IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 1, 2021

PAULA HARRIS, CONSERVATOR FOR SAUNDRA RICHEY v. 

RUEBEN “ROYCE” RICHEY ET AL.

Appeal from the Chancery Court for Williamson County

No. 19CV-48682B Michael W. Binkley, Judge

___________________________________

No. M2021-00331-COA-R3-CV

___________________________________

This appeal arises from a divorce action, in which the wife’s conservator alleged that the 

husband had been dissipating marital assets and had withdrawn money from joint accounts. 

As a result, the trial court ordered the husband to deposit the withdrawn funds with the 

court’s clerk and master. The wife passed away before the trial court could adjudicate the 

divorce action. The husband filed a motion requesting that the court return the funds to 

him because the divorce action had abated upon the wife’s death. The trial court dismissed 

the suit but denied the husband’s motion and ordered the clerk and master to continue 

holding the funds until they could be transferred to the probate court upon the filing of a 

petition to probate the wife’s estate. The husband has appealed. Having determined that 

the trial court erred by exercising subject matter jurisdiction over the disposition of the 

funds after the divorce action had abated, we reverse the trial court’s decision to withhold 

the funds from the husband and retain them with the clerk and master. 

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

Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which W. NEAL 

MCBRAYER and KENNY W. ARMSTRONG, JJ., joined.

Robert H. Plummer, III, Franklin, Tennessee, for the appellant, Rueben “Royce” Richey.

Peggy S. Pulley, Ashland City, Tennessee, for the appellee, Paula Harris, Conservator for 

Saundra Richey. 

12/21/2021
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OPINION

I. Factual and Procedural Background

In May 2019, Saundra Richey (“Wife”) vacated the marital residence where she had 

lived with the respondent, her husband, Reuben “Royce” Richey (“Husband”), and was

hospitalized as a result of dementia. The petitioner, Paula Harris, became Wife’s appointed 

conservator (“Conservator”) in August 2019. On September 3, 2019, Conservator filed a 

petition in the Williamson County Chancery Court (“trial court”) for legal separation on 

behalf of Wife, alleging, inter alia, that Husband and Christy Schrage, Husband’s daughter 

from a previous marriage, had removed $30,000.00 from a Wells Fargo joint checking 

account; $60,000.00 from a Regions joint checking account; sold $11,867.79 worth of joint 

stock; sold $87,519.11 of additional joint stock; and removed $144,658.96 from a joint 

Ameritrade account. According to the petition for legal separation, Husband made these 

withdrawals in July and August of 2019. Ms. Schrage alleged in a subsequent motion that 

Husband thought Conservator was “scheming to try to take his money” and that 

Conservator had told her that she had filed the petition for legal separation to protect 

Conservator’s children’s interest in Wife’s assets as beneficiaries named in Wife’s will.1 

Conservator requested in the petition for legal separation that the trial court issue an 

ex parte emergency restraining order to protect Wife’s share of marital assets and enjoin 

Husband and Ms. Schrage from “transferring, utilizing, accessing, hiding or any way 

disposing of ANY marital property.” On September 3, 2019, the trial court granted 

Conservator’s request, entering a temporary restraining order, pursuant to Tennessee Code 

Annotated section 36-4-106(d) (2021), and an order to appear and show cause. The trial 

court also directed Husband to provide the court with a full accounting of “all funds 

removed by [Husband] and[/]or Ms. Schrage from each one of the accounts listed in the 

petition for legal separation.”

On September 19, 2020, Conservator filed a motion for civil contempt, alleging that 

Husband had violated the temporary restraining order by dissipating $856.34 of marital 

funds and failing to provide a full accounting of the withdrawn funds. In an order entered 

on September 20, 2019, the trial court found that Husband had failed to render the

accounting. Consequently, Husband was ordered to submit the filing. In addition, the trial 

court directed that the temporary restraining order remain in “full force and effect” with 

the exception of Husband’s monthly income of $8,291.25, which Husband was permitted 

to use for living expenses. The court also ordered the remaining marital funds that had 

been withdrawn to be deposited into Wife’s attorney’s escrow account. However, once

Husband and Ms. Schrage provided the court with a complete accounting and a check in 

 

1 Conservator’s children are named as beneficiaries in Wife’s will and are identified as Wife’s 

grandchildren. Therefore, it appears that Conservator is a daughter of Wife from a previous marriage. 
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the amount of $179,340.23, the court instead determined that the funds should be deposited 

with the clerk and master in an interest-bearing account. 

On October 8, 2019, Husband filed a counter-petition for divorce and an answer to 

Wife’s petition for legal separation. Before the trial court had the opportunity to adjudicate 

either Wife’s petition for legal separation or Husband’s counter-petition for divorce, Wife 

passed away on October 24, 2020. On November 4, 2020, Husband filed a motion to 

dismiss Wife’s petition for legal separation and requested that the court enter an order 

returning the funds being held by the clerk and master to him, arguing that the case had 

abated upon Wife’s death.

Conservator filed a response to Husband’s motion, acknowledging that Wife had 

died but contesting Husband’s request for immediate return of the funds held in the registry 

of the court. Conservator posited that although the funds had previously been owned by 

Husband and Wife jointly, the funds ceased to be held by the entirety when Husband placed 

the funds in an account solely in his name. Therefore, according to Conservator, the funds 

became “individually owned marital funds subject to division by the court,” and a portion 

belonged to Wife’s estate. Furthermore, Conservator contended that the executrix of 

Wife’s estate would be able to file “for a determination of the exact amount that should be 

released to each party.” Nonetheless, Conservator further alleged that the executrix’s 

attorney had indicated to her that the executrix would not be requesting that the trial court 

determine the amount that should be paid to Wife’s estate or seeking those funds on behalf 

of Wife’s estate.2 In turn, Conservator requested that the court not dismiss the instant action

or, in the alternative, retain the funds held by the clerk and master “pending the outcome 

of any motions filed in the Probate Court.” 

The trial court conducted a hearing to address Husband’s motion on November 19, 

2020. The court entered an order on December 14, 2020, in which it, inter alia, continued 

the hearing to January 14, 2021; ordered Husband to file a suggestion of death and a death 

certificate evincing Wife’s death; determined that it would retain jurisdiction over the issue 

of payment of reasonable attorney’s fees from the funds maintained by the clerk and 

master; and determined that it would retain jurisdiction over the remaining funds held in 

the court’s registry “until such time as [Wife’s] estate is opened for probate and said funds 

can be transferred to the appropriate Probate Court.” Thereafter, Husband filed a 

suggestion of death and death certificate indicating that Wife had passed away on October 

24, 2020.

 

2 Although Conservator does not name the executrix in her response, Wife’s Last Will and Testament lists 

Husband and Margaret O’Neal Dunn as co-executors of the will. Husband’s attorney in this matter, Robert 

H. Plummer, III, was the attorney who prepared Wife’s will and was permitted to continue to represent 

Husband by agreed order entered on September 19, 2019. Conservator alleged in her response that Mr. 

Plummer represented the “executrix” as well as Husband and that Mr. Plummer had indicated that the 

executrix would not be requesting that the trial court determine the amount of funds to be paid to Wife’s 

estate.
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Husband subsequently filed a motion requesting that the trial court return to him at 

least one-half of the funds held by the clerk and master by reason that only one-half of the 

funds would be subject to the probate court’s jurisdiction. Husband argued that there would 

be no basis for the entire amount to be controlled by the trial court. Husband also asserted 

that he had been financially dependent upon the rental income from his business and that 

these rental payments had ceased in December 2020. Therefore, according to Husband, he 

needed the funds held by the clerk and master in order to defray his current living expenses. 

On January 11, 2021, a guardian ad litem, whom the trial court had appointed to 

determine Husband’s best interest, filed a response in support of Husband’s motion, 

asserting that Husband needed funds for living expenses.3 Conservator filed a response on 

January 11, 2021, contending that the trial court had already determined that the funds held 

by the clerk and master would be transferred to the probate court. Thus, she postulated that 

Husband’s motion was nothing more than a request for a “second bite at the apple.”

Upon conducting a second hearing concerning Husband’s motion to dismiss and 

return funds as well as his separate motion to return one-half of the funds, the trial court 

entered an order on February 1, 2021, determining:

Petitioner/Wife passed away on October 24, 2020 and as such it is 

appropriate to dismiss this case in its entirety.

It is of the utmost urgency that the proper petition is filed to open the 

Estate of [Wife] for probate.

Respondent/Husband has lost his primary source of income with the 

final closing of his business.

As the Court retained jurisdiction over the marital funds at the last 

hearing held on November 19, 2020, it is within the Court’s authority and 

discretion to provide funds from those held by the Williamson County 

Chancery Court Clerk and Master to Respondent/Husband for living 

expenses and to pay property taxes prior to turning them over to the Probate 

Court handling the Estate of [Wife].

All attorneys have provided the Court with affidavits of fees as 

ordered on November 19, 2020 and, as the Court retained jurisdiction over 

 

3

In an order entered on September 16, 2020, the trial court appointed a guardian ad litem to discern the 

best interest of Husband, who was then ninety-three years old. The court entered this order due to its

concern that Ms. Schrage may have been taking advantage of Husband. However, the guardian ad litem

concluded in her report that Ms. Schrage’s actions with respect to Husband’s funds were not “malicious or 

criminal.” 
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previously stated marital funds, it is within the Court’s authority and 

discretion to review the affidavits and make a determination of awarding the 

fees from said marital money.

While this Court understands the situation [Husband] finds himself in, 

the Court does not feel it appropriate to grant his motion as written for onehalf of the marital assets at this time.

(Paragraph numbering omitted.) As a result, the trial court dismissed Wife’s petition for 

legal separation and Husband’s counter-petition for divorce; ordered the clerk and master

to disburse funds for the payment of property taxes and $4,000.00 for Husband’s living 

expenses; and declared that its prior order “that the remaining marital funds shall stay 

within the jurisdiction of this Court until a petition is filed to probate the Estate of [Wife] 

shall remain in effect.”

On March 1, 2021, the trial court entered separate orders granting requests for 

reasonable attorney’s fees from Wife’s attorney, Husband’s attorney, and the guardian ad 

litem. Husband timely appealed. 

II. Issue Presented

Husband presents one issue on appeal, which we have restated slightly as follows: 

Whether the trial court erred by determining that it retained subject matter 

jurisdiction over the disposition of marital funds after the divorce action had 

abated with Wife’s death.

4

III. Standard of Review

We review a non-jury case de novo upon the record with a presumption of 

correctness as to the findings of fact unless the preponderance of the evidence is otherwise. 

See Tenn. R. App. P. 13(d); In re Estate of Fletcher, 538 S.W.3d 444, 448 (Tenn. 2017) 

(“This matter was heard without a jury; therefore, our standard of review is de novo upon 

the record of the proceedings below with a presumption of correctness as to the trial court’s 

factual determinations, unless the evidence preponderates otherwise.”). However, our 

review of the court’s legal conclusions is de novo with no presumption of correctness. 

Estate of Fletcher, 538 S.W.3d at 448; see Blankenship v. Blankenship, 59 S.W.3d 115, 

117 (Tenn. Ct. App. 2001).

Whether a court has subject matter jurisdiction over a case is a question of law, 

reviewed de novo with no presumption of correctness. Word v. Metro Air Servs., Inc., 377 

 

4 Conservator did not file a brief in response.
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S.W.3d 671, 674 (Tenn. 2012). Subject matter jurisdiction “involves a court’s power to 

adjudicate a particular controversy brought before it.” First Am. Trust Co. v. FranklinMurray Dev. Co., L.P., 59 S.W.3d 135, 140 (Tenn. Ct. App. 2001). Our Supreme Court 

has previously concluded that “issues regarding a court’s subject matter jurisdiction should 

be considered as a threshold inquiry” and “should be resolved at the earliest possible 

opportunity.” In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn. 2012).

Concerning the applicable standard of review, this Court has explained: 

A challenge to the court’s subject matter jurisdiction calls into question the 

court’s authority to adjudicate the controversy before it. Chapman v. DaVita, 

Inc., 380 S.W.3d 710, 712 (Tenn. 2012). Subject matter jurisdiction can only 

be conferred by the constitution or a legislative act. Id. When a party 

challenges a court’s subject matter jurisdiction, the court must “determine 

the gravamen of the case and identify the source of its power to adjudicate 

that type of controversy.” Word v. Metro Air Servs., Inc., 377 S.W.3d 671, 

674 (Tenn. 2012). The question of whether a court has subject matter 

jurisdiction over a case is a question of law, which we review de novo with 

no presumption of correctness. Id.

Roland Digital Media, Inc. v. City of Livingston, No. M2018-00163-COA-R3-CV, 2019 

WL 117582, at *4 (Tenn. Ct. App. Jan. 7, 2019).

IV. Subject Matter Jurisdiction Over Disposition of Funds

Husband argues that the trial court no longer maintained subject matter jurisdiction 

over the disposition of the funds held by the clerk and master after Wife passed away and 

the actions for legal separation and divorce abated. We agree with Husband that the legal 

separation and divorce actions, along with any ancillary matters, abated upon Wife’s death, 

depriving the trial court of judicial power to retain the funds held in the registry of the 

court. 

As our Supreme Court has previously noted: “It is a well-settled principle of law 

that a pending divorce action, being purely personal in nature, abates upon the death of one

of the parties.” Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008); see Steele v. 

Steele, 757 S.W.2d 340, 342 (Tenn. Ct. App. 1988) (“[I]f an action for a divorce is 

commenced, and one of the parties dies thereafter, but before the entry of the final decree, 

the action abates.”). Furthermore, when the suit abates upon the death of the party, “the 

jurisdiction of the court to proceed with the suit is terminated.” Steele, 757 S.W.2d at 342.

The termination of the divorce action also “abates all ancillary or interlocutory decrees.” 

McMahon v. Butler, No. 85-349-II, 1986 WL 5894, at *2 (Tenn. Ct. App. May 23, 1986)

(citing Keidel v. Keidel, 383 A.2d 264, 267 (R.I. 1978) (concluding that an “interlocutory 
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decree to partition real estate, being ancillary to the court’s divorce jurisdiction, must abate 

when the divorce action itself abates.”)); but see Coleman v. Olson, 551 S.W.3d 686, 697 

(Tenn. 2018) (“[A] trial court should have the authority to ‘right a wrong’ and remedy an 

injustice based on equitable considerations when a party violates a statutory injunction and 

later dies while the divorce action is pending.”).

In the present case, no final decree of divorce appears in the record, and it is 

undisputed that the trial court had not yet adjudicated Wife’s petition for legal separation 

or Husband’s counter-petition for divorce when Wife died. As such, the divorce action 

was still pending at the time of Wife’s death in October 2020. Ergo, the trial court correctly 

dismissed the actions for legal separation and divorce by its February 1, 2021 order. 

However, upon careful review, we determine that the trial court erred in determining 

that it retained subject matter jurisdiction over the disposition of funds maintained by the 

clerk and master. These funds were originally held as a consequence of the legal separation 

and divorce actions and, accordingly, the holding of funds by the court was ancillary to 

those actions. The court ordered Husband to deposit the funds with the court upon 

Conservator’s request for a temporary restraining order in the petition for legal separation

in order to protect Wife’s “share of the marital assets” after Husband had withdrawn funds 

from joint bank accounts. Upon Wife’s death, the funds were no longer subject to division 

by the court upon separation or divorce inasmuch as such actions had abated and could not 

proceed. Therefore, without the underlying actions for legal separation and divorce, the 

trial court lacked subject matter jurisdiction concerning the disposition of funds and had 

no judicial power to withhold them from Husband. See Steele, 757 S.W.2d at 342 (“The 

judicial power is ended when a party dies before the entry of a decree . . . .”).

Although our High Court appeared to reject a strict application of the abatement rule 

in Coleman v. Olson, we find the facts of that case distinguishable from the facts of the 

present one and conclude that the exception to the abatement rule recognized in Coleman 

has no application here. See Coleman, 551 S.W.3d at 696-97 (citing Aither v. Estate of 

Aither, 913 A.2d 376, 379 (Vt. 2006)) (adopting the Vermont Supreme Court’s “flexible 

approach that would allow the trial court to remedy the violation of the injunctive order, 

after a divorce action had abated, by considering the equities of the parties.”). 

Coleman involved a situation in which the wife sued her husband for divorce, fell 

ill, changed the beneficiary of her life insurance policy from her husband to her mother, 

and subsequently passed away before a hearing on her suit for divorce could be conducted. 

Coleman, 551 S.W.3d at 688. The husband sued his mother-in-law to recover the life 

insurance benefits. Id. The trial court awarded the insurance benefits to the couple’s child,

despite the wife’s violation of the statutory injunction, pursuant to Tennessee Code 

Annotated § 36-4-106(d), prohibiting parties to a divorce from changing the beneficiary of 

any life insurance policy that names either party as beneficiary. Id. On appeal, this Court 

reversed and awarded the husband the life insurance benefits. Id. In so doing, this Court 
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adopted the Vermont Supreme Court’s reasoning in Aither v. Estate of Aither, in which that 

court held that “the trial court could remedy the violation of an injunction following the 

abatement of a divorce action by considering the equities of the parties.” Id. at 694 (citing 

Aither, 913 A.2d 376, 379 (Vt. 2006)). In so considering the equities, this Court concluded 

that the husband should have been awarded the life insurance benefits. Coleman, 551

S.W.3d at 694.

The issue presented to our Supreme Court in Coleman was whether the husband 

could recover the life insurance proceeds from the wife based on her violation of the 

statutory injunction even though the divorce case had abated with her death. Id. at 696. 

Our Supreme Court concluded that the divorce action had abated upon the wife’s death 

and, as such, the statutory injunction had become ineffective. Id. Notwithstanding, our 

High Court also adopted the Vermont Supreme Court’s flexible approach to the abatement 

rule, holding that although a divorce action abates with the death of a party, a trial court 

“should have the authority to consider the equities of the parties and remedy the violation 

of a statutory injunction.” Id. at 697. As a consequence, our High Court agreed with this 

Court’s adoption of Vermont’s flexible approach to the abatement rule with respect to that 

particular set of facts, although it ultimately reversed this Court’s finding that the equities 

favored the husband. Id.

Our High Court in Coleman limited this exception to the abatement rule to instances 

when a party to a divorce violates “a statutory injunction and later dies while the divorce 

action is pending.” Id. Although the trial court in the instant cause entered an order 

enjoining either party from dissipating marital property, pursuant to Tennessee Code 

Annotated section 36-4-106(d), Husband had withdrawn the funds from joint accounts and 

sold joint stock prior to Conservator’s filing of the petition for legal separation. Therefore, 

the funds at issue were not obtained by Husband in violation of a statutory injunction or 

temporary restraining order. Ergo, we conclude that Coleman has little application to the 

present case. Instead, we find the facts of McMahon v. Butler, 1986 WL 5894, at *2, more 

comparable to the present case. 

In McMahon, the husband died before the trial court could enter an order dividing 

marital property although the court had already granted the couple a divorce. McMahon, 

1986 WL 5894, at *1. Upon the husband’s death, the wife requested that the trial court 

dismiss the action. Id. The trial court denied the wife’s motion and entered an order 

“purporting to resolve all the property rights of the parties.” Id. On appeal, this Court 

reversed the trial court’s decision, concluding:

The wife had not agreed to a division of the property; in fact the property 

rights of the parties were being litigated and the final decision on that aspect 

of the case had not been made. Under those circumstances we think the death

of the husband terminated the action setting aside all preliminary orders and 

terminating the power of the trial court to make any further orders in the case.
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Therefore, the orders of the trial court entered after the death of the 

husband are reversed and the cause is dismissed.

Id. at *3 (emphasis added). 

Similarly, in the case at bar, the trial court had not ruled on Conservator’s petition 

for legal separation, Husband’s counter-petition for divorce, or any aspect of division of 

marital property, which included the funds held by the clerk and master. Therefore, the 

death of Wife effected a termination of the actions for legal separation and divorce. All

preliminary orders, including the court’s orders requiring Husband to deposit funds with 

the clerk and master, should have been set aside rather than extended. Thus, we reverse 

the portion of the trial court’s order retaining subject matter jurisdiction respecting the 

disposition of the funds and remand to the trial court so that it can release the funds held 

by the clerk and master back to Husband.5

Husband also contends that predicated upon our Supreme Court’s ruling in In re 

Estate of Fletcher, 538 S.W.3d 444 (Tenn. 2017), the funds held by the clerk and master

would constitute his sole property. See Fletcher, 538 S.W.3d at 454 (“[O]nce a husband 

or wife withdraws funds from a joint bank account held as tenants by the entirety, the funds 

cease to be held by the entirety.”). Because we have now concluded that the trial court 

lacked subject matter jurisdiction over the disposition of the funds held in the registry of 

the court and that such funds should be returned to Husband, we need not address 

Husband’s contention in this regard. See McMahon, 1986 WL 5894, at *3 (“Our decision 

on this issue disposes of the appeal, making it unnecessary to take up the other issues raised 

by the appellant.”).

V. Conclusion

For the foregoing reasons, we reverse the portion of the judgment wherein the trial

court retained subject matter jurisdiction over funds held by the clerk and master and 

withheld the funds from Husband. We remand this case for collection of costs below and 

release of the funds at issue to Husband. Costs on appeal are taxed to the appellee, Paula 

Harris as Conservator for Saundra Richey.

s/ Thomas R. Frierson, II_____________

THOMAS R. FRIERSON, II, JUDGE

 

5 We clarify that our decision does not impact the trial court’s award of reasonable attorney’s fees to Wife’s 

attorney, Husband’s attorney, and the guardian ad litem. See New v. Dumitrache, 604 S.W.3d 1, 20 (Tenn. 

2020) (“Even when a case is dismissed for lack of subject matter jurisdiction, the court retains power to 

award attorney’s fees and costs.”).