                   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.

                                                  1
                                               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;


        3
           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:



                                             3
          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

4
    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.
                                              4
            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;
                                            5
              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:

                                            6
             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.”



                                            7
                                          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
                                           8
              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.

                                              9
        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
                                            10
             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
                                             11
