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McClure v. McClure

Court of Appeals of Tennessee, Knoxville

March 30, 2015

THOMAS D. McCLURE, SR.
v.
LINDA BENTLEY McCLURE

Session October 29, 2014

Appeal from the Circuit Court for Hawkins County No. 09CV0087 Douglas T. Jenkins, Chancellor[1]

Rebecca D. Slone, Dandridge, Tennessee, for the appellant, Thomas D. McClure, Sr. [2]

Linda B. McClure, West Palm Beach, Florida, appellee, pro se.

Charles D. SuSANO, Jr., C.J., delivered the opinion of the court, in which D. Michael Swiney and John W. McClarty, JJ., joined.

OPINION

CHARLES D. SUSANO, JR., CHIEF JUDGE

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;
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 ...

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