### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 15 , 2015 Session

IN RE CONSERVATORSHIP OF FRANK S. KING, JR.

Appeal from the Chancery Court for Williamson County No. C6815 Timothy L. Easter, Chancellor

No. M20 14

- 01207

- COA

- R3

- CV

– Filed August 6, 2015

At issue in this conservatorship action is the amount and type of support the spouse of a ward is entitled to receive from the ward ‟ s estate pursuant to Tenn. Code Ann. § 34

- 3

- 109, which authorizes the court to “ establish the amount of financial support to which the
spouse . . . [is] entitled

. ” The ward ‟ s son and step

- son from a previous marriage filed a petition for the appointment of a conservator ; the ward ‟ s wife opposed the conservatorship

. A conservatorship was created

, and t he court appointed third

- party
conservators for the ward ‟ s estate and person. The reafter, the wife requested over $19,250 per month as spousal support, which included attorney ‟ s fees she incurr ed in the trial court proceedings . At the court ‟ s request, she filed sta tements of her expenses over a twelve

- month period preceding the appointment of the conservator

. The petitioners opposed her request contending it was excessive and that her separate assets should be considered in awarding support. After excluding “ outlier ” expenses that were significantly larger than her average monthly expenses and the attorney ‟ s fees the wife sought to recover as miscellaneous expenses, the trial court awarded spousal support of $9,010 per month

. Petitioners and the wife appeal . Petitioners contend the award was excessive. The wife contends the court erroneously excluded bona fide expenses including

, particularly

, the attorney ‟ s fees she incurred in these proceedings

. We affirm.

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

F RANK G. C LEMENT
, J R
., P.J., M.S. , delivered the opinion of the Court, in which A NDY D. B ENNETT and W. N EAL M C B RAYER
, JJ. , joined.

Winston S. Evans and R. Francene Kavin , Nashville , Tennessee, for the appellant, Sheila G . King.

Ames Davis, Christopher A. Wilson, and Joseph Addison Woodruff , Nashville, Tennessee, for the appellees, Frank S. King, III, and M. Wesley Hall, III.- 2

-

William L. Harbison and John L. Farringer, IV, Nashville , Tennessee, for the appellee, Regions B ank.

OPINION

Frank S. King, III ( “ Buddy King ” ) and M. Wesley Hall, III , are the son and step

son of Frank King, Jr., from a prior marriage. 1 In January 2013, Buddy King and Wesley Hall ( “ Petitioners ” ) filed a Petition for the Appointment of a Conservator for Frank King

, Jr., who was in declining health

. Sheila King, who had been married to Mr. King for approximately thirty years, filed a response oppos ing the petition ; i n the alternative, she requested t o be named conservator for her husband if a conservatorship was necessary

.
The petition came on for trial before the Clerk and Master of Williamson County who was authorized and empowered to adjudicate con servators hip actions subject to review by the c hancellor. 2 See Tenn. Code Ann. § 16

- 16

- 201(b)

. A t the commencement of the trial, the parties s tipulated that Mr. King was disabled and in need of protection by the court . After independently confirming the need for a conservatorship, the Clerk and Master ( “ the Master ” ) appointed Elder Options Care Consultants, LLC, as conservator for the person of Mr. King, and Regions Bank as conservator for his estate , which totaled approximately $6.5 million

. 3

In the order creating the conservatorship, the Master or dered Mrs. King to file a proposed expense statement itemizing her personal and household expenses “ to guide the court in determining the amount of funds that should be made available to Mrs. King for

1 Their mother died in 1972.

2 Pursuant to Tenn. Code Ann. § 16

- 16

- 201(a), “In all counties where not otherwise specifically provided by public, private, special or local acts, all jurisdiction relating to . . . the administration of estates of every nature, including . . . conservator ships and related matters previously vested in the county court, the county judge or county chair, is vested in the chancery court of the respective counties.” Pursuant to Tenn. Code Ann. § 16

- 16

- 201(b), “The clerk and master in such counties shall be auth orized and empowered to . . . appoint guardians and conservators [and] receive and adjudicate all claims . . . . All action taken by the clerk and master shall be subject to review by the chancellor by simple motion, petition or the filing of exceptions as may be appropriate.”

3 There is a statutory order of priority of persons the court is to consider when selecting a conservator; however, the order of priority is subject to the court ‟ s determination of “what is in the best interests of the [person with a disability].” AmSouth Bank v. Cunningham , 253 S.W.3d 636, 642 (Tenn. Ct. App. 2006); see also Tenn. Code Ann. § 34

- 3

- 103. The statutory order of priority is as follows: (1) the person(s) designated in a writing signed by the person with a disability; (2) spouse; (3) adult child; (4) closest relatives; and (5) other persons as set forth in Tenn. Code Ann. § 34

- 3

- 103. The conservators appointed in this case are not challenged in this appeal.- 3

-

spousal support. ” The Master also ordered Regions Bank to fund Mrs. King ‟ s day

- to

- day expenses pending final approval of her spousal support.

Mrs. King filed an expense statement on September 11, 2013, in which she requested $19,250 per month, which included $12,000 per month in household expenses and $7,25 0 per month in personal expenses

. Petitioners objected and requested more detailed information from Mrs. King before the Master set spousal support. The Master ordered Mrs. King to supplement her expense statement with spre adsheets showing actual
expenses pertain ing to the marital home and personal expenses incurred during the past twelve months, as wel l as an affidavit stating her personal income from sources other than her husband.

Mrs. Ki ng complied by fil ing a sum mary of expenses for the twelve

- month period from October 2012 through September 2013 and an affidavit stating that her total yearly income from othe r sources totaled $21,759

. The summary of expenses averaged $25,384 per month, which included $6,410 per month for Mr. King ‟ s caregivers and med ical expenses, $5,345 a month for Mrs. King ‟ s medical and personal expenses, which included health and beauty aids as well as clothing and miscellaneous, and $13,628 a month for joint expenses which included home and lawn maintenance, medical insurance and expenses, automobile and gas, utilities, grocerie s, taxes, and dining out.

Regions Bank filed a response in which it recommended that it be allowed to pay directly the costs for Mr. King ‟ s caregivers and income taxes

, and, therefore, that these costs b e dedu cted from the expenses requested by Mrs. King. The bank also proposed a spousal award of $13,145 per month, which was based upon the monthly averages of Mrs. King ‟ s documented expenses excluding what the bank described as “ outlier ” expenses that were nonrecurring, such as Mrs. King ‟ s attorney ‟ s fees

. The specific

“ outlier ” expenses were as follows: (i) $14,700 for “ joint/home ” in July 2013 that was mostly for a one

- time alarm system upgrade ; (ii) $3,859 for “ joint/auto ” in August 2013 that amounted to almost half of the yearly total; (iii) $5,755 for “ joint/miscellaneous ” in August 2013 that would be almost one

- third of the yearly total and appeared lar gely to be payments to Mr. King ‟ s caregivers and a court reporter; and (iv) $14,589 for “ Mrs. King/mi scellaneous ” in August 2013 that appeared to be largely for attorney ‟ s fees.

Prior to Mrs. King filing a response, the conservator of the person of Mr. King filed a motion to move Mr. King into an assisted living facility

, and the court granted the moti on. With Mr. King having moved out of the marital residence, the bank, as conservator of the estate, was ordered to pay all of Mr. King ‟ s expenses.

Mrs. King responded by filing an amended req uest for spousal support, in which she requested $17,088 per month for normal and recurring expenses, additional amounts for unusual and non

- recurring expenses as they occur, and additional amounts for her legal fees as incurred. The b ank agreed to some of the expenses as itemized by Mrs. King- 4

-

but objected to others. Additionally, Petitioners opposed Mrs. King ‟ s latest request arguing, in addi tion to the points made by the b ank, that her personal wealth and separate income should be considered in setting re asonable support, insisting that her need for support is not as great.

In response to the above objections, Mrs. King filed a Statement of Financial Assets revealing that her separate assets totaled $1 million and monthly in come from her separate assets totaled $1,813.27 a month. S he additionally filed a Supplemental Memorandum in Support of her request for spousal support stating that her separate assets should not be considered in setting spousal support

.

In its final response to Mrs. King ‟ s request for support of $17,088 per month, the bank recommended spousal support be awarded in the net a mount of $9,530.73 per month . This sum was based on the bank ‟ s determination that her reasonable recurring expenses totaled $11,344.00 per month , which should be reduced by $1,813.27 , the average monthly income Mrs. King received from her separate assets

.
Following a hearing on February 24, 2014

, t he Master awarded spousal support of $9,010 per month noting, in pertinent part

, that it “ considered the previous standard of living prior to the appointment of a conservator, the financial status and assets of the spouse, and the actual expenses incurred previous to the appointment and how those expenses were paid. ” The Master also noted that, throughout the marriage, Mr. King paid the parties ‟ personal and household expenses from his separate assets and income and that Mrs. King ‟ s separate assets were not used to pay expenses. In mak ing its determination of average monthly expenses

, the Master excluded from Mrs. King ‟ s expense statement certain expenses that were abnormally high ( “ outliers ” ) for which Mrs. King had no explanation

. 4 T he Master awarded, inter alia , $163 for automobile and gas; $1,169 for misce llaneous household expense; $291 for hea lth and beauty aids ; and $190 fo r personal miscellaneous expenses , but denied any award for Mrs. King ‟ s attorney ‟ s fees.

The Master also ordered the b ank to directly pay several of the expenses that had been included in Mrs. King ‟ s spreadsheets, including join t income taxes, city and county real estate taxes, and health, automotive and homeowner ‟ s insurance premiums

.

4 In fairness to Mrs. King, several of these expenses were incurred more than a year prior to the hearing, the details of which may have been attended to by others, and she simply could not recall what all of them were for. Moreover, the record indicates that the Master credited this to a bona fide lack of memory, and not an attempt to evade the question.- 5

-

Mrs. King filed an objection to the Master ‟ s Report and Recommendations . T he Chancellor adopted and confirmed the Master ‟ s ruling in all respects . This appeal followed.

Petitioners and Mrs. King appeal contending the trial court erred by considering or failing to consider certain fa c ts or factors in its award of spousal support. Petitioners contend the trial court erred by failing to consider Mrs. King ‟ s separate assets and income in determining the amount of support. Mrs . King contends the award is deficient because it is not commensurate with her previous standard of living . She also contends the court erred in refusing to includ e her attorney ‟ s fees as miscellaneous expenses. The bank, acting in its capacity as conservator of the estate of Mr. King, filed an appellee ‟ s brief stating that the award of support was a discretionary decision and it should be affirmed because there was no abuse of discretion

.

S TANDARD OF R EVIEW

Trial courts are accorded “ wide discretion in determining matters of spousal support, ” and the appellate courts review such determinations pursuant to the deferential

a buse of discretion standard. Gonsewski v. Gonsewski , 350 S.W.3d 99, 105 (Tenn. 2011). As the Tennessee Supreme Court recently stated in its decision in Lee Medical, Inc. v. Beecher , 312 S.W.3d 515 (Tenn. 2010) :

The abuse of discretion standard of review envisions a less rigorous review of the lower court ‟ s decision and a decreased likelihood that the decision will be reversed on appeal. It reflects an awareness that the decision being reviewed involved a choice among several acceptable alternatives. Thus, it does not permit reviewing courts to second

- guess the court below, or to substitute their discretion for the lower court ‟ s. The abuse of discretion standard of review does not, however, immunize a lower court ‟ s decision from any meaningful appellate scrutiny.

Discretionary decisions must t ake the applicable law and the relevant facts into account. An abuse of discretion occurs when a court strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary dec ision. A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly

erroneous assess ment of the evidence.

To avoid result

- oriented decisions or seemingly irreconcilable precedents, reviewing courts should review a lower court ‟ s discretionary decision to determine (1) whether the factual basis for the decision is properly- 6

-

supported by ev idence in the record, (2) whether the lower court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the lower court ‟ s decision was within the range of acceptable alternative dispositions. When call ed upon to review a lower

court ‟ s discretionary decision, the reviewing court should review the underlying factual findings using the preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) and should review the lower

court ‟ s legal determinations de novo without any presumption of

correctness.

Lee Medical

, 312 S.W.3d at 524

- 25 (internal citations omitted)

.
To the extent the parties challenge the trial court ‟ s findings of fact in this appeal, we are obliged to abide by another defer ential standard of review. This is because the M aster made numerous and detailed findings of fact, al l of which were adopted by the C hancellor. In circumstances where we have concurrent findings of fact by a master and a chancellor, the findings of fact cannot be disturbed by the appellate court. Tenn. Code Ann. § 27

- 1

- 113. As this court explained:

A concurrent finding of fact of the master and chancery court is conclusive on appeal as to those facts, having the same force and effect of a duly

approved jury verdict, except where the finding is on an issue not appropriate for referral, where it is based on error of law or a mixed questi on of fact and law, or where the factual finding is not based on material evidence. Thus, we must affirm the concurrent findings of the master and chancery court if there is any material evidence supporting them . Our review of the trial court ‟ s conclusions of law is de novo, with no presumption of correctness.

In re Estate of Haskins , 224 S.W.3d 675, 678 (Tenn . Ct. App. 2006 ) ( internal citations omitted).

For the reasons explained above, the trial court ‟ s findings of fact are conclusive in this appeal. Id

. However, t his standard of review does not apply to conclusions of law or mixed questions of fact and law. Id

.

A NALYSIS

We begin our analysis by noting that t he purpose of a conservatorship is to protect the person and the property o f a person with a disab ility , the ward of the- 7

-

conservatorship. 5 AmSouth Bank v. Cunningham , 253 S.W.3d 636, 641 (Tenn. Ct. App. 2006) (emphasis added)

. A conservator occupies a fiduciary position of trust of the highest and most sacred character. Grahl v. Davis , 971 S.W.2d 373, 377 (Tenn. 1998) (citing Meloy v. Nashville Trust Co. , 149 S.W.2d 73 (Tenn. 1941)). Although the conservator plays a most important fiduciary role, “ the court itself is ultimately responsible for the disabled persons who come under its ca re and protection. ” In re Conservatorship of Clayton , 914 S.W.2d 84, 90 (Tenn. Ct. App. 1995) (citing Hinds v. Buck , 150 S.W.2d 1071, 1072 (Tenn. 1941); In re Ellis , 822 S.W.2d 6 02, 607 (Tenn. Ct. App. 1991)). The conservator has the affirmative duty to ac t in the best interest of the ward, to protect the assets of the ward

, and use them for the benefit of the ward

. See Tenn. Code Ann. § 34

- 3

- 108 (a) (stating that a conservator may be discharged if the court determines that the conservator has failed to perf orm its duties and obligations or failed to act in the best interest of the ward).

The creation of a conservatorship, however, does not relieve the ward or his estate of his financial responsibilities. See Tenn. Code Ann. § 34

- 3

- 109

. Particularly

, “ [t] he appointment of a conservator for a person with a disability does not automatically terminate the duty of the person with a disability to support such spouse or dependent minor children of the person with a disability. ” Id. The statute goes on to state: “ [t] he court having jurisdiction over the person with a disability may establish the amount of financial support to which the spouse or dependent minor children are entitled. ” Id

. (e mphasis added).

None of the parties to this appeal challenge the fact tha t Mrs. King, as the spouse of a ward with substantial assets, is entitled to f inancial support pursuant to Tenn. Code Ann. § 34

- 3

- 109 . T he issues on appeal pertain to the factors to be considered in making an award, the type of expenses that are appropriat e for reimbursement , and the amount of support she is entitled to receive for certain categories of support and in total

. We begin

5 A “ „ [c]onservatorship ‟ is a proceeding in which a court removes the decision

- making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make dec isions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co

- conservators.” Tenn. Code Ann. § 34

- 1

- 101(4)(B) (2013).

“ „ Conservator ‟ or „ co

- conservators ‟ means a person or persons or an entity appointed by the court to exercise the decision

- making rights and duties of the person with a disability in one or more areas in which the person lacks capacity as determined and required by the orders of the court.” Tenn. Code Ann. § 34

- 1

- 101(4)(A) (2013). “ „ Person with a disability ‟ 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, physica l illness or injury, developmental disability, or other mental or physical incapacity.” Tenn. Code Ann. § 34

- 1

- 101(13) (2013). The threshold question in a conservatorship proceeding is whether the respondent for whom a conservator is sought is a “disabled person” as that term is defined in Tennessee Code Annotated § 34

- 1

- 101. See In re Conservatorship of Groves , 109 S.W.3d 317, 330 (Tenn. Ct. App. 2003). Notably, the term “disabled person” was replaced throughout the statute by amendment in 2013 with the te rm “person with a disability.” See 2013 Tenn. Pub. Acts, ch. 435, § 3.- 8

-

our analysis by noting that neither Tenn. Code Ann. § 34

- 3

- 109 nor any other section within the conservatorship statutory sch eme identify the factors that are to be considered in establishing the appropriate amount of financial support Mrs. King may receive

.

Petitioners contend the amount awarded should be reduced because the court failed to take into consider ation Mrs. King ‟ s s eparate assets . Specifically, they contend separate assets and income should be considered in setting support for the spouse of the ward in a conservatorship proceeding just as Tenn. Code Ann. § 3 6

- 5

- 1 21(i) requires that it be considered w hen awarding support for a spouse in the form of alimony in a divorce proceeding. For her part, Mr s. King contends the award is deficient because it fails to provide support that is commensurate with her prior standard of living and without regard to her s eparate assets or income

. She specifically contends the court erred by reducing her requests for certain categories of expenses and by denying all of the attorney ‟ s fees she incurred in seeking spousal support, which she classified as “ miscellaneous expens es. ” The bank, acting in its capacity as conservator of the estate of Mr. King, contends the award should be affirmed.

In making the award, the Master correctly noted that T enn. Code Ann. § 34

- 3

- 109

“ is silent as to what the court must consider, ” and expl ained that she considered the following in making the award : “ In reaching the amount of support to be paid, this Court has considered the previous standard of living prior to the appointment of a conservator, the financial status and assets of the spouse, and the actual expenses incurred previous to the appointment and how those expenses were paid. ”

O ur analysis of this issue begin s with a determination of the relevant factors to be considered when a court is called upon to determine , pursuant to T enn. Code Ann. § 34

- 3

- 109

, whether to award spousal support and, if so, the amount of support a spouse is entitled to receive from the ward ‟ s estate

. We have already stated that Tenn. Code Ann. § 34

- 3

- 109 does not identify factors to consider nor does any other section within the conservatorship statutory scheme. Thus, we turn our attention to the area of law where

s pousal support

, in one form or another

, has been a part of our legal system for centuries. Gonsewski v. Gonsewski , 350 S.W.3d 99, 106 (Tenn. 2011). As our Supreme Court explained in its historical review of the framework for spousal support in Gonsewski : p rior to 1857, English ecclesiastical courts could grant spousal support while “ the marriage bond remained undissolved. ” 6 I d.

6 During this time, the ecclesiastical courts “could grant divorces a mensa et thoro , known today as a divorce from bed and board or legal separation.” Gonsewski , 350 S.W.3d at 106 (ci ting Wood v. Wood , 407 A.2d 282, 286 n.3 (Me. 1979); 2 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 17.1 (2d ed. 1987) ( “The Law of Domestic Relations” ). As the court explained, “These courts would grant the wife alimony under the theory that, because the marriage bond remained undissolved, but the spouses were authorized to live apart, the husband ‟ s duty to support his family

(continued...)- 9

-

Our Supreme Court the n acknowledged, o nce the early cases resolved threshold questions related to the type of divorce for which spousal support could be ordered and the form such an award could take, that courts began to focus on the amount to award and the length of time it s hould be paid. Id

. By the 1930s, T ennessee courts recognized th ere

we re “ no hard and fast rules governing the amount of alimony, ” and that “ specific factors were to be considered in determining the appropriate amount. ” Id . (citing Walden v. Walden , 13 Tenn. App. 337, 344 (Tenn. Ct. App. 1930 ) ). Our Supreme Court elaborated:

These factors included the value of the separate property owned by the spouses, their age, income, “ station in life, ” as well as the “ way and manner in which the [marital] estate h as been accumulated and contributions made thereto ” by the parties

. . . . T he parties ‟ standard of livi ng could be considered as well.

Id

. at 107 (internal citations omitted). The court then discussed a type of spousal support, alimony in futuro

, that wa s appropriate whe n “ the court finds that there is relative economic disadvantage and that rehabilitation is not feasible. ” Id

. ( quoting Tenn. Code Ann. § 36

- 5

- 121(f)(1) )

. The court explain ed that this type of support wa s appropriate when “ the disadvantaged spouse [ wa s ] unable to achieve, with reasonable effort, an earning capacity that [ w ould ] permit the spouse ‟ s standard of living . . . to be reasonably comparable to the standard of living the couple [ had been enjoy ing ] . . . or the standa rd

. .

. available to the other spouse

. Id

. (quoting Tenn. Code Ann. § 36

- 5

- 121(f)(1)). The court further noted that such support “ is not, however, a guarantee that the recipient spouse will forever be able to enjoy a lifestyle equal to that of the obligor spouse , ” a nd noted, in most

cases , “ it is unlikely that both parties will be able to maintain their [previous] lif estyle . . .

. ” Id . at 108 (citations omitted).

I n determining whether to award spousal support and, if so, determining the nature, amount , length, and manner of payment, the Court identified several factors that should be considered, to the extent relevant :

(1) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sh aring or retirement plans and all other sources;

continued unabated.” Id . (citing Swan v. Harrison , 42 Tenn. (2 Cold.) 534, 541 (1865); The Law of Domes tic Relations § 17.1). “Only Parliament could grant an absolute divorce until 1857 when this authority, along with the jurisdiction of the ecclesiastical courts, was placed in a secular divorce court.” Id . at 106, n.6 (citing Wood , 407 A.2d at 286 n. 3; Th e Law of Domestic Relations § 17.1).- 10

-

(2) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party ‟ s earnings capacity to a reasonable level;

(3) The duration of the marriage;

(4) The age and mental condition of each party;

(5) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;

(6) The extent to which it would be undesirable for a party to seek employment outside the home, because such party will be custodian of a minor child of the marriage;

(7) The separate assets of each par ty, both real and personal, tangible and intangible;

(8) The provisions made with regard to the marital property, as defined i n § 36

- 4

- 121;

(9) The standard of living of the parties established during the marriage;

(10) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;

(11) The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Id

. at 109

- 10 (ci ting Tenn. Code Ann. § 36

- 5

- 121(i)). Although each of these factors must be consider ed when relevant to the parties ‟ circumstances, “ the two that are considered the most importa nt are the disadvantaged spouse ‟ s need and the obligor spouse ‟ s ability to pay. ” Id

. at 110 (citations omitted).

We are mindful that Mr. and Mrs. King ‟ s marriage remains intact

, and there is no expectation that it will be dissolved by any court; nevertheless, we have determined that the above factors , to the extent relevant, should be consider ed in determining whether the- 11

-

spouse of a ward is entitled to receive support from the ward ‟ s est ate and, if so, in what

amount.

The issues raised by the parties in this appeal invo ke th re e of the factors identified in Gonsewski : factor (1) t he obligations, needs, and financial resources of each spouse, including income from all sources ; factor (7) the separate assets of each party ; and factor (9) t he standard of living the parties established during the marriage

. Anot her issue raised by the p arties

- whether Mrs. King is entitled to re cover her attorney ‟ s fees

- does not fall within the purview of these factors and that issue will be addressed separately.

As we noted earlier, in making its determination to award spousal support of $9,010 per month, the Master “ considered the previous standard of living prior to the appointment of a conservator, the financial status and assets of the spouse, and the actual expenses incurred previous to the appointment and how those expenses were paid. ” Thus,

ou r review of the trial court ‟ s discretionary decision is benefitted by know ing that the Master identified the most appropriate legal principles applicable to the decision. See Lee Medical , 312 S.W.3d at 524

.
When reviewing a trial court ‟ s discretionary decision we must also determine whether the factual basis for the decision is properly supported by evidence in the record. Id

. In this case

, w e are again benefitted by th e Master ‟ s detailed findings of fact, which reveal that the Master engaged in a thoro ugh review of the itemized request for support and identified with specificity expenses incurred prior to the creation of the conservatorship that were reasonable, necessary and recurring, and in keeping with the couple ‟ s standard of living.

As for expen ses that were nonrecurring, ex ceptional or infrequent , t he Master explained that such expenses could be addressed to the discretion of the conservator of the estate, for example when Mrs. King may need a new automobile or when significant repairs were need ed, or when a capital improvement to the marital residence was
necessary. It is also significant that all of the Master ‟ s findings of fact were adopted by the chancellor; therefore, the trial court ‟ s concurrent findings are conclusive as to those facts

. 7 S ee Tenn. Code Ann. § 27

- 1

- 113 ; s e e also In re Estate of Haskins , 224 S.W.3d at 678.

The detailed findin gs by the Master confirm that she considered Mr. and Mrs. King ‟ s standard of living prior to the creation of the conservatorship and t hat she conducted a detailed examination of expenses Mrs. King incurred over a specified twelve

- month period as well as Mrs. King ‟ s requested support. Moreover, the Master also

7 However, our review of the trial court ‟ s conclusions of law is de novo, with no presumption of

correctness. In re Estate of Haskins , 224 S.W.3d at 678.- 12

-

considered Mrs. King ‟ s separate assets and income, which were significantly less than Mr. King ‟ s separate assets . The Master also noted that only Mr. King ‟ s assets and income were used for the parties ‟ joint, personal, and household expenses.

The foregoing notwithstanding, Mrs. King contends the trial court erred by denying or deducting certain expenses she requested. For example, Mrs. King contends that she should have been awarded at least $633 per month for automobile expenses, whic h is consistent with her twelve

- month average fro m her statement of expenses she filed with the court. 8 The court found as follows:

[Mrs. King ‟ s statement expenses] list amounts for May, July and August that are 2

- 4 times higher than other months. Mrs. King had no explanation for the higher amounts. She testified that her car is a current model Lexus. The Court finds that those month ‟ s expenses are nonrecurring expenses and should be excluded. The remaining 9 month average is $163 per month. The Court finds that $163 per month is a reasonable and nece ssary amount to be awarded to Mrs. King for automobile gas and maintenance.

Mrs. King argues that the fact that the expenses were nonrecurring or unusual was not a valid reason to exclude those expenses because the expense of maintaining a vehicle is of ten unexpected. She also contends that her inability to remember the reasons for the abnormally higher months is also not a valid ground for denying her support for a legitimat e expense , and that neither the b ank nor Petitioners established that the expens es were improper or unjustified.

We are not persuaded by this argument for several reasons. First, it is significant that the Master found Mrs. King ‟ s automobile to be fa irly new. The order also noted that the amount Mrs. King requested was b ased on the total of automobile

- rel ated expenses for a twelve

- month period that included expenses for maintaining Mr. King ‟ s vehicle, which was no longer needed. Second, and more significantly, the trial court expressly stated that t he purpose of monthly spousal supp ort is to provide for usual and ordinary
expenses , and the record revea ls that the Master did so.

Also significant is the order from which this appeal lies does not preclude Mrs. King from petitioning the court for additional support to pay expenses incur red hereafter that exceed her monthly award of support. To the contrary, the order specifically authorizes Mrs. King to seek reimbursement for unusual or large charges from the conservator of the estate. The pertinent part of the order reads: “ Any requests for proposed major capital expenditures regarding the residence should be submitted to

8 Significantly, this amount would not include the cost of Mrs. K ing ‟ s car insurance premiums, as that amount is paid directly by Regions Bank.- 13

-

Regions Bank. The Court remains available for determination of reasonable and necessary expenditures if Regions Bank determines it cannot make that decision. ”

Mrs. K ing next contends that she should have been awarded $409.73 per month for health and beauty aids. The trial court awarded Mrs. King $291 per month in health and beauty aids, finding as follows:

[Mrs. King ‟ s statement expenses] show the health and beauty aids July 2013 amount as $1,721. That amount is 2

- 8 times higher than other monthly amounts and there is no testimony to account for the wide variance. The Court finds that the amount of $1,721 should be excluded and the average of t he remaining expenses for health and beauty aids is $291. The Court finds that the amount of $291 for health and beauty aids is a reasonable and necessary amount to be awarded.

Mrs. King contends that there is no evidenc e to refute her expenses for heal th and beauty aids, and she was not asked on direct or cross

- examination to explain the wide variance. Nevertheless, the court ‟ s decision is supported by Mrs. King ‟ s expense statement and testimony, as well as the fact that the Master found the extra expen ses constituted “ outliers ” in determining monthly averages of reasonable and necessary recurring expenses. See Halliday v. Halliday

, No. M2011

- 01892

- COA

- R3

- CV, 2012 WL 7170479, at *6 n.9 (Tenn. Ct. App. Dec. 6, 2012) (citing Small v. Small

, No. M2009

- 00248

- COA

- R3

- CV

, 2010 WL 334637, at *6 (Tenn. Ct. Ap p. Jan. 28, 2010)) (courts may exclude “ outliers ” in determining averages for matters like expenses or income)

. Next, Mrs. King argues that she should be allowed $4,482.76 per month for miscellan eous expenses of which $ 1,559 per month was designated by Mrs. King as miscellaneous household expenses , while t he remaining $2,923.76 was designated as personal miscellaneous expenses and related to the attorney ‟ s fees she incurred during the trial court proceedings

. The court awarded Mrs. King $1,168 per month for miscellaneous household expenses, including internet, church, the newspaper, and maintenance and repair costs, but excluded $3,408 for court reporter costs and additional amounts for gifting. Th e court also awarded Mrs. King $190 per month for personal miscellaneous expenses, but specifically excluded Mrs. King ‟ s attorney ‟ s fees and $4,4 72 for a new computer.

In regards to Mrs. King ‟ s request for additional amounts of support , excluding her request for attorney ‟ s fees, we find the challenges to the trial court ‟ s rulings constitute a challenge to the court ‟ s factual findings, not the court ‟ s legal conclusions. To the extent she challenges the factual findings, this must fail due to the co ncurrent findings rule, which makes the trial court ‟ s findings of fact conclusive on appeal. See Tenn. Code Ann. § 27

- 1

- 113; see also In re Estate of Haskins , 224 S.W.3d at 678. Therefore, we conclude that the factual basis for the decision is properly sup ported by evidence in the record. Lee- 14

-

Medical , 312 S.W.3d at 524

. To the extent some of the ab ove findings are mixed questions of fact and law, decisions for which we review pursuant to the de novo standard of review, we find no error with the court ‟ s conc lusions or findings on the above categories

.

W e now turn our attention to Mrs. King ‟ s claim for an addition al $2,923.76 in monthly support for attorney ‟ s fees she incurred during the trial court proceedings , which she listed as “ miscellaneous expenses. ” T he trial court excluded these expenses from the award of spousal support

, rul ing as follows : “ The Court finds that no monthly support should be paid for legal fees. ”

It is implicit from the Master ‟ s ruling that Mrs. King ‟ s legal fees did not fall within any of the factors the Master c onsidered . For example, these legal expenses did not pertain to the Kings ‟ “ standard of living ” prior to the a ppointment of a conservator, and did not qualify as “ actual expenses incurred previous to the appointment of the

c onservator, ” which were factors the Master identified in the order which she considered in setting spousal support. Moreover, Mrs. King was not entitled to recover her attorney ‟ s fees pursuant to Tenn. Code Ann. § 34

- 1

- 114(a). See Aldridge v. Aldridge , No. W2006

- 02334

- COA

- R3

- CV, 2007 WL 4170826, at *6 (Tenn. Ct. App. Nov. 27, 2007) (awarding

a non

- petitioner spou se attorney ‟ s fees under Tenn. Code Ann. § 34

- 3

- 109 would circumvent the le gislative intent of Tenn. Code Ann. § 34

- 1

- 114, which provides for the
p ayment of attorney ‟ s fees in conservatorship proceedings).

Tenn. Code Ann. § 34

- 1

- 114(a) restricts the payment of attorney ‟ s fees in a conservatorship proceeding as follows :

If a fiduciary is appointed, the costs of the [conservatorship] proceedings,

w hich are the court costs, the guardian ad litem fee, the required medical examination costs and the attorney ‟ s fee for the petitioner, shall be charged against the property of the respondent . . . . If no fiduciary is appointed, the costs of the proceeding s shall be charged against the petitioner. The guardian ad litem fee and the attorney ‟ s fee for the petitioner shall be established by the court . . . .

Id

.
A fiduciary (conservator) was appointed for Mr. King

, but Mrs. King was not the petitioner. Thus, she was not entitled to recover her attorney ‟ s fees pursuant to Tenn. Code Ann. § 34

- 1

- 114(a ).

Being unaware of any authority that affords Mrs. King the right to recover the attorney ‟ s fees she incurred during the conservatorship proceedings , and agreeing that this expense did not come within the purview of the factors the trial court considered,- 15

-

specifically the parties ‟ standard of living or actual expenses incurred prior to the appointment of the conservator

, we find no error with the decision to exclude Mrs. King ‟ s attorney ‟ s fe es in determining the amount of monthly support she is entitled to receive pursuant to Tenn. Code Ann. § 34

- 3

- 109.

While we agree that Mrs. Kin g is not entitled to have her attorney ‟ s fees included in determining the amount to award as spousal support pursuant to Tenn. Code Ann. § 34

- 3

- 109

, our ruling should not be interpreted as preclud ing a spouse of a ward from seeking payment for attorney ‟ s fees under any circumstances while the conservatorship remains in effect

. In fact, Regions Bank , the conservator of the estate for Mr. King, concedes this point in its brief, stating “ to the extent Mrs. King seeks . . . legal fees unrelated to this conservatorship action, e.g.

, if Mr s. King were named as a defendant in a lawsuit, such as an automobile accident or a dispute with a home repair company, . . . Mrs. King could petition the court to assist in her fees related to any litigation outside of the conservatorship action. ”

Base d on the foregoing, we find the trial court did not abuse its discretion in setting the amount of spousal support pursuant to Tenn. Code Ann. § 34

- 3

- 109. Therefore, we affirm the trial court in all respects

.

I N C ONCLUSION

The judgm ent of the trial court is affirmed , and this matter is remanded with one

half of the cost s of appeal assessed against Sheila G. King, and one

- half of the costs of appeal assessed against Frank S. King, III, and M. Wesley Hall, III. , jointly and severally.

_________________ _____________ FRANK G. CLEMENT, JR., JUDGE