The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2013
DEBRA LYNN LLOYD v. HUSTON FOLEY LLOYD
Appeal from the Chancery Court for Cheatham County
No. 14238 Donald Paul Harris, Chancellor
No. M2012-02240-COA-R3-CV - Filed April 24, 2014
Husband in divorce proceeding appeals numerous issues relating to the trial court’s
administration of the trial and valuation and division of marital property. Finding no error,
we affirm the judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
M. S., P. J., and F RANK G. C LEMENT, J., joined.
Huston Foley Lloyd, Tiptonville, TN, Pro Se.
Jennifer Noe, Ashland City, Tennessee, for the appellee, Debra Lynn Lloyd.
OPINION
The parties to this action were married in 1978; they are the parents of one child, who
had reached the age of majority at the time of trial. Debra Lloyd (“Wife”) instituted suit to
terminate the marriage on the grounds of irreconcilable differences and inappropriate marital
conduct on May 13, 2009. Shortly after the suit was filed, Huston Lloyd (“Husband”) pled
guilty to first degree murder of Kimberly Wyatt and first degree felony murder of Sarah
Wyatt and was sentenced to life without parole on each conviction; he is currently
incarcerated at Northwest Correctional Facility, Tiptonville, Tennessee.
The trial of the divorce action was held on July 11 and 12, 2012. Wife was present
in court and represented by counsel; Husband was not represented and participated in the trial
by phone. Also present was counsel for Jeremy Wyatt, the surviving spouse of Kimberly
Wyatt and father of Sarah Wyatt, who had filed a wrongful death suit against Husband and
recovered a judgment in the total sum of $12,000,000.00; Mr. Wyatt had been allowed to
intervene to participate in discovery with regard to Husband’s assets and otherwise to protect
the interest of the judgment creditors. On September 10 the court entered the Amended Final
Decree of Divorce, granting Wife a divorce on the ground of inappropriate marital conduct
and valuing, dividing and distributing the marital property and debts. Husband duly filed a
motion to amend the judgment and a motion for a new trial, both of which were denied.
Husband appeals, raising issues relating to: the manner in which this proceeding was
conducted; the valuation of the marital property; the introduction of certain exhibits; the
court’s denial of his motion to appoint counsel; and the assessment of costs to him.
STANDARD OF REVIEW
In review of a divorce proceeding, the trial court’s findings of fact “are presumed to
be correct unless the evidence preponderates otherwise.” Langschmidt v. Langschmidt, 81
S.W.3d 741, 744 (Tenn. 2002) (citing Tenn. R. App. P. 13(d)). Questions of law are
reviewed de novo without the presumption of correctness. See id. at 745 (citing Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)). Mixed questions of law and
fact are reviewed de novo with no presumption of correctness, with the appellate court
having “great latitude to determine whether findings as to mixed questions of fact and law
made by the trial court are sustained by probative evidence on appeal.” Id. at 745 (citing
Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995)).
DISCUSSION
I. P ROCEDURAL M ATTERS
Husband contends that the court’s rulings on motions which he filed denied him due
process, access to the court, and equal protection of laws by failing to allow him to
participate “fully, fairly and completely in [the] final hearing” and that the court committed
reversible error when it dismissed motions which had not been set for hearing.
As we address Husband’s argument, we are mindful of the standards set forth in
Hessmer v. Hessmer, 138 S.W.3d 901 (Tenn. Ct. App. 2003) for trial courts, and by
extension appellate courts, when considering cases in which litigants are incarcerated and
appearing pro se:
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro se
litigants have no legal training and little familiarity with the judicial system.
However, the courts must also be mindful of the boundary between fairness to
2
a pro se litigant and unfairness to the pro se litigant’s adversary. Thus, the
courts must not excuse pro se litigants from complying with the same
substantive and procedural rules that represented parties are expected to
observe. The courts give pro se litigants who are untrained in the law a certain
amount of leeway in drafting their pleadings and briefs. Accordingly, we
measure the papers prepared by pro se litigants using standards that are less
stringent than those applied to papers prepared by lawyers. Pro se litigants
should not be permitted to shift the burden of the litigation to the courts or to
their adversaries. They are, however, entitled to at least the same liberality of
construction of their pleadings that Tenn. R. Civ. P. 7, 8.05, and 8.06 provide
to other litigants. Even though the courts cannot create claims or defenses for
pro se litigants where none exist, they should give effect to the substance,
rather than the form or terminology, of a pro se litigant’s papers.
Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn. Ct. App. 2003) (internal citations
omitted).
Throughout the course of this proceeding, Husband was imprisoned and was not
represented by counsel; he filed an excessive number of motions, letters and other pleadings.
On May 10, 2012, the court entered an order on Husband’s “Ex Parte Motion to Cease and
Desist”; after disposing of the particular motion, the court dismissed “all pleadings filed by
the Husband not heretofore disposed of.”1 In the Amended Final Decree of Divorce, the
court stated:
The Husband moved during this proceeding to have the Court rule on the
Motions filed by him previously which were never set by the Husband on the
Court’s docket. The Court explained to the Husband that it was his
responsibility to place the Motions on the Court’s docket and that he had not
done so therefore the Motions were dismissed.
We have reviewed the motions and other correspondence and observe that several
motions contained a notice of hearing, while others had a blank for the date of hearing or no
notice of hearing; as noted by the trial court, most of the motions were not set for hearing.
Each court has its own procedure for disposing of motions and it is the litigant’s
responsibility to know and comply with that procedure. In one of his letters to the clerk of
the trial court Husband correctly notes that the rules for Cheatham County Chancery Court
are not in the Local Rules of Court compiled by West Publishing Company; this fact,
1
The record on appeal reflects that Husband filed thirty-one motions, pleadings, letters or other
documents between August 2009 and the end of March 2012.
3
however, does not excuse Husband from the responsibility to set the motions for hearing.
As evidenced by the fact that several of his motions were set for hearing, Husband was aware
that motions needed to be set; he failed to do so as to the majority of his motions. We find
no error in the court’s dismissal of motions which were not set for hearing in accordance with
the rules of court.
Two motions raising issues which could be construed to be constitutional in nature
and which were denied are Husband’s motion to have counsel appointed for him and his
motion to participate in a status conference and the trial in person, by teleconference, or by
video conference.
In Knight v. Knight, 11 S.W.3d 898, 900 (Tenn. Ct. App. 1999), a divorce proceeding,
this court considered the same issues presented by Husband herein. We held that the trial
court did not err in failing to appoint counsel for the incarcerated defendant, noting that there
is no absolute right to counsel in a civil case; the Sixth Amendment right to counsel is limited
to criminal prosecutions. Knight, 11 S.W.3d 898, 900 (Tenn. Ct. App. 1999) (citing Lyon
v. Lyon, 765 S.W.2d 759, 763 (Tenn. Ct. App. 1988); In re Rockwell, 673 S.W.2d 512, 515
(Tenn. Ct. App. 1983)). We adhere to the holding in Knight with regard to this issue.
With respect to the husband’s contention that the trial court erred in denying his
motion to be transported to the divorce hearing, the court in Knight discussed Tenn. Code
Ann. § 41-21-304(a) as well as several cases addressing the issue; the court held that whether
to allow a prisoner/litigant to be physically present in court is within the sound discretion of
the trial court, which should be exercised after balancing the interest of the prisoner against
the interests of the other parties and the state authorities who have custody of the prisoner.
Knight, 11 S.W.3d at 903.2
2
The Knight court further instructed:
Some of the factors to be considered in balancing the respective interests were set forth in
Stone v. Morris, 546 F.2d 730, 735–36 (7th Cir.1976):
In making his determination the district 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. [citation omitted]
Knight, 11 S.W.3d at 903–04.
4
A review of pertinent orders in the record shows an order entered September 21, 2010,
denying Wife’s motion for default judgment, stating that “Defendant/Husband is in prison
and therefore must be afforded the right to be present for a final hearing in this matter by
either deposition or phone conference,” and an order entered March 14, 2011, denying
Husband’s Motion to Participate In Status Hearing VIA Tele-Conference or Video
Conference, stating in part “the [Court] finds due to lack of facilities this motion is hereby
Denied.” The record also shows that Husband participated in extensive discovery and
discovery related motions and correspondence, both as proponent and respondent, and filed
discovery materials, including exhibits relating to marital assets, as part of the court record.
Viewing the record as a whole, we see no abuse of the court’s discretion in not permitting
Husband to participate in a status conference by phone or video-conference.
Similarly, considering the factors set forth in Knight, we do not find an abuse of
discretion in not allowing Husband to attend the trial in person. Husband admitted in his
answer that he was guilty of inappropriate marital conduct and Wife was awarded the divorce
on that basis. The issues which were tried related to the valuation and division of the marital
estate and debts. Husband identified and valued the marital assets in various pleadings,
discovery responses, and exhibits which he filed and participated in the trial by phone; he
testified and cross-examined Wife.3 The record shows that, even though Husband’s motion
was denied, the court took appropriate measures, given the circumstances, to insure that he
had an opportunity to participate in the proceedings and to be heard.4 Husband made his
arguments in writing as instructed by the court and it is clear that the court took those into
account in addressing the issues before it.
3
In the final decree the court valued the marital assets at $235,598.32 and the debts at $76,918.87,
leading to the sum of $158,678.45, as equity in the marital estate. Trial Exhibit 10 contained Wife’s
valuation of the marital assets and liabilities. The values set by the court for the parties’ vehicles and
household contents are higher than those set forth in the exhibit; the court acknowledged that it accepted
Wife’s values for the marital property “with a few exceptions.” The Statement of the Evidence approved
by the trial court shows that both parties testified as to their vehicles and Husband submitted a list of assets
which was introduced as Exhibit 13.
4
The Statement of the Evidence reflects that the court admonished Husband on numerous occasions
regarding his questioning of Wife and that when the admonishments were not successful, the court
terminated Husband’s presentation of evidence. “The trial judge has wide discretion in his conduct of the
trial.” Marress v. Carolina Direct Furniture, Inc., 785 S.W.2d 121, 129 (Tenn. Ct. App. 1989) (citing
Cordell v. Ward Sch. Bus. Mfg., Inc., 597 S.W.2d 323 (Tenn. Ct. App. 1980); Wilson v. Maury Cnty. Bd. of
Ed., 302 S.W.2d 502 (1957)). We find no reason in the record before us to question the court’s ruling in this
regard.
5
II. B IAS OF THE T RIAL C OURT
Citing various unfavorable rulings, Husband contends that the trial court was biased
against him because he is incarcerated and that the court violated Canon 2 of the Code of
Judicial Conduct, Tenn. Sup. Ct. R. 10, requiring the judge to perform the duties of office
impartially, in other respects.
We do not take these allegations lightly. We have already held that Husband’s
constitutional claims are without support in the record and we similarly do not find any
evidence in the record from which to conclude that the court was biased against Husband or
in favor of Wife. To the contrary, our studied review of the record shows that each judge
assigned to this case was abundantly considerate of the rights of Husband, as an incarcerated
litigant in a divorce action, and performed the court’s responsibilities consistent with
applicable law and procedure.5 Husband’s allegations of bias are premised solely upon his
disagreement with what he considers were unfavorable rulings; while disagreement with the
disposition of his various motions and the marital estate is not objectionable, making
unsupported allegations of bias is.6
III. I DENTIFICATION, V ALUATION AND D IVISION OF M ARITAL A SSETS
Husband takes issue with the court’s identification, valuation, and division of the
marital assets, contending that the court erred in accepting the testimony of Wife as to the
identity of the marital assets and in awarding her “all of the parties’ marital assets.”
5
The division of the parties’ marital estate begins with the classification of the property as separate
or marital property. Miller v. Miller, 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001). Once property has been
classified as marital property, the court should place a reasonable value on property that is subject to
division. Edmisten v. Edmisten, 2003 WL 21077990, at *11 (Tenn. Ct. App. May 13, 2003). When valuation
of evidence is conflicting, the court may place a value on the property that is within the range of the values
presented. Watters v. Watters, 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997). Once the marital property has
been valued, the trial court is to divide the marital property in an equitable manner. Tenn. Code Ann. § 36-4-
121(a)(1); Miller, 81 S.W.3d at 775. Trial courts have wide latitude in fashioning an equitable division of
marital property, Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983).
6
As an example of such an unsupported allegation of bias, in his brief Husband injects matters
related to the parties’ disabled adult daughter and argues that the court “is to protect the estate of the
incompetent, mentally retarded adult child.” The circumstances of the parties’ daughter was not at issue in
this case and the trial court had no subject matter jurisdiction to adjudicate any issue related thereto. The
fact that the court made no ruling relative to the daughter demonstrates that the court was properly
performing its duty, not that it was biased against Husband. For the same reason, Husband’s contention in
his brief that the trial court erred in not ruling on his request to visit his daughter presents no issue for our
consideration.
6
Decisions regarding the value of marital property are questions of fact, Kinard v.
Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998); thus, they are not second-guessed on
appeal unless they are not supported by a preponderance of the evidence. Smith v. Smith, 93
S.W.3d 871, 875 (Tenn. Ct. App. 2002). Dividing a marital estate is not a mechanical
process but rather is guided by considering the factors in Tenn. Code Ann. § 36-4-121(c). 7
Kinard, 986 S.W.2d at 230. Dividing marital property in an equitable manner does not
require that the property be divided equally. Robertson v. Robertson, 76 S.W.3d 337, 341
(Tenn. 2002). This court accords great weight to the trial court’s division of marital property.
Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). Thus, we defer to the trial
court’s division of the marital estate unless it is inconsistent with the factors in Tenn. Code
Ann. § 36-4-121(c) or is not supported by a preponderance of the evidence. Brown v. Brown,
913 S.W.2d 163, 168 (Tenn. Ct. App. 1994).
7
Tenn. Code Ann. § 36-4-121 (c) provides:
In making equitable division of marital property, the court shall consider all relevant factors
including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity,
estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education, training or
increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5)(A) The contribution of each party to the acquisition, preservation, appreciation,
depreciation or dissipation of the marital or separate property, including the contribution of
a party to the marriage as homemaker, wage earner or parent, with the contribution of a
party as homemaker or wage earner to be given the same weight if each party has fulfilled
its role:
(B) For purposes of this subdivision (c)(5), dissipation of assets means wasteful
expenditures which reduce the marital property available for equitable distributions and
which are made for a purpose contrary to the marriage either before or after a complaint for
divorce or legal separation has been filed.
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to
become effective;
(9) The tax consequences to each party, costs associated with the reasonably foreseeable
sale of the asset, and other reasonably foreseeable expenses associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the parties.
7
As noted above, there is factual support in the record for the property the court
determined was marital property and the values it placed upon the same.8 While Husband
disputes the values, the evidence does not preponderate against the court’s determination.
Husband does not specifically contest the division of marital property but, rather,
argues that, since he did not sign a marital dissolution agreement, the divorce should not have
been awarded under Tenn. Code Ann. § 36-4-103, governing irreconcilable differences
divorces. This divorce was granted to Wife on the basis of inappropriate marital conduct,
however, and a signed marital dissolution agreement was not required. Husband does not
argue that the division of the marital property was not done in accordance with Tenn. Code
Ann. § 36-4-121(c). We have reviewed the evidence and the decision of marital property is
in accordance with applicable law.
IV. I NTRODUCTION OF E XHIBITS
Husband contends that Wife’s introduction of exhibits 2, 3, 4, 5, 6, 8, 9, 10, 11 and
9
14 was improper and deprived him of due process and equal protection of laws because
Wife “did not submit those documents to appellant prior to the final hearing so he could rebut
or dispute the information in those exhibits.” He sets forth no legal basis requiring the
exclusion of the exhibits as evidence, rather he insists that the admission of the exhibits
continued the alleged pattern of bias and unfairness shown to him by the trial court.
A trial court’s ruling on the admissibility of evidence is within the sound discretion
of the court and we review issues regarding the admission of evidence under the abuse of
discretion standard. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. Appt. 2001). A
discretionary decision will be set aside only when the deciding court applied incorrect legal
standards, reached an illogical conclusion, decided the case on a clearly erroneous assessment
8
See footnote 3 and related text.
9
Exhibit 2 is a certified copy of the judgment wherein Husband pled guilty to felony murder; exhibit
3 is the original of a warranty deed conveying property in Flint, Michigan, to Husband and Wife; exhibit 4
is a copy of a warranty deed conveying three parcels of property in Dickson County, Tennessee, to Husband
and Wife; exhibit 5 is a copy of a promissory note in the amount of $17,417.36 executed by Husband (by
Wife pursuant to his power of attorney) and Wife and payable to Jack D. Lowery; exhibit 6 is a deed of trust
securing the note at exhibit 5; exhibit 8 is a copy of a warranty deed conveying property located at 866
Mathew Court, Kingston Springs, Tennessee, to Husband and Wife; exhibit 9 is a copy of a quitclaim deed
wherein Husband and Wife convey a 30% interest in the Kingston Springs property to their daughter, Krystle
Lloyd; exhibit 10 is Wife’s asset and liability statement; exhibit 11 is Wife’s income and expense statement;
exhibit 14 is a certified copy of an order entered in the Circuit Court for Cumberland County, Tennessee,
granting Jeremy Wyatt and Karon Wyatt judgment against Husband totaling $12,000,000.00.
8
of the evidence, or employed reasoning that will cause injustice to the complaining party.
Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)
(citations omitted).
The exhibits were material to the matters before the court, particularly the
identification of marital assets and marital debt, and were properly identified and introduced
into the record; Husband wholly fails to articulate a valid reason for them to be excluded.
This argument is without merit.
V. D ISSIPATION OF M ARITAL A SSETS
The trial court held that Husband dissipated marital assets in the total sum of
$85,000.00, $75,000.00 of which was due to legal fees incurred in the defense of his criminal
charges, and $10,000.00 for legal fees incurred by Wife as a result of the manner in which
Husband conducted his defense of this action.10 While Husband acknowledges the
expenditures, he contends that the court’s holding in this regard is “completely wrong,
arbitrary and prejudiced.”
The determination of whether a dissipation of marital assets occurred is a factual
inquiry. Altman v. Altman, 181 S.W.3d 676, 682 (Tenn. Ct. App. 2005). Dissipation of
assets requires a showing of intentional, purposeful, and wasteful conduct. Id. The party
alleging a dissipation of marital assets has the burden of persuasion and the initial burden of
production. Id. “After the party alleging dissipation establishes a prima facie case that
marital funds have been dissipated, the burden shifts to the party who spent the money to
present evidence sufficient to show that the challenged expenditures were appropriate.” Id.
(citing Wiltse v. Wiltse, 2004 WL 1908803, at *4 (Tenn. Ct. App. Aug. 24, 2004); Bratcher
v. Bratcher, 26 S.W.3d 797, 799 (Ky. Ct. App. 2000); Turner v. Turner, 809 A.2d 18, 52
(Md. 2002); Anderson v. Anderson, 514 S.E.2d 369, 380 (Va. Ct. App. 1999)).
10
With respect to the $10,000.00, the final decree states:
The Court further took into account the case at hand wherein the Husband did not contest
that he was guilty of inappropriate marital conduct, and has no real interest in the proceeds
of the lawsuit and yet he has filed some 47 motions, most of which he did not even place on
the docket, when he does not stand to ever see a penny from this lawsuit due to the judgment
that has been entered against him in the amount of $12,000,000.00 out of Cumberland
County, Tennessee. The Court found that Husband’s actions in this suit have greatly
increased the amount of attorney’s fees that have been incurred by Ms. Lloyd with nothing
to accomplish. The Court found that Mr. Lloyd dissipated an additional $10,000.00 in
marital assets by his actions in the case at hand.
9
The evidence does not preponderate against the court’s determination that Husband
dissipated $85,000.00 of marital funds. The $75,000.00 incurred in the defense of Husband’s
criminal case was based on his illegal conduct that was intentional, purposeful and had
produced no benefit to his family. With respect to the $10,000.00 the court determined that,
given the facts of the divorce case, including Husband’s acknowledgment of the grounds for
divorce, his incarceration, and the wrongful death judgment entered against him, the
numerous motions he filed-which had to be defended by Wife-caused her to unnecessarily
expend marital funds; this finding is supported by the record.11 As required by the procedure
set forth in Altman, Husband has failed to introduce any proof that the $85,000.00 was an
appropriate expenditure of marital funds.
CONCLUSION
For the foregoing reasons the judgment of the trial court is affirmed in all respects.
______________________________
RICHARD H. DINKINS, JUDGE
11
Husband argues in regard to the $10,000.00:
[H]e was not the one who filed the divorce, and should not be held as the one to be taxed
for it since the appellant was not able to fairly, fully, and completely participate in his
defense, the trial court was arbitrary towards appellant, nor did the appellee through counsel
submit the requested discovery . . . then the appellant filed with the trial court a motion for
pretrial discovery conference, but the court ignored.
As noted earlier, we have reviewed the record in detail and find no arbitrariness, impropriety or bias in the
court’s handling of this case. In making its ruling, the court did not penalize Husband for the manner in
which Husband represented himself; rather the court considered the practical effect of Husband’s actions on
the marital estate and determined that marital assets were dissipated.
10