Thomas D. McClure, Sr. v. Linda Bentley McClure

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 29, 2014 Session

THOMAS D. MCCLURE, SR. v. LINDA BENTLEY MCCLURE

Appeal from the Circuit Court for Hawkins County

No. 09CV0087 Douglas T. Jenkins, Chancellor1

No. E2014-00412-COA-R3-CV-FILED-MARCH 30, 2015

The issue presented in this divorce appeal is whether the trial court erred in refusing to

appoint a guardian ad litem for Thomas D. McClure, Sr. (Husband), and proceeding to

trial in Husband‟s absence after he was duly notified of the trial date. Finding no abuse

of discretion, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., C.J., delivered the opinion of the court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, JJ., joined.

Rebecca D. Slone, Dandridge, Tennessee, for the appellant, Thomas D. McClure, Sr.2

Linda B. McClure, West Palm Beach, Florida, appellee, pro se.

1

Sitting by interchange.

2

On November 1, 2014, after this appeal had been briefed and orally argued, Husband died. The

Estate of Thomas D. McClure Sr., was substituted in his stead pursuant to Tenn. R. App. P. 19.

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OPINION

I.

Husband filed this action on February 17, 2009. Linda B. McClure (Wife) filed an

answer and counterclaim for divorce on February 27, 2009. Four years later, on April 23,

2013, Husband filed a “motion for declaratory ruling” alleging as follows:3

1. [Husband] is elderly, is an amputee and in bad health.

2. Sharon McClure, [Husband‟s] daughter has Power of

Attorney from [Husband].

3. Sharon McClure has held this Power of Attorney for

several years and has conducted all business for [Husband]

and has personal knowledge of all facts relevant to the

divorce.

4. In the interest of judicial economy it would be beneficial to

allow Sharon McClure to use the Power of Attorney to

prosecute the divorce.

On July 12, 2013, the trial court entered an order that provides, in pertinent part, as

follows:

THIS matter came before the Court this May 23, 2013, on the

Motion for Declaratory Ruling and Motion for a Scheduling

Conference filed by [Husband]. . . . [Husband] did withdraw

his Motion for Declaratory Ruling. . . . Counsel for the

[Husband] did bring to the Court‟s attention the illness of the

[Husband] and related need for relief of the Local Rule

requirement for mediation prior to setting trial. Counsel for

both parties represented to the Court willingness to mediate

without a formal mediator. Therefore it is, ORDERED

1. [Husband] is allowed to withdraw his motion, making

moot Defendant‟s Response;

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The record does not explain the period of inactivity between the filing of the complaint and the

filing of the motion.

2

2. Given the unique circumstances of this case, the formal

mediation requirement of the Local Rules [is] waived and the

parties may proceed without benefit of formal mediation, but

counsel are to conduct a good faith effort to mediate this

dispute;

3. Trial is set for September 11, 2013[.]

(Capitalization in original.)

On July 15, 2013, Husband filed a “motion to quash notice of deposition” alleging

that he “is elderly and an amputee and unable to travel at this time and resides in the State

of Michigan.” Attached to the motion was a faxed letter from a nurse practitioner in

Michigan stating,

Mr. McClure is under my care and is resident at Legacy

Assisted Living in Jackson, Michigan. He unfortunately has

several cardiac conditions which require him to be maintained

on important medications. Without them his physical

condition would most likely deteriorate. He also has an

above the knee amputation to his right leg which would

impact transporting him as he does not have a prosthesis and

requires use of a wheelchair.

I do not want Mr. McClure to be taken from the facility out of

state due to the risk to his health.

The motion to quash was filed three days after Husband‟s properly-noticed deposition

was scheduled to occur and neither Husband nor his attorney had appeared for the

deposition. Wife‟s counsel provided documentation establishing (1) that Husband had

been properly notified of his deposition scheduled for July 12, 2013; (2) that neither

husband nor someone acting on his behalf was present for the deposition; and (3) that

Wife was not notified of any objection to the deposition prior to its scheduled date.

On September 9, 2013, two days before trial, Husband‟s attorney, John S.

Anderson, filed a petition asking the trial court to appoint a guardian ad litem for

Husband. The motion alleged that “[m]edical records have recently been provided to the

Attorney for [Husband] that indicate[] that the [Husband] is mentally incompetent.” The

trial court entered an order on September 19, 2013, stating:

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THIS matter came before the Court September 11, 2013, the

matter set for Trial on the merits. Prior to the taking up of the

matter, the Court took up the Motion of the [Husband] that

alleged that [Husband] was in need of a Guardian ad Litem,

although filed untimely. Counsel represented to the Court

that he was in possession of medical records reflecting

[Husband’s] need for conservatorship, and that he had just

learned of the need for a conservatorship upon the disclosure

by Sandra McClure, and that he had no earlier basis to believe

that his client may be in need of a guardian ad litem.

Sandra McClure is a daughter of the [Husband who] received

the majority of gifts [from Husband], $108,513.70, alleged to

be gifts in violation of Tenn. Code Ann. § 36-4-106(d)(1)4

and it was conceded by counsel for [Husband] that the

subpoenaed bank records reflect the gifts. It was conceded by

counsel that the subpoenaed insurance documents also

include violations of Tenn. Code Ann. § 36-4-106(d)(2) which

benefit Sandra McClure, and several of her siblings. Counsel

for [Husband] represented that Sandra McClure disclosed that

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Tenn. Code Ann. § 36-4-106(d)(1) provides in pertinent part:

(d) Upon the filing of a petition for divorce . . . the following temporary

injunctions shall be in effect against both parties until the final decree of

divorce or order of legal separation is entered, the petition is dismissed,

the parties reach agreement, or until the court modifies or dissolves the

injunction, written notice of which shall be served with the complaint:

(1)(A) An injunction restraining and enjoining both parties from

transferring, assigning, borrowing against, concealing or in any way

dissipating or disposing, without the consent of the other party or an

order of the court, of any marital property. Nothing herein is intended to

preclude either of the parties from seeking broader injunctive relief from

the court.

* * *

(2) An injunction restraining and enjoining both parties from voluntarily

canceling, modifying, terminating, assigning, or allowing to lapse for

nonpayment of premiums, any insurance policy, . . . where such

insurance policy provides coverage to either of the parties or the

children, or that names either of the parties or the children as

beneficiaries without the consent of the other party or an order of the

court. “Modifying” includes any change in beneficiary status.

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any response by Legacy Assisted Living and Alzheimer‟s

Center, LLC, would also disclose that Plaintiff, Thomas D.

McClure, was incompetent.

Counsel for [Husband] did not present any medical record or

any physician affidavit in support of his motion. Counsel for

[Husband], believing that he did have such documents was

allowed to depart the Court to seek the documents. Court

took an approximate one hour recess to allow counsel an

opportunity to support his motion. Upon the return to Court

[Husband’s] counsel conceded that he held no medical record

or any document which reflected any medical treatment or

medical finding that [Husband] suffered any dementia or

other condition necessitating a guardian ad litem.

* * *

As no proof was available, and the matter had been continued

for more than four years, the Court denied the Motion to

Appoint Guardian Ad Litem.

Upon the Court‟s action counsel for the [Husband],

representing to the Court the ethical dilemma he was in given

the conflicts in proof and suggested direction from the

Tennessee Board of Professional Responsibility, did move to

withdraw and that his client be given 30 days to obtain

replacement counsel. The Court granted the motion, but took

notice that the matter has been on the docket far too long, that

[Wife] is prejudiced and directed that the matter be

rescheduled as soon as practical.

(Capitalization in original; emphasis and footnote added.) Trial was rescheduled for

October 30, 2013.

On the late afternoon of October 29, 2013 – the day before trial – Husband‟s

former attorney, John S. Anderson, filed two motions. The first, captioned “renewed

motion for guardian ad litem,” states as follows:

Comes now the Attorney for the [Husband] and would move

this Court to appoint a Guardian ad Litem for [Husband]

Thomas McClure, Sr. and in support would state as follows;

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Attorney for [Husband] has spoken with the Doctor and

Psychiatrist for the [Husband] and has confirmed that the

[Husband] is physically and mentally incompetent.

Wherefore premises considered; that this Court appoint a

Guardian ad Litem for the [Husband] or in the alternative

appoint a temporary Guardian ad Litem for the [Husband] to

investigate the need for a Guardian ad Litem throughout the

litigation.

The second motion was a motion for continuance that states, in pertinent part, as follows:

[Husband] is incompetent and [Wife] sent the Notice of

Hearing to him at Legacy Assisted Living Facility in

Michigan, an Alzheimer‟s Treatment Facility. To allow this

hearing on October 30, 2013 is a travesty of justice.

Attorney, John S. Anderson has spoken with the staff

personally at Legacy Assisted Living and has verified that

Thomas D. McClure, Sr. is incompetent mentally and

physically.

WHEREFORE PREMISES CONSIDERED; [Husband]

moves this Court to continue the hearing the [Wife] has set on

October 30, 2013.

(Capitalization in original.)

The divorce trial took place on October 30, 2013. Neither Husband nor anyone

representing him was in attendence. There is no transcript of the trial proceedings in the

record before us. That same day, the trial court entered three orders. The first order

declared that any funds in Husband‟s name on deposit with First Tennessee Bank,

including two specifically identified accounts, were divested from Husband and awarded

to Wife. The second order is the trial court‟s final judgment awarding Wife a divorce and

dividing the marital property. Both of these orders were file-stamped for entry on

October 30, 2013 at 10:07 AM.

The trial court‟s curious third order was entered twenty-eight minutes later, at

10:35 AM. It provides, in its entirety, as follows:

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This cause came to be heard upon Attorney John S.

Anderson‟s Motion to Reenter Case.

At this time, Attorney John. S. Anderson is permitted to re-

enter the case as Attorney for Thomas McClure, Sr./Plaintiff

and is granted a minimum of (30) thirty days to prepare for

trial.

On November 18, 2013, Husband filed a motion to set aside the divorce judgment. In the

motion, Husband asked the trial judge, who had presided over the case up to that point,

The Honorable John K. Wilson, to recuse himself. Judge Wilson did recuse himself and

made no further comment or ruling regarding the three orders entered on October 30,

2013. As previously noted, Chancellor Douglas T. Jenkins was appointed to hear the

motion by interchange.

After a hearing, the trial court, by way of Chancellor Jenkins, entered an order

providing as follows:

The Judgment of October 30, 2013, is affirmed in all respects

except for the single issue set out herein;

The Court shall revisit the division of the marital home

previously found at 7074 La Christa Way, Knoxville, TN;

Mr. Jack T. Marecic is appointed as guardian ad litem of

Thomas D. McClure[.]

(Numbering in original omitted.)

After another hearing on March 3, 2014, the trial court entered its final judgment

affirming in all respects the divorce judgment of October 30, 2013, and denying

Husband‟s motion to set aside. Husband timely filed a notice of appeal and obtained new

counsel to pursue this appeal.

II.

The issue presented, as stated by Husband in his brief, is “whether the trial court

erred in failing to set aside a divorce judgment when it was entered based upon proof and

testimony given in Husband‟s absence, when Husband was incompetent.”

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III.

In this non-jury case, our standard of review is de novo upon the record of the

proceedings below; however, the record comes to us with a presumption of correctness as

to the trial court‟s factual determinations, a presumption we must honor unless the

evidence preponderates otherwise. Tenn. R. App. P. 13(d); Wright v. City of Knoxville,

898 S.W.2d 177, 181 (Tenn. 1995). There is no presumption of correctness as to the trial

court‟s legal conclusions. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002);

Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

IV.

The only argument presented by Husband as a ground for reversal on appeal is his

assertion that the trial court should have appointed a guardian ad litem for him before

trial. Husband cites Tenn. R. Civ. P. 17.03, which provides:

Whenever an . . . incompetent person has a representative,

such as a general guardian, conservator, or other like

fiduciary, the representative may sue or defend on behalf of

the . . . incompetent person. If an . . . incompetent person

does not have a duly appointed representative, or if justice

requires, he or she may sue by next friend. The Court shall at

any time after the filing of the complaint appoint a guardian

ad litem to defend an action for an . . . incompetent person

who does not have a duly appointed representative, or

whenever justice requires.

Husband did have legal representation of his own choosing for the proceedings below.

Even after his attorney was allowed to withdraw and Husband was provided adequate

notice and opportunity to find new counsel, attorney Anderson apparently continued to

represent him, as demonstrated by his October 29, 2013 filings. Moreover, Husband also

had “a duly appointed representative” in his daughter, who had a power of attorney that

was never questioned or challenged. Husband argues that the portion of Rule 17.03

allowing a court to appoint a guardian ad litem “whenever justice requires” is applicable

and controlling here.

In Gann v. Burton, 511 S.W.2d 244, 246-47 (Tenn. 1974), the Supreme Court

construed Rule 17.03 and observed the following:

It would seem that this phrase [“or whenever justice

requires”] places the appointment of the guardian ad litem

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within the sound discretion of the trial judge and requires the

trial judge to appoint the guardian ad litem whenever justice

requires. This interpretation is buttressed by the Committee

Comment to Rule 17.03 wherein it is stated that:

Rule 17.03 establishes a uniform practice, and,

when justice requires, allows suit by next of

friend and requires that the court appoint a

guardian ad litem.

Thus, we hold that Rule 17.03 requires the trial judge to

evaluate the total situation surrounding the infant or

incompetent and then, if justice requires, a guardian ad litem

must be appointed. However, said appointment is

discretionary and this Court will not overrule the trial judge‟s

decision unless there is an abuse of the judge‟s discretion.

Under Gann, we review the trial court‟s decision not to appoint a guardian ad

litem under an abuse of discretion standard. Here, the trial court did not make a finding

that Husband was incompetent. The court correctly observed that Husband‟s attorney

presented no evidence that Husband was mentally incompetent. The transcript of the

September 11, 2013 hearing on attorney Anderson‟s first motion to appoint a guardian ad

litem is in the record. It fully supports the trial court‟s findings in its September 19, 2013

order that “Counsel [Anderson] represented to the Court that he was in possession of

medical records reflecting [Husband‟s] need for conservatorship,” but that he didn‟t bring

them to court, and then, after a recess, “[u]pon the return to Court [Husband‟s] counsel

conceded that he held no medical record or any document which reflected any medical

treatment or medical finding that [Husband] suffered any dementia or other condition

necessitating a guardian ad litem.”

After attorney Anderson was permitted to withdraw, Husband was given adequate

time to find new counsel, and he was given adequate notice of the rescheduled trial date

of October 30, 2013. He does not contend otherwise on appeal. On the day before trial,

at 3:59 PM, attorney Anderson filed his motion for continuance and his second motion

for appointment of a guardian ad litem. Despite being fully aware that the trial court

would require proof of incompetency, and having had roughly 50 days to procure such

medical proof, Anderson again relied only on his own unsubstantiated statement that he

“has spoken with the Doctor and Psychiatrist for the [Husband] and has confirmed that

the [Husband] is physically and mentally incompetent.” We find no abuse of discretion

in the trial court‟s decision not to appoint a guardian ad litem for Husband.

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Nor do we find an abuse of discretion in the trial court‟s decision to conduct the

trial on October 30, 2013, as scheduled. This case had been on the docket over four years

at that point. Husband, or his attorney, had engaged in a pattern of arguably dilatory

tactics and untimely last-minute filings. The trial had already been continued once, as a

result of Anderson‟s first motion for guardian ad litem filed two days before the trial was

scheduled. Wife objected to the delays. In its September 19, 2013, order, the trial court

found “that the matter has been on the docket far too long” and that Wife had suffered

prejudice thereby. Further, Wife raised valid concerns, supported by proof, that Husband

was dissipating the marital estate through improper gifts to his children and by changing

the beneficiaries on life insurance policies, in violation of Tenn. Code Ann. § 36-4-106(d)

(2014). In addition to the statutory injunction mandated by that section, the trial court

entered three separate restraining orders against Husband designed to protect certain

assets from Husband‟s improper dissipation.

What remains for consideration is the third order entered by the trial court on

October 30, 2013, after the final divorce judgment was entered, which provides that

“Attorney, John. S. Anderson is permitted to re-enter the case as Attorney for Thomas

McClure, Sr. and [Husband] is granted a minimum of (30) thirty days to prepare for

trial.” Obviously, to say that this order places the case in an unusual posture is an

understatement. The entry of this order roughly at the same time as the divorce judgment

was apparently the result of accidental oversight. It can be reasonably argued that

Husband was entitled to rely on this order in support of a conclusion that there would be

either a continuance or another divorce trial. The inescapable fact, however, in this

appeal, is that Husband is now deceased, having died three days after oral argument

before us. The trial court has already divided the marital estate in the divorce trial.

Husband was afforded due process, having received adequate notice of the trial date. See

Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002) (“Basic due process requires

„notice reasonably calculated under all the circumstances, to apprise interested parties of

the pendency of the action and afford them an opportunity to present their objections.‟ ”).

Husband‟s failure to participate at trial is not a ground for reversal.

Furthermore, a close examination of Chancellor Jenkins‟ order of final judgment

indicates that the trial court had already conducted a thorough review of the divorce

judgment in the context of the motion to set it aside. The order indicates that the trial

court considered the proof presented by Husband, including witness testimony, providing

as follows in its order:

THIS CAUSE came on the Motion to Set Aside (Tenn. R.

Civ. P. Rule 59) filed on behalf of the [Husband] before

Chancellor Douglas Jenkins, by interchange. Taken up first

was the [Husband‟s] Motion for Continuance heard by the

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Court in part on March 3, 2014. Although additional time to

obtain support for the motion had been extended by the Court,

no additional support for the Motion was provided by

[Husband] and the Court determined to proceed after due

consideration of the statement of counsel and the Guardian-

Ad-Litem.

* * *

The Court then resumed the hearing reset on January 17,

2014, and took evidence on behalf of the [Husband] provided

over objection by daughter of the [Husband] who appeared

via telephone. [Husband]‟s witness spoke at length of the

[Husband]‟s mental and physical condition and the services

he needed. The Court also took evidence provided by [Wife]

as to her needs as [Wife] represented to the Court that she is

disabled [and] no longer able to work, drawing Social

Security Disability. The Court carefully considered the

equity of the underlying Order, the testimony of the witnesses,

representations of the Guardian-Ad-Litem, and the arguments

of counsel. Upon full and careful consideration the Court

denied the Motion to Set Aside the Final Order entered

October 30, 2013.

(Emphasis added.) Under the circumstances, for this Court to vacate the divorce

judgment and remand for a “second divorce trial,” when one of the parties to the marriage

is deceased, would be a waste of time and resources, and would cause unfair prejudice to

Wife, who is apparently in poor health and now resides in Florida. We make this

decision mindful of the fact that all of the issues herein are properly reviewed under the

relatively deferential abuse of discretion standard. The trial court did not abuse its

discretion in its decisions in this case.

V.

The judgment of the trial court is affirmed. Costs on appeal are assessed to the

appellant, the estate of Thomas D. McClure, Sr. The case is remanded for enforcement

of the trial court‟s divorce judgment and for collection of costs assessed below.

_____________________________________

CHARLES D. SUSANO, JR., CHIEF JUDGE

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