APPELLATE COURT OPINIONS

In this post-divorce proceeding, the trial court granted the petition of Lee Alan Haines (“Father”) to change the custody of the parties’ two minor children from Lisa Dawn Winton Haines (“Mother”) to Father. The change in custody followed a bench trial at which the trial court heard, in chambers, the testimony of the children as elicited by the leading questions of the Guardian Ad Litem (“the GAL”). The examination took place outside the physical presence of counsel for the parties. Mother appeals, (1) challenging the change of custody; (2) questioning evidentiary rulings by the trial court; and (3) asserting that the trial court erred in allowing the children to be questioned in chambers by the GAL outside the physical presence of counsel for the parties. We hold that the in-chambers proceeding, as designed and conducted by the trial court, constitutes error. Because we deem the error to be a violation of due process and prejudicial to the judicial process, we vacate the trial court’s judgment in toto and remand for a new trial before a different judge.

Defendant, Earnest Banks, pled guilty to burglarizing a motor vehicle. The trial court held a separate sentencing hearing. At the conclusion of the hearing, the trial court sentenced Defendant to three years as a Range II, multiple offender, to be served consecutively to a previous conviction. The trial court also denied Defendant’s request for alternative sentencing. Defendant appeals on the grounds that the trial court erred in setting his sentence above the minimum and in denying his request for probation. We affirm the judgment of the trial court.

Petitioner, Antonius Harris, appeals the dismissal of his petition for post-conviction relief which alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that trial counsel’s assistance was ineffective for failure to call certain witnesses at trial.  Petitioner also contends that the trial court erred in failing to instruct the jury on self-defense as an affirmative defense and in imposing consecutive sentencing. After a thorough review of the record, we conclude that Petitioner has failed to show any deficiencies in his counsel’s assistance or prejudice for failing to call Petitioner’s suggested witnesses. Petitioner’s challenges to the trial court’s jury instructions and the imposition of consecutive sentencing were raised in Petitioner’s direct appeal and thus have been previously determined. Accordingly, we affirm the judgment of the post-conviction court.

In this post-divorce proceeding, the trial court granted the petition of Lee Alan Haines (“Father”) to change the custody of the parties’ two minor children from Lisa Dawn Winton Haines (“Mother”) to Father. The change in custody followed a bench trial at which the trial court heard, in chambers, the testimony of the children as elicited by the leading questions of the Guardian Ad Litem (“the GAL”). The examination took place outside the physical presence of counsel for the parties. Mother appeals, (1) challenging the change of custody; (2) questioning evidentiary rulings by the trial court; and (3) asserting that the trial court erred in allowing the children to be questioned in chambers by the GAL outside the physical presence of counsel for the parties. We hold that the in-chambers proceeding, as designed and conducted by the trial court, constitutes error. Because we deem the error to be a violation of due process and prejudicial to the judicial process, we vacate the trial court’s judgment in toto and remand for a new trial before a different judge.

The sole issue in this appeal involves the division of property upon the divorce of the two parties. Having reviewed the record, we modify the division as to one specific finding of fact and affirm the judgment as modified.

Following a jury trial, Defendant, Robert Weaver was convicted of one count of robbery, a Class C felony. The trial court sentenced Defendant as a Range II, multiple offender, to ten years. Defendant does not appeal the length of his sentence. Defendant argues, however, that the evidence was insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

Although I concur in the result and reasoning of reached by the majority opinion, I think it important to emphasize one point. I agree with the trial court that none of the allegations regarding Ms. Stinson’s stay at the nursing home prior to January 1, 2000, state any cause of action warranting relief. They were properly dismissed because there was no causal connection between those alleged incidents or omissions and the injuries suffered by Ms. Stinson due to the assault by Mr. Johnson.  That determination eliminates most of the allegations supporting the TAPA claims that Plaintiff wanted to add.

The estate of a former nursing home resident brought this wrongful death action, asserting sundry claims against the nursing home arising out of an attack on Mrs. Stinson by another resident. As a result of the attack, Mrs. Stinson was hospitalized and treated for injuries including a broken hip.  She died four months later of pneumonia. Initially, the claims against the nursing home sounded principally in medical malpractice, with the plaintiff contending the attack, injuries, and death were the result of a variety and series of acts and omissions of the nursing home, including failing to properly screen and/or subsequently discharge the resident who attacked Mrs. Stinson. The plaintiff additionally asserted claims against Genesis of Jackson, Inc., a provider of psychiatric services, and the State of Tennessee, contending they, along with the nursing home, were responsible for determining whether the resident who assaulted Mrs. Stinson should have been admitted or retained as a resident at the nursing home. The plaintiff’s claim against Genesis was dismissed by the trial court, and the claim against the State was denied by the Claims Commission. The plaintiff sought to amend the complaint to add a claim for attorney fees against the nursing home under the Tennessee Adult Protection Act. The trial court dismissed the TAPA claim finding the plaintiff’s claims sounded in medical malpractice and therefore, by statute, the exclusive remedy was under the Medical Malpractice Act. The plaintiff’s medical malpractice claims against the nursing home went to the jury. Following a six-day jury trial, the plaintiff was awarded $130,000 in compensatory damages against the nursing home. The plaintiff and the nursing home appeal. We affirm in part, vacate in part, and remand the surviving claims for a new trial.

Following a jury trial, the appellant, Roshad Romanic Siler, was convicted of three counts of the sale of a counterfeit controlled substance, a Class E felony. The trial court sentenced the appellant as a Range I, standard offender to concurrent sentences of one year for each conviction, but suspended the sentences and placed the appellant on community corrections. The appellant challenges the sufficiency of the evidence and an evidentiary ruling made by the trial court on appeal. Because we determine that the evidence was insufficient to support the appellant’s convictions, we reverse and dismiss.

A former spouse challenges the extension and modification of an Order of Protection, contending the proof was insufficient to justify either the extension or modification. Finding the record contains sufficient evidence from which the trial court could determine an extension and modification of the Order was necessary, we affirm.

I respectfully both concur and dissent from the majority opinion in this case. I agree with the majority that the Trial Court’s judgment should be modified to award alimony in futuro to Wife because Wife is not capable of being totally rehabilitated and that the amount of alimony awarded should be altered. However, I cannot concur with the amount awarded by the majority. 

My difficulty with the amount of alimony awarded by the majority is two fold. First, the majority operates under the assumption that this fifty-five year old adult, well educated and in good health, must be assumed, not proved but assumed, to have absolutely zero earning capacity.  This assumption, I believe, is contrary to both the evidence in this case and to the public policy of this state as established by the Tennessee Legislature by the enactment of the relevant statutory provisions related to alimony. Second, I believe the majority’s award of $9,000 per month in alimony in futuro exceeds Wife’s proven needs.

The majority correctly notes that Wife seriously inflated her stated expenses by literally thousands of dollars. For example, despite the fact that Wife testified that the marital home awarded to her in the property division is in “sound” condition, her claimed necessary expenses for
“home maintenance, labor, and repairs” run over $31,000 a year. This does not include the almost $5,000 per year for “equipment and replacement fund for the residence” that Wife claims is necessary. Nor does it include the over $14,000 per year for “lawn and garden maintenance” that Wife has included. Wife also includes $45,000 per year for her “savings fund.” Clearly the record shows that Wife’s proven expenses, and therefore her resulting need, is far less than the $9,000 per month awarded by the majority. Additionally, what should not be forgotten is that Wife, according to the majority, received assets totaling $1,468,758.00 in the property division. 

Of even greater concern to me is what I believe to be the majority’s failure to give effect to the Legislature’s stated public policy for this state. It is clearly the public policy of this state that where an economically disadvantaged spouse may be able to be rehabilitated, such a rehabilitation is the goal. See Tenn. Code Ann. § 36-5-121(d)(2). Likewise it is clear that alimony in futuro is appropriate to, in effect, make up the difference “where a spouse may be only partially rehabilitated....” See Teen. Code Ann. § 36-5-121(d)(4). I believe it is the clear public policy of this state, as shown by the statutes enacted by our Legislature, that each divorcing adult has to accept, to the extent feasible for that adult, responsibility for his or her own support. 

Despite the complete absence of any supporting evidence, the majority assumes that Wife, a healthy and well educated adult, has absolutely zero earning capacity and will always have zero earning capacity. It is equally clear from the evidence in the record and in the majority’s
opinion that Wife has made no effort to obtain gainful employment, while continuing to work virtually full time at her avocation, the animal shelter. While I believe the majority is correct that Wife cannot be sufficiently rehabilitated so as to obviate the need for any alimony in the future, there is absolutely nothing in the statutes or case law that requires or even permits this Court to assume that this healthy, well educated, fifty-five year old adult who has displayed the ability to work long
hours by her volunteer work at her avocation has zero earning capacity.

What is exceptionally telling is Wife’s statement in her brief, made with no citation to any supporting evidence, that “[a]t her age of 55, obtaining further education and training to improve her earning capacity to a reasonable level is not practical.” Apparently, the majority wholeheartedly accepts this conclusion despite all the evidence to the contrary. Likewise, it appears to be Wife’s position, and apparently is a position accepted by the majority, that if she cannot improve her earning capacity to what she believes is a “reasonable level”, she has zero earning capacity and never has to work at a job for pay. Again, I believe there is a total absence of evidence in the record supporting this conclusion by Wife as accepted by the majority. I believe the conclusion that a healthy, intelligent, and well educated fifty-five year old adult has zero earning capacity is both patronizing and unsupported either by the evidence in the record or the law of this state. I am unaware of anything in Tennessee law that requires Husband to continue to cover 100%
of Wife’s living expenses so that she may devote her full time to her avocation, the animal shelter, no matter how worthy such a cause may be. 

Taking all the above into consideration, I would, respectfully, vacate the Trial Court’s award of alimony and remand this matter to the Trial Court to receive additional proof to determine the appropriate amount of alimony in futuro to be awarded to Wife. On remand, I would instruct the
Trial Court that the alimony in futuro award must take into consideration Wife’s actual needs and likewise must consider her earning capacity. I would further instruct the Trial Court on remand that Wife, a healthy, smart, and well educated fifty-five year old adult who, in effect, works full time at her avocation rather than a vocation, cannot be found to have zero earning capacity. I believe such instructions on remand to be both necessary and appropriate given the record before us and relevant
Tennessee law.

From the record before us, it is without dispute that Wife is a fifty-five year old healthy, smart, and well educated adult who is prevented in no way from earning at least some minimal amount of income at a some full time paying employment. While such employment may well prevent Wife from continuing to devote her full time to her avocation, the animal shelter, I am aware of nothing in Tennessee law that says Wife should be permitted to continue her avocation rather than a vocation all at Husband’s continued expense. I believe the public policy of this state
as established by our Legislature requires no less. I believe it is clear public policy that a divorcing adult must be responsible, to the extent feasible given that adult’s circumstances and situation, for supporting himself or herself, and that each such adult’s earning capacity must be considered in determining whether or not alimony is appropriate, and if so, the amount. I believe to hold otherwise treats that adult as a dependent child solely because she or he is now a former spouse. I believe such a result is contrary to the clear public policy of this state, and I therefore, respectfully dissent from the majority’s opinion as to the amount of alimony awarded. I concur in the remainder of the majority’s opinion.

The owner of a tract of undeveloped commercial property in the city of Lawrenceburg asked the trial court to enjoin the lessees of that property from subletting it to the city for the purpose of building a retention pond. She claimed that such a use would constitute waste or create a permanent and private nuisance on the land. The trial court declined to issue the injunction and certified its decision as final for purposes of appeal. We reverse.

I concur with the majority’s opinion regarding the evidentiary issue. I dissent from the majority’s opinion insofar as it finds insufficient evidence to support the convictions.

The plaintiff appeals the dismissal of her breach of contract action against her former employer, Harpeth Valley Utilities District. The plaintiff entered into a Deferred Compensation Agreement with Harpeth Valley at the beginning of her employment in 1998 that afforded her a retirement benefit if she remained employed until the year 2012. The plaintiff voluntarily left the employment of Harpeth Valley in 2003 after only five years of employment. One year later, she filed this action contending that a handwritten modification was made to the Agreement which provided that she was entitled to receive the retirement benefit and death benefit specified in the Agreement. The trial court dismissed her Complaint for failure to state a claim for which relief could be granted. We affirm.

The defendant, Marques¹ Douglas, was convicted of two counts of aggravated robbery. On appeal, the defendant asserts that the evidence was insufficient to support the guilty verdicts. After review, we affirm the judgments of conviction.

Following a jury trial, the defendant, John Anthony Gust, was convicted of forgery over $1000, a Class D felony, and theft up to $500, a Class A misdemeanor. He was sentenced as a Range I, standard offender to two years for the felony conviction and eleven months, twenty-nine days for the misdemeanor conviction, with the sentences to be served concurrently. On appeal, he argues that the evidence is insufficient to support his convictions. Based upon our review, we affirm the judgments of the trial court.

The pro se petitioner, James Brian Stevens, appeals the summary dismissal of his petition for postconviction relief, arguing that the statute of limitations should have been tolled during the time that he spent on probation. Following our review, we affirm the dismissal of the petition as time-barred.

The petitioner, Carlos Angel, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received the effective assistance of trial counsel. Following our review, we affirm the denial of the petition.

The appellant, Eric Michael Goldman aka Eric Forrest, was convicted of driving after being declared a habitual motor vehicle offender (Class E felony) and sentenced to four years in the Department of Correction as a multiple offender. He was also found guilty of driving on a revoked license, tenth offense (Class A misdemeanor), which was merged with the conviction for driving as a habitual motor vehicle offender. On appeal, he contends that: (1) the evidence was insufficient to sustain a conviction for the offense of driving after being declared a habitual motor vehicle offender; and (2) the sentence imposed by the trial court is excessive and contrary to the law. After careful review, we conclude that no reversible error exists and affirm the judgments of the trial court.

The Defendant, Issac Scott, was convicted of first degree murder and received a life sentence. On appeal, the Defendant contends that the evidence presented at trial was insufficient to support his conviction. Finding no reversible error, we affirm the judgment of the trial court.

This case involves a trial court’s division of marital property following a divorce.  The wife came into the marriage with substantial assets, but the husband had no assets and owed a large debt to the IRS.  During the marriage, the wife was continuously employed, and the husband was often unemployed.  After the wife found out that her husband had quit one of his jobs, he executed a quitclaim deed conveying his interest in their house to the wife. When they later divorced, the trial court appointed a special master to classify certain assets and debts as marital or separate property. The trial court affirmed the special master’s report with modifications. Both parties now challenge the classification of certain assets and the court’s division of the marital property.  For the following reasons, we affirm.

The Defendant, Tayuana D. Taylor, appeals the trial court’s re-sentencing decision upon the revocation of her community corrections sentence. The Defendant claims that the trial court erred in sentencing her to the maximum allowable sentence and for not giving her credit for time already served. We conclude the trial court did not err in re-sentencing the Defendant and credit was given for time already served. Accordingly, we affirm the trial court’s judgment.

The appellant, James Otis Butler, pled guilty to one count of delivery of over .5 grams of cocaine.  As a result, the trial court imposed an eight-year sentence, but ordered the appellant to serve the sentence on probation. Subsequently, several probation violation warrants were issued against the appellant. The trial court held a hearing, at which the appellant was not represented by counsel, and revoked the appellant’s probation. The trial court later rescinded that order and held a second hearing after appointment of counsel. After the second hearing, the trial court again revoked the appellant’s probation and ordered him to serve the remainder of his sentence in incarceration. The appellant argues on appeal that the trial court violated his due process rights by failing to issue written findings of fact, failing to allow counsel to argue on his behalf at the probation revocation hearing, and failing to consider the appellant’s drug and alcohol treatment. We affirm the judgment of the trial court.

This appeal involves a trial court’s distribution of marital property in a divorce proceeding. The parties owned their own business, and the husband generally ran its operations while the wife handled its financial aspects. After the business caught fire, the husband found $240,000 in the company safe. He took the money to a bank and placed it in a safety deposit box. The company’s head of security accompanied the husband to the bank and testified about these events at trial. The wife also had access to the box, and the bank records revealed that she accessed it over thirty times in the next five years. The husband and the security officer returned to the safety deposit box when he learned that the wife intended to file for divorce, but there was no cash remaining in the box. The trial court determined that the wife had dissipated the marital estate in the amount of $240,000 and subtracted half that amount, $120,000, from her award of the marital property. The wife appealed.  For the following reasons, we affirm.

Attorney filed an action against client to collect unpaid installments due under a promissory note. The trial court entered a consent final decree awarding attorney the sum currently due under the note. Attorney filed a second action against client to collect the then unpaid installments due under the same promissory note. Client answered alleging affirmative defenses which attacked the validity of the note and which were not raised in the first proceeding. Attorney filed a motion for summary judgment claiming that client was precluded from asserting the defenses under the doctrine of res judicata and collateral estoppel. The trial court denied the motion and attorney filed an extraordinary appeal. We reverse the judgment of the trial court and remand the matter for further proceedings consistent herewith.