### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE Ma rc h 19 , 200 7 S es sio n
NANCY AN N MCCRACKEN SIZ EMORE v. ST EVEN DOUGL AS SI Z EMORE
Appeal f rom the Chancer y Court for Washin gton County No. 35204 G . Richard Johns on, Chan cellor

No. E2005-01166-COA- R3-CV- F ILED JULY 30, 2007

AND


### NANCY AN N MCCRACKEN SIZ EMORE v. ST EVEN DOUGL AS SI Z EMORE
Appeal f rom the Circ uit Court for Washin gton County No. 21861 Thomas J. See ley, Jr., Judge

No. E2006-01456-COA- R3-CV

Nanc y Ann M cCrac ken Sizemore (“Wife” ) initially sued her spouse, Steven Doug las Siz emore (“H usband”) , for divorce in the Washington County Circuit Court. She subsequently filed a notice of voluntary

dismiss al in that case . On the day the not ice of nonsuit was filed in Circuit Court, W ife fi le d a div or c e c omp la int

in t he Cha nc e ry Court

fo r Wa sh ing ton

Cou nty . T he pa

rt ie s p ro c e e de d to t r i a l i nt h a tc o u rt

. T h e C h an c e r y C o u rtg r an t e d

W i f e a d i v o r c e , d i v i d e d

t h e p art i e s ’ m ar i t a l p r o p e rt y, and orde red H usband to pay Wife child support and alimony . Following the entry of the Chanc ery Court’s judgme nt, Husband filed a counter claim in the C ircuit Court proce eding – the one that had been dor mant since Wife filed he r notice of voluntary nonsuit some two y ear s ear lier. He argues that the c a s e in Ci r c u it Co u rt w a s s ti ll p e n d in g b e c a u s e th a t c o u rt h a d n o t e n te r e d an o r d er dismissing Wife’s complaint. The Ci rcuit C ourt dismiss ed Husband’s counter claim, s tating (1) that Husband ha d w a ive d h is r ig ht t o h a ve the pa rt ie s’ div or c e c a se tr ie d in Cir c uit Cou rt by fu lly pa rt ic ipatin g in the trial in Chance ry

Court; and (2) that Wife’s notice of nonsuit had “e ffe ctively dismiss ed the case” in Circuit Court. On appeal from the Chance ry Court c ase, Husband contends that (1) the Chance ry Court “neve r had jurisdiction” be cause the complaint in Circuit Court was pen d i n g when the-2-

Cha nc e ry Court purp or te d to a ssume jur isd ic tio n; ( 2) the Cha nc e ry Court e rr e d in n ot a llo wi nghim to o bta in a tr ans c ri pt of

the div or c e he ari ng ; ( 3) the Cha nc e llo r w a s b ia se d a g a ins t hi m and sh ou ld have r ecused h i m s elf; (4) the Chance ry Court erre d in orderinghim to pay child support for the p ar t i es ’ d i s abled adult son; (5) the Chance ry Court erre d in its di vision of the parties’ marital pr op e rt y ; ( 6) the Cha

nc e ry Court e rr e d in awa rd ingWif e a lim on y ; ( 7) the Cha

nc e ry Court e rr e d in imp uti ng $1 00 ,0 00 pe r y e ar of inc ome to Hu sb and ; and (8 ) the Cha nc e ry Court

e rr e d in fi nd inghim in c on te mpt . On ap pe a l fr om the Cir c uit Court , Hus ba nd argue s tha t th e c ourt

la c ke d a uth or ity to dis mis s h is c ounte rc la im. We a ff ir m th e jud g me nts of

bo th c ourt s. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Chancer y Court Aff irm ed; Case R em anded

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed; Case R em anded

C H A RLES D. S US ANO , J R ., J ., delivere d the opinion of the cour t, in which H ER SCH EL P. F RAN KS , P.J ., and D. M I CH A EL S WI NEY , J ., joined.

Edwar d Ker shaw, Gr eene ville, Tennesse e, for the appe llant, Steven Doug las Siz emore

.
J udith Fain, Johnson C ity , Tenne ssee, f or the a ppellee, N ancy

Ann McCra cken Sizemore.

OP IN ION

I. The pa rties wer e mar

ried in Jul y

1978. Wife was then 19 a nd Hus b an d was 23. Two
c hil dr e n w e re bo rn to th e mar ri a g e . T he old e st c hil d w a s 2 3 at th e tim e of the be nc h tr ia l in Chance ry Court. The y oung est child, Ry an, wa s then 2 1

. R y an, who wa s born on September 21, 19 83 , is se ve re ly a

uti sti c

. He is, fo r t

he mos t pa

rt , n on ve rb a l, u

na ble to f e e d h ims e lf

, a nd un a ble to
rea d or write. H e must be super vised at all times.

Hu sb and is f ro m a we a lth y fa mil y . H e ha s h a d f

ina nc ia l su c c e ss i n nume ro us bu sin e ss ve ntu re s. He a lso ha s a

his tor y of ill e g a l dr

ug us e a s we ll a s d

ru g tr a ff ic kin g . Wif

e ha s a de g re e in
e le me nta ry e du c a tio n. She ob ta ine d

h e r t e a c h i n g c e r t i f i c a te and ta ug ht f or a pp ro xima te ly

thr e e y e a rs

. She sto pp e d te a c hin g to c are fo r the pa rt ie s’ c hil dr e n. Ev e ntu a lly , s he be g an w or kin g pa rt -t ime wi th Husband a

nd his father

in their various business ventur es.

I n Jun e 20 02 , Wif

e fi le d a c omp la int fo r div or c e in t he Was hin g ton

County Cir c uit Court

. On July 23 , 2 00 3, sh e fi le d, and se rv e d on Hus ba nd , a noti c e of

vo lun tary

dis mis sa l. O n th e same day , Wife filed a divorc e complaint in the Chanc ery Court for Washing ton County . The c omplaint-3-

in Chancer

y Court all ege s t h e fa ult gr ound of inappropr iate mar ital conduct. The complaint specific ally

reque sts that the Court require H usband to pay alimony as we ll as support for Ry an.
Husband filed a

n answe r and c ounterc laim in Chance ry Court. He denied t hat he had been g uilty of inappropr iate mar ital conduct. I n response to Wi fe’ s reque st that he be orde red to provide support for Ry an, Husba

nd’s answe r states that

he has be en pr oviding support f or the pa rties’ a dult disabled child, Ry an, since the par

ties’ sepa ration, and throug hout Ry an’s life time,
an d t h a th e w i l l c o n t i n u e t o p r o v i d e s u p p o rt f o r Ry a n , a s n e e d e d

. It is averr ed, howe ver, that Ry an re ceive s Three Hundre d For ty Dollars ($ 34 0. 00 ) p e r m on th i n SSI du e to h is d isa

bil ity , in a dd it ion to
rec eiving TennCar e fr ee of char g e which provides R y an with medica l and dent al insurance . Fur ther, a ll of Ry an’s out-of -pocke t pharma ceutica l, me dical and dental expenses are provided to him free of cha rg e as w ell.

The Chanc ery

Court conduct ed a b en ch trial ove r the pe riod Octobe r 11-13, 2004. The
rec ord does not include a transcr ipt of this three-da y proce eding. The Chanc ery Court entere d a judgme nt of divorce on J anuar y 4, 2005. The court found, as stipulated by Husband, that Wife wa s e nti tle d to a

div or c e . T he jud g me nt s e ts f or th t he fo llo wi ngpe rt ine nt f

a c tua l f ind ing s: [W ife]’s cre dibilit y

was g ood. Gene rally , [H u s b a n d ]’ s c r e d ib ility

was poor. [Husband] evaded answers. He stray ed from the questions that
we re a sk e d in this Court

ro om. [Hu sb and ] e va de d a ns we rs . H e c a me int o th is C ourt

un de r t he inf lue nc e of dr

ug s. Whe n a sk e d if

he wo uld take a dr ugte st h e sa id “ y e s” bu t w he n a sk e d by the Court if he wo uld fail the drugtest he said “y es.” [Husband] does get s t raight A’s on
cre dibilit y

when it comes to his admission of fault in the divorce and in his admissi on of beinga drugaddict and a n alcoholic.
[ Hu s b an d ] i s a d ru g a d d i ct an d an al co h o l i c. [ Hu s b an d ] h as an ego larg er tha n the cosmos. We normally think of cele brities and ac tors and ac tresses of

having eg os. This man’s eg o is bigg er. H e has sh ow n b y the e vid e nc e that he is sel fi sh , tha t his is gr e e dy , tha t he is self-c enter ed and one of the most narc iss i stic people this Court has
ever seen ex amined on the s tand. L et m e tell y ou, so far as [Husband] is conce rned life is about [hi m] and [ him] alone. Eve ry body else c an just care fo r t h ems elves. This g uy is out for this guy . Period. [Hu sb and ] is a spoil e d- ro tte n a du lt. He is o ne of the mos t ir re sp on sib le pe op le the Court ha s e ve r e nc ounte red. H e bums h is drug s from ot her pe ople; he bums from his daddy . His daddy supports him. I ndeed, if

[Husband] needs mone y , his daddy provides-4- it. His Daddy

will cover f

or him. The t es t i m o n y

of [Husband]’s fo rm er e mploy ee w as that bec ause of [Husband] , cash is missi n g, re ve nu e is m iss ing , d epo sit bo ok s are mis sin g and de sp ite [Husband] ’s alleg ations that [] his son was stealing money from the businesses, the Court concludes that reg ardle ss of whe ther or not the [pa r t i e s ’ ] s o n is s te a lin g , [H us ba

nd ] is r ob bin g his fathe r’ s b us ine sse s. [Husband] ’s drug of choic e is coc aine. He say s that now he c an g et ab o u t three and a ha lf g rams of c ocaine for a pproxi mately

$180.00. H e s ay s th a t w il l l a s t h im an y w h e r e b e tw e e no n e n ig h t a n d seven nights. In addition, [ Husband] admits to excessive coca ine intake during the cour se of this divorce

. [W ife] rea dily

admitted during her oath examination that she wa s an enable r for

[Husband] , and it’s also t h i s Court’s conclusion that [Husband] ’s par e nts , a

n d p articula rly his father , are also ena

blers; that these pe ople per

mitted [Husband] to c ontinue his coca ine and a lcohol ad d i ct i o ni ns p i t e o f e v ery t h i n g.

Ye t i n s pite of his substance a buse, [Husband] is an intellige nt and ta le nte d ma

n. He is a [n] e ntr e pr e ne ur of th e fir st d e g re e . H e is a licensed g ener al contractor who has bui lt and developed and bought and sold building s, commerc ial primarily , some residential. He ha s had a Ma stercr aft boat b u s iness. He’ s [] been involved in the manag ement of r eal pr operties. He has a r etail i n t er n et pl umbing sales business sellin g p l umbing f ix tures of a

very high qua lity

and
c os t[]. I n a dd iti on , he ha s be e n inv olv e d in va ri ou s o the r b us ine sse s. He is full of i deas about business, including linger ie, which he never g ot o ff the g ro un d, bu t h ad so me idea s a bo ut t hat. H e ha d a

t- sh ir t,
sweat s h irt, cap business c alled “H o Wear” that evidently was not viable in the sense o[f] profitability

. Although [Husband] testified that he wa s short of cash in rec ent times in reg ard to his house pay ment, for many

y ear s, he supported [Wife] and his son s and himself in a lavish lifestyle. Trips to NewYork. Trips to Atlanta to shop. Trips to Chicag o. Trips to China or Hong Ko ng . T ri ps he re , tr ips the re , spe nd ing mon e y lik e it wa s n o p ro ble m.
This man swore unde r oath that his ear ning capa city

was $100,000.00 a y ear . T h e Co u rt a g r e e s

. H e is c a p a b le o f ma k in g $ 1 0 0 , 0 0 0

. 00 a y ear

. He isn’t making it rig ht now beca use he’ s a drugaddict, but he is no t wi tho ut fu

nd s. [Hu sb and ] ha s sp e nt m on e y no t on ly on a lc oh ol, drug s, g irlfriends , g irlfriends’ g ifts, gir lfriends’ tr avel, but on-5- [pr os tit utes ] . [H us ba

nd ] is g ro ssl y

un de r- e mpl oy e d b e c a

us e of his
vo lun t ar i l y

a s s u m e d a d d i c t i o n s t o a l c o h o l an d c o c a i n e an d

b e c a us e he’s be en babie d by

his father

.
Ho wev e r, purs ua

nt t o th e pa

rt ie s’ [part ia l] me diate d a g re e me nt, [Husband] now ha s all of both parties’ interests in their var ious business ventures inc luding the manag ement of some of [Husband] ’s fathe r’s business ventur es. Therefore[, Husband] has all of the income fr om business activities that both parties used to shar e.

I n addition, durin g t h e par ties’ marr iag e, it was [Husband] who orig inally came up with [ a] s ch eme not to pay fede ral income taxes
and it w a s [ Husband ] wh o c on tr oll e d w hat de bts wo uld be pa id beca use he directed [ Wife]’s pay ment or nonpay

ment of debts owed by the par ties so [ Husband] is primarily responsible for

the fa ct that the par ties’ income taxes have not been pa id.
[Wife ] ha s th e so le re sp on sib ili ty fo r t he c are of

the pa rt ies’ a du lt disabled son. B eca

use the State of Tenne ssee ha s decide d that there
mus t be tw o ( 2) wo rk e rs pr e se nt w he n th e S tate se nd s so me on e to help with Ry an’s c are and there are not at t his tim e two (2) worke rs wh o h a ve be e n tr a ine d a nd wh o h a ve the s a me a va ila ble tim e s to
w o r k , [Wi f e ] is w it h o u t h e lp w it

h Ry an

. [Wi f

e ] d o e s not have
co n sistent help with Ry an and the State worke rs do not know when the re wi ll b e tw o ( 2) pe op le a va ilable. Th e la c k o f c on sis te nt h e lp means that [Wi fe] must be available t o ca re for Ry an at a ny time. The likelihood of [W ife] finding w ork that would a l low her suc h flexibi lity , that is, the ability to leav e wo rk at any

time and to stay
awa y fr om w or

k w ith ou t no tic e fo r u

nd e fi ne d p e ri od s of ti me is unlikely . Given [ Husband]’s resour ces, his ability and his businesses and g iven the fa ct that [ W ife] must be available to c are [for] t he parties’ son at all times and that she doe s not have e mploy ment, that [W ife] will be rec eiving minimal periodic support from [Husband] at thi s ti me, [ Hus ban d] is in a fa r b e tte r p os iti on

to p ay the pa rt ie s’ fede ral tax obligations and [Wi fe] will need to have those obligations paid as a form of suppor

t for her self and so that she can car e for the parties’ son.
Th e c ourt fo un d th a t H us ba

nd ha d tr ans fe rr e d h is i nte re st i n th e pa rt ie s’ mari ta l r e sid e nc e to Wife as a g ift and that, there fore , she wa s entitled to the proce eds fr om the sale of the residenc e – a pp ro xima te ly

$2 40 ,0 00 – a s h e r s e pa

rate pr op e rt

y . T he c ourt

or de re d th e Cle rk

and Ma ste r t o f

ir st use these pr ocee ds to pay Wife’s attorney ’s fe es. The c ourt also awa rded Wife a

vehicle va lued at approximately

$38,000.-6-

Husband wa s awa

rded two vehicles with a total value of approximately

$21,000 and a tr act of re al proper

ty valued at $30,000. The court order ed Husband (1) to pay all fede ral tax obligations incurre d by

the par ties, jointl y

or individual l y , d u ri n g t h eir mar riag e; (2) to pa

y Wife $1,254 per
m o n t h i nc h i l d

s u p p o r t f o r Ryan ; ( 3 ) t o p ay W i f

e $ 5 0 0 p e r

m o n t h a s a l i m o n y in f

utu ro ; (4) to pay Wife $1,980 “to reimburse her for her discretionar y costs for court repor

ter expenses incurre d during this divorce”; ( 5) to obtain a life insura nce policy

for at least $250,000 and name his disabled son Ry an as the benef

iciary in tr ust; a nd (6) to be responsible for (a) all debts related to the businesses owned a nd operated by

the par ties and (b) any

and all money

owed to Husba

nd’s father.

On a number

of occ asions there afte r, the Chanc ery Court found Hu s b and in contempt for failing to make the support a nd tax pay

ments as orde red. The cour t, acting sua sponte, later incre ased Husband’s monthly child support obligation for Ry an to $1,316 “be cause [Husband] ha[d] chosen not to spend time with [Ry an].”
On May 17, 2005, Husband filed (1) a motion to rec use and strike a ll judgments and or ders in th e ca se bec ause, a ccor ding to Husba nd, there wer e questions re g ardingthe Chance llor’s impartiality ; and (2) a

motion to di smiss W ife’s divorc e complaint in Chance ry Court for lac k of subject matter jur isdiction. Husband as s er t ed that the Chance ry Court did not have jurisdiction beca use the Circuit Court, i.e. , the c ourt in wh ic h Wife ha d ori g ina lly fi le d he r d ivo rc e c omp la int , had not e ntere d an order of dismiss al following the filing of Wife’s notice of voluntar y nonsuit. The Cha nc e ry Court de nie d b oth

mot ion s.
Husband a lso filed a m o t i o n seekingpermission to purchase a tra nscript of the thre e-da

y divorce hear ing he ld in Chancery Court. Husband d i d n o t share in the pay ment of the c ourt repor ter’s pe r diem for

the t rial. He arg ues t hat he is entit led to a copy of the tra nscript by virtue of the fa ct that, as order ed by the court, he mus t reimburse Wife for her court reporte r expenses. The Chance ry Court also denied this motion.

On the same day

that he filed his motion to r ecuse and motion to dism iss for lack of subject matter jurisdiction, i.e. , M ay 17 , 2 00 5, Hu sb and fi le d a c ounte rc la im in t he Cir c uit Court a c tio n in wh ic h Wif

e ha d f ile d a no tic e of nons uit

a lmo st t wo y e ars e arl ie r. Wif

e fi le d a mot ion to d ism iss the counter claim, citing (1) that she had filed a notice of voluntary dismiss al in the action; (2) that she had subse quently

filed a divorc e ac tion in C hance ry Court; and (3 ) that the pa rties had proce eded, w ithout objection from Husband, to a judg ment in Chancer y Court.

After hear ing t he ar g ument of counse l, the Circuit Court gr anted Wife’s motion and dismiss ed Husba

nd’s counter claim. The Circuit Court stated i n its order that, contra ry to Husband’s argument, the Chance ry

Court had subject matter jurisdiction to hear Wife’s divorce action and that i t – i.e. , th e Ci r c u it

Co u rt – w o u ld “ n o t r e
- tr y t[ h e ] d iv o r c e a c ti o na s [H u s b an d ] w a iv e d w h a te ver rig ht he had to have the ca se tried in [Circuit] Court b y fu l l y p articipating in the Chanc ery Court trial.” The Circuit Court’s order further provides that “[t] he non-suit taken by notice of nonsuit fil ed by [W ife] in this case on J uly 23, 2003 eff

ectively dismiss ed the c ase.”-7-

Husband filed a

notice of a

ppeal in both the Chanc ery Court and Circuit Court.

I I

.
Hu sb and ’s a

pp e a l f ro m Ch anc e ry

Court ra ise s th e fo llo wi ngiss ue s:
1. Whether the divorc e complaint filed by Wife in Circuit Court was p e n d i n g a t t h e t i m e t h a t s h e f i l e d t h e s u

b s e qu e n t c o mp la intin Cha nc e ry Court

. 2. W h ether the Chance ry Court erre d in refusingto allow Husband t o p u rc h as e at ra n s cr i p to f t h e d i v o rc e p ro ce ed i n g.
3. Whe the r t

he Cha nc e llo r a bu se d h is d isc re tio n in

re fu sin g to r e c us e himself.

4. Whether the Chanc ery Court err ed i n order ing H usband to pay child support for the pa

rties’ a dult disabled son.

5. Whe the r t

he Cha nc e ry Cou rt e rr e d in its div isi on

of the pa rt ie s’
m ar i t a l p r o p e rt y.
6

. W h e t h e r

t h e C h an c e r

y C o u rte r

r e d i naw ar d i n g W i f

e a l i m o n y.
7. Whether the Chanc ery

Court err ed when it imputed to Husband an income of $100,000 a

y ear

. 8. Whether t he Chanc ery

Court erre d in finding H usband in contempt for f ailing to pa

y the support and tax debts order ed by the cour t.

Hu sb and ’s a

pp e a l f ro m Cir c uit

Court ra ise s the iss ue of

wh e the r t hat c ourt e rr e d in dis mis sin g his
c ounte rc la im.

III

.
I n thi s no n-

jur y c a se , our sta

nd ard of re vie w i s de novo u

p o nt h e r ec o rdo f t h e p ro ce ed i n gs below; howeve r, the re cord c omes to us with a presumption of cor rec tnes s as t o the trial cour t’s fa c tua l de te rm inatio ns – o ne that w e mus t ho no r u nle ss the evid e nc e pr e po nd e rate s a g a ins t th os e fi nd ing s. Te nn . R. A pp . P. 13 (d ); Wri ght v . City of Knox v ill e , 898 S.W .2d 177, 181 (Tenn. 1995)

. Our r e vie w o f q

ue sti on s o f l aw i s de novo with no presumption of correc tness attachingto the trial court’s c onclusions of law. Cam pbell v. Florida St

eel Corp. , 919 S.W .2d 26, 35 (Tenn. 1996)

.T he ca se w as sti l l p en d i ng i n C ha nc ery C o urt as a re sult o f t he f i l i ng o f p o st

- jud gm en t m o t i o ns. 1

-8- I V.

A.

The fir st issue raised by

Husband is whether the complaint filed by Wife in Circuit Court was pending when she filed the complaint in Cha ncer y Court. Husband asser

ts that the C i rc u i t Court
a c tio n wa s st ill pe nd inga t th a t ti me and that, t he re fo re , th e Cha

nc e ry Court ’s su

bs e qu e nt j ud g me nts
an d o r d e r s s h o u ld b e v a c a te d b e c a u s e th a t c o u rt “ n e v er ha d jurisdiction to hear this divorce.” (Emphasis adde d). He argues that the Ci rcuit C ourt’s failure t o enter an order of voluntary dismiss al kept Wife’s ca

use of a ction “a l i v e” in that court and voided a ny action subseque ntly

taken by the Chance ry Court. We find this i ssue adve rse to Husba nd.

The re al i ssue i n this case is not whether the C hance ry Court had subject matter

jurisdiction. I t is ax iomatic that a chance ry court ha s such jurisdiction. See T. C.A . § 16 -1 1- 11 0 ( 19 94 ); se e als o T. C.A . § 16 -1 0- 10 8 ( 19 94 ). Th e re a l is su e in t his c a se pe rt a ins to th e do c tr ine of “ fo rm e r s uit pending .” That doctrine provide s that when two c ourts have c oncurr ent jurisdiction over a par ticular subject, the c ourt th at fi rs t o b t ai ns jurisdiction retains it to the ex clusion of the other

. Y oung v. Kitt re ll , 833 S.W .2d 505, 508 (Tenn. Ct. App. 1992).
We ag ree with the trial court’ s conclusion that Husband f ailed to tim e ly ra i s e thi s issue below. As s t ated by

our Supreme Court, “ [w] e ar e of the opinion that there is little differe nce be tw e e n an is s u e im

p r o p e r ly r a is e d b e f

o r e th e tr ia l c o u rt a t th e la s t mi n u te an d o n e tha t was not raised at all.” In r eAdo

ption o f E .N .R. , 42 S.W .3d 26, 32 (Tenn. 2001)

. “The jurisdiction of [t he Co u rt o f A p p e a ls ] i s a

p p e ll a te o n ly

an d w e c o n s id e r

th o s e is s u e s w h ic h are timely b roug ht to the attention of the trial c ourt.” M a ll ic o a t v . Poynter , 7 22 S.W .2d 681, 682 (Tenn. Ct. App. 1986) (empha sis added). Wife f iled the notice of

voluntary

dismiss al in Circuit Court and the divorce complaint in Chancer

y Court on the same da

y in J uly 2003. The Chance ry Court action proc eede d to trial in October 2004. That court enter ed a judgme nt of di vorce in J anuar y 2005. Husband wa ited until five months after the Chance ry Court entere d its divorc e judgme nt to first raise – via a motion 1 to dismi ss – the issue of whe ther the Chanc ery Court should have heard and de cided this ca se. Husband did not timely

raise the issue of “former suit pending ” below. H ence , he ca nnot raise it on thi s a pp e a l.

Since a f urther a ppeal in this case i s possible, we have elec ted to addre ss the substance of Husband’s issue c halleng ing the Chance ry Court’s decision to hea

r this divorce c ase.
Husband a

rg ues that t h e ca se of Evans v. Perkey , 647 S.W .2d 636 (Tenn. Ct. App. 1982)
su pp or ts h is p os iti on that the c omp la int in C ir c uit Cou rt wa s p e nd ingwh e n h e fi le d h is c ounte rc la im and, as a conseque nce, the Chance ry Court had no jurisdiction. I n Ev ans , the i ssue was whether the one-y ear period within which a

plaintiff ca

n reinstitute suit under the savingstatute, T.C.A. § 28-1- 105, starts from the date a plaintiff g ives notice of its voluntary dismiss al or the date that the cour t-9-

enter s an orde r di smissi ng the s uit without prejudice. Id. at 638. The pla intiffs in Ev ans asser ted that the foll owing pronounce ment in the case of Rickets v. Sexton , 533 S.W .2d 293 (Tenn. 1976) , mandates a holding that the period in question beg ins to run whe n a notice of vo lun tary

dis mis sa l, rathe r than a

n order of vo lun tary

dis mis sa l, w a s f

ile d:

The rule s pecif

ies that a plaintiff “ shall have the rig ht to take a voluntary nonsuit or to dismiss an action without prejudice by filing
a wr itten notice of dism issal at any time before the trial of a

cause ”. This portion of the rule is not depe ndent upon the dete rmination of the trial judg e. The lawy er f or the plaintiff i s t he sole judg e of the matter a nd the trial j u d ge h as no control ove r it. I t is not necessar y that he appr ove the action of pla intiff’s counse l by singingany

order ; no r m ay he nu lli fy

the ru le s by an or de r “ dis a llo wi ng ” the no ns uit

. All that is required to dism iss prior to the t rial, i n the absence of the exis tence of any

of the e x ceptions above noted, i s t h e fi l ing of a written notice of

dismiss al.

I n this case plaintiffs’ counsel, “ g ilded the lily ” by filing a pleading captioned “ motion for voluntary dismiss al” which was actua lly in the form of a n order tender ed for the sig nature of the Chanc ellor. I t bore the sig natur e of

pla int if fs ’ the n c ouns e l of

re c or d. Th is h y

br id document wa s filed one da y befor e the trial date. We hold that it was substantial complia

n c e w it h th e r u le s and constituted a “ written notice of dismissal.”

Whil e plaintiff is master

of his sui t an d m ay

dismiss at his pleasure bef o r e tr ia l, a n d

w it h o u t t h e c o n c u r

r e n c e o f th e tr ia l j u d g e , b e tt er prac tice would dema

nd a pr o forma order, f iled afte r plaintiff’s nonsuit, to t he en d t hat the dismissal may be re flec ted upon the minutes of the cour

t.

E v ans , 6 4 7 S

. W

. 2 d

at 6 4 0 (q u o t i n g Ric ke ts , 533 S.W .2d at 294). The Ev ans Court found that Ric ke ts did

no t c on tr ol, statin g that [i ]n Ri c k e ts [,] the cour

t was conc erne d with the rig ht of a pa rty to take a voluntary

nonsuit and the lack of the power of the c ourt to deprive him of that rig ht. We construe the Ri c k e ts court to be saying that the plaintiff in that case had done a ll that wa s require d to be done whe n he g ave wri t t en notice of his intention to take a nonsuit. I t was not
nece ssary for the c ourt to g rant p er mission or enter an or der permitting it t o b e d o n e. Howe ver, w e do not find the c ourt to be saying that a judg ment or dec ree need not be enter ed for final adjudication of a

case

.T h e ho ld ing s in th e se two c a se s w e re fo llo w e d b y a 2 0 0 3 a m e n d m e n t t o T e n n . R . C iv. P . 4 1 .0 1 e x p licitly 2

st at i ng t hat a noti ce o f vo l unt ary d i smi ss al “must be f o l l o wed by an ord er of

volunt ary dis m i ss al s i gned by t he co urt and

e n te re d b y the c le rk .”
-10- Ev ans , 647 S.W .2d at 640-41. The Ev ans Court held that “the one -y ear statute of limitations ran from the date of the e ntry of the orde r of t h e co u rt and not from the date of filing the notice of nonsuit.” Id. at 641. See also Gre e n v . M oo re , 101 S.W .3d 415, 420 (Tenn. 2003) (holding that the 30-day time period to file a notice of appea l beg an running on the date that the trial cour t entere d an order confirmingthat all claims betwe en the pa rties had be en adjudicated).

The holdi ng s in the Ev ans and Gree n case s do not c ontrol the disposition of the instant case. Those ca ses involve the issue of whether c erta in time lim itations, not i nvolved in the instant case , beg in to run when the plaintiff files a notice of voluntary dismiss al or whe n the cour t enters a n order dismiss ing the action. The issue in this case is whethe r the Circuit Court action was pe nding, i.e. , vi abl e, a ft e r Wi fe fi le d a no tic e of vo lun tary

dis mis sa l in

that c ourt . A s Ric ke ts points out, t he “plaintiff is master

of his suit and may dismiss at his pleasure befor e trial.” 533 S.W .2d at 294. The
case was ove r as f

ar a s the claim of Wife wa s conce rned. See id

. Ev ans and Gree n do no t ma

nd a te a diffe rent re sult in t he instant ca se. 2

B.

We now addre ss Husband’s sole issue on his appe al with respe ct to the j u d g ment of the Cir c uit Cou rt . H e c ha lle ng e s w he the r t hat c ourt “ ha d a uth or ity to d ism iss [Hu sb and ]’s c ounte rc la im fo r div or c e .” Hu sb and ’s argume nt on thi s iss ue is de pe nd e nt on a fi nd ing that th e Cir c uit Court c a se w a s p e n d i n g w h e nW i f

e f i l e d h e r c o mp l a i n ti nC h an c e r y C o u rt

. G i v e no u r

f i n d i n g t o t h e c o n t r a r

y, we c onclude that the Circ uit Court was corr ect in dismiss ing the counter claim. Husband filed the counter claim in question almost two y ear s afte r Wife filed the notice of voluntary

dismiss al in the
case . Under Ric ke ts , that action wa s essentially over w hen Wife filed, an d s er v ed Husband with, the notice of

nonsuit. See 533 S.W .2d at 294. The only action lef t to be taken in the matter

was the enter ing of

an orde r that conf

irmed the nonsuit and dis missed the case. A c ourt “ha s no jurisdiction
over a counter claim filed afte r the suit is voluntarily dismiss ed.” Salsm an v. Te xcor Indus., In c. , No. W2001 -00730-COA- R9-CV, 2002 WL 1838135, at *4 (Te nn. Ct. App. W .S., filed J uly 29, 2002) (quoting 24 Am.J ur.2d Dismissal § 86 (1998)) . The Circuit Court ac ted prope rly in dismi ssing Hu sb and ’s c ounte rc la im.

V.

Ne xt, w e tur

n to the Cha

nc e ry Court ’s re fu sa l to or de r t

hat Hus ba nd be a llo we d to purc ha se a tra nscript of the divorc e hea ring . Husban d ar gu es t hat, eve n though he did not share in the pay ment of the c ourt repor

ter’s pe r d i em at t ri al , he “should have had the rig ht to have the c ourt repor ter tra nscribe the divorce proce eding after pay ing a n additional fee .” He relies upon the f act that he wa s order ed by

the Chance ry

Court to reimburse W ife for the charg es of her court re porter.-11-

The rule which controls this issue is f ound in the case of Beef N ’ Bird of Am ., Inc. v. Cont’l Cas. Co. , 803 S.W .2d 234, 240 (Tenn. Ct. App. 1990):

I n c ivi l c a se s, thi s Co ur

t no te s ju dic ial ly th e pr a c tic e of pa rt ie s to eng ag e and pa

y a stenog raphe r a “ per die m” to attend and r ecor d the evidenc e and pro ce edings. I f only one par ty eng ag es and pa

y s the ste n o gra pher, it appe ars that the ve rbatim rec ord of e vidence and proce eding s would be ava ilable to that party by contra ct. I f more than
o n e p ar t y jointly eng ag e and pa

y the stenog raphe r, it would appea r that the ver

batim rec ord would b e av ailable to any one of the pa rt ic ipatin g pa

rt ie s b y c on tr a c t. I na

bil ity of a pa rt ic ipatin g pa

rt y to pay for the tr anscr iption mi g ht make it unavailable to him.
A p ar ty wh o do es n ot j oin in t

he e ng ag e me nt a nd

pa y me nt o f a ste no grap he r h as no c on tra c t ri gh t to req ui re theste no grap he r to tra ns c rib e there c or

d wh ic h is the re

for e un av ail

ab le to h im un le

ss and until made available to him on terms satisfactory to the stenographer an d

theparty or parties who engaged the stenographe r

. (E mph a sis a dd e d) ; see also In r eEst ate of Nic hol s , No. 03A01-9103-CH- 00102, 1992 WL 9436, at *1 (Te nn. Ct. App. E.S., filed J anuar y 24, 1992) (r ever sed on other g rounds).

Wif e e ng a g e d th e se rv ic e s o f t he c ourt re po rt e r i n q

ue sti on and pa id t

he fu ll p e r d ie m. Husband did not participate. Ther efor e, under Be ef N’Bird of Am ., Inc. , Husband ha s no contra ctual rig ht to require t h e court repor ter to provide a

verbatim transcript. See 803 S.W .2d at 240. The c ourt’s re quirement that Husba nd – i.e. , the party that did not participate in the pa y ment of the pe r diem – re imburse Wife the ex penses she incurre d in eng ag ing the court re porter doe s not i mp a c t t h e n o n
- a v a i l a

b i l i t y o f t h e t r an s c r i p tt o H u s b an d

. It i s s t i l l u n a v a i l a b l e t o h i m

. C o n s e qu e n t l y, the Chance ry

Court did not err whe n it refuse d to or der that Husband be allowed to pur chase a copy of the tr ans c ri pt. As a

no n- pa rt y to t he c on tr a c t be tw e e n Wif

e and the re po rt e r, he ha d n o s uc h r ig ht.

V I.

Husband a lso contends that the Chanc ellor er red in re fusing to rec use himself and to strike the judg ments and orde rs enter ed by him in this case

. As a basis for r ecusa l, Husband cites se vera l
rema rks the Chance llor made “ which[, acc ording to Husband,] would make any rea sonable pe rson question his impartiality .” See Tenn. Sup. Ct. R. 10, C annon 3(E) (1).
“[D]ecisions co n c e r

n ing w hether

rec usal is warr anted a

re a ddresse d to the judge ’s discre tion, which will not be re verse d on appea l unle ss a clea r abuse appea

rs on the fa ce of

the re cord.” Da v is v. Liberty Mut. Ins. Co. , 3 8 S

. W

. 3 d 5 6 0 , 5 6 4 (T en n

. 2 0 0 1 ) ( ci t i n g State v. Hines , 919 S.W .2d 573, 57 8 ( Te nn . 1 99 5) ). Un de r t he a bu se of dis c re tio n stand ard , “[a ] tr ia l court a bu se s it s d isc re tio n o nly when it ‘a

pplie[s] an incor

rec t leg al standa rd , o r re ac h e[s] a dec ision which is ag ainst logic or rea soning that cause [s] an inj ustice t o the party complaining .’” Eldridge v . Eldridge , 42 S.W .3d 82,T h ou g h t h e r ec or d does n ot i n cl u de a v er bat i m t r an s cr i pt of t h e di v or ce pr oce edi n g , i t doe s i n cl u de a t r an s cr i pt 3

o f t he co urt ’ s o p i ni o n f

rom t he b ench.
-12- 8 5 (T en n

. 2 0 0 1 ) ( qu o t i n g State v. Shi rley , 6 S.W. 3d 24 3, 24 7 ( Ten n. 19 99 ) ( br a c ke tin g in Eldridge )) . I t is we ll- se ttl e d th a t,

[g ]ive n th e a dv e rs ari a l natur e of lit igatio n, tr ia l ju dg e s n e c e ssa ri ly
a sse ss t he c re dib ili ty of tho se wh o te sti fy be fo re the m, w he the r i n person or by some other mea

ns. Thus, themer e fa ct tha t a w itn ess takes offense at the c ourt’s assessment of the witness cannot serve as a valid basis f

o r a mo tion to recuse. I f the rule wer e other wise,
re c us a l w ou ld b e re qu ir e d a s a ma tte r o f c ours e sin c e tr ia l c ourt s nece ssarily

rule a g ainst parties an d wi tnesses in eve ry case , and lit ig ants c ou ld m anip ulate the imp artial ly iss ue fo r s tr a te g ic advanta g e, which the courts fr own upon.

Da v is , 3 8 S. W.3 d at 56 5 ( e mph a sis a dd e d) ; see Wilson v. Wilson , 987 S.W. 2d 55 5, 56 2 ( Te nn . Ct

. App. 1998) (“B ias or prejudice in the disqualifying se nse must stem from an e x trajudicial sourc e and not from what the judg e hea rs or see s during the trial.”) (citations omitted). Hu sb and a sse rt s th a t the fo llo wi ng re mark s – on e s that w e re ma de by the Cha nc e llo r i n h is op ini on fr om t he be nc h – w e re ina

pp ro pr ia te and

jus tif ie d h is r e c us a l: 3

Th e e vid e nc e wa s t hat be c a us e of [Hu sb and ]’s g od fa

the r, the la te Co n g r e s s ma

nJim my Q u il le n , an d

b e c a u s e o f [H u s b an d ]’ s fathe r having “lots of money ” he was able to plea to [ very ] serious [ Fe dera l dr ug ] ch arg e s.
* * * He is havingproblems running or m anag ing a ny of the businesses a

nd primarily what he’ s interested in is g etting that hit of coca ine and that drink of vodka.
[W ife] rea dily

admitted during her oath examination t hat she wa s an enable r for

[Husband] , and it ’s also this Court’s conclusion that [Husband] ’s par ents, and pa rticularly his father , a

r e a ls o e n a blers; that these pe ople permitted [Husband] to continue his coca ine and a lcohol
a dd ic tio n in sp ite of e ve ry thi ng

. I nd e e d, [Hu sb and ] ne e ds mon e y , h is d a d dy p r o v id e s it

. H is D a d dy w il l c o v e r f o r h im , an d s o [H u s b an d ], today , t h i s Court concludes, is a dr ug addict and is a

n alcoholic. Fur thermore , this Court finds that [Husband] has an eg o larg er tha n the c os mos

.-13- * * *

He c an not only bring about Godfather J immy Quillen and his daddy having lots of money

and g etting him out of trouble, but he has shown by the evidenc e that he i s s elfish, that he is g ree dy , that he is selfcente red a

nd one of the most narcissi s tic people this Court has eve r seen e x amined on the stand.

No thi ngin t

he se state me nts e sta

bli sha ba sis fo r t

he Cha nc e llor ’s re c us a l. It is c le ar t hat th e se rema rks wer e intended to e x press what the court found “ha[d been] shown by the evidenc e.” T he statements do not, as ar g ued by Hu s b an d , show “a persona l gr

udg e ag ainst the Siz emore family ,” or indicate that the Chance llor had a persona l bias or prejudice aga inst Husband that stemmed f rom an extrajudicial sourc e. See Wilson , 9 87 S.W. 2d a t 56 2. Th e Cha nc e llo r’ s r e mark s r e fl e c t th a t hi s c o m m e n t s an d

a c t i o nw e r e m o t i v a t e d

b y evide nce damag ing to Husba nd, not by the cour t’s bias or prejudice ag ainst Husband. Acc ording ly , we find no abuse of discr etion in the Chance llor’s ref usal to step aside.

V II.

Husband fur

ther a rg ues t hat t he C hance ry Court err ed in ordering him to pay child support fo r t he pa rt ie s’ a du lt d isa

ble d s on , Ry an. He a sse rt s th a t th e Cha nc e ry Court wa s w ith ou t a

uth or ity to make such a

n order beca

use R y an was over the ag e of 18 w hen Wife filed the divor ce c omplaint in Jul y 20 03

. Wif

e argue s th a t th e c ourt

ha d a uth or ity to o rd e r s uc h s up po rt

be c a us e Ry an w a s st ill in high sc hool. See T.C.A. § 34-1-102( b) (2001)

. As Husband points out, a court’s authority to make an initial awa rd of support f

or a disable d child is lim ited. The a

uthority to make an initial awa

rd ce ases to exist i n the abse nce of the invocation of a

court’s jurisdiction bef

ore the child rea ches the ag e of 18 or the provisions of T.C.A. § 34-1-102( b) are other

wise implicated. In re Con servatorship of Jones , No. M2004-00173-COAR3-CV, 2004 WL 2973752, at *13 (Tenn. Ct. App. W .S., filed Decembe r 22, 2004) (“[A] trial court has the a uthority to ‘continue c hild support’ for a sever ely disabled child only

wher e an or der
awa rd ingsu pp or t w a s e nte re d w he n th e c hil d wa s a mino r, or a s a mod if ic a tio n o f a

ny oth e r v a lid child support order .”).

Wif e a sk e d th e Court

to o rd e r H us ba

nd to p ay su pp or t f or the pa rt ie s’ a du lt d isa

ble d c hild in her Chanc ery

Court complaint. Husband’s answer does not expli citly deny a legal ob lig a tio n to support Ry an. In fac t, the answe r expresses a willingness to support the child. I t say s that Husband

“ ha s b e e n p r o v i d i n g s u

p p o rt f o r t h e p art i e s ’ a d

u l t d i s a b l e d c h i l d ” an d “ t h a t h e w i l l c o n t i n u e to pr ov ide sup p o rtf

o r Ry an , a s n e e d e d

. ” T h i s w a s t h e s t at e o f th e p l e a d i n g s o nt h i s i s s u e w h e nthi s case went to trial. As pre viously noted, we do not have a transcr ipt or statement of the e vidence of the three -day

divorce hear ing. T here fore , we do not know the extent of the evidenc e hea rd by the trial court on the subje ct of support for Ry an.-14-

We actually

know very littl e about Ry an. The parties ag ree that Ry an was 21 at t he time of the div or c e he ari ng in Oc tob e r 20 04

. I n a dd iti on , we have a tr ans c ri pt of a po st- tr ia l he ari ngwh e re in t h e C h an ce l l o r st at ed t h at Ry an “w as s t i l l i n s ch o o l ” at t h e t i m e o f t h e O ct o b er 2 0 0 4 d i v o rc e h ea ri n g. This is basically

the extent of our knowledg e re g ardingRy an.

T. C.A . § 34 -1 -1 02 (b ) p ro vid e s a s f oll ow s:

Pare nts sh a ll c on tin

ue to b e re sp on sib le fo r t

he su pp or t of e a c h c hil d for whom they

are responsi b l e af

ter the c hild reac hes eig hteen ( 18) y e ars of a g e if the c hil d is in hig h s c ho ol. Th e du ty

of su pp or t sh a ll continue until the child g raduates from hig h school or the cl ass of whi c h th e c h il d is a me mb e r w h e n th e c h il d a tt a in s e ig h te en (18) y ear s of ag e g raduates, whiche ver oc curs f irst. As previously

indicated, we know that, at all pertinent ti mes in this case , Ry an wa s over the a g e of 18. We also know that Ry an was still in a pre-colleg e level school in October 2004. What we do not know is if the “cla ss of which [he] [ was] a member when” he re ach ed t h e age of 18 had g raduated and, if so, when that c lass g raduated. While, in the ordinary case , we c ould conclude that someone Ry an ’ s a g e h a d b e e nin a c la s s th a t h a d

lo n g s in c e g r a d

u a te d , w e c an n o t l o g ic a ll y r e a ch such a conclusion g iven Ry an’s sever ely disabled state. The sparse rec ord befor e us does not support
a holding that Husband was order ed to pa y support for a

child for whom he had no leg al obligation to support under T.C.A. § 34-1- 102(b).

V III

. Husband’s a

rg uments reg ardingthe proprie ty of the Chanc ery

Court’s (1 ) d ivision of the parties’ marital property , (2) alimony awa rd, and (3) decision to impute to him an annual income of $100,000, all rai s e fa ct ual issues which we re a ddresse d at the divorc e hea ring in October

2004. Be cause we have no tra

nscript or statement of the evidenc e per taining to that thre e-da

y hear ing, w e must presume t h e t ri al cour t’s fac tual finding s are corr ect. See Taylor v. Allstate Ins. C o. , 158 S.W. 3d 92 9, 93 1 ( Te nn . Ct . App . 2 00 4) ; She rro d v . W ix , 849 S.W .2d 780, 783 (Tenn. Ct. App. 19 92 ). We c ann ot e va luate the su ff ic ie nc y of e vid e nce t hat is not

be fo re us . In c on sid e ri ngthi s issue, we ha

ve examined the tec hnical re co rd, par ticularly the trial cour

t’s memorandum opinion
announce d at the conclusion of the proof in the divor ce tr ial. Havingdone so, we cannot c onclude that th e c ourt ’s fi nd ing s o f f a c t f a il t o s up po rt

its de c re e s.

I X.

Husband also argues t hat t he C hance ry Court erre d in “re peate dly ” holding him in contempt for f ailing to pay co u rt -orde red suppor t and tax debts. He asser ts that the court should not have found him in contempt beca use the c ourt “kn[e]w” he did not have the ability to pay the monies and only found him in contempt “to punish [him] due to [the Chance llor’s] per sonal disdain for him.” Hu sb and sp e c if ic a lly c ite s th e Cha

nc e llo r’ s f

ind ingthat Hu sb and is an a lc oh oli c and dr uga dd ic t to he lp s up po rt

the a sse rt ion

tha t th e Cha nc e llo r “ kn [e]wthat . . . [H us ba nd c ou ld n ot] p os sib ly

c ome-15-

up with these amounts of money .” This a rg ument sever ely misses the mark. I t assumes that there is evidence to support a finding that Husband did not have the ability to pay the monies order ed by the c ourt

. Th e re is nothin g in the sp ars e re c or d be fo re us to sup po rt su c h a fin din g

. Th is i ssu e is a lso found adve rse to Husba

nd.

X. The judg ment of the Chanc ery Court is aff

irmed. This c ase is r emande d for the enf orce ment of that c ourt ’s jud g me nt a

nd fo r t he c oll e c tio n o f c os ts a ssessed bel ow, a ll p ur su ant t o a pp lic a ble law. The judgme nt of the Circuit Court is also affir med. That c ase is re manded to the Circuit Court for the c ollection of costs asse ssed in that proce eding , pursuant to applica ble law. Costs on appea l
are taxed to the appellant, Steven Doug las Siz emore

.

_______________________________ CHARL ES D. SUSANO, J R., J UDGE