder and a feeding tube in his stomach. She further testified, in her opinion, he was unable to
travel. While there was testimony that Mr. Moore had indicated a preference to remain in the
Wages’ home, there was further evidence that the only way to extract information from Mr. Moore
was through a series of leading questions.

       We have concluded that a layperson such as Ms. Quinley, who has observed Mr. Moore for
an extended period of time, would be able to testify as to his paralysis and the insertion of the tubes
and medical testimony would not be required. Therefore, we are of the opinion that the evidence
does not preponderate against the finding of the trial court that it was in the best interest of the
disabled person, Alvin A. Moore, that he remain at the Memphis address and that the appointment
of Kaye Wages and Virginia Quinley as his co-conservators is in his best interest. Therefore, the



        2
            The report of the Guardian ad Litem states that the strokes began occurring on March 4, 2002.

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judgment of the trial court is affirmed. The costs of this appeal are taxed to the appellant, Mary Scott
and her surety.



                                                        ___________________________________
                                                        DAVID R. FARMER, JUDGE




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