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

ctober 4, 2000 JOHNNY CONAWAY v. SEMIKO L. LEWIS (CONAWAY)

Appeal from the Circuit Court for Davidson County No. 98D-3879 Muriel Robinson, Judge

No. M2000-00617-COA-R3-CV - Filed May 24, 2001

This is a suit by an incarcerated prisone r seeking a d ivorce from his unincarcerated wife. The complaint alleges that the parties have no children and seeks divorce on the grounds of adultery and desertion. The defendant was before the court by personal service

of process and did not answer the complaint. The prisoner sought default judgment which motion was never acted upon by the trial court. The circuit court clerk served a notice on the parties in this case on January 7, 2000, that since the case had been filed

since December 9, 1998 and not prosecuted, it was subject to dismissal for failure to prosecute. On Fe bruary 29, 2000, th

e case was dismiss

ed for failu

re to prosecute. The prisoner/plaintiff timely appealed and we reverse the action of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Reversed W ILLIAM B. C AIN , J., delivered the opinion of the cour

t, in which B EN H. C ANTRELL , P.J., M.S. and P ATRICIA J. C OTTRELL , J., joined. Johnny Conaway, Clifton, Tennessee, Pro Se. Semiko L. Lewis, Hermitage, Tennessee, Pro Se. OPINION Appellant, Johnny Conaway, f iled suit in the Circu

it Court of Da vidson County on December 15, 1998 for a divorce from his wife, Semiko L. Conaway, alleging that the parties were married in the summer of 1991 while Appellant was incarcerated in the Criminal Justice Center at Nashville. He alleges that his Wife visited him on several occ asions and that the

parties communica

ted by mail and by telephone, but that by the summer of 1992, Wif e had completely

ceased all communication withHusband. He alleges that in 1993 he was granted parol and, upon his release, contacted his wife who informed him that

she had an infant child by another man. He further alleges that the marriage of the parties has never been consummated and then seeks divorce on grounds of adultery and desertion

. He likewise asserts that the parties own no joint personal or real property, have no children, and owe no debts. On December 15, 1998, Husband filed a “Motion for Constructive-2-

Service” together with a ce rtification that h

is inmate trust account was limited to $ 0.19. A summons was issued with the complaint on December 15, 1 998 and was returned on the 29th of December 1998 indicating that the defendant was not to be found in Davidson County. A second summons was issued on January 13, 1999, by the circuit court clerk, and the return on the summons indicated that on the same day, January 13, 1999, personal service of the summons and complaint was eff

ected on Wife, Se

miko Lewis Co naway, with the re turn from the depu

ty sheriff indicating that the process had been “personally served in field office, Metro Courthouse.” The return is signed by Jamey Taylor, Deput y Sheriff, and likewise appears to have a genuine signature of Semiko Conaway. On March 4, 1999, Husband filed a Motion for Default Judgment indicating that service of process had been effected on January 13, 1999, and no response had been filed by Wif e. On March 11, 1999, and on July 20, 1999, Husband inquired of t h e circuit court clerk the status of his motion f

or default judgme

nt. On July 22, 1999, Husband filed a “Notice of Hearing” with certificate

of service on Semiko L. Conaway. This notice provided: Petitioner Johnny Conaway, pursuant to Rule 26, Local Rules of Practice, request the docketing of this mo

tion for setting ca

se for trial. Petitioner requests that this motion for defau lt judgm ent and a final decree for absolute divorce be heard on July 30, 1999, at 9:0 0 a.m., as provided by the Local Rules of Court. On the same day, July 22, 1999, Appellant filed another Motion for

Default Judgment. He tendered, along with this Motion, a proposed final decree of divorce which granted both judgment by default and an

absolute divorce . This proposed dec ree is unsigned by

the court. The record shows no further action in the case until January 7, 2000, when the clerk notified both parties that: By order of

the court, all cases which have been pending for one (1) or more years shall be dismissed unless within the next thirty (30) days the following takes place: (1) A motion to set is

filed and heard by the assignment judge for jury cases and for non-jury and divorces to be heard by the trial judge; or (2) Specific permission is obtained from the court fo r this case to be exempted from this one (1) year rule.-3-

If an order setting the case for trial is not filed within thirty (30) days, or exempted under paragraph 22 above this case shall be dismissed. On February 29, 2000, an Order of Dismissal was entered in the case providing: It appears to the court that this cause has been dormant for an extended time. Therefore, in accordance with Rule 18.02 of the Local Rules of Practice of the courts of record of Davidson County, it appears that this cause should be dismissed for want of prosecution. It is therefore ORDERED that the above cause, be and the same, is hereby dismissed. Costs of this cause are assessed to the plaintiff and/or its surety for which execution may issue if necessary. Husband on March

14, 2000, filed a pr

oper notice of ap

peal. Befo re this Court, Husband t imely filed his brie

f, and there bein

g no response at a

ll fro m Wife/Appellee, the case was submitted for disposition on the record and Appellant’s brief pursuant to Tenn. R. App. P. 29(c). From our review of the record, it appears that an incarcerated prisoner some how married Wife while still incarcerated and never actually lived with he r. By th e unchallenged

statements of the com

plaint, Wif

e had a child by an

other man while he

was still incarcerated. Husband and Wife have no children together, have no personal property, have no real property, and have no debts. Wife is before the Court by personal service of

process and has never responded eithe

r in the trial cour

t or in this Court. It would appear that

this case was subject to a dismissal order on the general basis of local court rules requiring the prosecution of a case within

one year of its filing. The record indicates that Appellant had attempted to prosecute his case from his place of confinement in the penitentiary and that his motion for default judgment is probably well taken. While he submitted a proposed decree granting both default

judgment and a divorce from his wife, he offered no proof, by deposition or otherwise sufficient, to give the trial court a basis in proof for granting a divorce. Under these cond

itions we think the pr

isoner was entitle

d at least to

the treatment give

n to the case of an incarcerated plaintiff by Whisnant v. Byrd , 525 S.W.2d 152 (Tenn. 1975). The case should be simply held in

abeyance until h

is release from p

rison or until

he provides the c

ourt some kind of evidence, by deposition or any other means satisf actory to the trial court, that the allegations of his complaint are true and that he is entitled to a divorce from this unfortunate marriage. It is not the duty of this Court to advise the prisoner/plaintiff on how to present his case before the trial court from hi s positi on of incarceration, but under the circumstances of this case, the action of the trial court in dismissing the complaint for failure to prosecute is reversed and the case remanded

pursuant to Whisnant v. Byrd

.-4-

Costs of the appeal are assessed against Semiko L. Conaway.

___________________________________ WILLIAM B. CAIN, JUDGE