## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

VICKIE DIANNE TUTTLE, ) ) Plaintiff/Appellee, ) ) Coffee C ircuit ) No. 1883D VS. ) ) Appeal N o. ) 01A01-9512- CV-00546 ROBERT EDWARD TUTTLE, ) ) Defenda nt/Appella

nt. )

APPEAL FROM THE CIRCUIT COURT FOR COFFEE COUNTY

AT MANCHESTER, TENNESSEE

THE HONORABLE GERALD L. EWELL, SR., JUDGE

For the Plaintiff/Appellee : For the D efendant/ Appellant : No Appearance Robert E. Tuttle, Pro Se



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 State v. Tuttle , 914 S.W.2 d 926, 933 (Tenn. Crim. App. 1995) recounts Mr. Tuttle’s criminal

history.

2 The record does not contain direct evidence concerning the length of Mr . Tuttle’s voluntary manslaughter

sentence. Mr. Tuttle states in his brief that he received a s ix year s entence

for his voluntary manslaughter conviction. -2- 

## O P I N I O N

This appeal inv olves a divor ce in whic h the husband ha s b een incarcerated throughout

the marriage. After

approximately four years of marriage, both the wife and the husband file d suit for di vorce in th e Circuit Court for

Coffee County. Followinga bench trial attended only by the wife, the trial court g ranted the wife a divorce on the ground s that the husband was incarcerated and that his conviction had rendered him infamous. On this appeal, the husband a sserts that the tr ial court s hould not have granted the wi fe a divor ce becau se she did

not proper

ly verify h er compla

int and asserts that he did not receive property that was rightfully his. We hav e determined that the jud gment sh ould be affirme d and that th e case sho uld be remanded for consid eration of

the husband’ s property claims.

I.

RobertTuttle has a lengthy criminal reco rd. 1 He was living in Tullahoma underthe alias “Tom Jone s” when he met Vic ki Lanc aster. Mr. Tut tle and Ms. Lancaster had been da

ting for ap p roximat ely one yea r when the

law enf orcement authorities arreste d Mr. T uttle in October 1990 for aggravated burglary and murder. Mr. Tut tle, stil l known as “ Tom Jones, ” and Ms. Lancast er wer e marri ed in August 1991 w hile Mr. Tuttle was still in jail awaiting trial. In February 1992, after Mr. Tuttle’s true ident

ity became known, Mr. Tut tle and Ms. Lancast

er wer e remar rie d under the name of Mr. and Mrs. Robert Tu ttle.

In April 1995 , a Coff

ee County j ury conv icted Mr. Tuttle of voluntary manslaughter. 2 He was later co nvicted of aggravate d burglary by a Frank lin County jury and was sentence d to serve eight years in the state penitentiary. The trial court in Franklin C ounty deter mined that Mr. Tut

tle should se

rve his sen

tence for aggravated burglary consecut ively with his volu ntary mans laughter sentence.3 Mr. Tuttle as serts for the first time on ap

peal tha t the comp laint and

summons w ere no t properl y served on him. He

has waiv ed this issue by f ailing to r aise it in t he trial c ourt. See Tenn. R. Civ. P. 12. 08; Tenn. R. App. P. 36(a). We will not consider issues regarding the sufficie ncy of service of proce ss for the

first time on appeal. See Brewer v. DeCamp Glass Casket Co., 139 Tenn. 97, 110-12, 201 S.W. 145, 148-49 (1918).

4 The parties h ave not pr

ovided a t

ranscr ipt or stat ement of th e evid ence. The trial court correctly denied Mr . Tuttle’ s reques t for a tr anscript at state

expense because divorce cases are

not the type of civil proceeding in which the Stateis obligated to provide a transcript to either party at state expense. See M.L.B. v. S.L.J., ___ U.S. ___, ___, 117 S. Ct. 555, 568 (1997) (holding that the Statemust provide transcripts in criminal and quasi-criminal proceedings and in p roceedings involving the termination of pare ntal right s); Almarez v. Carpenter , 347 F. Supp. 597, 599 (D. Colo. 1972) (finding no constitutional right to a free transcript in a divorce case). -3- Ms. Tuttle sued Mr. T utt le for divo rce in A pril 1995 in t

he Circui t Court for Coffee County. She asserted three grounds : (1) that Mr. Tuttle’s convictions had rendered him infamous [Tenn. Code Ann. § 36-4-101( 5) (1996)] , (2) that Mr. Tuttle had been incarcerated [Tenn. Code Ann. § 36-4-101(6)], and (3) that the parties had irreconc ilablediffere nces [Tenn. Code A nn . § 36 -4-101(11)]. Inexplicably, even though Ms. Tuttle h ad r etained counsel, her complaint was not verified as required by Tenn. Code Ann. § 36-4-107( a) (1996) as it then r ead.

In his pro se a

nswer fi led on May 19, 1995, M r. Tutt le admitte d that Ms. Tuttle had grounds for

divorce ba sed on his cr

iminal c onvicti on and incarceration but denied tha tthe partie s had irre concilable differe nces. H owever, he later asserted in hi s countercl aim

that the parties had irre concilable differe nces and tha

t Ms. Tut tle was guilty of c ruelty and desertion. Mr. Tuttle did not take issue with Ms. Tuttle’s defective verification of her complaint or assert any other affirmative defense. 3

The trial court conducted a bench tria l on Augus t 4, 1995. Mr. Tu ttle was not present because he was incarcerated

. Based on M s. Tuttle ’s evidenc e, the trial court grante d Ms. Tuttle an absolute divorce on the two grounds based on Mr. Tuttle’ s criminal convictions. The tri al court a lso dismisse d Mr. T

uttle’s co untercla

im for divorce and restored

the partie s’ rights a

nd privilege s as single p ersons but made no specificmention of

the partie s’ marit al or sepa rate prop erty.

II.

There are few

factual disputes in

this record, and the issues Mr. Tuttle se eks to raiseare essential ly legal one s for whic h a recor d is not required

. 4 He insist s that the trial court should have provided him with the assistance of counsel at state expense,-4-

that the trial courtshould not hav e awar ded Ms. T uttle jointl y held stock, and that the trial court should

not have granted Ms. T

uttle a divo rce beca

use she had not

verified her compla

int. We will take

each of t hese issues up in turn.

A. M R . T UTTLE ’ S R IGHT TO C OUNSEL

Mr. Tuttle repr esented him self throu ghout the pro ceedings in the trial court. After he perfected his appeal, he requested the trial cour t to appoint c ounsel to
r e present him. Th e trial c ourt denied Mr. Tu ttle’s re quest, and Mr. Tu ttle has not
renewe d his reque st for appo inted counse l in this cour t.
Indigent civil litigants do not have a constitutional right to state-paid counsel in all civil p roceeding s. See Lassiter v. Dep artment of

Soc. Servs. , 452 U. S. 18, 25 , 101 S. Ct. 2153, 2158-59 (1981 ); Cookish v. Cunningham , 787 F.2d 1, 2 (1 st Cir

. 1986); Rosewell v. Hanrahan , 523 N.E. 2d 10, 12 (I ll. App. Ct. 1988) . They l ikewise have no statutor

y right to sta

te-paid c ounsel in

Tennesse e, althou gh Tenn. C ode Ann. § 23-2-101 (1994 ) empowe rs courts t

o appoint me mbers of t

he bar to r

epresent indigent litigant s in civil cases. When appoi nted, the se counsel servepro bono, no t at taxpay er expense.

Mr. Tuttle in sists that pr

isoners hav e a statuto ry right to state -paid couns el, even if oth er indigent

civil litig ants do not. He rest s his claim on Tenn. C ode Ann. § 41-21-302 ( 1997) whic h states:

If a bill or petition is fi led against a convict i n any court having juri s diction, or any interrogatorie s propounded tohim as a pa rty to the suit, which require to be answere d, theconvict ma y be allow ed the aid of counsel to prepare his answer. This statute doe s not requir e the Sta te to provid e counsel t

o prisoners who are parties in civil c ases; it mer ely permit s prison ers to use co unsel.5 Complaintsseeking a divorce for irreconcilable differences need

not be verified. See Tenn.

(continued...) -5- Other panels of t

his court ha

ve held on

atleast two prior occasions that parties in divorce pr oceeding s are not en titled to appoint ed counse l. See Northcott v. Northcott , App. No . 01A01-9 407-CV-0 0325, 1995 WL 8029, at *2 (Tenn. Ct. App. Jan. 11, 1995), perm. app. denied (Tenn. May 30, 1995); Lyon v. L yon , 765 S.W .2d 759, 763 (Tenn . Ct. A

pp. 1988). Under the

circumst ance s of this ca se, we have no basis to conclude

that the tr

ial court e

rred when it denied Mr. Tutt le’s requ est for appointed c ounsel.

B.

T HE V ERIFICATION OF M S . T UTTLE ’ S D IVORCE C OMPLAINT

Mr. Tuttle a sserts t

hat the trial court should not have granted Ms. Tuttle a divorce because her complaint was not verified in accordance withTenn. C ode Ann. § 36-4-107(a

). He c orrectly

points out tha

t at onetime the lack

of proper verific ation of a divorce complaint provided gr

ounds for dismis sal. See Turner v. Bell , 198 Tenn. 232, 248, 2 79 S.W. 2d 71, 78 (1955); DeArm ond v. De Armond , 92 Tenn

. 40, 42-46, 20 S.W. 422, 42 3 (1892). Fuqua v. Fuqua , No. 01A01-9403-DR-00143, 1994 WL 441041, at * 1 (Tenn. Ct. App. Aug . 17, 1994) (No Tenn. R . App. P . 11 applic ation filed). However, the G eneral A ssembly relaxed this r equireme nt in 1996 when it amended Tenn. C ode Ann. § 36-4-107 toprovide tha t divorce d ecrees f

iled prior to March 22, 1996 would not be considered invalid simply because the divorce complaint

did not contain an affidavit of verificat ion. See Tenn. C ode Ann. § 36-4- 107(c).

The divorce de cree in t

his case w as filed on

August 4 , 1995. Thus, a ny technical defect resulting from Ms. Tuttle’s counsel’s failure to comply w ith Tenn. Code Ann. § 36- 4- 107 (a) is of no legal co nsequence . Mr. T uttle did not raise this issue until after the trial court’s decision. While a dmitt ing that Ms. Tuttle had gr ounds for d ivorce ba sed on his con viction and i ncarceration, he asserted that she
was entitled toa divorce on the ground s of de s ertion, cruelty, a nd irreco ncilable differe nces. In a later pleading, he asserted thathe was e ntitled to a

n irrecon cilable differences divorce. 5 Mr. Tu ttle’s admission that he had been convicted of an5 (...continued)

Code Ann. § 36-4-107(a). While parties asserted that they we re entitled to a divorce based on irreco ncilable

differences, neither party wasentitled t o an irreconcila

ble differe

nces divo rce bec ause they had not agreed

on an equitable distribution of their marital property. See Tenn. Code Ann. § 36-4-103(b). -6- infamous crime a

nd t hat he ha d been inca

rcerate d throughout t

he marri age amount to a stipulati on of grounds for divorc e under T enn. Code Ann. § 36-4-129(a) (1996). Accordi ngly, we let

stand the judgment granting Ms. Tuttle a divorce on the ground s that Mr. Tu ttle had b een convic te d of an infa mous crime

that had re sulted in a sentence o f confineme nt in the s tate penit entiary. C. T HE D ISTRIBUTION OF THE M ARTIAL P ROPERTY

As a final matter, we take up Mr. T uttle’s as sertion

that the tr

ial court d

id not equitablydistribut e the parties’ jointly owned property. Despite Ms. Tuttle’s assertion that the pa

rties had acc umulated no marital property, Mr. Tuttle claimed that he had a legally recognizable intere s t in an unspe cified am ount of Wal -Mart sto ck,
an automobile , clothing, and other p ersonal be longings including musica l tapes, compactdisks, tool s, and dra wings. W e find no ind

ication in this rec ord that the

trial court dea lt with the se items of

property.

Judicial decr ees should be constru ed like ot her written i nstrumen ts. See Livingstonv. Livi

ngston , 58 Tenn . App. 2 71, 281, 42 9 S.W. 2d 452, 456 (1967). They shouldbe interpreted as a whole, see Coo keville Gynecology & Obstetrics, P.C. v. Southeastern

Data Sys., Inc. , 884 S.W. 2d 458, 462 ( Tenn. C t. App. 1994), and with reference to the pleadi ngs. See Southwe stern Presbyte rian Univ. v. Clark sville , 149 Tenn. 256, 265-66 , 259 S.W. 550, 5 53 (1924 ). Decre es cannot t ranscend above and beyondthe pleadi ngs and the proof. See Fidelity -Phenix Fire Ins. Co. v. Jack

son , 181 Tenn. 453, 462-63 , 181 S.W .2d 625, 62 8-29 (1944) ; Galbreath v . Nolan , 58 Tenn. App. 260, 26 7, 429 S.W.2d 4 47, 450 (1 967).

The divorce de cree in

this case does not mention m arital or separate property. Ms. Tuttle r aised no iss ue concer ning proper

ty in her div orce com

pla int, a nd the
re cord conta ins no basis for concluding that she presented any proof at the divorce hearing concerni ng the parties’ separate or marital property. We cannot presume that-7-

the court dispos ed of

an issue fr

omthe mere

fact tha t a judgment

is silent c oncerning the issue. See Greenwood v. Bank of Ill mo , 753 S.W .2d 637, 64 0 (Mo. Ct . App. 1988 ). Accor dingly, we find that whatever r

ights the pa

rties may have had to separate or marital pro perty prio r to their d ivorce hav e not yet b een adjud icated.

The trial court has not divided the parties’ property inequitably because it has not yet addre ssed the iss ue. On r emand, t he trial c ourt should determine whether the parties accumulated any marital property during their marriage. If they did, the trial courtshould value

it and then d

ivide it in an equitab le manner in accord ance wit

h the criteria for dividing marital property in Tenn. Code Ann. § 36-4-121 (1996).

III.

We affirm

the judgmen

t and rema

nd the case

to the tria

l court for

fur ther proceedi ngs consistent with this opinion. We tax the costs of this appeal in equal proportions to Robert Edward Tuttle and Vicki Dianne Tuttle f or which execution, if necessary, may issue.

_________________ ___________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

_________________

_ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_________________

_________________

_ SAMUEL L. LEWIS, JUDGE