            IN THE COURT OF APPEALS OF TENNESSEE
                       AT NASHVILLE
                                                   FILED
CHERYL LYNN (DOUGLAS)         )                       July 1, 1999
HUMPHREY                      )                    Cecil Crowson, Jr.
                              )                   Appellate Court Clerk
      Plaintiff/Appellee,     )       Appeal No.
                              )       01-A-01-9802-CV-00109
v.                            )
                              )       Sumner County Circuit Court
                              )       No. 17425-C
DAVID ARNOLD HUMPHREY         )
                              )
      Defendant/Appellant.    )
                              )


                  COURT OF APPEALS OF TENNESSEE

     APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY


         THE HONORABLE THOMAS GOODALL, PRESIDING



DAVID ARNOLD HUMPHREY
TURNEY CENTER 4B/20
ROUTE ONE
ONLY, TENNESSEE 37140-9709

DEFENDANT/APPELLANT
    PRO-SE


TIMOTHY L. TAKACS
201 WALTON FERRY ROAD
HENDERSONVILLE, TENNESSEE 37077-0364

ATTORNEY FOR PLAINTIFF/APPELLEE


     AFFIRMED IN PART, REVERSED IN PART AND REMANDED


                                  PATRICIA J. COTTRELL, JUDGE

CONCUR:
CANTRELL, J.
KOCH, J.
                               OPINION
          Appellant David A. Humphrey commenced this pro se appeal to

challenge the trial court's Final Decree granting a divorce to Appellee Cheryl

Lynn (Douglas) Humphrey on the ground of inappropriate marital conduct. He

asserts that the divorce should have been granted to him or the court should have

simply declared the parties divorced. He also challenges the trial court’s child

custody and visitation order, asking that in person visitation be required. Finally,

he objects to the assessment of costs against him.

          Ms. Humphrey filed her complaint for absolute divorce on September

3, 1997, alleging irreconcilable differences. She amended the complaint on

November 24, 1997 to assert an additional allegation that Mr. Humphrey was

guilty of inappropriate marital conduct. On December 18, 1997, Mr. Humphrey

moved for an extension of time to answer the complaint, arguing that due to his

lack of education, indigence, and incarceration he required an additional month

to retain the assistance of the prison law clerk to aid him in preparing an answer,

to conduct factual and legal research, and to gather information.

          On January 6, 1998, the trial court issued an order stating that it would

hold a hearing on Mr. Humphrey's motion for extension of time on January 20,

1998 to be conducted by telephone to permit his participation.

          On January 20, 1998, both Mr. Humphrey and an advisor participated

in the hearing over the telephone. During the hearing, Mr. Humphrey indicated

that he required the extension of time to secure certain material facts pertaining

to the sale of the parties' real estate which had occurred some years before the

complaint for divorce was filed. Mr. Humphrey also admitted that he was

incarcerated for a felony involving a drug-related offense.

                                         1
         On January 22, 1998, the trial court issued the Final Decree of Divorce,

granting Ms. Humphrey the relief sought on the ground of inappropriate marital

conduct. This finding was primarily premised on Mr. Humphrey's admission

regarding the reason for his incarceration, the felony drug conviction. While

Ms. Humphrey was awarded custody of the couple's minor children, Mr.

Humphrey received reasonable visitation. The decree awarded no alimony. It

stated that the parties had no marital debt and no marital property. It found that

Mr. Humphrey was under no present duty to pay child support because of his

incarceration and lack of income.

          This decree also denied Mr. Humphrey's motion for extension of time,

finding that material relating to the real estate transaction was not necessary in

order to file an answer. However, the trial court directed Ms. Humphrey to

provide to Mr. Humphrey the information he sought regarding the transaction.

It also specifically informed the parties that nothing in the decree prevented Mr.

Humphrey from bringing an independent action complaining of fraud and

irregularities in the real estate transaction. Mr. Humphrey filed a timely notice

of appeal from this order.

          Although Mr. Humphrey filed a notice of filing transcript on March 13,

1998, the clerk of     court noted on this filing that, "No transcript of the

proceedings has been filed in this court as of March 13, 1998." On March 19,

1998, Mr. Humphrey filed a motion to transcribe proceedings.            After an

additional hearing in which Mr. Humphrey participated by telephone, the trial

court denied Mr. Humphrey's motion to have a transcript of the January 20

hearing prepared because no contemporaneous stenographic record or audio tape

was made of those proceedings. Additionally, no Tenn. R. App. P. 24 (c)



                                        2
Statement of the Evidence has been filed. Therefore, this case is before this court

on the Technical Record.

          In addition, Appellant has filed a brief. Rather than responding to the

arguments in Appellant’s brief, Ms. Humphrey's trial counsel filed a document

styled "Notice" which stated that Ms. Humphrey was unable to bear the expense

of retaining counsel to file a brief on her behalf. The "Notice" also stated that

this appeal lacked merit because the trial court committed no errors and Mr.

Humphrey violated various rules of appellate procedure. Additionally, Ms.

Humphrey requested oral argument if this court did not dismiss the appeal. Upon

review of this "Notice" and other motions, this court granted Ms. Humphrey

additional time in which to file a suitable brief, warning that the appeal would be

considered upon the record and brief on file if she failed to do so. Inasmuch as

Ms. Humphrey failed to file a brief, this court entered an order that this matter

be considered upon the record and brief on file.

          In his pro se appellate brief, Mr. Humphrey raises six issues. He

maintains the trial court erred in (1) denying his motion for an extension of time

to file an answer; (2) failing to hold a "final" hearing on the divorce complaint;

(3) failing to grant him, rather than Ms. Humphrey, a divorce; (4) taxing costs

against him after permitting him to proceed in forma pauperis; (5) closing the

case when some issues were unresolved; and (6) failing to grant him visitation

with his children.

                                         I.

          As a preliminary matter concerning the scope of this appeal, we

observe that this case triggers two well-settled legal principles. First, the absence

of a transcript of the divorce hearing or a proper statement of the evidence



                                         3
means the facts found by the trial court are conclusively presumed to be correct.

See J. C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586 (Tenn. 1979).

Mr. Humphrey's failure to satisfy his burden of arranging for a transcript of the

proceedings or filing a certified statement of the unrecorded proceedings in

compliance with Tenn. R. App. P. 24 (c) binds us to that presumption.1 See

Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. App. 1992); see State v. Bunch,

646 S.W.2d 158, 160 (Tenn. 1983).        Our analysis is limited to those issues

which can be decided based solely on the technical record. Second, appellate

courts generally decline to address issues raised for the first time on appeal. See

Book-Mart of Florida v. National Book Warehouse, 917 S.W.2d 691, 694 (Tenn.

App. 1995). Thus, those issues which do not appear to have been raised in the

trial court are deemed waived. See Devorak v. Patterson, 907 S.W.2d 815, 818

(Tenn. App. 1995).

                                        II.

          Mr. Humphrey first asserts that the trial court erred by denying his

Motion for Extension of Time within which to respond. After being served with

the Complaint for Divorce (which alleged irreconcilable differences as grounds)

and the Amended Complaint (which also alleged that Appellant had been guilty

of inappropriate marital conduct), Mr. Humphrey filed a motion for extension of

time within which to respond. The stated bases for the extension were the need

to secure help from the law clerk at the prison facility and the need to “secure

substantial material facts and documented support relevant to these matters.” By

Order dated January 6, 1998, the trial court set a hearing on the motion for


      1
       Divorce cases are not the type of civil proceeding in which the State is
required to cover the expense of providing in forma pauperis litigants with
transcripts. See M.L.B. v. S.L.J., 519 U.S.__, 117 S.Ct. 555, 568, 136 L.Ed.2d
473 (1997).

                                        4
extension of time for January 20 to include telephone participation by Mr.

Humphrey.

          The Final Decree of Divorce reflects that the January 20 hearing

became a hearing on the merits of the divorce. The Decree reflects that Mr.

Humphrey, along with an advisor, participated via telephone from Turney

Center, where Mr. Humphrey was incarcerated.

          As discussed above, since there is no transcript of the January 20

hearing and no Statement of the Evidence from that hearing, this court must

presume that any factual findings by the trial court are correct. In the Decree, the

trial court found that Mr. Humphrey had requested the extension in order to

secure information relevant to the sale of the parties’ marital residence a few

years earlier and had suggested that fraud may have occurred in that transaction.

The court then held, “The Husband has made no showing satisfactory to the

Court that he cannot file an Answer and obtain the requested information by

normal discovery process." The court also stated, “Nothing in this Order

prevents or prohibits the Husband from bringing an independent, meritorious

action complaining of any irregularities or fraud in that real estate transaction.”

          The trial court did not abuse its discretion by denying Mr. Humphrey's

motion for extension of time to answer. Tenn. R. Civ. P. 6.02; see also Blake v.

Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997). We agree with the trial

court that the information Mr. Humphrey sought was not required in order to

answer the complaint and that nothing prevented Mr. Humphrey from obtaining

the information through normal discovery procedures.

          More problematic than the denial of the motion for extension, however,

are the trial court’s actions following that denial. Having set a hearing on the



                                         5
extension of time for January 20, a date after the due date for the answer, the

court denied the extension on January 20, found that Mr. Humphrey’s response

was past due, and proceeded to hear the merits of the case without prior notice

to Mr. Humphrey. The court did not allow Mr. Humphrey to file an Answer or

to conduct the discovery the court mentioned.

          While Mr. Humphrey raises as issues the trial court’s failure to hold a

“final hearing” and the court’s closing of the case with issues still pending, those

claims appear to be based on a misapprehension as to the nature of the hearing

held January 20 and of the Final Decree of Divorce entered January 22.

Therefore, Mr. Humphrey’s real complaint is not the lack of final action by the

court, because the trial court’s decree was a final action. Rather, it is his

contention that he did not receive proper notice of the divorce hearing in

violation of his due process rights. He claims the lack of notice left him

unprepared for the divorce hearing.

          Adequate notice is essential to due process because the right to a

hearing has little meaning unless the affected parties are informed of the nature

of the matter to be heard and can choose for themselves whether to appear or

default, acquiesce or contest. See Greene v. Lindsey, 456 U.S. 444, 449, 102

S.Ct. 1874, 72 L.Ed.2d 249) (1982); see Baggett v. Baggett, 541 S.W.2d 407,

410 (Tenn. 1976) (divorce cases fall within the purview of the due process

clause). "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."

Brown v. Brown, No. 01-A001-9510-CV-00480, 1996 WL 563877, *2 (Tenn.

App. October 4, 1996) (No Tenn. R. App. P. 11 application filed).



                                         6
          The record shows that the trial court issued an order on January 6, 1998

setting a hearing on the motion for extension of time for January 20. The divorce

decree, issued January 22, indicates that the hearing on the divorce occurred on

January 20. Nothing in the record shows that Appellant received any notice that

the divorce hearing was to be held simultaneously with the hearing on his motion

for extension of time. While it appears the trial court consolidated the two issues

because the answer was due prior to the hearing, Mr. Humphrey's failure to

answer did not automatically entitle Ms. Humphrey to a default judgment. See

Tenn. R. Civ. P. 55.01.

          The issues raised by Mr. Humphrey must be analyzed in conjunction

with the relief he seeks and/or the harm he claims to have suffered. In this

appeal, Mr. Humphrey asserts that the divorce should have been awarded to him

or, alternatively, that the parties should have been declared divorced pursuant to

Tenn. Code Ann. § 36-4-129 (Supp. 1998). He further asserts that, given the

opportunity, he would have presented evidence of adultery by Ms. Humphrey.

However, nothing in the record reflects that Mr. Humphrey voiced these

concerns to the trial court.

          Although the lack of notice on the divorce issue is troubling, additional

time or proper notice would not have altered the fact that Ms. Humphrey was

entitled to a divorce. The trial court clearly granted the divorce on the basis of

Mr. Humphrey's own admission that he was incarcerated on a felony drug count.2

See Tenn. Code Ann. § 36-4-101 (6) (Supp. 1998). His "admission that he had



      2
        The trial court awarded the divorce on the ground of inappropriate marital
conduct. Tenn. Code Ann.§36-4-101(11). While conviction of and incarceration
for a felony constitutes a separate ground for divorce, Tenn. Code Ann. §36-4-
101 (6), criminal activity resulting in conviction and incarceration is clearly
inappropriate marital conduct.

                                        7
been convicted of an infamous crime and had been incarcerated . . . amount[ed]

to a stipulation of grounds for divorce under Tenn. Code Ann. § 36-4-129 (a)."

Tuttle v. Tuttle, No. 01A01-9512-CV-00546, 1997 WL 629956, * 2 (Tenn. App.

October 10, 1997) (No Tenn. R. App. P. 11 application filed).

          Because nothing in the technical record indicates that Mr. Humphrey

raised the contention that he required the extension of time to assert his own

grounds for divorce, this argument is deemed waived. See Devorak, 907 S.W.2d

at 818. Additionally, Mr. Humphrey does not assert that he has or could have

raised any defense to the divorce on the grounds of his conviction of a felony.

He simply wanted to present evidence of marital misconduct by Ms. Humphrey.

His complaint is not that the divorce was granted, but that it was granted to Ms.

Humphrey.

          Even if it were error for the trial court to hear the merits of the case

without proper notice, Mr. Humphrey has failed to show how he was harmed by

the granting of the divorce to Ms. Humphrey. Under Tenn. Code Ann. § 36-4-

129, the trial court has discretion to award a divorce to the party “less at fault.”

Additionally, relative fault of the parties is relevant only to awards of alimony,

and none was awarded in this case. Mr. Humphrey must show both error and

harm. See Scott v. Jones Bros. Constr., Inc., 960 S.W.2d 589, 594 (Tenn. App.

1997). No interest of the parties (both of whom want to be divorced) and no

public policy interest would be furthered by our reversing the judgment of

divorce. Mr. Humphrey has not requested such relief. Because he has shown no

harm to him caused by the granting of the divorce to this former wife, we hold

that any error of the trial court was harmless.




                                         8
                                        III.

          The trial court's ruling regarding marital property, however, presents

greater difficulties. The trial court found that the parties had no marital property.

While ordinarily this court would presume that factual finding to be correct in the

absence of a Statement of the Evidence or a hearing transcript, the Final Decree

itself indicates that Mr. Humphrey had questions and concerns about the sale of

the marital residence which occurred while he was in prison. In fact, the trial

court found that Mr. Humphrey wanted to discover information or facts

regarding that transaction. The court ordered Ms. Humphrey to supply Mr.

Humphrey with information regarding the sale of the residence within ten (10)

days after the entry of the Final Decree in which the court found that no marital

property existed.

          It is apparent that Mr. Humphrey wanted an opportunity to inquire into

and present evidence regarding the sale of the house and, consequently, the

disposition of the proceeds from that sale. Although the trial court was aware of

Mr. Humphrey's concerns on this issue, the court proceeded with the hearing

without prior notice to Mr. Humphrey and without giving him the opportunity

to attempt discovery on this issue, thereby denying him any real opportunity to

present evidence on this issue. Under the limited circumstances of this case, we

cannot say that additional time to garner evidence or proper notice of the subject

matter of the hearing would not have altered the outcome of the trial court's

decision on the division of property. See Tenn. R. App. P. 36 (b). Nor can we

say that the proceedings under which the division of property was adjudicated

did not involve a substantial right or result in prejudice to the judicial process.

Id., see Tolbert v. Tolbert, No. 03A01-9406-CV-00230, 1994 WL 705230, *1



                                         9
(Tenn. App., December 15, 1994) (No Tenn. R. App. P. 11 application filed).

Accordingly, we reverse the trial court's findings relating to the division of

property and remand for a hearing on the matter in which Mr. Humphrey shall

receive all the process due him.

                                       IV.

          Mr. Humphrey contends that the trial court erred in assessing costs

against him as an indigent litigant. Because the record contains no showing that

Mr. Humphrey raised this issue in the trial court, it is deemed waived. See Civil

Service Merit Bd. v. Burson, 816 S.W.2d 725, 734-35 (Tenn. 1991).

          Furthermore, while it is elementary that a person may proceed without

bond upon a finding of indigence, that status does not relieve a litigant of the

obligation to pay costs incurred in the prosecution of an action. See Roberts v.

Blount Memorial Hosp., 963 S.W.2d 744, 749 (Tenn. App. 1997); Purdue v.

Green Branch Mining Co., Inc., 837 S.W.2d 56, 60 (Tenn. 1992) ("[A]ppellate

courts are generally disinclined to interfere with a trial court's decision in

assessing costs unless there is a clear abuse of discretion."); see Tenn. Code

Ann. § 20-12-119 (b) (1980). We find no abuse of discretion in the trial court's

assignment of costs.

                                       V.

          Mr. Humphrey challenges the trial court’s visitation order, arguing that

physical visitation should have been specifically ordered. The Final Decree

grants to Mr. Humphrey “reasonable visitation of the parties’ minor children.”

There is nothing in the record to substantiate Mr. Humphrey’s claim that this

holding is in error or that it precludes personal visits. We are unable to consider

post-decree events in assessing the validity of the decree. Mr. Humphrey’s



                                        10
remedy, if he is dissatisfied with his former wife’s interpretation of or

compliance with the order, lies in the trial court.

          Mr. Humphrey contends that the trial court's failure to order physical

visitation has effectively deprived him of any contact with his children. He also

argues that Ms. Humphrey violated the trial court's visitation order permitting

him twice weekly telephone contact with his children. Since these alleged

matters would have occurred after entry of the decree, the record contains no

indication that Mr. Humphrey raised this issue in the trial court. Therefore, we

are precluded from addressing the matter. Mr. Humphrey, however, may still

seek compliance with the visitation provisions of the divorce decree by

petitioning the trial court. See, e.g., Crabtree v. Crabtree, 716 S.W.2d 923, 925

(Tenn. App. 1986).

          Accordingly, having considered the entire record, we affirm the trial

court's decision to grant a divorce to Ms. Humphrey. We reverse the trial court's

ruling regarding the division of property and remand for further proceedings on

that issue consistent with this opinion. Appellee's motion to dismiss the appeal

is denied. The costs of this appeal shall be divided equally between the parties,

for which execution, if necessary, may issue.




                                             _____________________________
                                             PATRICIA J. COTTRELL, JUDGE
CONCUR:


___________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.


___________________________________
WILLIAM C. KOCH, JUDGE


                                        11
12
13
