### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

pril 13, 2000 BRENDA REESE v. RICKIE D. R EESE Appeal from the Chancery Court for Bedford County No. 20,374 Tyrus H. Cobb, Chancellor

No. M1999-02429-COA-R3-CV - Filed April 2, 2001

The defendant, an

incarcerate d felon, app eals the act ion of the C hancellor i n granting a divorce to his wife and s ettling all p roperty rights between the parties. We affirm the judgme nt of the Chancellor. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed William B. Cain, J., deliver ed the opinion of the

court, in which B EN H. C ANTRELL , P.J., M.S. and P ATRICIA J. C OTTRELL , J., joined. Rickie D. Reese, Clifton, Tennessee, Pro Se. Andrew Jackson Dearing, Shelbyville, Tennessee, for the appe llee, Brenda Reese. OPINION On January 3, 1996, Brenda Reese filed suit for divorce in the Chancery Court

of Bedford Cou nty, Tennessee against her husband, Rickie D. R eese. It was alleged in paragraphs 1-3 of the Complaintthat the parties were married on November 27, 1976, separated in December 1993, and that the only chil

d of the parties wa

s, at the time of the f

iling of the Compla

int, over the age of 18 years.Further, in paragraph 3 of the Complaint it i s alleged “that

the defendant is i

ncarcerated i

n the Department of Corrections in Clifton, Tennessee serving a 15 yea r sentence.” The Complaint prayed for a divorce and settlement of all property rights. On February 14, 1996, the defendant filed Defenda nt’s Motion in Contest and Opposition to Plaintiff’s Complaint for D ivorc e. In this pleading, the defendant agrees with the plaintiff’s statement of fa cts in parag raphs 1-3 of her Complaint reciting

“[t]hat there is no di

sputed facts therein.”-2-

Further, in this pleading the defendant denied all grounds for divorce and asserted that the plaintiff had agreed to stay married to him throughout the time of his incarc eration. On February 14,1996, the defendant filed a motion to be heard in the ca se by way of

written interrogatories asserting that he was incarcerated and

could not be personally present for a divorce hear ing. He thus asked “[t]hat the Court GRANT the defendant’s motion to proceed by way o f written interrogatories in lieu of his personal appearance before this Court.” A proposed Marital Dissolution Agre ement signed by

the defendant Ric

kieD. Reese but not by the plaintiff Brenda Reese was filed with the court on Febr uary 14, 1996. On March 13, 1996, the appellant filed a motion asking the trial

court to appoint co

unsel to represent him in this divorce case. From March 21, 1996 thr

ough July 14, 1996, the defendant wrote numerous letters to counsel for the pla int iffpri mar ily c onc erni ng pe rso nal pro pert y. On August 7, 1996, the defendant filed with the court a wi

tness list indicating the names of eight witnesses, including the plaintiff, that he wished to call at the hearing in the case. He asked th at these witnesses be subpoenaed and that he be transported from South Central Correctional Center in Wayne County to Shelby ville for the trial of the case. On August 23, 1996, counsel for the plaintiff filed a motion to set the case for trial indicating that he would appear on August 30, 1996 at 9:00 a.m. On August 28, 1996, the defendant filed a motion to postpone the trial until the court had ruled on his pendin

g motions. On August 30, 1996, the defendant was notified by letter from the Clerk & Master “that y our motions and all ot her matters in the above styled cause has been set by the Court for hearing on September

20, 1996 at 9:00 a .m. i n the Chancery Courtroom located on the 3rd floor at the Courthouse in Shelbyville, Tennessee.” On September 4, 1996,

counsel for the pl

aintiff filed a mo

tion to di smiss all the previous motions filed by

the defendant a

nd set same for he

aring on Septemb

er 20, 1996 at 9:00 a

.m. The trial court entered an order on September 5, 1996 ordering “that this cause shall be set on the 20th day of September 1996 at 9:00 a.m. or as soon therea

fter as the Court’ s docket permits, for a final hearing on the Plaintiff’s Petition for Divorce and a final hearing on all Motions filed by or on behalf of either party.” On September 16, 1996, the defendant filed a two page document entitled “Evidence for the Defense”.-3-

On November 26, 1996, an Order for Divorce was entered

reflecting a September 20, 1996 hearing. This or

der in its entirety

states: This cause came to be heard on the 20th da y of September, 1996 upon Plaintiff’s Motion to Dismiss, all Motions and Pleadings filed by the Defendant and upon Plaintiff’s Complaint for Divorce. It appearingto the Court that the Defendant is

incarcerated by the Tennessee Department

of Corrections servinga fifteen (15) year sentence for a Class A Felony andtherefore has nostatutory or legal right to contest the action for divorce brought by the Plaintiff. It further appears to the Court that the Defendant has filed numerous Motions to wit; Motion In Contest And Oppos ition to Plaintiff’s Complaint for Divorce, Motion to Proceed I n Forma Pauperis , Moti on to be Heard By Way of Interroga tories, Motion for Witnesses Summon, Motion for Tefesconduw2m Order, Motion for Record

s, Motion to Post-Pone,

and Motion for Ord

er for Records. It further appears to the

Co urt that the Defe

ndant is guilty

of inappropriate marital conduct and that

further cohabit

ation is both unreasonable and improper and due to the Defendant’s incarceration, the Plaintiff has been responsible for all the marital debts and liabilities incurred by and between the parties during themarriage and the Defenda

nt has provided no m

eans of support. It is therefore ORDERED, ADJUDGED and DECREED that the Plaintiff be granted an Absolut e Divor ce from the Defe ndant on the grou

nds of inappropria

te marital conduct and

that both parties be restored to all rights and privileges of si

ngle persons and the Plaintiff be awarded her maiden name “STOVALL ”. It is further ORDERED that

the Plaintiff be awarded the real property located at 3565 Highway

130 East, Wartrace, Bedford County, Tennessee and all right, titl

e andint eres t in sai d rea l pr ope rty b e di vested from the Defendant and vested to the Plaintiff by Quit Claim Deed. Plaintiff is to assume the indebtedness at E pco Credit Union and forever hold the Defendant harmless thereon. It is further ORDERED

that the Plaintiff is

to be awarded the 1993 S-10 pickup and assume the loa

n at Epco Credit Un

ion and forever

hold Defendant ha

rmless thereon. Plaintiff also is to be awarded thesatellite dish, all the household goods and furnishin gs and all the personal property currently in her possession. The Defendant is awarded the rest and residue of the marital property he ha s in his possession. It is further ORDERED that the Pla intiff is to assume t he debt to J&R B onding Company and forever hold the Defendant harmless thereon an d th e Defendan t is to a ssume the debt to the Bedford County General Hospital of approximately $600.00 and forever hold Plaintiff harmless thereon.-4- It i s further ORDERED

that all monies in join

t checking and s

avings account

s in the names of the Pla

intiff and the Def

endant at Epco Cre

dit Union be award

ed to the Plaintiff and th

e Defendant sha

ll have no interes

t in said accounts. It is further ORDERED

that the Plainti

ff’s Motio n to Dismiss the Motions andPleadings filed

by the Defendant is well tak en and that a ll Motion s and Plead ings filed by the Defendant be and hereby are dismissed. Entered this the 26th day of November, 1996. Defendant filed a notice of appeal on December 20, 1996. The appellant pr

esents three issu

es for review, to

wit: 1. Did

the Trial Court err

in determining that Appellant had no statutory or legal right to contest the divorce? 2. Did

the Trial Court er

r in granting A

ppellee a div

orce bas ed upon inappropriate ma

rital conduct? 3. Did the Tri al C our t er r in the dis tri but ion of m ari tal pro pert y? The defendant havinga dmi tte d hi s in carc erat ion on a 15 ye ar s ent ence in t he p eni ten tia ry, the Court may take judicial notice of the fact that he was convicted of a felony, th ere being no misdemeanor

in Tennessee pro

viding for a 15 y

ear sentence o

f imprisonment. He would therefore be hard put to defend a suit for divorce pursuant to Tennessee Code Annotated section 36-4- 101(5)(6). The trial court is in error in finding that the plaintiff has no statutory or legal ri g ht to contest the acti on fordiv orce beca use he i s se rvi ng a 1 5 year sen ten ce fo r a C las s A f elo ny. However, the court did not grant the divorce on the grounds of conviction of a felony but rather on grounds of inappropriate maritalconduct. This divorce decree followed a hearing on notice to the defendant held September 20, 1996. What may or may not have tra nspired at this

hearing is unknown to us as we are favored with neither a transcript of thehearing nor a Ru le 24(c) Tenn. R. App. P. statement of the evidence. Appellant adequa

tely states h

is dilemma in his brie

f wherein he obse

rves: Therefore, in essence, Appellant was not allowed to contest the grounds for divorce or the distribution of

marital assets, eventhough Appellant did file an Answer, styled as D efendant’s Motio

n in Contest and Opposition to Plaintiff’s Complaint f

o r Divorce, and several motions. Appellant expected t hat Appell ant’s writ ten pleadi ngs andmotions would be add ressed and take

n into considerati

on by the Tri

al Cour t. T.C.A. 41-21-304(a) states (emphasis added):-5- In no civil case can a convict be remove d from the penitentiary to givepersonal attendance in c ourt, but testimony may be taken by deposition, as in othe r ca ses , the party seeking the testimony being required to make affidavit that

the convict is a material witness in the cause. This statute gives an

inmate the right t

o present his vers

ion of the facts to

the Court. See Whisnant v. Byrd , 525 S.W.2d 152 (Tn. 1975). Discussing the abovestatute in reference to an inmate appe aring personally in court, the Attorney Gene ral opined (emphasis added): [Notallowing inmates to appear personally in court] in our opinion would not prohibit a

defendant from vigorously defending against a civilmatter . His unavailability for hearings and trials would not prohibit him from presenting matt ers tothe court on his behalf

. His testim ony , as w ell as that of other prisoner witnesses, may be presented by deposit

i on in accordance with T.C.A. [section] 41-21- 304

. Moreover, a prison er de fendant may engage counsel to represe nt him

. As long as the prisoner defendant is afforded ampl

e opportunity to present his side of

the controversy

, there is no need for him to appear personally. See Stone v. Morr is , [546 F.2d 730 (7th Cir. 1976)]. However, unlike the case of the priso ner plaintiff, it w

ould be inappropriate to hold the matter in abeyance until the prisoner’s release from custody. If adequate opportunity t

o present a meaningful defense has been afforded , we see nothing to prohibit the court from proceeding wit

h the matter in the a

bsence of a priso

ner defendant. See Attorney General’s Opinion, Number 87-198, December

22, 1987. At the very minimum, Appellant was entitled to present a defense by personal deposition. The trouble with the pos

ition of the appella

nt inthis civil case is th

at he did not seek to

take depositions “as in

other cases” as was allowed to him by Tennessee Code Annotated section 41-21- 304, nor did he seek to f

ollow up on his own moti on to be heard by

written in terrogatories in lieu of personal appearance. He did not engage counsel to repr esent him t

hough he had the aid of an inmate advisor. He did not seek to employ a court reporter to record the proce edings of September 20, 1996, nor seek to have any person present at such hearing to prepare any record thereof. Thus, this Court is compelled t

o presume, in

the absence o f such a recor d, that the factual fin dings of the trial court are based upon sufficient evidence. Sherrod v. Wix , 849 S.W.2d 780 (Tenn. Ct. App. 1992); State v. Oody , 823 S.W.2d 554 (Tenn. Cr. App. 1991). Appellant made no effort

to comply with Tenn. R. App. P. Rule 24(c) providing that in the absenceof a stenographic report “the appellant shall prepar e a sta tement of the evidence or proceeding s f

rom the best available means, including the appellant’s recollection.” At least by-6-

following Rule 24(d) and the provisions of law relative to depositions and interrogatories, the appellant could have compelled the app ellee to file

objections under Rule 24(c) to the statement of evidenc e and compelled a settlement of the record by the trial court under Te nn. R. App. P . Rul e 24(e). As the appellant wa s statutorily

prohibited by

Tennessee Code A

nnotated sectio

n 4 1-21- 304(a), from personal attendance at court and as he did not adequat ely pursue t

he avenues avai

lable to him to present his defenses in absentia and preserve a testimonial record for appeal, we are compelledto presume that the trial court acted upon adequate and substantial evidence in granting a di vor ce ba sed upo n in app rop ria te m ari tal con duc t an d in the dis tri but ion of m ari tal pro pert y. The judgment of t

he trial court is a

ffirmed with costs

assessed to the ap

pellant.

___________________________________ WILLIA M B. CAIN, JUDGE