# FILED

October 10, 1997 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

VICKIE DIANNE TUTTLE, ) ) Plaintiff/Appellee, ) ) Coffee Circuit ) No. 1883D VS. ) ) Appeal No. ) 01A01-9512-CV-00546 ROBERT EDWARD TUTTLE, ) ) Defendant/Appel

lant. )

APPEAL FROM THE CIRCUIT COURT FOR COFFEE COUNTY

AT MANCHESTER, TENNESSEE

THE HONORABLE GERALD L. EWELL, SR., JUDGE

For the Plaintiff/Appellee : For the Defendant /Appellant : No Appearance Robert E. Tuttle, Pro Se



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 State v. Tuttle , 914 S.W.2d 926, 933 (Tenn. Crim. App. 1995) recounts Mr. Tuttle’s criminal history.

2 The record does not contain direct evidence concerning the length of Mr. Tuttle’s voluntary manslaughter

sentence. Mr. Tuttle states in his brief that he received a s ix year sentence

for his voluntary manslaughter conviction. -2- 

## O P I N I O N

This appeal involves a divor ce in which the husba

nd ha s b een incarcerated throughout

the marriage. After

approximately four years of marriage, both the wife and the husband filed suit for divorce in the Circ

uit Court for Coffe

e County. Followinga bench trial attended only by the wife, the trial court g ranted the wife a divorce on the grounds that the husband was incarcerated and that his conviction had rendered him infamous. On t his appeal, the husband asserts that the trial court should not have granted the wi

fe a divorce beca

use she did

not properly verify h

er complaint and asserts that he did not receive property that was rightfully his. We hav e determined that the judgment sh ould be affirmed and that the case should be remanded for consi

deration of the husba

nd’s property claim

s.

I.

RobertTuttle has a lengthy criminal reco rd. 1 He was living in Tullahoma underthe alias “Tom Jone s” when he met Vic ki Lanc aster. Mr. Tuttle and Ms. Lancaster had been dating for a

pp roximat ely one year when th e law enforceme

nt authorities arrested Mr. T uttle in October 1990 for aggravated burglary and murder. Mr. Tuttle, stil

l known as “Tom Jone s,” and Ms. Lancaster were mar ried in August 1991 w hile Mr. Tuttle was still in jail awaiting trial. In February 1992, after Mr. Tuttle’s true identity becam e known, Mr. Tut

tle and Ms. Lanca

ster were rema

rrie d under the name of Mr. and Mrs. Robert Tuttle.

In April 1995, a Coff

ee County jury conv icted Mr. Tuttle of voluntary manslaughter. 2 He was later c onvicted of aggravat

ed burglary by a Fra

nklin County jury and was sentenced to serve e ight years in the

state penitentiary. The trial court in Franklin County dete rmined that Mr. T

uttle should serve his sentence for aggravated burglar y consecutively wi th his voluntary manslaughter sent ence.3 Mr. Tuttle asserts for the first time on ap

peal that the comp

laint and summo

ns were no t properly served on him. He has waived this issue by failing to raise it in the trial court. See Tenn. R. Civ. P. 12.08; Tenn.

R. App. P. 36(a). We will not consider issues regarding the sufficiency of service of process for th

e first time on appeal. See Brewer v. DeCamp Glass Casket Co., 139 Tenn. 97, 110-12, 201 S.W. 145, 148-49 (1918).

4 The parties have not p

rovided a transc

ript or statement o

f th e evid ence. The trial court correctly denied Mr. Tuttle’ s request for a tr anscript at state

expense becaus

e divorce cases are

not the type of civil proceeding in which the Stateis obligated to provide a transcript to either party at state expense. See M.L.B. v. S.L.J., ___ U.S. ___, ___, 117 S. Ct. 555, 568 (1997) (holding that the Statemust provide transcripts in criminal and quasi-criminal proceedings and in proce edings involving the termination of parental righ ts); Almarez v. Carpenter , 347 F. Supp. 597, 599 (D. Colo. 1972) (finding no constitutional right to a free transcript in a divorce case). -3- Ms. Tuttle sued Mr. T utt le for divorce in A pril 1995 in the Circui

t Court for Coffee County. She asserted three grounds : (1) that Mr. Tuttle’s convictions had rendered him infamous [Tenn . Code Ann. § 36-4- 101(5) (1996)], (2 ) that Mr. Tuttle had been incarcerated [Tenn. Code Ann. § 36-4-101(6)], and (3) that the parties had irreconcilable

differences [T

enn. Code Ann . § 36 -4-101(11)]. Inexplicably, even though Ms. Tuttle h ad r etained counsel, her complaint was not verified as required by Tenn. Code Ann.

§ 36-4-107(a) (1996)

as it then read.

In his pro se answer f

iled onMay 19, 1995, Mr. Tut tle admitted that Ms.

Tuttle had grounds for divorce b ased on his criminal c onvicti on and incarceration but denied tha tthe parties had irr

econcilable diffe

rences. Howev

er, he later asserted in

hi s counterclaim

that the parties had irreconcilable differences and t

hat Ms. Tuttle

was guilty of c ruelty and desertion. Mr. Tuttle did not take issue with Ms. Tuttle’s defective verification of her complaint or assert any other affirmative defense. 3

The trial court conducted a bench trial on Augu st 4, 1995. Mr. Tuttle was not present because he was incarcerat ed. Based on Ms. Tuttl e’s evidence, the

trial court grante d Ms. Tuttle an absolute divorce on the two grounds based on Mr. Tuttle’ s criminal convictions. The tri al court also dismisse d Mr. Tuttle’s co

unterclaim for divorce and restored the parti es’ rights and privile

ges as single persons

but made no specific mention of

the parties’ mari

tal or separate pr

operty. II.

There are few factua

l disputes in thisrecord, and the is sues Mr. Tuttle se eks to raiseare essentially legal ones for which a recordis not required. 4 He insists that the trial court should have provided him with the assistance of counsel at state expense,-4-

that the trial courtshould not have awar ded Ms. Tuttle joint

ly held stock, and that the trial court should not have granted Ms. Tuttle a divorce because she had not verified her complaint. We

will take each of

these issues up in turn.

A. M R . T UTTLE ’ S R IGHT TO C OUNSEL

Mr. Tuttle represent

ed himself throughout t

he pro ceedings in the trial court. After he perfected his appeal, he requ ested the trial cour

t to appoint counsel to represent him. The trial c

ourt denied Mr. Tu

tt l e’s request, and M

r. Tuttle has not renewed his reque st for appointed counse l in this court.
Indigent civil litigants do not have a constitutional right to state-paid counsel in all civil proceedin gs. See Lassiter v. Depart ment of Soc. Servs. , 452 U.S. 18, 25, 101 S. Ct. 2153, 2158- 59 (1981) ; Cookish v. Cunningham , 787 F.2d 1, 2 (1st Cir. 1986); Rosewell v. Han rahan , 523 N.E.2d 10, 12 (Ill. App. Ct. 1988). They likew ise have no statutory right to sta te-paid counsel in

Tennessee, alth

ough Tenn. Code Ann. § 23-2-101 (1994) empow ers courts to appoi

nt mem bers of the bar to re present indigent litigants in

civil cases. Whe

n appointed, these counsel serve pro bono, not at taxpayer expense.

Mr. Tuttle insis ts that prisoners have a sta tutory right to state-

paid counsel,
even if other indigent civ il litigants do not. He rests his claim on Tenn. Co

de Ann. § 41-21-302 (1997) whic h states: If a bill or petition is f

iled against a convic

t in any court having jurisdiction, or an y interrogato rie s propounded to him as a pa rty to the suit, which require to be answered, the

convict may be allow

ed the aid of counsel to prepare his answer. This statute does not

require the State to provide counsel to prisoners who are parties in civil cases; it me rely permits prison ers to use counsel.

Other panels of this court have held on at least two prior occasions that parties in divorce proceedings

are not entitled to a

ppointed couns el. See Northcott v. Northcott , App. No. 01A01-9407-CV-00325, 1995 WL 8029, at *2 (Tenn.Ct. App.5 Complaintsseeking a divorce for irreconcilable differences need not be verified. See Tenn. Code Ann. § 36-4-107(a ). While parties a

sserted that they

were entit

led to a divorce based on irreconcilable

differences, neither

party was entitled to an irreconcilable differences divorce becaus

e they had not agre

ed on an equitable

distribution of their marital property. See Tenn. Code Ann. § 36-4-103(b). -5- Jan. 11, 1995), perm. app. denied (Tenn. May 30, 1995); Lyon v. Lyon , 765 S.W.2d 759, 763 (Tenn. Ct. A

pp. 1988). Under t

he circumstances of t his case, we have no basis to conclude that the tr ial court erred w

hen it denied Mr. T

uttle’s request for appointed counsel.

B.

T HE V ERIFICATION OF M S . T UTTLE ’ S D IVORCE C OMPLAINT

Mr. Tuttle asserts that the trial court should not have g ranted Ms. Tuttle a divorce because her compla int was not

verified in accordance wi th Tenn. Code Ann. § 36-4-107(a). He

correctly points out

that at one

time the lack of pro

per verification of a divorce complaint provid ed grounds for dis missal. See Turner v. Bell , 198 Tenn. 232, 248, 279 S.W.2d

71, 78 (1955); DeArmond v. D eArmond, 92 Tenn. 40, 42-46, 20 S.W. 422, 423 (1892 ). Fuqua v. Fuqua , No. 01A01-9403-DR-00143, 1994 WL 441041, at * 1 (Tenn.

Ct. App. Aug. 17, 1994) (No Tenn . R. App. P. 1 1 application file d). However, the General Assembl y relaxed this requi rement in 1996 wh en i t amended Tenn. Code Ann.§ 36-4-107 to provide that divorce decrees f

iled prior to March 22, 1996 would not be considered invalid simply because the divorce complaint

did not contain an affidavit of verificat ion. See Tenn. Code Ann. § 36-4- 107(c).

The decree i n t his case was filed on August 4, 1995. Thus, any technical defect resulting

from Ms. Tuttle’s failure to comply w ith Tenn. Code Ann . § 36-4- 107(a) is of no legal consequence. Mr. Tuttle did not raise this issue until after

the trial court’s decision. While admitting that Ms. Tuttle had grounds for divorce based
on his conviction and in carcer ation, he asserte

d that she was not enti

tled to a divorce on the grounds of desertion, cru elty, and irreconcilabl

e differences.In a later pleading, he as serted th at he was entitled to an irreconcilable differences divorce. 5 Mr. Tuttle’s admission that he had been convicted of an infam ous crime and that he had been incarcerated thr oughout the marriage

amount to a stipulation

of grounds for divorce under Tenn. Code Ann. § 36-4-129(a) (1996 ). Accordingly, we-6-

letstand the judgment granting Ms. Tuttle a divorce on the grounds that Mr. Tuttle had been convicted of an infamous crime that had resulted in a se ntence of confinement in the state penitentiary

. C.

T HE D ISTRIBUTION OF THE M ARTIAL P ROPERTY

As a final matter,

we take up

Mr. Tuttle’s assertion that the trial court did not equitablydistribute the parti es’ jointly owne

d pr operty. Despite Ms. Tuttle’s assertion that the parties had acc umulated no marital property, Mr. Tuttle claimed that he had a legally recogniza ble interest in an unsp

ecified amount of W

al-Mart stock,
an automobile, cl othing , and other persona l belongings including mus ical tapes, compactdisks, tools, and drawings. We find no indication in this record that the trial court dealt with the se items of propert y.

Ju dic ial decrees should be co nstrued like othe r written instrument s. See Livingstonv. Livingston , 58 Tenn. App. 271, 281, 429 S.W.2d 452, 456 (1967). They should be interpreted as a who le, see Cookeville Gynecology & Obstetrics, P.C. v . Southeastern

Data Sys., Inc. , 884 S.W.2d 458, 462 (Tenn. Ct. A

pp. 1994), and with reference to the pleadings. See Southwestern Pre sbyterianUniv. v. Clarks ville , 149 Tenn. 256, 265-66, 259 S.W . 550, 553 (1924). Decrees cannot transcend a bove and beyondthe pleadings and the proof. See Fidelity-Phenix Fire Ins. Co. v

. Jackson , 181 Tenn. 453, 4 62-6 3, 181 S.W.2d 625, 628-29 (1944); Galbreath v. Nolan , 58 Tenn. App. 260, 267, 429 S.W.2d 447, 450 (1967).

The divorce decree in this case does not mention marital or separate prope rty. Ms. Tuttle raised no iss

ue conce rning property in her divorce complaint,

and the record contains no basis for concluding that she presented an y proof at the divorce hearing concerning the part ies’ separate or marital property. We cannot presume that the court disposed of an issue from the mere fact that a judgment

is silent concerning t he iss ue. See Greenwood v. Bank of I llmo , 753 S.W.2d 637, 640 (Mo. Ct. App. 1988). Accordingly, we find that whatever

right s the par ties may have had to separate or marital pro perty prior to thei r divorce have not ye t been adjudicated

.
The trial court has not

divided the

parties’ property inequitably because it has not yet addressed the iss

ue. On remand, the trial court should determine whethe

r the-7-

parties accumulated any marital property during their marriage. If they did, the trial courtshould value it and then divide it in an equitable mannerin accordance wi th the criteria for dividing marital property in Tenn. Code Ann. § 36-4-121 (1996).

III.

We affirm the judgmen

t and remand the case to the trial court for furth e r proceedings consistent with this op inion. We tax the c

ost s of this appeal in equal proportions to Robert Edward Tuttle and Vicki D

ianne T uttle for which exe cution, if necessary, may issue.

____________________________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

__________________________________ _ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

__________________________________ _ SAMUEL L. LEWIS, JUDGE