# FILED
March 18, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) NANCY KNIGHT , ) Carroll County Chancery Court ) No. 97-DR-215 Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9804-CH-00094 ) HENRY KNIGHT , ) ) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Chancery Court of Carroll County at Huntingdon. Honorable Walton West, Chancellor
Henry Knight , Pro Se Defendant/Appe

llant.
Laura A. Keeton , LAW OFFICES OF ROBERT T. KEETON, Huntingdon, Tennessee Attorney for Plain

tiff/Appellee Na

ncy Knight.

OPINION FILED: VACATED AND REMA NDED FARMER, J. CRAWFORD, P.J.,W

.S. : (Concurs) LILLARD, J. : (Concurs)

Henry Knight (Husband) appeals thetrial court’s final decree which awarded NancyKnight(Wife) a divorce and distributed to her all of the parties’ marital assets. We vacate the trial court’s final decree based on our conclusion that the trial court erred in failing to consider Husband’s motion that he be transported to the final divorce hearing or, alternatively, that these proceedings be held in abeyance until his release from prison.

Wife was awarded

a divorce from Husband on the ground that Husban

d was guilty of inappropriate marital conduct. In her complaint, filed in October 1997, Wife sought custody of the parties’ two minor children but asked the court to reserve the issue of child supp ort until Husband’s release from prison. She also sought all of Husband’s interest in the marital property. Husbandhad been incarc erated since Au

gust 15, 1995, for th

e sexual abuse of

the parties’ olde

st child, a daughter. When these divorce proceedings began, the parties’ daughter remained in foster
care.

Husba nd filed a responsiv e pleading and co

unter-complaint c

harging Wife with adultery and inappropriate marital conduct. He requested t hat tempor ary custody of the parties’ youngest child, a son, be awarded

to Wife “until further child custody proceedings are brought.” He further requested that Wife and their son be allowed to live in the marital home

until such time

as he is released from incarceration or until she remarries, at which time the property be s old an d divided equally be

tween the partie

s.
Wife was awarded the divorce and custody of the parties’ minor

son, and Husband
was granted supervised visitation. Wife was awarded the marital property as alimony in solido
. Accordin g to the st atement of the evidence, the only marital assets of the parties were the marital homeand furnishings with a total value of $5,000 on which Wife made payments during Husband’s incarceration. The hearing on the divorce was held February 26, 1998, and the amended final decree entered April 17, 1998.

Prior to entry of the decree, Husband filed a “combined motion for appointment of counsel and for order to transport” wherein h e requested the tr

ial court to appoin

t counsel to represent him and also to grant an order to transport him from the correction facility at Tiptonville, Tennessee, to the hearing. In the alternative, he asked that the divorce hearing be held in abeyanceuntil his release fro m the Department o

f Correction in Feb

ruary 1999, thus gi

ving him a chanceto retain counsel to

defend his rights.

Husbandcontends on appeal that the trial court erred in failing t o grant his motion and in awarding Wife the marital property. The record before us does not contain orders of the trial court acting on the motion. However, it is obv ious that the matter was not held in abeyance, inasmuch as it proceeded to trial and, likewise, that Husband was not present, inasmuch as the decree states that the matter was heard upon the pleadings , testimony of Wife heard in open cou

rt, statement of counsel, and the entire record.

We do not believe that the trial court erre d in failing to

appoint counsel to represent Husband. There is no absolu te right to counsel

in a civil trial. Lyon v. Lyon , 765 S.W.2d 759 (Tenn. App. 1988); In re Rockwell , 673 S.W.2d 512 (Tenn. App. 1983) . The Sixth Amendmen t right to counsel is limited by its terms to criminal prosecutions. U.S. Const. amend. XI.

Husband’s contention that he has the right to be present at the trial or that the matter should be held in abeyan

ce until he is

released is more troublesome. The courts are more frequently being asked to consider the rights of an incarcerated party to litigation . The seminal c ase in this jurisdiction is Whis nant v. Byrd , 525 S.W.2d 152 (Te nn. 1975). There

an inmate filed sui

t to
recover a photograph. Noting that the record there did not disclose any need for immediate attention, the trial court’s order continuing thematter until plaintiff’s release from prison was affirmed. The often-quoted lan

guage from that op

inion is as follows:

Art. 1, Sec. 12, of

the Constitution of Te

nnessee provide

s, in part, “that no conviction shal l work corruption of blood or forfeiture of estate”. Art. 1, Section 17 provides, in part, “And every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law”. These constitutional prov isions constitute clear and unequivocal declarations of thepublic policy of thi s State to the effect that no forfeiture of property rights shall follow conviction for a crime, and that every man shall have a remedy by due course of law for an injury susta

ined by him. That the public policy of this Stat e oppose s forfeitures forconviction of crime is well established. Fields v. Met. Life Ins. Co. , 147 Tenn. 464, [249 S.W. 798 (1923)]. We, therefore, hold that a prisoner has a constitutional right to institute and prose

cute a civil

action seeking redress for injury or damage to his person or

property, or for thevindication of any other legal right; howev

er, this is a qualif

ied and restricte

d right. We quote with approval the following language from Tabor v. Hardwick , 224 F. 2d 526 (5th Cir. 1955): (W)e think that the principle of the cases [relating to restraint of personal liber

ty] should not be extended

to give them an absolute an d unre stricted right to f ile any civi l action they may desire. Otherwise, penitentiary wardens and the court s m ight be swampedwith an endless number of unnecessary and even spurious lawsu

it s filed by inmates in

remote jurisdictions in the hope of obtaining leave to appear at the hearing of any such case, with the consequent disruption of prison routine and concomitant ha z ard of esca pe from custody. As a matter of necessity, however regrettable the rule may be, it is well settled that, “Lawful incarceration brings about the necessary withdrawal or limitat ion o f many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston , 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356. 224 F. 2d at 529. We further quote with approvalthe following language from Seybold v. Milwaukee County Sheriff , 276 F. Supp. 484 (E.D. Wis. 1967): Regardless

of the merit

of the causes of action

stated in their complain

ts, it must be remembered that the prisoner-plaintiffs have, by their own acts re sulting in conviction, placed themselves in a position such that effectivep ros ecution by themsel ves is not possible withoutinterference bythe court with their detention, and it is our opinion that a bsent unusual cir cumstances that interference is not warranted. I n other words, their unavailability for hea rings and tr

ials is due to their convictions, and al t hough the court believes that they should not therefo re lose their

rights of actio n b y operation of a statute of limitations, we know of no authority compelling us un der ordinary circumstances to deliver

them from their self-caused restrict ions a nd proceed with their cases as though they could appear at will. 276 F. Supp. at 488. We no te that Sec. 4 1-604 T.C.A. [now T.C.A. § 41-21-304(a)] provides that “in no civil case can a convict be remo ved from the peni tentia ry to give personal attendance at court, but his testimony may be taken by deposition, as in other cases . . . ”. The ensuing section provides for de positi ons in criminal cases and Sec. 41 -606 T.C.A. [now T.C.A. § 41-21-305] authorizes the presiding judge of any court to order the war den of the penitentiary to bring a convict be

fore the court to

give test imony for the state in criminal cases, and the next section makes it the duty of thewardento produce the convict witness. There a

re no such provisio

ns inour law relating to ci

vil suits. We hold that, absent unusual circumstances, prison ers w ho have filed their civil c omplaints, unrela ted to the legality o

f their conv ictions and who have thus protected themselves against the running of any statut e of limitations, will not be afforded the opportun ity to appear in cour t to present their c

ases during their prison terms. Instead such matt ers will be held in a

beyance until

the prisoner shall ha

ve been releas

ed from prison and

is in a position to prepareand present his case. We hold that in a proper case, and

upon a proper showing of particularized need, the t rial jud ge, in his discretion, may issue an appropri ate directive requiring the attendance of the prisoner.

Whisnant , 525 S.W.2d at 153-54.

A distinction has been mad e between incarc erated plaintiff

s and defendants . This court has previo usly held that a party defendant has no absolute right to be in attendance at the hearing of a civil matter. State v. Moss , No. 01A01-9708-JV-00424, 1998 WL 122716 (Tenn. App. Mar. 20, 1998); Cherry v. Cherry , 1989 WL 155362 (Tenn. App. Dec. 20, 1989).

Where the incarce

rated litigant is the plaintiff, the cases suggest otherwise. Wh isnan t
v. Byrd appears to have a dopted the rule tha t prisoners who fil

e civil actions unr

elated to their conviction wil l not be afforded the opportunity to appe

ar in court and pr

esent their case

s while incarcerated, but rather such ma tters will be held in

abeyance until th

e priso n er is released. However, if the prisoner is a ble to show a particularized need, the trial court may, in its discretion, issue an appropriate directive requiring the a ttendance of the prisoner in court. In Robbins v. Robbins , 1990 WL 198908 (T enn. App. Dec. 12, 1990), an inmate serving a life sentence plus twenty-f ive y ears filed a pro se divorce action se eking to establish v

isitation with his twe

lve-year-old
son. The trial court or

dered that the ma

tter remain on the

docket but sta

yed the action pending plaintiff’s release from c ustody or further

orders of the tria

l court. Th is court determined that plaintiff had, prima facie , shown a “parti cularized need,” that being visitation with his son. The court noted that, because of the length of plaintiff’s sentence, to hold the case in abeyance regarding his adjudication to visitation rights with his then minor son invol ved d ue process considerations which required an opportunity to be heard, at a minimum by deposition.In Smith v. Peebles , 681 S.W.2d 567 (Tenn. App. 1984), an inmate sued his former

attorney for malpractice. The plaintiff filed a motion seeking to have the trial court enter an order requiring the warden to have him present for trial, which was denied. He then fileda motion for a continuance which was likewise denied. The trial court e ntered an order

stating that, due to plaintiff’s failure to appear for trial, the matter was dismissed. This court reversed the judgment of the trial court and stated that “[o]n remand, the cause shall be placed on the docket and continued from time to time unless the Trial Judge should find ‘upon a proper showing [a] particularized need’ to bring the case on for trial. In that event, he may issue ‘an appropriate directive requiring the attendance of the [plaintiff] prisoner.’ ” Id. at 569.

The case of Tolbert v. Tolbert , No. 03A01-9406- CV-00230, 1994 WL 705 230 (Tenn. App. D ec. 15, 1994), de alt with an inmate d

efendant in a divo

rce case who did

not fil e a counterclaim.

The court noted th

at one school of tho

ught is that prisone

rs have no absolut

e right to appear in civil cases, but may be permitted to do so in the discretion of the court. The second view is that they have no r

ight to appear at their civil trial at all. The court deter mined the better v

iew to be that as articulated in Strube v. Strube , 764 P.2d 731 (Ariz. 1988), and quoted extensively from that opinion as we do here:

The United States Supre me Court has establ

ished that a prisoner has a constitutional right of access to thecourts. Bounds v. Smith , 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72, 78 (1977). This right is founded i n the due p rocess clause of the fourteenth

amendment. Wolff v. McDonnell , 418 U.S. 539, 579, 94 S. Ct. 2963, 2986, 41 L. Ed. 2d 935, 964 (1974). Of cours e, a prisoner’s right of

access is not absolute. Whitney v. Buckner , 107 Wash. 2d 861, 866, 734 P.2d 485, 488 (1987). Ho wever, at a minimum, due process req uires that absent

a countervailing

state interest of overriding sign

ificance, pris

on ers must be afforded meaningful

accessto the courts andan opportunity to be heard. See Bounds , 430 U.S. at 822 , 97 S. Ct. at 1495, 52 L. Ed. 2d at 79; Boddie v. Connecticut

, 401 U.S. 371, 377, 91 S. Ct. 780, 785, 28 L. Ed. 2d 113, 118 (1971). In the instant ca se , the court of app eals correctly

noted that, under Price v. Johnston , 334 U.S. 266, 68 S . Ct. 1049, 92 L. Ed. 1356 (1948), the question of whethe r to permit a prisoner

/litigant in a civil case to be ph

ysically present

in court is within

the trial court’s sound discretion. However, Price also requires tha t: [the trial court’s] di

scretion is to

be exercised wi

th the best interest of both the prisoner and the government in mind. If it is a

pparent th at the request of the prisoner to argue personally reflects something moreth a n a mere desire to be freed temporarily from the confines of the prison, that he is capable of conducting an intelligent and responsible argu

ment, and that his presence in the courtroom may be secured withoutund ue conveni ence or danger , the court would be justified in issui

ng the writ. Id . at 284-85, 68 S. Ct. at 1059-60, 92 L. Ed. at 1369. The court’s discreti

on should be exercised after balancing the interest of the pris oner against the interests of the other parties and the state, including the authorities having custody of t he prisoner. Some of the factors to be considered in balancing the respective interests were set forth in Stone v. Morris , 546 F. 2d 730, 735-36 (7th Cir. 1976): In making hisdetermination the district judge should take into accoun

t the costsand inconvenience of transporting a pr

isoner from h

is pla ce of incarceration

to the courtroom, any potential danger or security risk which the presence of a particular inmate would pose to the co

urt, the subst

an tiality of the matter at issue, th

e need for an ea

rly determination of the matter, the possibility of delaying trial until the prisoner is released, the probability of success on the merits, the integrity of the cor recti onal system, and the interests of the inmate in presenting his testimony in person rather than by deposition. [citationomitted] Statecourts that have addressed this matter hav e also em ployed a balancing test. In In re Marriage of Allison , 1 26 Ill
. App. 3d 453, 81 Il l . Dec. 610, 467 N.E.2d 310 (1984), a prisoner appea led a decree of dissolution that resulted from a hearing h e di d notattend. The Illinois court held that the trial court’s scant consideration of the prisoner’s petiti on for habeas co

rpus ad testi fica ndum amounted to a failure to exercise its discretion. Reversing the decree, the court stated: As a mi nimum , the court could have balanced the interests of the State aga ins t the interests of the respondent

in being present at the trial and could have made a reasoned exercise of its di scre tion in the matter. Id . at 463, 81 Ill. Dec. at 617, 467 N.E.2d at 317. In Hall v. Hall , 128 Mich. App. 757, 341 N.W.2d 206 (1983), the prisoner had file

d a divorce actio

n. The trial court

denied his request to be p resent. The Mich igan Court of Appe

als, while acknowledging that a prisoner has no absolute right to testify personally, stated that funda mental fair

ness ma y require a cour

t to afford the prisoner the opportunity to do so. The court remarked: The issu e is essentially whether the plaintiff’s [prisoner’s] i nterests in presenting his testimony outweigh the state’s relevant intere sts inwithholding from him the means necessary for such a presentation. Tha tdecision, we believe, rests in the soun d discretion of the trial court. [citation omitted] Id . at 761-62, 341 N.W.2d at 209.As noted in Stone v. Morris , a factor to b e considered in weighing a prisone r’s request to be present is the “substantiality of the matter at issue.” In this case, the prisoner requested to be present at a dissolution proceeding initiated by his wife. The United States Supreme Court has recognized

that the marital relationship involves fundamental interests of importance to our society. Loving v. Virginia , 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). The Courthas further held

that an individual h

as a constitutional right of access to courts for the purpose of dissolving a marital relationship. Boddie v. Connecticut

, 401 U.S. 371, 91 S. Ct.

780, 28 L. Ed. 2d 113 (1971) (court access for a dissolution proceeding can

not be denied to indigents based on their inability to pay the usual filing fees).

Strube , 764 P.2d at 733-35. The court determined in Tolbert

that, under the record before it, the trial judge did not a

buse his discretio

n and properly re

fused defendan

t’s request to be p

resent.

In Brown v. Brown , No. 01A01-9510-CV-0 0480, 1996 WL 56387

7 (Tenn. App. Oct

. 4, 1996), the wife of an inmate filed for divorce, and the inmate answered and counterclaimed. He also filed a motion for a bill of particular s and a Motion f or Writ of Habea

s Corpus ad Testificandum
. The trial court did not respond to the inmate’s motions. On appeal, this court noted that the aforesaid writ i

s a common-law wr

it used to enable a

prisoner detaine

d in a jail or prison to be brought before the cou rt to give evidence. It further noted that our legislature appears to have shut the door on the

use of this writ

in civil proceedings by the passage of T.C.A. § 41-21-304(a), which states:

In no civil case can a convict be removed from the penit entiary to give personal attendance at court, but testimon y may b e taken by deposition, as in other case s, the party seeking the testimony being required to make affidavit that theconvict is a material witness in the cause.

T.C.A. § 41-21-304(a) (1997). The court went on to state that “[w]e note, however, that despite the absolute language of the s

ta tute, re levant case law supports the proposition that the constitutional rights to due process an

d reasonable ac

cess to the courts

may sometimes requ

ire that a party litigant be personally prese

nt incourt, even if the litigant is incarcerated.” Brown , 1996 WL 563877, at *3.

We believe that Husband, by virtue of filing a counterclaim, is p

ostured in the role of a plaintiff. As previously noted, Whisnant v. Byrd held that an inmate has a constitutional rightto institute and pros ecute a civil action seeking redress for the vindication of any legal right. That rightis qualified and restricted, and the qualification addressed by Whisnant is the limited right of inmates to present their

cases in court. I

t held that, absent

unusual circumsta

nces, inmates who file civil a ctions unrelated

to the legality of th

eir convictions wi

ll not be afforde

d the opportunity

t o appear in c ourt to present the

ir cases during th

eir prison terms. T

rial courts were

directed to hold such matters in abeya

nce until the inmate is release

d from prison unles s an appropriate directive is issued requiring the attendance of the inmate. Whisnant , 525 S.W.2d at 154.

Our supreme court recently had an opportunity to re visit W hisnant v. Byrd

in Sanjines v. Ortwein & A ssociates , No. 03S01-9712-CV-00139, filed December 21, 1998, _____ S.W.2d ____ (Tenn. 1998). That case dealt with an inmate who f iled a c omplaint alleging legal malpractice against the attorneys who had represented him in a criminal proceeding. On the same day, he filed a pr

o se petitio n under the Post-Con viction Procedure

Act (T.C.A. §§ 40- 30-201 to -222) alleging ineffective assistance of counsel in the criminal proceedings. The issue presented was whether the trial court a

bused its discretion in refusing to grant the plaintiff’s motion to stay proceedings in the malpractice case until conclusion of the post-conviction matter. The court noted that, while the court in Whisnant was concerned

with the rights

of inmates to file c

ivil complaints, it did not hold that a

stay is necessary in all civil actions filed by incarcerate

d persons, nor did i

t hold that such persons have a

constitutional right to a stay of their civil actions. The court was concerned only with the rights

and qualifications of an inmate to appear in court for trial. The court held that
an inmate who is the plaintiff in a legal malpractice case, and at the same time

a petitioner in a p

ostconviction matter involving the same facts, is not entitled to an autom at ic stay of the malpractice case until the outcome of the post-conviction matter. The court further stated that “[t]o the extent that Whisnant

can be interpreted as mandating an automatic stay in these cases, i t i s overruled.” Sanjines , slip op. at 9 n.7.

It appears from the

aforesaid autho

rities that an inca

rcerated plain

tif f par ty litigant has the right to appear in court after a hearing on a proper motion and upon a

proper showing of a particularized

need, and the trial judge may issue an appropriate directive requiring the attendance of the prisoner. The

alternative is

to hold the matter in abeyance until his release from incarceration. This decision requires examining t he signi ficance of the action and the need for immediacy.1 Husband made an oath of poverty pursuant to T.C.A. § 20-12-127 (Supp. 1995).

However, it is appare nt that our legislature h as provided a mea

ns for the incarc

erated litigant to “appear in court” by his deposition pursuant to section 41-21-304(a).

There is no indication in the record before u s that the trial court held a hearing on Husband’s motion. There is further no indicationof a response to the motion being filed by Wife. As previously noted, Husband stated in his motion that he had a release date of February 1999. We
are of the opinion that the trial court erred in failing to conduct a hearing upon Husband’s motion and in failing to affor

d him an opportunity t

o present testimony

of himself and/o

r othe rs by deposition if necessary. We are not unmindful of the practical problems facing an incarcer ated , indigent 1 pro se litigant in arranging to testify by deposition. Nor do we suggest the onus was upon Wife to depose

Husband, thus giving him the opportunity to testify in his own behalf. The record is silent as to Wife’ s ability to finance a deposition, but the meager marital estate suggests that she is not able to do so.

It results that the judgment of the trial court is vacated and this cause is remanded

for
a hearing to determinewhether, within the court’s discretion, Husband is entitled to be transported to Carroll County

for a hearing, whether the matter should be held in abeyance until his release, or whether he should be given an opportuni ty to present his

evidence by deposition, interrogatories, or other lawful means. Of course, if Husband has since been released from incarcerat ion, the action
on his motion is m

oot and the mat ter can procee d to a trial on the me

rits. As we have pr

eviously noted, the trial court reserved the question of child support until Husband’s release.

The judgment of the trial court is vacated, and this cau se is remanded for further proceedings consistent with this opinion. Costs of this appeal are taxed to the appellee.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. ( Concurs)______________________________

LILLARD, J. (Conc

urs)