The opinion
ELLA MAE BROWN, )
)
Plaintiff/Counter-Defendant/ )
Appellee, )
) Appeal No.
) 01-A-01-9510-CV-00480
VS. )
) Davidson Circuit
) No. 94D-3788
MARVIN DOUGLAS BROWN, )
Defendant/Counter-Plaintiff/
Appellee.
)
)
)
FILED
October 4, 1996
Cecil W. Crowson
COURT OF APPEALS OF TENNESSEE Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE MURIEL ROBINSON, JUDGE
CAROL DOWNTON
4205 Gallatin Road
Nashville, Tennessee 37216
Attorney for Plaintiff/Counter-Defendant/Appellee
MARVIN DOUGLAS BROWN, #78585
Riverbend Maximum Security Institute
7475 Cockrill Bend Road
Nashville, Tennessee 37209-1010
Pro Se/Defendant/Counter-Plaintiff/Appellant
REVERSED; VACATED
AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
The wife of a prisoner in the custody of the Tennessee Department of
Correction filed for divorce, claiming that her husband was guilty of inappropriate
marital conduct. The husband answered and counterclaimed, and moved the court
to order the wife to file a Bill of Particulars, setting forth the facts she was relying upon
as grounds for the pending divorce. The court did not respond to the husband’s
motion, nor did it respond to the husband’s Motion for Writ of Habeas Corpus ad
Testificandum, but granted the wife an absolute divorce without affording the husband
the opportunity to present any evidence. We reverse, and vacate the trial court’s
order.
I. The Marriage and Divorce
The appellant, Marvin Douglas Brown, was sentenced to serve two
consecutive 99 year terms of imprisonment. He has been continuously confined since
January 15, 1974. In 1983, Mr. Brown met the woman who would eventually become
his wife. Though she lived in East Tennessee, she subsequently moved to Middle
Tennessee to be near the prison where he was incarcerated, and she made regular
weekly visits to the prison to see him. On May 27, 1989, the parties were married in
the chapel at the Tennessee State Prison in Nashville.
Despite the rigors of the husband’s confinement, the parties managed
to maintain a cooperative relationship. Marvin Brown sent his wife the money he
earned in prison to help her pay her bills and to enable her to purchase some items
for her use, such as a riding lawn mower and a portable storage shed. Ella Mae
Brown visited her husband frequently, bringing him special food each time, supplying
him with shoes when he needed them, and contributing funds towards his court costs.
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Eventually, problems arose between the parties. The nature of these
problems is nowhere stated in the record, though the appellee refers in her brief to
“excessive drug abuse” on the part of the husband and his maintaining a relationship
by correspondence with another woman. On October 21, 1994, Mrs. Brown filed a
Complaint for Absolute Divorce, citing as grounds irreconcilable differences and
inappropriate marital conduct. On November 18, 1994, Mr. Brown filed an answer
denying that he had been guilty of inappropriate marital conduct. He also counter-
claimed for divorce.
Mr. Brown simultaneously filed a Motion for a Bill of Particulars, and a
Motion for Appointment of Counsel. The court did not issue a response to either
motion, although Mr. Brown filed two subsequent motions before trial for a judicial
ruling on his Motion for a Bill of Particulars. On April 3, 1995, Mr. Brown filed a well-
reasoned Petition for Writ of Habeas Corpus ad Testificandum. The trial court again
failed to respond.
The divorce hearing took place on August 29, 1995. The husband was
not present. The court heard testimony from the wife, and from two witnesses whose
expected participation was communicated to the husband only a few hours before the
trial. A corrections officer had been summoned to provide a transcript of a taped
telephone conversation between the husband and wife. The husband insisted that
the tape contained admissions that contradicted the wife’s sworn answers to the
husband’s interrogatories. The officer had the tape in his possession, but no
transcript was provided, and the tape was not admitted into evidence.
After the hearing, the trial court issued a decree granting the wife an
absolute divorce on the ground of inappropriate marital conduct. The decree also
divested the husband of any interest he might have had in the house that the wife
purchased during the course of the marriage, granted to the wife full ownership of all
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personal property currently in her possession, and established a permanent
restraining order against the husband, prohibiting him from threatening, coming
around, or harrassing the wife in any way. This appeal followed.
II. The Bill of Particulars
A prisoner does not forfeit his constitutional right of access to the civil
courts by virtue of his conviction and incarceration. Whisnant v. Byrd, 525 S.W.2d
152, 153 (Tenn. 1975). The due process to which he is entitled however is somewhat
diminished in comparison to the rights he could exercise if he were not incarcerated.
For example, a prisoner who files a civil complaint unrelated to the legality of his
conviction will not normally be allowed to make a personal appearance in court to
present his case, absent unusual circumstances, 525 S.W.2d at 154, but he may
testify by deposition. Tenn. Code Ann. § 41-21-304.
Due process requires notice and an opportunity 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 right to be heard by personal
appearance, it does not preclude him from receiving the same notice of actions
against him that is afforded to citizens who are not under sentence. We note that the
Eastern Section of this court recently vacated a divorce decree granted to the wife of
a prisoner, because the defendant did not receive notice of the date of the hearing
until four days before it was to take place. The Court found that the limited period of
time available to prepare his defense was insufficient to accord him constitutional due
process. Tolbert v. Tolbert, Appeal No. 03A01-9406-CV-00230 (Filed in Knoxville
December 15, 1994).
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Our legislature has provided the means whereby a defendant to a
divorce action may be notified of the basis of the allegations against him. Tenn. Code
Ann. § 36-4-106 reads:
Contents of petition for divorce. -- (a) The bill or petition
shall set forth the grounds for the divorce in substantially the
language of § 36-4-101 or § 36-4-102, and pray only for
divorce from the defendant, or for a divorce and such other
and further relief to which the complainant may think himself
or herself entitled. In cases wherein an answer is filed, the
court shall, on motion of the defendant, require the
complainant to file a bill of particulars, setting forth the facts
relied upon as grounds for the divorce, with reasonable
certainty as to time and place.
The intent of the legislature in requiring the wording of the petition to
substantially follow the language of the two statutes that set out the grounds upon
which divorce may be granted is to prevent the petitioner from inserting scurrilous
matters into so public a document. See Farrar v. Farrar, 553 S.W.2d 741 (Tenn.
1977). At this early stage in the proceedings, due process does not require detailed
notice of the acts that the complainant is alleging the defendant has been guilty of.
However after the defendant has answered the petition, and denied the
validity of the grounds recited in it, he is entitled to a Bill of Particulars, so he can know
what he is accused of, and defend himself against the petitioner’s charges if he
wishes.
As the appellee points out, if Mr. Brown cannot make a personal
appearance, he can still exercise the right to be heard by submitting a deposition.
See Tenn. Code Ann. § 41-21-304(a). But without a Bill of Particulars, he has been
deprived of the opportunity to present facts that would negate the allegations that are
implied by the complaint against him. It therefore constitutes reversible error for the
trial court to have failed to grant Mr. Brown’s Motion for a Bill of Particulars.
III. Habeas Corpus ad Testificandum
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The Writ of Habeas Corpus ad Testificandum is a common law writ
which is used to enable a prisoner detained in a jail or prison to be brought before the
court to give evidence. Blacks Law Dictionary, 4th Ed. (1957). Our Legislature
appears to have shut the door on the use of this writ in civil proceedings, by virtue of
Tenn. Code Ann. § 41-21-304(a):
Depositions.-- (a) In no civil case can a convict be removed
from the penitentiary to give personal attendance at court, but
his testimony may be taken by deposition as in other cases,
the party seeking his testimony being required to make
affidavit that the convict is a material witness in the cause.
Neither party has raised the question on appeal as to whether the
statute operates to bar the trial court from considering the appellant’s Writ for Habeas
Corpus as Testificandum. We note, however, that despite the absolute language of
the statute, relevant case law supports the proposition that the constitutional rights to
due process and reasonable access to the courts may sometimes require that a party
litigant be personally present in court, even if that litigant is incarcerated.
In Whisnant v. Byrd, 525 S.W.2d 152, 154 (Tenn. 1975), for example,
our Supreme Court cited Article 1, Secs. 12 and 17 of the Tennessee Constitution,
which provide respectively that “no conviction shall work corruption of blood or
forfeiture of estate,” and that “every man, for an injury done him in his lands, goods,
person or reputation, shall have remedy by due course of law.” The interaction
between these provisions led the court to hold that “a prisoner has a constitutional
right to institute and prosecute a civil action seeking redress for injury or damage to
his person or property, or for vindication of any other legal right . . .,” and consequently
“. . . in a proper case, and upon a proper showing of particularized need, the trial
judge, in his discretion, may issue an appropriate directive requiring the attendance
of the prisoner.”
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In Tolbert, supra, the court noted the paucity of Tennessee cases
dealing with the rights of incarcerated defendants in civil suits to be personally present
at their trials, and sought guidance from other jurisdictions that have considered the
question. The court found a helpful discussion of the reported cases to be contained
in 82 A.L.R. 4th 1063 (1990).
The court cited with approval the lead case in that discussion, an en
banc decision of the Arizona Supreme Court, Strube v. Strube, 764 P.2d 731 (Ariz.
1988). The Strube court held that:
“Prisoners have a right of access to the courts for legitimate
purposes. At least with respect to a significant civil
proceeding initiated against a prisoner by others, we hold that
there is a presumption that the prisoner is entitled to be
personally present at critical proceedings, such as the trial
itself, when he has made a timely request to be present. Of
course this is a rebuttable presumption and the ultimate
decision is within the sound discretion of the trial court.”
764 P.2d at 735.
The Strube Court also said that “[t]he court’s discretion should be
exercised after balancing the interest of the prisoner against the interests of the other
parties and the state, including the authorities having custody of the prisoner.” 764
P.2d at 734.
While the Tolbert Court did not go so far as to hold that Tennessee had
adopted the rebuttable presumption discussed above, it did place the question of
whether to permit a prisoner/defendant in a civil case to be physically present at court
within the trial court’s sound discretion, and instructed the court that its discretion was
to be exercised with the best interest of both the prisoner and the government in mind.
The following language, quoted in both the Strube and Tolbert opinions,
is worth repeating for the guidance of trial courts that must exercise their discretion
when faced with this question:
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“If it is apparent that the request of the prisoner to argue
personally reflects something more than a mere desire to be
freed temporarily from the confines of prison, that he is
capable of conducting an intelligent and responsible
argument, and that his presence in the courtroom may be
secured without undue convenience or danger, the court
would be justified in issuing the writ.”
Price v. Johnston, 334 U.S. 266 at 284-85, 68 S.Ct. 1049 at 1059-60, 92 L.Ed. 1356
at 1369 (1948). And
“[the judge] should take into account the costs and
inconvenience of transporting a prisoner from his place of
incarceration to the courtroom, any potential danger or
security risk which the presence of a particular inmate would
pose to the court, the substantiality of the matter at issue, the
need for an early determination of the matter, the possibility
of delaying trial until the prisoner is released, the probability
of success on the merits, the integrity of the correctional
system, and the interests of the inmate in presenting his
testimony in person rather than by deposition.”
Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir.1976).
In the Tolbert case, supra, the court affirmed the trial court’s denial of
the defendant’s Motion for Writ of Habeas Corpus ad Testificandum, and vacated the
trial court’s decree on the question of insufficient notice alone. The court found that
“the Trial Judge did not abuse his discretion and properly refused Mr. Tolbert’s
request to be present.” However in the present case, the trial court did not rule on the
defendant’s motion, and thus failed to exercise its discretion.
We accordingly remand this case to the trial court for a new trial, with
instructions to grant the defendant’s Motion for a Bill of Particulars, and to issue a
ruling on his Motion for Writ of Habeas Corpus ad Testificandum, setting out in its
order the reasoning behind its decision.
IV.
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The decree of the trial court is vacated. Remand this cause to the
Circuit Court of Davidson County for further proceedings consistent with this opinion.
Tax the costs on appeal to the appellee.
________________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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