                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                     MAY 2, 2001 Session

  STATE OF TENNESSEE EX REL DEBORAH D. WARREN v. JAMES R.
                        FERGUSON

                 Direct Appeal from the Juvenile Court for Weakley County
                    No. 0285; The Honorable James H. Bradberry, Judge



                    No. W2000-02027-COA-R3-CV - Filed August 20, 2001


This appeal involves a complaint to establish parentage and set child support. The court below
ordered genetic testing, which proved that James R. Ferguson is the natural father of the children at
issue. The court also entered a judgment of $8,623.00 for retroactive child support, $280.00 for the
cost of genetic testing, and the court reserved the issue of current support until Mr. Ferguson is
released from prison. We vacate the trial court’s final order based on our conclusion that the trial
court erred in failing to rule on Mr. Ferguson’s Motion for the Appointment of Counsel, or
alternatively, his request that the matter be held in abeyance until he is released from incarceration.


   Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Vacated and
                                       Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALEN E. GLENN, SP . J., joined.

James R. Ferguson, Tiptonville, pro se

Paul G. Summers, Attorney General and Reporter, Kim Beals, Assistant Attorney General,
Nashville, for Appellee

                                             OPINION

                                  Facts and Procedural History

        The Appellant in this case, James R. Ferguson (Mr. Ferguson), has been in the custody of the
Tennessee Department of Correction and has been housed at the Northwest Correctional Complex
in Tiptonville, Tennessee, at all times relevant to this appeal. The children at issue in this case,
Jessica and Eric Ferguson, were born on November 15, 1986, and August 10, 1988, respectively.
Deborah Warren (Ms. Warren) is the mother of the children at issue.
       A Complaint to establish paternity was filed in Weakley County Juvenile Court on January
12, 2000, by the State of Tennessee on behalf of Ms. Warren. The Complaint sought to establish Mr.
Ferguson as the natural father of the children. The Complaint also requested that current and
retrospective support be set in accordance with the Tennessee Child Support Guidelines.

        In November of 1999, Mr. Ferguson was required to submit to a DNA test despite his
admissions that he was the natural father of the children. On April 17, 2000, the trial court issued
an order requiring Ms. Warren and the children to submit to genetic testing. Mr. Ferguson’s
paternity was conclusively established by the DNA tests.

        Mr. Ferguson filed a Motion to Dismiss and/or Defer Cost on May 9, 2000. On May 12,
2000, Mr. Ferguson filed a Motion for the Appointment of Counsel and a Petition for Writ of Habeas
Corpus Ad Testificandum. Alternatively, Mr. Ferguson requested that the case be held in abeyance
until his release from prison if the court denied his Motion to Appoint Counsel. On May 22, 2000,
Mr. Ferguson filed for Appointment of Person for Written Deposition and a Petition for
Continuance. On June 5, 2000, Mr. Ferguson filed a Motion for Summary Judgment and a brief in
support of the Motion for Summary Judgment. On May 17, 2000, Mr. Troy Jones, a Youth Services
Officer of the Weakley County Juvenile Court, informed Mr. Ferguson that his presence in court was
not required, as current child support would be based on earnings at minimum wage and arrearages
would accumulate during his incarceration. The State of Tennessee filed an answer to Mr.
Ferguson’s Motion for Summary Judgment in June of 2000, with the DNA results establishing
paternity attached as exhibits. Mr. Ferguson responded and argued that he should be granted
summary judgment since paternity was not disputed by the parties.

         The case was heard on July 11, 2000. A default judgment was issued against Mr. Ferguson
on July 17, 2000, because he failed to appear. The court found Mr. Ferguson to be the legal and
natural father of the children. As a result, the court ordered retrospective child support in the
amount of $8,623.00, which was the total amount of AFDC benefits received by Ms. Warren since
November of 1986. The court reserved the issue of current child support until Mr. Ferguson is
released from prison, but made the order appealed from a final order pursuant to T.R.Civ.P. 54.02.
The court also ordered Mr. Ferguson to reimburse the State of Tennessee in the amount of $280.00
for the cost of genetic testing. Mr. Ferguson appeals, and raises the following issues, as we perceive
them, for our review:

1) Whether the trial court erred in failing to grant Appellant’s Motion for Summary Judgment.
2) Whether the trial court erred in failing to allow Appellant to defend the action.
3) Whether the trial court erred in allowing the Department of Children’s Services to abuse its
power.
4) Whether the trial court erred in granting a default judgment against the Appellant.
5) Whether the trial court erred in ordering the Appellant to reimburse the state for the cost of genetic
testing.




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                                            Standard of Review

        When a civil action is heard by a trial judge sitting without a jury, our review of the matter
is de novo on the record, accompanied by a presumption of correctness of the findings below. See
Foster v. Bue, 749 S.W.2d 736, 741 (Tenn. 1988); TENN. R. APP . P. 13(d). We may not reverse the
findings of fact made by the trial judge unless they are contrary to the preponderance of the evidence.
See Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). This presumption of correctness,
however, does not attach to the trial judge’s legal determinations or the trial court’s conclusions that
are based on undisputed facts. See NCNB Nat’l Bank v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct.
App. 1993).

                                             Law and Analysis

        First, we address Mr. Ferguson’s issues that allege that the trial court erred in not allowing
him to defend the action and that the trial court erred in granting a default judgment against him.
Specifically, we note that Mr. Ferguson filed a Motion for the Appointment of Counsel. It is clear
that there is no absolute right to counsel in a civil trial. See Knight v. 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). However, in Mr. Ferguson’s Motion for
Appointment of Counsel, he alternatively requested that the matter be held in abeyance until he is
released from incarceration. Mr. Ferguson also filed a Petition for Writ of Habeas Corpus Ad
Testficandum, in which he requested that he be allowed to testify at the hearing. Additionally, Mr.
Ferguson filed a Motion for Appointment of Person for Written Deposition. The trial court failed
to consider or rule on these motions.

        In Logan v. Winstead, 23 S.W.3d 297 (Tenn. 2000), Mr. Logan, an inmate who was acting
pro se, brought a legal malpractice claim against his criminal defense attorney, Mr. Winstead. See
id. at 299. Mr. Winstead filed a Motion for Summary Judgment supported by his own expert
affidavit. See id. at 300. Mr. Logan filed a motion to hold the proceedings in abeyance until he was
released from prison. See id. The trial court failed to rule on Mr. Logan’s motion for abeyance and
entered summary judgment in favor of Mr. Winstead. See id. The court of appeals upheld the trial
court’s decision. See id.

        The Supreme Court granted Mr. Logan’s petition to appeal to address the abeyance issue.
See id. The court found that an incarcerated person has no absolute right to have civil proceedings
stayed or be present during civil litigation. See id. at 300-01.1 The court then set forth the following
guidelines for determining when an abeyance should be granted:

                 an abeyance should be granted by the trial court only when reasonable
                 under the circumstances, in light of several countervailing


        1
            The supreme court overruled Whisnant v. Byrd, 525 S.W.2d 152 (Tenn. 1975) to the extent that it may be
read to stand for that prop osition. See Logan, 23 S.W.3d at 301.

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                considerations, such as the length of the prisoner litigant’s sentence,
                the difficulty of the prisoner in presenting proof, the burden on the
                court in maintaining a docket on which such claims will indefinitely
                remain, the impracticability of litigating a suit many years after its
                filing because memories fade and witnesses become difficult to
                locate, and a defendant’s rights to have claims against him or her
                timely adjudicated.

Id. at 301. Concluding that the trial court erred by failing to rule on Mr. Logan’s motion for
abeyance, the court stated, “[a]ppellate review becomes more difficult without an order specifying
reasons for a trial court’s grant or denial of a motion. . . . [S]uch plaintiffs are entitled to have
requests for abeyances considered and determined under the appropriate legal standards.” Id. at 303.
Since the trial court erred by failing to consider and rule on Mr. Logan’s motion for abeyance, the
court reversed the judgments of the trial court and the court of appeals and remanded the case for
further proceedings. See id.

        Likewise, in the instant case, the trial court failed to rule on Mr. Ferguson’s requests for
abeyance, continuance, or appointment of person for written deposition. Inasmuch as the trial court
failed to render a specific ruling on Mr. Ferguson’s pretrial motions, we vacate the court’s final
order, and we remand this cause for the trial court to consider Mr. Ferguson’s request for an
abeyance pursuant to the guidelines set forth in Logan. If, in its discretion, the trial court determines
that an abeyance is not appropriate, the trial court may deny Mr. Ferguson’s request for an abeyance
and rule upon the case.

         We also note that, on remand, the trial court should consider the other alternatives available
to it, including, but not limited to, offering Mr. Ferguson the opportunity to testify by videotaped
deposition, allowing Mr. Ferguson to participate in the hearing via telephone, conducting the hearing
at a DOC facility, or providing Mr. Ferguson the opportunity to participate through the use of video
communications technology. See Knight v. Knight, 11 S.W.3d 898, 906 (Tenn. Ct. App. 1999).

       In light of our resolution of the abeyance issue, we decline to address Mr. Ferguson’s
remaining issues.

                                             Conclusion

       For the foregoing reasons, we vacate the decision of the trial court and remand for further
proceedings consistent with this opinion. Costs on appeal are taxed to the Appellee.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE



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