Elizabeth South v. Elwin South ( 1997 )

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
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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it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall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).
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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.
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TOMLIN, Sr. J.
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FARMER, J. (CONCURS)
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LILLARD, J. (CONCURS)
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