# FILED
October 4, 199 6 Cecil W. Crowson Ap pellate Cou rt Clerk ELLA MAE BROW N, ) ) Plaintiff/Counter- Defendant/ ) Appellee, ) ) Appeal No. ) 01-A-01-9510- CV-00480 VS. ) ) Davidson Circuit ) No. 94D-3788 MARVIN DOUGLAS BROW N, ) ) Defe ndan t/C ount er- Plai ntiff/ ) Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE

APPEALE D FRO M THE C IRCU IT COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE MURIEL RO BINSON, JU DGE

CAROL DOWNTON 4205 Gallatin R oad Nashvil le, Tennessee 37216 Attorney for Plaintiff/Counter- Defendant/Appellee MARVIN DO UGLAS BROWN, #78585 Riverbend Maximum Sec urity Institute 7475 Cockril l Bend Road Nashvil le, Tennessee 37209- 1010 Pro Se/Defendant/Coun ter-Plainti ff/Appellant

REVERSED; VACATED AND REMAN DED

BEN H. CAN TRELL, JUDGE
CONCUR: TODD, P.J., M .S. KOCH, J. 

## O P I N I O N- 2 - The wife of a pris oner in the custody of the Tennessee Department of Correction filed for divorce, claimi ng that her hus band was g uilty of ina ppropriate marital conduc

t. The husband answered a nd counterclaimed, and m oved the court to order the wife to file a Bill of Particular

s, setting forth the facts she w as relyi ng upon as grounds for t he pending di vorce. T he court did not respond to th e husband’s motion, nor did it r

es p ond to the husband’s Motion for Writ of Habeas Cor pus ad Testifi candum, but granted t he wife an absol ute divorce without affordi ng the husband the opportunity

to present any

eviden ce . W e reverse, and vacate the trial court’s order.

I. The Marr iage and Div orce

The appellant, Mar

vin Doug las Brow n, was sent enced to ser v e two
cons ecut ive 99 year ter ms of imprisonment. He has been continuously conf ined since January 15, 1974. In 1983, M r. Brow n met the woman w ho would eventuallybecome his wife. Though she lived in East T ennessee , she subsequently moved to Middle Tennessee to be near the pr ison where he was i ncarcerated, a nd she made regul ar weekly visits to the prison to see him. On May 27, 1989, the parties were married in the chapel at the Tennessee State Pri son in Nashv ille.

Despite the rigor

s of the husband’s confinement, the parties manag ed to maintain a cooper

ative rel ationship. M arvin Br own sent hi s wife t he m one y h e earned in prison to help her pay her bills and to ena ble her to purchase s ome ite ms forher use, such as a riding lawn mower and a portabl e stor age shed. Ella Mae Brown visited her husband freq uently, br inging h im special food eac h time, supplying him with shoes when he needed them, an d contributing funds towards his court costs.- 3 - Event uall y, problems aros e between the pa rties. The natur e of these probl ems is n owh ere stat ed i n therecord, thou gh t he ap pell ee refers in her bri ef t o “exce ssive drug abuse” on the part of the hus band and his maintaining a relationship bycorrespondenc e with anoth er woman. O n October 21, 1994, Mrs. Brow n fil ed a Complaintfor Absolute Di vorce, ci ting as g rounds irreconcilable di fferen ces an d inappropriatemarital condu ct. On November 18, 1994, Mr . Brown fil ed an answer denying that h e had been guilty of inappropriate marital conduct. He also counterclaimed for div

orce.

Mr. Brow n simultaneousl y filed a Motion for a Bill of Particular s, and a Motion for Appointment of Couns el. The court did not issue a response to ei ther
m ot ion, although Mr . Brown fil ed two subse quent motions before trial for a judicial ruling on his Moti on for a Bill of Par ticulars. On April 3, 1995, Mr. Bro wn filed a wellreasoned Petition for W rit of Habeas Corpus ad Test ificandum. The trial court again failed to respond.

The divorce hearing took place on August 29, 1995. The husband was not present. The court heard t estimony from thewife, and from two witnesses whose expected part icipa tion was com mun icat ed to the h usba nd on ly a fewhours before the trial. Ac orrections officer had been summoned to pr ovide a tr

anscript of a taped telephone conversat ion between t he husband and w ife. The husband insi sted tha t the tape contained admi ssions that contradicted the wife’s sw orn ans wers to t he husba nd’s interrog atories. The officer had the tape in hi s possession, but n o transcript

was prov ided, and the tape w as not admitted i nto evidence.

After the hearing, the trial court issued a de cree grant ing the w ife an absolut e divorce on the ground of i nappropriate mar ital conduct. The decree als o divested the husband of any interest he mi ght have had in the h o use t hat t he w ife purchased during the course of the mar riage, g ranted to the wife full ownership of all- 4 -

personal prop erty cu rren tly i n he r possessio n, and establis hed a permanent restrainin g order agai nst the husband, pr ohibiting him from threatening , coming around, or harr

assing the w ife in any way. This appea l followed.

II. The Bill of Particu lars

A prisoner does not forf eit his constit utional right of access to the civil
cou rts by vi rtue of his conv iction and incarceration. Whisnant v. Byrd , 525 S.W.2d 152, 153 (Tenn. 1975). The due process to w hich he is ent itled however is somewhat diminished in comparison to t he rights h e could exer cise if he were not incarcerated. For example, a pr isoner w ho files a civ il complaint unrelated to the legality of his convicti on will not normally be allo wed to mak e a personal appear ance in court to presenthis case, abs ent unusual circumstances , 525 S.W.2d at 154, but he may testify by deposition. Tenn. Code Ann. § 41-21 -304.

Due process req uires notic e and an opportunit y to be heard

. Mullane
v. Central Hanover Bank & Trust Co ., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed 865 (1950 ). Though incarceration necessarily limits a prisoner’s ri ght to be heard by personal appearance, it does n ot preclude him fro m receivi ng the same noti ce of actions against him that is afforded t o citize ns who are not under sentence. We note that the Eastern Section of this cour t re cent ly

vacated a di vorce de cre e gr ante d to t he w ife of
a pri sone r, b ecau se t he de fenda nt di d not rec eive not iceof th e dat e of the hearin g until four days before it was to tak e place. The Cour

t found that the limited peri od of time available to prepare hi s defense was i nsufficientto accord hi m constitutional due process. Tolbert v. Tolbert, Appeal No. 03A0 1- 9406-CV-00230 (Filed in Knoxville December 15, 1994)

.- 5 - Ourleg islature has

provided t he means where by a defendant to a divorce action may b e notified of the basis of the allegati ons against him. Tenn. Code Ann. § 36-4-106 reads:

Contents of p etition f or divorce. -- (a) The bill or petition shall set forth the groun ds for the divor ce in substanti ally the language of § 36-4 -101 or § 36-4- 102, and pray only for divorce from the defe ndant, or for a divorce and su ch ot her and further

relief to w hich the complai nant may think himself or herself entitl ed. In cases w herein a n answer i s filed, the court shall, on moti on of the defendant, requi re the complainant tofile a bill of parti culars, set ting forth the facts relied upon as ground s for the divorce, w ith r easonable certainty as to time and pl ace.

The intent of the legislature in requiring the wordin g of the petition to substantially follow the language of the two statutes t ha t set out the g rounds upon which divorce may be gra nted is to p r event the peti tioner from inser ting scur rilous matters into so p ublic a document. See Farrar v. Farrar , 553 S.W.2d 741 (Tenn. 1977). At this ear ly stag e in the proceedi ngs, due process does not require detailed notice of the acts that the complainan t is alleg ing the defendant has been guilty

of.

Howeve r after the defendanthas answered the petition, a nd denied the validity of the grounds recited in it, he is entitled to a Bill of Par ticulars, so he can know whathe is accused of, and defend himself agai nst the petitioner’ s charges if he wishes.

As the appellee poi nts out, if Mr . Brown cannot make a personal appe arance, he can still exercise the right to be heard by submitting a deposi tion

. See Tenn. Code Ann. § 41-21-304( a). But w ithout a Bill of Particular s, he has been deprived of the opportunity to present facts th at would negate the allegations that are implied by th e compl aint ag ainst him. It therefore constitutes reversible error for the trial cour t to have fail ed to grant M r. Brow n’s Motion for a Bill of Part iculars.
III. Habeas Corpus ad Testificandum- 6 - The Wr it of Habeas Corpus ad Te stificandum is a comm on law writ which is used to enabl e a prisoner detained in a jail or prison to be brought beforethe court to give evidence. Blacks Law Diction ary, 4th Ed. (1957). Our Legislature appears to have shut the door on the use of this wr it in civ il proceedi ngs, by virtue of Tenn. Code Ann. § 4 1-21-304(a):

Depositions .-- (a) In no ci vil cas e can a convict be removed from the penitentiary to give personal attendance at cour t, but his testimony may be taken by deposition as in othe r cases, t he party seeking his testimony being required to make affidavit that the convict i s a material w itness in the cause.

Neit her party has raised the q uestion on appeal as to whether th e statute operates to bar the tr ial court from consi dering the ap pellant’s Writ for Habeas Corpus as Testificandum. We note, however, that despit e the absolute language of the statute, rel evant case l aw supports the propositi on that the consti tutional ri ghts to due process and reasonable access to the courts may sometimes req uire that a par ty litigant be personally

present in court, even i f that litig ant is incarcerated.

In Whisnant v. Byrd , 525 S.W.2d 152, 154 (Tenn. 1975) , for example,
our Supreme Court c ited Articl e 1, S ecs. 12 and 17 of the Tennessee C onstitution, which provide resp e ctively that “no conv iction shall work corruption of blood or forfeiture of estate,” and that “every man, for an injury done him in his lands, goods, p erson or r eputation, shall have remedy by due cour

se of law.”The interacti on between these provisions led the court to hold that “a prison er has a con stitutional right to i nstitute and pr

osecute a civil action seeking redress for injury or damage to his person or pr

operty, or

for vindication of any other legal ri ght . . .,” and consequently “. . . in a proper case, and upon a proper show ing of partic ularized need, the trial judge, in his discr etio n, ma y issue an ap prop riate direc tive requiring the attendance of the prisoner.”- 7 - In Tolbert, supra, the co urt noted the pauci ty of Tennessee cas es dealing with the rights of i ncarcerated defendants in civi l suits to b e personally present at theirtrials, an d sought gui dance from other jur isdictions that have con sidered the question. The court found a helpful discussion of the reported cas es to be contained in 82 A.L.R. 4th 1063 (1990 ).

The court cited with ap prov al the lead cas e in that disc ussion, an en b anc decis ion of the Ariz ona Supreme Court, Strube v. Str ube , 764 P.2d 731 ( Ariz. 1988). The Strube

court held that: “Prisoners have a ri ghtof access to the courts for legitimate purposes. At least with respect to a significa nt civil proceeding initiated against a prisoner by others, we hold that there is a presumption that the prisone r is entitled to be personally present at crit i cal proceedin gs, such as the trial its elf, when he has madea timely r equest tobe present. Of co urse this is a r

ebuttable presumpti on and the ultimat e decision is

within the sound discretion of the trial court.” 764 P.2d at 735.

The Strube

Court also said tha t “[t]he court’s di scretion shou ld be exercis ed after balancing the interest of the prisoner against the i nterests of the other parties and the state, i ncluding theauthorities hav ing c ustody of the pr isoner.” 76 4 P.2d at 734.

W hile the Tolbert Court did not

go so far as t o hold thatTennessee had adopted the rebuttable presu mpti on discussed above, it di d place the qu estion of whether to permit a prisoner/defe ndant in a civil case to be physicallypresentat court within the trial court’s so und discreti on, and instruc ted the court that its discr etion was to be exerci sed with t he best interest of both the prisoner and the government in mind.

The following language, quoted in both t he Strube and Tolbert

opinions, is worth repeating for the guidance of tri al courts that must exerc ise their di scretion when faced w ith this q uestion:- 8 - “If it is apparent that the req uest of the prisone r to argue personally reflects somethi ng more than a mere desire to be freed temporarily

from the confines of pri son, t hat he is capable of conducting an intellig ent a nd r esponsible argument, and that his presence in the co urtroom m ay be secured without und ue convenienc e or danger, the c ou rt would be j ustified in is suing the w rit.” Price v. Johnston , 334 U.S. 266 at 28 4-85, 68 S.Ct. 1049 at 1059 -60, 92 L.Ed. 1356 at 1369 (1948). And

“[the judge] shoul d take into account the costs and inconvenience of transportinga prisoner from his place of incarcerati on to the courtr oom, any potenti al danger or security risk w hich the presence of a particular inmate would pose to the court, the substantiali ty of the matter at is sue, the need for an early det ermination of the matte r, the possib ility of delaying trial unti l the prisone r is rel eased, the probabili ty of success on th e m eri ts, the integ rity of the correctional syst em, a nd the interests of the inma te in presenting his testimony in person rather than by depositio n.” Stone v. Morris , 546 F.2d 730, 735-36 (7th Cir.1976).

In the Tolbert

case, supra, the court affirmed the trial court’s deni al of the defendant’s Motion for W rit of Habeas Corpus ad Testificandum, and v acated the trial court’s dec ree on the question ofinsufficient noti ce alone. The court found that “th e Trial Judg e did not abuse hi s discreti on and properly refused Mr. T olbert’ s request to be present.”

However in the pres ent case, the tr ial court did not rule on the defendant’s motion, and t hus failed to exercise its discretion

.

We according ly remand th is case to thetrial cour t for a new tr ial, wi th instruction s to grant the defendan t’s Motion for a Bill of Par ticulars, and to issue a ruli ng on his Moti on for Writ of Habeas Corpus ad Test ificandum, settingout in it s order the reas oning behind i ts decision.

IV.- 9 - The decree of the trial cour t is vacated. Remand this cause to the Circuit Court of Dav idson County forfurthe r procee dings consistent w ith this opi nion. Tax the costs

on appeal to the appe llee.

________________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE