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HomeMy WebLinkAbout21-2004-464 OrphansIN RE: LEONA C. MCCRARY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 21-04-464 ORPHAN'S COURT IN RE: PETITION FOR GUARDIANSHIPS; CHALLENGE TO JURISDICTION OPINION AND ORDER OF COURT Bayley, J., June 23, 2004:-- On May 14, 2004, Lynne P. Donnelly, filed a petition seeking her appointment as the guardian of the person and guardian of the estate of her mother, Leona C. McCrary, an alleged incapacitated person. A citation and rule were issued on May 18, 2004, and a hearing set for June 23, 2004. Service on Leona C. McCrary was made by the Sheriff of St. John's County, Florida, on June 1, 2004. On June 7, 2004, an answer in opposition to the petition, including a challenge to jurisdiction, was filed through counsel for Leona C. McCrary and for seven of her relatives. It is averred that Leona C. McCrary is a resident of the State of Florida where she owns real property at 740 County Road, 13 A South, Lot E, Elkton, Florida, and: ·.. Leona C. McCrary's daughters, Myrna Loretta Pitts Petree and Elisabeth Anne Pitts Pacilli, reside with Leona C. McCrary at the Elkton, Florida residence and, along with Ms. McCrary's sons, David Pitts and Marshall Pitts, Jr., and Marshall's wife, Stacy Pitts, are providing 24-hour care to her seven days a week. Marshall E. Pitts, Jr. is also providing assistance with Ms. McCrary's financial affairs pursuant to a power-of- attorney executed by Ms. McCrary on April 5, 2004. A hearing was conducted on June 21, 2004, at which evidence was taken as to jurisdiction. The Probate, Estates and Fiduciaries Code at 20 Pa.C.S. Section 5511 21-04-464 ORPHAN'S COURT provides: (a) Resident.--The court, upon petition and hearing and upon the presentation of clear and convincing evidence, may find a person domiciled in the Commonwealth to be incapacitated and appoint a guardian or guardians of his person or estate. (Emphasis added.) Section 5512 of the Code provides: (a) Resident incapacitated person.--A guardian of the person or estate of an incapacitated person may be appointed by the court of the county in which the incapacitated person is domiciled, is a resident or is residing in a long-term care facility. (Emphasis added.) Leona McCrary married William McCrary in 1982. They had both been married previously. They lived together in Florida in a jointly owned property. They did not have children. On September 2, 2003, Lynne P. Donnelly, using her mother's power- of-attorney to her and another daughter, listed the McCrarys' Florida property for sale. The McCrarys then moved to Lynne Donnelly's home at 8 West Oakwood Drive, Carlisle, Cumberland County, Pennsylvania. Before the move, the McCrarys sold some of their personal property and gave other things to their many siblings by prior marriages. They brought some of their furniture to Carlisle which was put into 8 West Oakwood Drive, with the remainder placed in storage. When they started to live in Carlisle medical services were obtained for them from local providers. On October 17, 2003, William McCrary died suddenly from heart failure. A death certificate was issued by the Commonwealth of Pennsylvania listing his mailing address as 8 West Oakwood Drive, Carlisle, Pennsylvania. On November 7, 2003, Leona McCrary was issued a Pennsylvania identification -2- 21-04-464 ORPHAN'S COURT card. She registered to vote in Cumberland County on December 12, 2003. On December 15, 2003, through a Carlisle attorney, she executed a new power-of-attorney to her daughter Lynne Donnelly and her husband Patrick E. Donnelly. Leona McCrary suffers from dementia, Alzheimer type, and her condition worsened as time passed. When the Donnellys were both working her mother stayed in an adult daycare center which was arranged through the Cumberland County Office of Aging. A week before April 5, 2004, several of Leona McCrary's children came to Carlisle and told their sister that they were going to move their mother to Florida. On April 5th another daughter moved her to Florida. "Domicile is the place where a person has voluntarily fixed his habitation with a present intention to make it either his permanent home or his home for the indefinite future." Coulter Estate, 406 Pa. 402 (1962). We find that when the McCrarys moved into their daughter's Carlisle home in early September, 2003, and when Leona McCrary continued to live there after her husband's death, it was her intent to make it a permanent home for the indefinite future. Thus, she was domiciled in Pennsylvania and a resident of 8 West Oakwood Drive, Carlisle, Cumberland County. In the responsive pleading it is averred that upon her husband's death, Leona McCrary "[e]xpressed her desire to return to her home in Florida, but petitioner refused to allow Ms. McCrary to do so, contrary to her mother's expressed wishes and outside of any authority conferred upon petitioner by virtue of the former power-of-attorney." Respondents did not present any evidence at the hearing in support of that averment. -3- 21-04-464 ORPHAN'S COURT Respondents did acknowledge in their pleading that Leona McCrary's return to Florida "took place without the knowledge or consent of the petitioner." The burden of proving a change of domicile rests upon the party asserting it. Coulter Estate, supra. "To effect a change of domicile there must be a concurrence of the following factors: (1) physical presence in the place where domicile is alleged to have been acquired, and (2) an intention to make it his home without any fixed or certain purpose to return to his former place of abode..." Id. There is a familial dispute as to Leona McCrary's care now that her husband has died. Some of her children have moved her back to Florida where she has been a resident for over a month before this petition was filed. She is alleged to be incapacitated. We do not know whether it is her intent, or whether she has the capacity to form the intent, to now make Florida her permanent home for the indefinite future. Her change of residence may have or may not have been of her choice. We are left with the conclusion that respondents have not proven a change of domicile from Pennsylvania to Florida. Accordingly, this court has jurisdiction. ORDER OF COURT AND NOW, this day of June, 2004, IT IS ORDERED: (1) This court has jurisdiction on the petition of Lynne P. Donnelly seeking her appointment as the guardian of the person and guardian of the estate of her mother, Leona C. McCrary, an alleged incapacitated person. (2) A hearing on the petition shall be conducted in Courtroom Number 2, -4- 21-04-464 ORPHAN'S COURT Cumberland County Courthouse, Carlisle, Pennsylvania at 9:00 a.m., Wednesday, July 21, 2004. By the Court, David P. Perkins, Esquire For Petitioner Harold S. Irwin, III, Esquire For Leona McCrary :sal Edgar B. Bayley, J. -5- IN RE: LEONA C. MCCRARY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 21-04-464 ORPHAN'S COURT IN RE: PETITION FOR GUARDIANSHIPS; CHALLENGE TO JURISDICTION ORDER OF COURT AND NOW, this day of June, 2004, IT IS ORDERED: (1) This court has jurisdiction on the petition of Lynne P. Donnelly seeking her appointment as the guardian of the person and guardian of the estate of her mother, Leona C. McCrary, an alleged incapacitated person. (2) A hearing on the petition shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 9:00 a.m., Wednesday, July 21, 2004. By the Court, David P. Perkins, Esquire For Petitioner Harold S. Irwin, III, Esquire For Leona McCrary :sal Edgar B. Bayley, J.