                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                 Assigned on Briefs January 15, 2002

                                 IN RE: WILLIAM HARRIS EPPS

                      Appeal from the Chancery Court for Montgomery County
                           No. 98-03-0067   Carol Catalano, Chancellor



                          No. M2001-01336-COA-R3-CV - Filed July 16, 2002


The conservators and sons of Mr. Epps appeal the trial court’s decision to award to Mr. Epps’s wife
one-third of the proceeds from the sale of a house owned by Mr. Epps but used as the marital
residence during the marriage of over ten years. We affirm the decision of the trial court.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and WILLIAM C. KOCH, JR., J., joined.

Van L. Riggins, Jr., Clarksville, Tennessee, for the appellant, William Harris Epps.

Dorris Fay Epps, appellee, not represented on appeal.

                                          MEMORANDUM OPINION1

       The issue in this appeal is whether the trial court erred in granting a portion of the proceeds
from the sale of the ward’s real property to his spouse. Mr. Epps, the ward, suffered a stroke and
encountered other serious health problems which rendered him unable to care for himself or his
property. Consequently, a conservatorship was established.




       1
           Tenn. R. Ct. App. 10 states:

       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 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       “MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any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.
       Mr. Epps’s wife, Doris Faye Epps, was appointed Conservator and authorized to use Mr.
Epps’s social security and retirement benefits for his ordinary expenses. A later order authorized
the Conservator to withdraw regular amounts monthly from Mr. Epps’s assets for his care. Later,
the spouse was removed as conservator and was replaced by the sons. Subsequently, the sons moved
for permission to sell Mr. Epps’s real estate because his other assets had been depleted and the
proceeds from the sale were needed to cover the cost of his care and ordinary expenses.

         The wife responded by saying she was still residing in the home the conservators wanted to
sell, that she had been married to Mr. Epps in excess of ten years, and that prior to the marriage she
had owned real property which she sold and the proceeds of which were used during the marriage,
in part, to enhance and maintain the value of the home the conservators wanted to sell. Although
she agreed that sale of the real property was in Mr. Epps’s best interest, she claimed an equitable
interest in the home and requested the court to recognize that interest and to make any sale subject
to her receiving proceeds representative of her interest. By later motion, the wife asserted that she
had been ejected from the home and requested the court to order the conservators to account for rent
received.

       After a hearing, the trial court entered an order finding that Mr. and Mrs. Epps had been
married since 1987. The court further found:

       1.      It is significant that shortly after the parties married, Dorris Epps sold a home
               that she had owned in her own name and received proceeds therefrom of
               approximately Thirty-Two Thousand Dollars;

       2.      It is significant that Dorris Epps spent some of her money on the home belonging to
               William Harris Epps;

       3.      It is significant that some of the expenditures that Dorris Epps made did not increase
               the value of the home of William Harris Epps but some expenditures did increase or
               maintain the value of that home;

       4.      It is significant that William Harris Epps has a Last Will and Testament wherein he
               leaves a life estate in the property for Dorris Epps showing an intention to take care
               of Dorris Epps.

       5.      It is not significant that Dorris Epps expended monies for health care of William
               Harris Epps because that is an obligation between spouses that is normal and
               ordinary.

       6.      It is significant that William Harris Epps has had a stroke and his health has declined
               to the point that he is disabled.



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       The court granted the motion to sell the real property and ordered that one-third of the
proceeds be paid to Mrs. Epps.

         The sons, as conservators, appealed on behalf of the ward. Mrs. Epps did not respond, and
the matter was submitted for decision on the record and the appellants’ brief. The record on appeal
does not include a transcript of the hearing or a statement of the evidence. Appellants state
“inasmuch as this case did not involve the taking of testimony, therefore, the pleadings and filings
in this cause demonstrate both the statement of the case and the facts.”

         Without a transcript or statement of the evidence, the findings of fact made by the trial court
are conclusive on appeal. In the absence of an appellate record containing facts, this court must
presume that “the record, had it been preserved, would have contained sufficient evidence to support
the trial court’s findings.” Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992); Coakley
v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992). The appellants do not take issue with the
factual findings, but argue that the Tennessee conservatorship statutes do not authorize division of
the property and that Mrs. Epps has no recognizable legal interest in the real property (i.e., it was not
titled jointly; there is no divorce action pending to authorize distribution of the parties’ property).

        The conservatorship statutes vest the trial court with the wide discretion it needs to ensure
that persons unable to take care of themselves or their affairs are properly cared for. State ex rel.
McCormick v. Burson, 894 S.W.2d 739, 745 (Tenn. Ct. App. 1994); see also Tenn. Code Ann. § 24-
1-121.

        Tenn. Code Ann. § 34-3-109 provides, “The court having jurisdiction over the disabled
person may establish the amount of financial support to which the spouse or dependent minor
children are entitled.” This statute gives the court wide discretion in this area. Accordingly, we will
we review a decision of the trial court awarding support to the spouse of a ward using an abuse of
discretion standard. Under that standard:

        a trial court's ruling “will 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);
        State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000). A trial court abuses its
        discretion only 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.” 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. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998).

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

       With the sale of the marital residence, Mrs. Epps is no longer able to live in the home she
shared with her husband during their marriage. She no longer owns the home she owned prior to


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the marriage. She is, therefore, in need of some support to enable her to meet her living needs. In
view of all the circumstances as found by the court, we are of the opinion that the decision of the trial




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court is an equitable accommodation of the needs of the ward and those of his spouse. The trial
court acted within its discretion, and we affirm the judgment.

       Costs on appeal are taxed to the appellants, the conservators of William Harris Epps.



                                                    ___________________________________
                                                    PATRICIA J. COTTRELL, JUDGE




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