Elizabeth South v. Elwin South

• Court: Court of Appeals of Tennessee
• Decided: July 30, 1997
• Docket: 02A01-9703-CV-00054
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON ______________________________________________________________________________

ELIZABETH O. SOUTH, Shelby Circuit No. 151898 R.D. C.A. No. 02A01-9703-CV-00054 Plaintiff, Hon. D’Army Bailey, Judge v.

ELWIN N. SOUTH, SR., FILED Defendant. July 30, 1997 DONNA HARKNESS, Memphis Legal Services, Inc., Memphis, Attorney for Plaintiff. Cecil Crowson, Jr. Appellate C ourt Clerk ELWIN N. SOUTH, SR., PRO SE

AFFIRMED

Opinion filed: ______________________________________________________________________________

MEMORANDUM OPINION1

TOMLIN, Sr. J.

This a divorce case, in which Elwin N. South, Sr. (hereafter “Husband”), Pro Se,

appeals from a judgment of the Circuit Court of Shelby County that granted a divorce

and other relief to Elizabeth O. South (hereafter “Wife”), the plaintiff herein. He raises

three issues in this appeal: Whether the trial court erred in (1) In the division of marital

property; (2) In denying Husband’s Motion to Set Aside the Judgment or in the

Alternative for a New Trial; and (3) Denying Husband’s Motion for the Appointment of

Counsel for the purposes of the trial below. For the reasons hereinafter stated, we

affirm.

This court has been furnished with no transcript or statement of the evidence as

to any of the proceedings below. Accordingly, we have only the technical record

before us. For the sake of clarity we will recite the procedural history of this case.

Wife filed suit for divorce against Husband on the grounds of irreconcilable

1 Rule 10(b) (Court of Appeals). MEMORANDUM OPINION. The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not cited or relied on for any reason in a subsequent relate case. differences. She alleged that the parties were married and lived together until Husband

was convicted of a felony and incarcerated in 1993. At the time of trial Husband was

residing in the Lake County Regional Prison.

Husband filed a cross-complaint in which he asked the trial court to award a

divorce to both parties and to equitably divide the marital property. Husband also

moved the court below to appoint counsel from the local bar to represent him in the

divorce proceedings as he was then incarcerated. This motion was denied. Following a

bench trial, the trial court entered an order granting Wife a divorce. In addition, the

trial court awarded her a 50% interest in Husband’s pension, inasmuch as it found that

her interest had accrued during the course of the parties’ marriage. The court also

found that the marital residence of the parties had been in the beginning titled in the

name of W ife, and was owned by her prior to the parties’ marriage. The court found

that this was her sole and separate property and awarded the residence to her. Husband

thereafter filed a Motion to Set Aside the Judgment or in the Alternative for a New

Trial, which m otion w as denied by the trial court.

As to the first issue concerning the division of the parties’ m arital property, in

the absence of a transcript we must assume that the record, had it been preserved,

would have contained sufficient evidence to support the trial court’s factual findings.

Word v. W ord, 937 S.W.2d 931, 932 (Tenn. App. 1996). We therefore must resolve

this issue in favor of Wife.

As for the second issue raised by Husband, the technical record indicates that

Husband sought relief under both T.R.C.P. 59 and 60.02. A trial judges’ decision to

grant or deny a m otion for a new trial pursuant to T.R.C.P. 59.02 (in a non-jury case it

is a m otion to alter or amend the judgm ent) is discretionary. Esstman v. Boyd, 605

S.W.2d 237 (Tenn. App. 1979). As for any relief pursuant to T.R.C.P. 60.02, again the

matter rests in the sound discretion of the trial judge. In both instances, the burden is

upon the m ovant to show the abuse of discretion, and insofar as a 60.02 m otion is

concerned, one must show that by clear and convincing evidence that relief from the

judgm ent is warranted. See Davidson v. Davidson, 916 S.W.2d 918, 923 (Tenn. App.

1995).

2 Lastly, we find no merit to Husband’s contention that the trial court erred in not

appointing counsel to represent him in the divorce proceedings below. It is well

established law in this state, that an indigent convict has no constitutional right to the

appointment of counsel in a civil case. Lyon v. Lyon, 765 S.W.2d 759, 763 (Tenn. App.

1988). Accordingly, the judgment of the trial court is affirmed. Costs in this cause on

appeal are taxed to Husband, for which execution may issue if necessary.

________________________________________ TOMLIN, Sr. J.

________________________________________ FARMER, J. (CONCURS)

________________________________________ LILLARD, J. (CONCURS)