                    IN THE COURT OF APPEALS OF TENNESSEE,
                                 AT JACKSON

             _______________________________________________________           FILED
                                    )                                  March 18, 1999
NANCY KNIGHT,                       )     Carroll County Chancery Court
                                    )     No. 97-DR-215             Cecil Crowson, Jr.
   Plaintiff/Appellee.              )                                Appe llate Court C lerk
                                    )
VS.                                 )     C.A. No. 02A01-9804-CH-00094
                                    )
HENRY KNIGHT,                       )
                                    )
   Defendant/Appellant.             )
                                    )
______________________________________________________________________________

From the Chancery Court of Carroll County at Huntingdon.
Honorable Walton West, Chancellor



Henry Knight, Pro Se
Defendant/Appellant.


Laura A. Keeton,
LAW OFFICES OF ROBERT T. KEETON, Huntingdon, Tennessee
Attorney for Plaintiff/Appellee Nancy Knight.



OPINION FILED:

VACATED AND REMANDED


                                           FARMER, J.

CRAWFORD, P.J.,W.S.: (Concurs)
LILLARD, J.: (Concurs)




              Henry Knight (Husband) appeals the trial court’s final decree which awarded Nancy
Knight (Wife) a divorce and distributed to her all of the parties’ marital assets. We vacate the trial

court’s final decree based on our conclusion that the trial court erred in failing to consider Husband’s

motion that he be transported to the final divorce hearing or, alternatively, that these proceedings be

held in abeyance until his release from prison.



                Wife was awarded a divorce from Husband on the ground that Husband was guilty

of inappropriate marital conduct. In her complaint, filed in October 1997, Wife sought custody of

the parties’ two minor children but asked the court to reserve the issue of child support until

Husband’s release from prison. She also sought all of Husband’s interest in the marital property.

Husband had been incarcerated since August 15, 1995, for the sexual abuse of the parties’ oldest

child, a daughter. When these divorce proceedings began, the parties’ daughter remained in foster

care.



                Husband filed a responsive pleading and counter-complaint charging Wife with

adultery and inappropriate marital conduct. He requested that temporary custody of the parties’

youngest child, a son, be awarded to Wife “until further child custody proceedings are brought.” He

further requested that Wife and their son be allowed to live in the marital home until such time as

he is released from incarceration or until she remarries, at which time the property be sold and

divided equally between the parties.



                Wife was awarded the divorce and custody of the parties’ minor son, and Husband

was granted supervised visitation. Wife was awarded the marital property as alimony in solido.

According to the statement of the evidence, the only marital assets of the parties were the marital

home and furnishings with a total value of $5,000 on which Wife made payments during Husband’s

incarceration. The hearing on the divorce was held February 26, 1998, and the amended final decree

entered April 17, 1998.



                Prior to entry of the decree, Husband filed a “combined motion for appointment of

counsel and for order to transport” wherein he requested the trial court to appoint counsel to

represent him and also to grant an order to transport him from the correction facility at Tiptonville,

Tennessee, to the hearing. In the alternative, he asked that the divorce hearing be held in abeyance
until his release from the Department of Correction in February 1999, thus giving him a chance to

retain counsel to defend his rights.



               Husband contends on appeal that the trial court erred in failing to grant his motion

and in awarding Wife the marital property. The record before us does not contain orders of the trial

court acting on the motion. However, it is obvious that the matter was not held in abeyance,

inasmuch as it proceeded to trial and, likewise, that Husband was not present, inasmuch as the decree

states that the matter was heard upon the pleadings, testimony of Wife heard in open court, statement

of counsel, and the entire record.



               We do not believe that the trial court erred in failing to appoint counsel to represent

Husband. There is no absolute right to counsel in a civil trial. Lyon v. Lyon, 765 S.W.2d 759 (Tenn.

App. 1988); In re Rockwell, 673 S.W.2d 512 (Tenn. App. 1983). The Sixth Amendment right to

counsel is limited by its terms to criminal prosecutions. U.S. Const. amend. XI.



               Husband’s contention that he has the right to be present at the trial or that the matter

should be held in abeyance until he is released is more troublesome. The courts are more frequently

being asked to consider the rights of an incarcerated party to litigation. The seminal case in this

jurisdiction is Whisnant v. Byrd, 525 S.W.2d 152 (Tenn. 1975). There an inmate filed suit to

recover a photograph. Noting that the record there did not disclose any need for immediate attention,

the trial court’s order continuing the matter until plaintiff’s release from prison was affirmed. The

often-quoted language from that opinion is as follows:



               Art. 1, Sec. 12, of the Constitution of Tennessee provides, in part,
               “that no conviction shall work corruption of blood or forfeiture of
               estate”.

                       Art. 1, Section 17 provides, in part, “And every man, for an
               injury done him in his lands, goods, person or reputation, shall have
               remedy by due course of law”.

                       These constitutional provisions constitute clear and
               unequivocal declarations of the public policy of this State to the effect
               that no forfeiture of property rights shall follow conviction for a
               crime, and that every man shall have a remedy by due course of law
               for an injury sustained by him.

                       That the public policy of this State opposes forfeitures for
conviction of crime is well established. Fields v. Met. Life Ins. Co.,
147 Tenn. 464, [249 S.W. 798 (1923)].

         We, therefore, 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 the vindication of any other
legal right; however, this is a qualified and restricted right.

       We quote with approval the following language from Tabor
v. Hardwick, 224 F. 2d 526 (5th Cir. 1955):

       (W)e think that the principle of the cases [relating to
       restraint of personal liberty] should not be extended to
       give them an absolute and unrestricted right to file
       any civil action they may desire. Otherwise,
       penitentiary wardens and the courts might be
       swamped with an endless number of unnecessary and
       even spurious lawsuits filed by inmates in remote
       jurisdictions in the hope of obtaining leave to appear
       at the hearing of any such case, with the consequent
       disruption of prison routine and concomitant hazard
       of escape from custody. As a matter of necessity,
       however regrettable the rule may be, it is well settled
       that, “Lawful incarceration brings about the necessary
       withdrawal or limitation of many privileges and
       rights, a retraction justified by the considerations
       underlying our penal system.” Price v. Johnston, 334
       U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356.
       224 F. 2d at 529.

       We further quote with approval the following language from
Seybold v. Milwaukee County Sheriff, 276 F. Supp. 484 (E.D. Wis.
1967):

       Regardless of the merit of the causes of action stated
       in their complaints, it must be remembered that the
       prisoner-plaintiffs have, by their own acts resulting in
       conviction, placed themselves in a position such that
       effective prosecution by themselves is not possible
       without interference by the court with their detention,
       and it is our opinion that absent unusual
       circumstances that interference is not warranted. In
       other words, their unavailability for hearings and trials
       is due to their convictions, and although the court
       believes that they should not therefore lose their rights
       of action by operation of a statute of limitations, we
       know of no authority compelling us under ordinary
       circumstances to deliver them from their self-caused
       restrictions and proceed with their cases as though
       they could appear at will. 276 F. Supp. at 488.

       We note that Sec. 41-604 T.C.A. [now T.C.A. § 41-21-304(a)]
provides that “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 ensuing section provides for depositions in criminal cases
and Sec. 41-606 T.C.A. [now T.C.A. § 41-21-305] authorizes the
presiding judge of any court to order the warden of the penitentiary
to bring a convict before the court to give testimony for the state in
criminal cases, and the next section makes it the duty of the warden
               to produce the convict witness. There are no such provisions in our
               law relating to civil suits.

                       We hold that, absent unusual circumstances, prisoners who
               have filed their civil complaints, unrelated to the legality of their
               convictions and who have thus protected themselves against the
               running of any statute of limitations, will not be afforded the
               opportunity to appear in court to present their cases during their
               prison terms. Instead such matters will be held in abeyance until the
               prisoner shall have been released from prison and is in a position to
               prepare and present his case. We hold that 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.



Whisnant, 525 S.W.2d at 153-54.



               A distinction has been made between incarcerated plaintiffs and defendants. This

court has previously held that a party defendant has no absolute right to be in attendance at the

hearing of a civil matter. State v. Moss, No. 01A01-9708-JV-00424, 1998 WL 122716 (Tenn. App.

Mar. 20, 1998); Cherry v. Cherry, 1989 WL 155362 (Tenn. App. Dec. 20, 1989).



               Where the incarcerated litigant is the plaintiff, the cases suggest otherwise. Whisnant

v. Byrd appears to have adopted the rule that prisoners who file civil actions unrelated to their

conviction will not be afforded the opportunity to appear in court and present their cases while

incarcerated, but rather such matters will be held in abeyance until the prisoner is released.

However, if the prisoner is able to show a particularized need, the trial court may, in its discretion,

issue an appropriate directive requiring the attendance of the prisoner in court. In Robbins v.

Robbins, 1990 WL 198908 (Tenn. App. Dec. 12, 1990), an inmate serving a life sentence plus

twenty-five years filed a pro se divorce action seeking to establish visitation with his twelve-year-old

son. The trial court ordered that the matter remain on the docket but stayed the action pending

plaintiff’s release from custody or further orders of the trial court. This court determined that

plaintiff had, prima facie, shown a “particularized need,” that being visitation with his son. The

court noted that, because of the length of plaintiff’s sentence, to hold the case in abeyance regarding

his adjudication to visitation rights with his then minor son involved due process considerations

which required an opportunity to be heard, at a minimum by deposition.
                In Smith v. Peebles, 681 S.W.2d 567 (Tenn. App. 1984), an inmate sued his former

attorney for malpractice. The plaintiff filed a motion seeking to have the trial court enter an order

requiring the warden to have him present for trial, which was denied. He then filed a motion for a

continuance which was likewise denied. The trial court entered an order stating that, due to

plaintiff’s failure to appear for trial, the matter was dismissed. This court reversed the judgment of

the trial court and stated that “[o]n remand, the cause shall be placed on the docket and continued

from time to time unless the Trial Judge should find ‘upon a proper showing [a] particularized need’

to bring the case on for trial. In that event, he may issue ‘an appropriate directive requiring the

attendance of the [plaintiff] prisoner.’ ” Id. at 569.



                The case of Tolbert v. Tolbert, No. 03A01-9406-CV-00230, 1994 WL 705230 (Tenn.

App. Dec. 15, 1994), dealt with an inmate defendant in a divorce case who did not file a

counterclaim. The court noted that one school of thought is that prisoners have no absolute right to

appear in civil cases, but may be permitted to do so in the discretion of the court. The second view

is that they have no right to appear at their civil trial at all. The court determined the better view to

be that as articulated in Strube v. Strube, 764 P.2d 731 (Ariz. 1988), and quoted extensively from

that opinion as we do here:



                        The United States Supreme Court has established that a
                prisoner has a constitutional right of access to the courts. Bounds v.
                Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72, 78
                (1977). This right is founded in the due process clause of the
                fourteenth amendment. Wolff v. McDonnell, 418 U.S. 539, 579, 94
                S. Ct. 2963, 2986, 41 L. Ed. 2d 935, 964 (1974). Of course, a
                prisoner’s right of access is not absolute. Whitney v. Buckner, 107
                Wash. 2d 861, 866, 734 P.2d 485, 488 (1987). However, at a
                minimum, due process requires that absent a countervailing state
                interest of overriding significance, prisoners must be afforded
                meaningful access to the courts and an opportunity to be heard. See
                Bounds, 430 U.S. at 822, 97 S. Ct. at 1495, 52 L. Ed. 2d at 79;
                Boddie v. Connecticut, 401 U.S. 371, 377, 91 S. Ct. 780, 785, 28 L.
                Ed. 2d 113, 118 (1971).

                         In the instant case, the court of appeals correctly noted that,
                under Price v. Johnston, 334 U.S. 266, 68 S. Ct. 1049, 92 L. Ed.
                1356 (1948), the question of whether to permit a prisoner/litigant in
                a civil case to be physically present in court is within the trial court’s
                sound discretion. However, Price also requires that:

                        [the trial court’s] discretion is to be exercised with the
                        best interest of both the prisoner and the government
                        in mind. 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 the 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.

Id. at 284-85, 68 S. Ct. at 1059-60, 92 L. Ed. at 1369.

        The 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.
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]

        State courts that have addressed this matter have also
employed a balancing test. In In re Marriage of Allison, 126 Ill.
App. 3d 453, 81 Ill. Dec. 610, 467 N.E.2d 310 (1984), a prisoner
appealed a decree of dissolution that resulted from a hearing he did
not attend. The Illinois court held that the trial court’s scant
consideration of the prisoner’s petition for habeas corpus ad
testificandum amounted to a failure to exercise its discretion.
Reversing the decree, the court stated:

       As a minimum, the court could have balanced the
       interests of the State against the interests of the
       respondent in being present at the trial and could have
       made a reasoned exercise of its discretion in the
       matter.

Id. at 463, 81 Ill. Dec. at 617, 467 N.E.2d at 317.

        In Hall v. Hall, 128 Mich. App. 757, 341 N.W.2d 206 (1983),
the prisoner had filed a divorce action. The trial court denied his
request to be present. The Michigan Court of Appeals, while
acknowledging that a prisoner has no absolute right to testify
personally, stated that fundamental fairness may require a court to
afford the prisoner the opportunity to do so. The court remarked:

        The issue is essentially whether the plaintiff’s
        [prisoner’s] interests in presenting his testimony
        outweigh the state’s relevant interests in withholding
        from him the means necessary for such a presentation.
        That decision, we believe, rests in the sound
        discretion of the trial court. [citation omitted]

Id. at 761-62, 341 N.W.2d at 209.
                        As noted in Stone v. Morris, a factor to be considered in
                weighing a prisoner’s request to be present is the “substantiality of
                the matter at issue.” In this case, the prisoner requested to be present
                at a dissolution proceeding initiated by his wife. The United States
                Supreme Court has recognized that the marital relationship involves
                fundamental interests of importance to our society. Loving v.
                Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). The
                Court has further held that an individual has a constitutional right of
                access to courts for the purpose of dissolving a marital relationship.
                Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113
                (1971) (court access for a dissolution proceeding cannot be denied to
                indigents based on their inability to pay the usual filing fees).



Strube, 764 P.2d at 733-35.     The court determined in Tolbert that, under the record before it, the

trial judge did not abuse his discretion and properly refused defendant’s request to be present.



                In Brown v. Brown, No. 01A01-9510-CV-00480, 1996 WL 563877 (Tenn. App. Oct.

4, 1996), the wife of an inmate filed for divorce, and the inmate answered and counterclaimed. He

also filed a motion for a bill of particulars and a Motion for Writ of Habeas Corpus ad

Testificandum. The trial court did not respond to the inmate’s motions. On appeal, this court noted

that the aforesaid writ is a common-law writ used to enable a prisoner detained in a jail or prison to

be brought before the court to give evidence. It further noted that our legislature appears to have

shut the door on the use of this writ in civil proceedings by the passage of T.C.A. § 41-21-304(a),

which states:



                In no civil case can a convict be removed from the penitentiary to
                give personal attendance at court, but testimony may be taken by
                deposition, as in other cases, the party seeking the testimony being
                required to make affidavit that the convict is a material witness in the
                cause.



T.C.A. § 41-21-304(a) (1997). The court went on to state that “[w]e 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 the litigant is incarcerated.” Brown, 1996 WL 563877, at *3.



                We believe that Husband, by virtue of filing a counterclaim, is postured in the role

of a plaintiff. As previously noted, Whisnant v. Byrd held that an inmate has a constitutional right
to institute and prosecute a civil action seeking redress for the vindication of any legal right. That

right is qualified and restricted, and the qualification addressed by Whisnant is the limited right of

inmates to present their cases in court. It held that, absent unusual circumstances, inmates who file

civil actions unrelated to the legality of their convictions will not be afforded the opportunity to

appear in court to present their cases during their prison terms. Trial courts were directed to hold

such matters in abeyance until the inmate is released from prison unless an appropriate directive is

issued requiring the attendance of the inmate. Whisnant, 525 S.W.2d at 154.



                Our supreme court recently had an opportunity to revisit Whisnant v. Byrd in

Sanjines v. Ortwein & Associates, No. 03S01-9712-CV-00139, filed December 21, 1998, _____

S.W.2d ____ (Tenn. 1998). That case dealt with an inmate who filed a complaint alleging legal

malpractice against the attorneys who had represented him in a criminal proceeding. On the same

day, he filed a pro se petition under the Post-Conviction Procedure Act (T.C.A. §§ 40-30-201 to

-222) alleging ineffective assistance of counsel in the criminal proceedings. The issue presented was

whether the trial court abused its discretion in refusing to grant the plaintiff’s motion to stay

proceedings in the malpractice case until conclusion of the post-conviction matter. The court noted

that, while the court in Whisnant was concerned with the rights of inmates to file civil complaints,

it did not hold that a stay is necessary in all civil actions filed by incarcerated persons, nor did it hold

that such persons have a constitutional right to a stay of their civil actions. The court was concerned

only with the rights and qualifications of an inmate to appear in court for trial. The court held that

an inmate who is the plaintiff in a legal malpractice case, and at the same time a petitioner in a post-

conviction matter involving the same facts, is not entitled to an automatic stay of the malpractice

case until the outcome of the post-conviction matter. The court further stated that “[t]o the extent

that Whisnant can be interpreted as mandating an automatic stay in these cases, it is overruled.”

Sanjines, slip op. at 9 n.7.



                It appears from the aforesaid authorities that an incarcerated plaintiff party litigant

has the right to appear in court after a hearing on a proper motion and upon a proper showing of a

particularized need, and the trial judge may issue an appropriate directive requiring the attendance

of the prisoner. The alternative is to hold the matter in abeyance until his release from incarceration.

This decision requires examining the significance of the action and the need for immediacy.
However, it is apparent that our legislature has provided a means for the incarcerated litigant to

“appear in court” by his deposition pursuant to section 41-21-304(a).



                  There is no indication in the record before us that the trial court held a hearing on

Husband’s motion. There is further no indication of a response to the motion being filed by Wife.

As previously noted, Husband stated in his motion that he had a release date of February 1999. We

are of the opinion that the trial court erred in failing to conduct a hearing upon Husband’s motion

and in failing to afford him an opportunity to present testimony of himself and/or others by

deposition if necessary. We are not unmindful of the practical problems facing an incarcerated,

indigent1 pro se litigant in arranging to testify by deposition. Nor do we suggest the onus was upon

Wife to depose Husband, thus giving him the opportunity to testify in his own behalf. The record

is silent as to Wife’s ability to finance a deposition, but the meager marital estate suggests that she

is not able to do so.



                  It results that the judgment of the trial court is vacated and this cause is remanded for

a hearing to determine whether, within the court’s discretion, Husband is entitled to be transported

to Carroll County for a hearing, whether the matter should be held in abeyance until his release, or

whether he should be given an opportunity to present his evidence by deposition, interrogatories, or

other lawful means. Of course, if Husband has since been released from incarceration, the action

on his motion is moot and the matter can proceed to a trial on the merits. As we have previously

noted, the trial court reserved the question of child support until Husband’s release.



                  The judgment of the trial court is vacated, and this cause is remanded for further

proceedings consistent with this opinion. Costs of this appeal are taxed to the appellee.



                                                          ____________________________________
                                                          FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



        1
            Husband made an oath of poverty pursuant to T.C.A. § 20-12-127 (Supp. 1995).
______________________________
LILLARD, J. (Concurs)
