IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 1, 2020

LESLIE BURNETT MONTGOMERY v. GARY ALAN MONTGOMERY

Appeal from the Circuit Court for Davidson County

No. 16D-1356 Philip E. Smith, Judge

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No. M2020-00314-COA-R3-CV

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This divorce action concerns the trial court’s classification and division of the marital 

estate, among other issues concerning the trial. We affirm the trial court’s judgment. 

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which J. STEVEN 

STAFFORD, P.J., W.S. and W. NEAL MCBRAYER, J., joined.

Gary Alan Montgomery, Nashville, Tennessee, Pro Se.

William H. Stover, Nashville, Tennessee, for the appellee, Lesley Burnett Montgomery. 

OPINION

I. BACKGROUND

Lesley Burnett Montgomery (“Wife”) and Gary Alan Montgomery (“Husband”) 

married in May 2002. This was the first marriage for Wife, the second for Husband. No 

children were born of the marriage. The parties separated in May 2016, and Wife filed a 

complaint for divorce on July 12, 2016, alleging irreconcilable differences, attempt on

life of spouse, adultery, and forced withdrawal from the marriage. 

Husband, who was incarcerated based upon a charge of soliciting the first degree 

murder of Wife, requested a stay of the proceedings pending the resolution of his 

criminal charges. Husband alleged that any response to Wife’s allegations would compel 

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him to choose between his constitutional right to confront his accuser and his 

constitutional right against self-incrimination and that such a proceeding would further 

violate his right to due process of law. He further sought to dismiss the count of adultery, 

questioning the sufficiency of the allegations. 

The court denied the motion for a stay of the proceedings and directed Husband to 

file an answer to the complaint for divorce. Husband then filed an answer in which he 

did not respond to the allegations, citing his right against self-incrimination. 

During the pendency of this divorce action, Husband was charged and later 

indicted with two additional counts of solicitation of murder, a Class B felony. Husband 

claimed that he had been charged with soliciting the murder of his criminal court judge 

and of Wife, for a second time. Citing his new charges, Husband again sought a stay of 

the proceedings. He further requested recusal of the Honorable Philip E. Smith, who he 

claimed could not remain impartial when he was accused of soliciting the murder of

Judge Smith’s judicial colleague. 

The trial court denied Husband’s motion for recusal, holding that Husband failed 

to set forth any facts sufficient to necessitate recusal but that he instead provided broad 

conclusory statements and speculative statements unsupported by any evidence. Further, 

the trial court noted that Husband had not been charged with soliciting the murder of a 

criminal court judge as alleged but that he had instead been charged with soliciting the 

murder of the man he asked to murder Wife the first time in May 2016. The court noted 

that Husband advised the informant that he would personally “take care” of the criminal 

court judge, who he claimed was “railroading him” and “denying his bond.” The court 

continued, 

The Court finds, subjectively, that it has no independent knowledge of the 

parties or the issues attendant to their divorce other than what it has learned 

during the course of the litigation. Additionally, the Court holds no bias or 

prejudice against either party and finds that it is able to preside impartially 

over the proceedings. 

The matter finally proceeded to a hearing and was heard over the course of three 

days in March, June, and October 2019. No transcript or statement of the evidence is 

available for this court’s review. Following the hearing, the trial court granted Wife a 

divorce on the ground of inappropriate marital conduct. The court then classified and 

divided the marital property and denied Wife’s request for alimony and attorney’s fees. 

This timely pro se appeal followed. 
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II. ISSUES

As a threshold matter, Wife requests dismissal of the appeal. She claims that the 

pro se brief filed by Husband is woefully deficient and violative of the Tennessee Rules 

of Appellate Procedure. She requests waiver of the issues presented as a result of the 

state of the brief. We agree that there are a multitude of problems with the brief and that 

Husband failed to comply with the minimum requirements. However, we will briefly 

address his arguments in the event of further appellate review. We consolidate and 

restate the plethora of issues raised on appeal into the following categories:

(A) Whether the trial court erred in denying Husband’s motion to lift the 

temporary mutual injunctions during the pendency of the divorce 

proceeding. 

(B) Whether the trial court erred in denying Husband’s motion for a stay 

of the proceedings pending the resolution of his criminal charges. 

(C) Whether the trial court erred in denying the motion to recuse. 

(D) Whether the trial court erred in its classification and division of the 

marital estate. 

III. STANDARD OF REVIEW

This case was tried by the court without a jury. The review of the trial court’s 

findings of fact is de novo with a presumption of correctness unless the evidence 

preponderates otherwise. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 

685, 692 (Tenn. 2013). Our review of a trial court’s conclusions of law is de novo upon 

the record with no presumption of correctness. Tyron v. Saturn Corp., 254 S.W.3d 321, 

327 (Tenn. 2008).

IV. ANALYSIS

A.

Husband first takes issue with the trial court’s denial of his motion to lift the 

temporary mutual injunctions during the pendency of the divorce proceeding. He claims 

that his ability to offer a defense to the divorce proceeding or to even provide this court 

with a transcript was hampered by his lack of funds as a result of the injunction. 

Tennessee Code Annotated section 36-4-106(d)(1) provides as follows: 
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(d) Upon the filing of a petition for divorce or legal separation, and upon 

personal service of the complaint and summons on the respondent or upon 

waiver and acceptance of service by the respondent, the following 

temporary injunctions shall be in effect against both parties until the final 

decree of divorce or order of legal separation is entered, the petition is 

dismissed, the parties reach agreement, or until the court modifies or 

dissolves the injunction, written notice of which shall be served with the 

complaint:

(1)(A) An injunction restraining and enjoining both parties from 

transferring, assigning, borrowing against, concealing or in any way 

dissipating or disposing, without the consent of the other party or an order 

of the court, of any marital property. Nothing herein is intended to 

preclude either of the parties from seeking broader injunctive relief from 

the court.

(B) Expenditures from current income to maintain the marital standard of 

living and the usual and ordinary costs of operating a business are not 

restricted by this injunction. Each party shall maintain records of all 

expenditures, copies of which shall be available to the other party upon 

request.

Before the trial court, Husband sought to lift the injunction to utilize his share of the 

marital equity in order to secure his $200,000 bond and to access what he claimed was 

his separate property to facilitate a residence for his conditional release pending trial on 

his criminal charges. Wife objected, and the trial court denied Husband’s motion. 

In his motion, Husband did not advise the trial court that he needed access to funds 

to secure legal representation in the divorce action. The record reflects that counsel 

withdrew as a result of the deterioration of the attorney-client relationship, not due to a 

lack of funds. A party may not offer a new issue for the first time on appeal. See Lane v. 

Becker, 334 S.W.3d 756, 764 (Tenn. Ct. App. 2010) (citing Campbell Cnty. Bd. of Educ. 

v. Brownlee-Kesterson, Inc., 677 S.W.2d 457, 466-67 (Tenn. Ct. App. 1984)). “The 

jurisprudential restriction against permitting parties to raise issues on appeal that were not 

first raised in the trial court is premised on the doctrine of waiver.” Fayne v. Vincent, 301 

S.W.3d 162, 171 (Tenn. 2009) (citations omitted). 

As to his claim concerning his inability to provide this court with a transcript, we 

note that all parties are also provided an opportunity to submit a statement of the 

evidence that may be based upon a party’s own recollection of the evidence submitted at 

the hearing. Husband submitted a statement of the evidence that was later rejected 

because it did not convey an accurate or complete accounting of the final hearing. With 
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all of the above considerations in mind, we conclude that any alleged error in the trial 

court’s denial of the motion to lift the temporary injunction was harmless. 

B.

Husband argues that the trial court erred by not staying proceedings in this case 

while his criminal charges were pending and asserts that he was forced to choose between 

his right to confront his accuser in the divorce proceeding and his right against selfincrimination. He reasons that any evidence he presented in the divorce proceeding could 

have been used against him in the criminal proceeding. This court has provided the 

following guidance on this matter:

The decision whether or not to stay civil litigation in deference to parallel 

criminal proceedings is discretionary. It requires the court to balance the 

interests of the party seeking to postpone the civil proceeding against the 

possible prejudice to the party who desires the civil litigation to go forward. 

This balancing process is situation-specific and requires the court to take a 

careful look at the particular circumstances before it. Courts customarily 

consider the following factors, among others, in deciding whether to stay a 

civil proceeding pending the resolution of a criminal case: (1) the extent to 

which the issues in the civil and criminal proceedings overlap, (2) the status 

of the criminal proceeding, (3) the plaintiff’s interests in expeditious civil 

proceedings weighed against the prejudice to the plaintiff caused by the 

delay, (4) the hardship on the defendant, including the burden on the 

defendant if the cases go forward in tandem, (5) the convenience of both 

the criminal and the civil courts, and (6) the interests of third parties and the 

public. 

Bell v. Todd, 206 S.W.3d 86, 94 (Tenn. Ct. App. 2005) (citations omitted). 

We agree that there was an obvious overlap between the statutory grounds pled in 

the divorce complaint and Husband’s pending criminal charges. Indeed, the court 

ultimately awarded Wife a divorce based upon the ground of inappropriate marital 

conduct, finding as follows: 

The Court finds that there is no greater proof of inappropriate marital 

conduct than solicitation of someone to kill your spouse. [Husband] has 

failed to deny this allegation. The proof is established by a preponderance 

of the evidence that [Husband] did attempt to hire someone to kill [Wife].
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We acknowledge that Husband was limited in his defense of the statutory grounds pled in 

support of the divorce complaint; however, Wife was tasked with proving her allegations 

in the divorce proceeding based upon a preponderance of the evidence, not beyond a 

reasonable doubt as would later be required in the criminal proceeding. Further, the 

divorce action concerned more than the statutory grounds pled in support of the request 

for divorce. The court was also tasked with classifying and dividing the marital property 

and ruling upon requests for alimony and attorney’s fees. Delaying ruling on these issues 

would have resulted in prejudice to Wife, who was unable to move forward in her life 

without resolution of these issues. Husband’s criminal proceedings were delayed and 

new charges of soliciting Wife’s murder were even added while the divorce action was 

pending. In deference to the trial court’s discretion in such matters, we uphold the 

court’s denial of the motion for a stay of the proceedings pending the resolution of the 

criminal charges. 

C.

Husband next takes issue with the trial court’s denial of the motion to recuse. 

Without question, “[t]he right to a fair trial before an impartial tribunal is a fundamental 

constitutional right.” Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009) (quoting State v. 

Austin, 87 S.W.3d 447, 470 (Tenn. 2002)); Tenn. Const. Art. VI, § 11. This 

constitutional right “is intended ‘to guard against the prejudgment of the rights of 

litigants and to avoid situations in which the litigants might have cause to conclude that 

the court had reached a prejudged conclusion because of interest, partiality, or favor.’” 

Id. (quoting Austin, 87 S.W.3d at 470). “[P]reservation of the public’s confidence in 

judicial neutrality requires not only that the judge be impartial in fact, but also that the 

judge be perceived to be impartial.” Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. 

App. 1998); see also Offutt v. United States, 348 U.S. 11, 14 (1954) (holding that “justice 

must satisfy the appearance of justice”). As such, Rule 2.11(A) of the Code of Judicial 

Conduct as set forth in Rule 10 of the Rules of the Supreme Court of Tennessee requires 

a judge to recuse himself or herself “in any proceeding in which the judge’s impartiality 

might reasonably be questioned.” See also Smith v. State, 357 S.W.3d 322, 341 (Tenn. 

2011) (noting that recusal is required, even if a judge subjectively believes he or she can 

be fair and impartial, whenever “‘the judge’s impartiality might be reasonably questioned 

because the appearance of bias is as injurious to the integrity of the judicial system as 

actual bias’”) (quoting Bean, 280 S.W.3d at 805).

The terms “bias” and “prejudice” generally “refer to a state of mind or attitude that 

works to predispose a judge for or against a party”; however, “[n]ot every bias, partiality, 

or prejudice merits recusal.” Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 

1994). To merit disqualification of a trial judge, “prejudice must be of a personal 

character, directed at the litigant, ‘must stem from an extrajudicial source and result in an 

opinion on the merits on some basis other than what the judge learned from . . . 
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participation in the case.’” Id. However, “[i]f the bias is based upon actual observance 

of witnesses and evidence given during the trial, the judge’s prejudice does not disqualify 

the judge.” Id. 

There are no facts alleged or shown in the record either that demonstrate actual 

bias on the part of the Judge or that would lead a well-informed, disinterested observer to 

question the impartiality of the Judge in this case. It cannot be argued that the Judge had 

a duty to recuse himself in this case. We affirm the trial court’s denial of the motion. 

D.

Lastly, Husband takes issue with the trial court’s classification and division of 

marital property. The trial court’s classification is a finding of fact, which we presume to 

be correct unless the evidence preponderates otherwise. Owens v. Owens, 241 S.W.3d 

478, 485 (Tenn. Ct. App. 2007). The division of a marital estate is a discretionary 

decision, but the underlying facts for that decision play a part in appellate review. See 

Jolly v. Jolly, 130 S.W.3d 783, 785-86 (Tenn. 2004) (“Appellate courts generally defer to 

the trial court’s decision unless it is inconsistent with the factors in Tennessee Code 

Annotated section 36-4-121(c) or the evidence preponderates against the trial court’s 

ruling.”). “In the absence of a transcript or statement of the evidence, we conclusively 

presume that the findings of fact made by the trial court are supported by the evidence 

and are correct.” In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005) (citing J.C. 

Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 587 (Tenn. 1979)). Before 

conclusively presuming as such, we must first acknowledge Husband’s argument that the 

trial court improperly rejected his statement of the evidence, hindering the review of his 

issues on appeal. The record reflects that Husband filed a statement of the evidence for 

the trial court’s review on April 21, 2020. No objection was filed to the proposed 

statement; however, the trial court rejected the statement, finding as follows: 

The Statement of the Evidence does not meet the requirement of [Rule 

24(c) of the Tennessee Rules of Appellate Procedure in that it does not 

convey an accurate and complete account of the final hearing in this matter, 

is not certified by [Husband], nor was it accompanied by a short and plain 

description of the issues [Husband] wishes to raise on appeal. In fact, 

[Husband] admits adding testimony that was not heard by the Court. 

Accordingly, the Statement of the Evidence is not approved for 

consideration by the Court of Appeals. 

We uphold the trial court’s ruling. Accordingly, we must also affirm the court’s 

classification and division of marital property. 
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V. CONCLUSION

We affirm the judgment of the trial court. The case is remanded for such further 

proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Gary 

Alan Montgomery. 

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JOHN W. MCCLARTY, JUDGE