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In re Adison P.

Court of Appeals of Tennessee, Jackson

April 21, 2015

IN RE ADISON P.

Assigned March 6, 2015

Appeal from the Juvenile Court for Henderson County No. 6203 Steve Beal, Judge No. W2015-00393-COA-T10B-CV

This accelerated interlocutory appeal results from the trial court's denial of Appellant William R. F.'s ("Father")[1] motion for recusal. Having reviewed the trial court's ruling on the motion for recusal pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we reverse the judgment of the trial court.

Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Chancery Court is Reversed

Brian Schuette, Bowling Green, Kentucky, for the appellant, William R. F.

Joey M. P., Pro se.

Arnold B. Goldin, J., delivered the opinion of the Court, in which Kenny Armstrong, J., joined.

OPINION

ARNOLD B. GOLDIN, JUDGE

Background

This is an accelerated interlocutory appeal from the Henderson County Juvenile Court's denial of a recusal motion. The parties in this case are parents to a minor child who was born in October of 2002. We consider the case only on the submissions of the parties and the attachments thereto.[2]

The litigation underpinning this appeal concerns a custody dispute between the minor child's parents. Father and the minor child's mother, Appellee Joey M. P. ("Mother"), were not married when the minor child was born. Approximately a year after the minor child's birth, the trial court held a hearing with regard to custody and paternity. An order on the hearing was subsequently entered on December 8, 2003. In addition to declaring Father as the minor child's natural father, the trial court's December 8, 2003, order provided Father with specified visitation rights.

According to Father, Mother, over time, consistently failed to follow the trial court's order with respect to visitation. As a result, on July 11, 2011, Father filed a petition for contempt and asked that the trial court enter an order granting him temporary exclusive custody of the minor child. In addition to alleging that Mother had refused to allow Father to exercise certain visitation rights, Father alleged that Mother had removed the minor child to Texas. The parties later reached an agreement concerning the parenting issues, and on August 25, 2011, an agreed order was entered prohibiting Mother from removing the minor child out of Tennessee absent court approval.

Despite the agreed order entered in August of 2011, the friction between the parties continued. Visitation disputes remained a problem and led to further litigation. Once again, however, the parties were able to reach some resolution. Following a successful mediation, the trial court entered an agreed order on June 4, 2013. This agreed order permitted Mother to relocate to Texas with the minor child and outlined certain dates on which Father would have visitation. In relevant part, the June 4, 2013, order provided that Father was entitled to visitation with the minor child "during the summer months with the exception of one week."

According to Father, although his summer visitation with the minor child was scheduled to begin on June 5, 2013, he claims he was unable to exercise that visitation as a result of his inability to locate or communicate with Mother. He further claims that although the trial court held a telephonic conference with the parties' counsel on June 26, 2013, the trial court did not enter an order following the conference and refused to order Mother to comply with the parties' agreed visitation order. Eventually, on July 26, 2013, Father, acting pro se, filed a "Petition for Contempt and Emergency Change of Custody." Despite his efforts to schedule this petition for a hearing before Judge Steve Beal, Father alleges that the trial court refused to hear his petition. Father later retained the assistance of counsel and filed a motion for the entry of a show cause order. Therein, Father requested that Mother appear and show cause why she should not be held in contempt for failing to abide by the agreed order entered on June 4, 2013. Father also gave notice to Mother's counsel that the matter was set for hearing on April 23, 2014.

Father alleges that when his counsel appeared before the trial court to present his motion, Judge Beal refused to hear it. Apparently, Judge Beal indicated he would not hear the motion unless Mother's counsel consented to the hearing or Mother was personally served with process. Father believed that such a requirement was unnecessary in light of the fact that he had properly noticed the motion and served it on Mother's counsel of record. Accordingly, on June 9, 2014, Father filed a complaint for mandamus relief in the Circuit Court of Henderson County. Father also filed a complaint against Judge Beal with the Tennessee Board of Judicial Conduct on June 13, 2014. Therein, Father alleged that Judge Beal's failure to hear his motion constituted judicial misconduct.

On July 28, 2014, the Circuit Court conducted a hearing on Father's complaint for mandamus relief. Approximately a month later, on August 27, 2014, the Circuit Court entered a writ of mandamus granting Father relief in relation to his motion for the entry of a show cause order. Specifically, the Circuit Court directed Judge Beal to set Father's motion for the entry of a show cause order for hearing.[3] Following the Circuit Court's grant of mandamus relief, Father filed a petition in the trial court requesting that Judge Beal recuse himself from overseeing the visitation dispute between the parties. Judge Beal denied the motion, and although Father subsequently filed a petition for recusal appeal under Tennessee Supreme Court Rule 10B, we dismissed the appeal as untimely.[4]

On December 4, 2014, Father filed a second motion for recusal. This motion was predicated on grounds different from those that had been specifically raised in the first motion for recusal. Namely, the second motion alleged that there was a reasonable question regarding Judge Beal's objectivity in Father's case due to the fact that Judge Beal directed Father's counsel to draft an order that partially enforced Father's visitation rights, only to redraft the order to exclude those provisions. As Father recited in the motion:

At the conclusion of the September 3, 2014, hearing, Judge Beal directed [Father's] counsel to draft an order setting forth his rulings. Counsel complied with the court's directive . . . . Without explanation, however, Judge Beal redrafted the order, apparently for the sole purpose of excluding those portions that enforced on a temporary basis [Father's] right to visit with his daughter in Houston, Texas one weekend per month and to have telephone contact with her each Friday evening at 6:00 PM. A copy of the order actually entered by the Court is attached hereto as Exhibit 2. Judge Beal took this action in spite of the fact that all parties to the proceeding had agreed to the order as to form and that it was properly submitted. By entering an order that excluded provisions protecting [Father's] right to resume contact with his daughter, Judge Beal has demonstrated a level of bias that constitutes grounds for his disqualification.

On January 7, 2015, the trial court held a hearing on Father's second motion for recusal, and on February 17, 2015, Judge Beal entered an order denying the motion. Judge Beal dismissed Father's second motion for recusal by reasoning that the matters complained of had been disposed of in the order denying Father's first motion for recusal. As such, Judge Beal considered the matters to be res judicata. Following Judge Beal's denial of the second motion for recusal, Father timely pursued this accelerated appeal pursuant to Tennessee Supreme Court Rule 10B. In response to an order of this Court, Mother filed an answer to Father's petition for recusal appeal on March 23, 2015. Having reviewed Father's petition for recusal appeal, along with its supporting documents, and Mother's answer in response to Father's petition, we conclude that additional briefing and oral argument are unnecessary. As such, we now proceed to review Father's petition in accordance with Tennessee Supreme Court Rule 10B sections 2.05 and 2.06.[5]

I. Issue on Appeal

When reviewing a Tennessee Supreme Court Rule 10B appeal, the only order we may review is the trial court's order that denies a motion to recuse. Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012). In this appeal, we must determine whether the trial court erred in denying Father's second motion for recusal.

II. Standard of Review

We review the trial court's ruling on the motion for recusal under a de novo standard of review. Tenn. Sup. Ct. R. 10B, § 2.01.

III. Discussion

Pursuant to Tennessee Supreme Court Rule 10, Code of Judicial Conduct Rule 2.11, "[a] judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned[.]" "'The right to a fair trial before an impartial tribunal is a fundamental constitutional right[, ]'" Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009) (quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)), and it remains "important to preserve the public's confidence in a neutral and impartial judiciary." Id. As we have emphasized in the past, "the preservation of the public's confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial." Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998) (citations omitted). Even when a judge sincerely believes that he can preside over a matter in a fair and impartial manner, recusal is nonetheless required where a reasonable person "'in the judge's position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge's impartiality.'" Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564˗65 (Tenn. 2001) (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)). "It is an objective test designed to avoid actual bias and the appearance of bias, 'since the appearance of bias is as injurious to the integrity of the judicial system as actual bias.'" Shelby County Gov't v. City of Memphis, No. W2014-02197-COA-T10B-CV, 2015 WL 127895, at *4 (Tenn. Ct. App. Jan. 8, 2015) (citation omitted).

The genesis for Father's second motion for recusal may be found in the transcript of proceedings from a September 3, 2014, hearing before the trial court. The hearing conducted on that date concerned several matters, including a motion to withdraw by Mother's counsel and Father's initial motion for recusal. In addition to ruling that he was denying Father's motion for recusal, Judge Beal made several rulings concerning temporary custody of the child. In part, Judge Beal ruled as follows:

I'm going to instruct there be a weekend visitation, and I'm going to have that, if [Father] would like, from a Friday from 6:00 p.m., which would be after school, until Sunday afternoon, let's say six -- well, 5:00 p.m. That gets the child back more in time for school and gets everybody more settled. And I'm going to order that to be done within the next 30 days, in that timeframe. (emphasis added)

In addition to this visitation, Judge Beal ruled that Father was entitled to recurring visitation once a month until a final hearing on Father's motion to show cause occurred. Judge Beal instructed that the scheduling of such additional visitation could be handled by the entry of separate monthly orders as was necessary. Judge Beal further ruled that Father was entitled to speak with his daughter by telephone once per week.

Following the September 3, 2014, hearing, Father's counsel prepared a draft order responsive to the trial court's rulings. Significantly, the draft order memorialized Judge Beal's rulings concerning temporary visitation with the minor child. Although this proposed order was agreed as to form by all parties, Judge Beal refused to sign it. Instead, Judge Beal drafted his own order that did not include any reference to Father's rights to temporary visitation; this order, which was entered on September 22, 2014, addressed only the first motion for recusal, Mother's counsel's motion to withdraw, and a child support issue. It was Judge Beal's refusal to enter the prepared draft order that caused Father to file his second motion for recusal.

Although Judge Beal denied the second motion for recusal on the basis that all the matters complained of by Father were dealt with in connection with Father's first motion for recusal, this interpretation is simply incorrect. Father admittedly raised the same legal arguments concerning Judge Beal's obligation to recuse himself from the case, but Father's second motion for recusal did not simply regurgitate the factual grounds presented to the trial court in the first motion for recusal. Rather, the second motion for recusal was filed in response to Judge Beal's refusal to enter the draft order that recognized Father's temporary visitation rights. Despite Judge Beal's comments at the second recusal hearing that he perceived the recusal issue to be moot and his ultimate determination that it was res judicata, we agree with Father that the second recusal request was appropriately before the trial court. Father could not have raised Judge Beal's refusal to enter the prepared draft order in connection with his first motion for recusal because it was factually impossible to do so. Judge Beal's entry of the order excluding mention of his temporary visitation rulings did not occur until several weeks after the hearing on Father's first motion for recusal.[6]

With respect to the substantive merits of the second motion for recusal, we agree with Father that the trial court's actions in entering the September 22, 2014, order give rise to a reasonable basis for questioning Judge Beal's impartiality. Father's draft order following the September 3, 2014, hearing accurately reflected the rulings that Judge Beal made, and all parties agreed to the entry of the order as to form. Despite this, Judge Beal personally redrafted and entered an order that excluded the rulings favorable to Father's visitation rights. When discussing the matter at the second recusal hearing, Judge Beal offered no real explanation for his actions other than that which is evidenced by the following exchange:

[Father's counsel]: Well, now, you . . . did not memorialize that order as I think --
[Judge Beal]: It's in the past.
[Father's counsel]: --the trial court is supposed to do. The trial court speaks through its written orders.
[Judge Beal]: An order, what I rule is what's placed in the final order, counsel.
[Father's counsel]: I did place it in the final order.
[Judge Beal]: That was not -- no, counsel, counsel-
[Father's counsel]: I drafted it.
[Judge Beal]: Be quiet a moment. The order was not what I wished my final ruling to be, and I placed into the order my final ruling. And the last time I checked counsel does not get to tell me what the rulings of the Court [are]. The rulings of the Court [are] what I place into the order.
[Father's counsel]: I think the transcript of the hearing will reflect what the rulings of the Court were.
[Judge Beal]: Before the final order is down the Court can amend in any way the Court chooses and place the order. Now, the order as written is the order that I intended and the order I intend. Now, go ahead, counsel.
[Father's counsel]: The order that you entered is inconsistent with the Court's rulings. And the only thing taken out of the order that the Court entered as compared to the order that I drafted in accordance with the Court's instructions is anything that recognizes [Father's] rights of visitation[.]

Judge Beal's explanation offers no real insight into what appears to be an intentional decision to not memorialize rulings favorable to Father. Father initiated the recent litigation in this case in an effort to enforce visitation with his minor child, and despite Judge Beal's oral rulings giving Father temporary visitation pending a full hearing, Judge Beal refused to enter a prepared draft order that affirmed this. As already indicated, the draft order was approved as to form by all parties in this case. When this fact is considered in light of the previous history of this case, which included unsuccessful attempts to set Father's motion for the entry of a show cause order, father's filing of a complaint against Judge Beal with the Tennessee Board of Judicial Conduct, and Father's filing for mandamus relief in Circuit Court, Judge Beal's decision to not enter an order memorializing his visitation rulings favorable to Father gives cause for concern as to his ability to fairly preside over this case. Under the circumstances presented, we hold that "'a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge's impartiality.'" City of Memphis, 2015 WL 127895, at *7 (citation omitted).

Although the dissent suggests that circumstances of this case only evidence the fact that Father disagrees with the legal positions taken by Judge Beal, we respectfully disagree. The facts of this case certainly reflect legal disagreement, but they also raise reasonable questions about the judge's neutrality. Although Judge Beal's refusal to memorialize his oral visitation rulings does not sufficiently evidence the appearance of bias when considered alone, a reasonable question of impartiality does emerge when this fact is considered against the background of the case.

Again, following the September 3, 2014, hearing, Father's counsel drafted an order responsive to Judge Beal's previous rulings and tendered it to the trial court. Notwithstanding its accuracy in memorializing Judge Beal's oral rulings, this draft order was not ultimately entered. As Judge Beal commented during the course of the second recusal hearing, "The order was not what I wished my final ruling to be, and I placed into the order my final ruling." Although we recognize that a trial court speaks through its orders, Judge Beal offered no explanation in the instant case as to why the visitation rulings in Father's favor were not included in his September 22, 2014, order. The picture we are left with, then, is one framed by a deliberate decision by Judge Beal to exclude visitation rulings he previously made in Father's favor. A review of his comments at the second recusal hearing does not suggest that he necessarily changed his mind as to the merits of the rulings he previously made; rather, his comments reflect an unwillingness, for reasons unknown, to memorialize his rulings favorable to Father. As we have already indicated, this is a cause for great concern when the history of this case is considered. We must emphasize that the primary disputes in this case concern Father's attempts at exercising visitation with the minor child. When Father previously filed a motion attempting to address the matter, Judge Beal initially refused to set Father's motion for hearing. In fact, Judge Beal refused to set the matter until a writ of mandamus issued directing him to do so. It is within this context that we have considered Judge Beal's refusal to memorialize his oral visitation rulings favorable to Father. Although we certainly cannot say with any certainty that Judge Beal actually acted with any bias with respect to any of the foregoing decisions, we simply hold that these circumstances provide a reasonable basis for questioning his impartiality.[7] Accordingly, we conclude that Judge Beal erred in his decision to continue to preside over this case. In order to promote confidence in the courts, we must guard against the appearance of impartiality. The trial court's order denying Father's second motion for recusal is hereby reversed.

IV. Conclusion

The order of the trial court denying Father's second motion for recusal is reversed. This cause is remanded to the trial court for transfer to a different judge for all further proceedings as are necessary and consistent with this Opinion. Costs on this appeal are assessed against the Appellee, Joey M. P.

Brandon O. Gibson, J., dissenting.

I must respectfully dissent from the majority opinion for two reasons.

First, I maintain that Father's failure to include, in his petition for recusal appeal, his affidavit in support of his motion to recuse is fatal. While Father's Second Motion for Recusal of Trial Judge, filed in the trial court on December 4, 2014, indicated that Father's affidavit in support of the motion is attached, it was not provided to this Court on appeal. Tennessee Supreme Court Rule 10B Section 2.03 specifically provides that a petition for recusal appeal "shall be accompanied by copies of any order or opinion and any other parts of the record necessary for determination of the appeal." Section 1.01 of Rule 10B provides that a motion to recuse "shall be supported by an affidavit under oath or a declaration under penalty of perjury on personal knowledge…." Section 1.01 also provides that the motion to recuse "shall affirmatively state that it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Father's motion to recuse does not "affirmatively state that it is not being presented for any improper purpose, " and his petition before this Court does not contain the affidavit required by Section 1.01.

The majority opinion relies on Watson v. City of Jackson, 448 S.W.3d 919 (Tenn. Ct. App. 2014), in excusing these defects. However, Watson involved a pro se litigant who filed a post-trial recusal motion seeking to have the trial judge recused "from presiding over the preparation of the record for her appeal of the substantive issues in the case." Id. at 921. The trial judge denied the motion and entered a written order with specific findings of fact. Id. Watson then filed a petition for accelerated interlocutory appeal with this Court, but she was also pursuing an appeal of substantive issues as well. See Watson v. City of Jackson, No. W2013-01364-COA-R3-CV, 2014 WL 4202466 (Tenn. Ct. App. Aug. 26, 2014). When this Court considered the Rule 10B accelerated interlocutory appeal, we noted that Watson failed to affirmatively state that her motion to recuse was not being presented for any improper purpose and that she further failed to provide this Court with copies of the dispositive orders in the trial court, namely the trial court's order denying her motion to recuse. This Court proceeded with a substantive review of the Rule 10B appeal despite these deficiencies. The case presently before the Court does not involve a pro se petitioner and does not involve a motion for recusal filed after the conclusion of all substantive issues in the case. Watson is factually and procedurally distinguishable from this case, and I do not believe this Court can effectively review the trial court's actions without Father's sworn affidavit testimony, as required by Section 1.01.

The Eastern Section of the Court of Appeals recently encountered a similar situation in Johnston v. Johnston, No. E2015-00213-COA-T10B-CV, 2015 WL 739606 (Tenn. Ct. App. Feb. 20, 2015). In Johnston, the record submitted by the recusal appeal petitioner did not include an affidavit filed in support of the motion to recuse. The Eastern Section held that "[w]ithout this necessary part of the record, we cannot conclude that the Trial Court erred in denying the Motion to Recuse." Id. at *2. The Eastern Section went on to say:

We emphasize to Defendant that the accelerated nature of these interlocutory appeals as of right requires meticulous compliance with the provisions of Rule 10B regarding the content of the record provided to this Court so as to allow this Court to meet its obligations under section 2.06 of the rule, which requires this Court to decide these appeals "on an expedited basis." As such, it is imperative that litigants file their petitions for recusal appeal in compliance with the mandatory requirements of Rule 10B in the first instance.

Id.; see also Tipton v. Constance, No. E2014-00143-COA-T10B-CV, 2014 WL 605434 (Tenn. Ct. App. Feb. 14, 2014), perm. app. denied (Tenn. May 9, 2014). I agree with the conclusion reached by the Eastern Section and therefore would affirm the decision of the trial court based on the procedural deficiencies in Father's Rule 10B accelerated interlocutory appeal.

Second, I disagree that Father has established facts sufficient to warrant the recusal of the trial judge. My disagreement with the majority result on this point is interwoven with my position on the procedural deficiencies discussed above. To be sure, the trial court has not assisted this Court in its analysis. Section 1.03 of Rule 10B specifically states that if a motion to recuse is denied, "the judge shall state in writing the grounds upon which he or she denies the motion." Tenn. Sup. Ct. R. 10B § 1.03. The trial court's order on Father's first motion to recuse merely said "[u]pon careful consideration of [Father's] Motion to Recuse … and a hearing on same, said Motion to Recuse is denied." The trial court did not comply with Section 1.03. In its order denying Father's second motion to recuse, the trial court simply stated:

[Father] presented at [the] hearing no new proof or evidence indicating any bias or prejudice on the part of the Trial Court. [Father] then filed an Appeal to the Court of Appeals. This appeal was summarily dismissed by the Court of Appeals and that dismissal is now final.
The claimant now appears before the Court complaining of matters which were heard and disposed of in the prior Order. The Order dated September 22, 2014 is now final. There is no merit in claimants 2nd Motion. Res Judicata is applicable to the 2nd Motion and said Motion is denied.

I agree with the majority that Father's second motion for recusal asserted new grounds for the recusal, although it also incorporated Father's first motion for recusal and relied on the grounds asserted in that first motion to recuse. Given the new grounds asserted in the second motion to recuse, the trial court should have made a fresh effort to comply with Section 1.03. Again, the requirements of Rule 10B are mandatory for the litigants, and they are also mandatory for the trial court.

Nonetheless, the majority concludes that the trial court's entry of a written order that differed from the trial judge's oral colloquy, with no explanation from the trial judge, necessarily demonstrates the appearance of bias and requires recusal. Father provided this Court with the transcript of the September 3, 2014 hearing, during which the trial judge "instructed" the parties to have a weekend visitation, as described in the majority opinion, "within the next 30 days." After Father's counsel asked about recurring visitation between September 3 and a hearing date on Father's "petition for entry of the show cause order, " the trial court stated:

I [the court] would set that up once a month. I know he wouldn't want to go anymore than that, but I would be inclined – and then what I would do is just have you to pick a date and advise – and I would just let – put in an order, put in a little separate order and new order of the date that he could go down there and do that. We could just do it one order at a time until it's heard, if that's necessary. And I think that would give Mr. Fain the visitation that's reasonable under those circumstances because y'all know Texas is a long way and it's a hardship on everybody involved when they travel back and forth like that, and particular with him, with [Father]. I suspect he wouldn't want to go more than that.

The majority correctly notes that Father's counsel prepared a draft order responsive to the trial court's oral instructions, that the draft order memorialized the trial judge's rulings concerning temporary visitation with the minor child (providing for telephone calls with the child on Friday evenings and visitation with the minor child only on September 20 through September 21, 2014), and that the trial judge did not sign the draft order. However, the copy of Father's counsel's draft order contained in his petition for recusal appeal does not include a certificate of service indicating the date Father's counsel submitted the proposed order to the trial court. The trial court entered an order on September 22, 2014, denying Father's motion to recuse, noting that Mother had been properly served, relieving Mother's counsel of further representation, and addressing a child support issue. While Father takes issue with the trial court's failure to include temporary visitation in the September 22 order, Father was admittedly able to exercise some visitation with the child after the September 3 hearing, which is apparently consistent with the trial court's oral instructions.

The crux of the majority's holding is that the trial judge is required to recuse himself because (1) a writ of mandamus required the trial judge to set Father's petition for contempt for hearing; (2) Father filed a complaint with the Tennessee Board of Judicial Conduct, [1]and; (3) the trial judge entered an order that was not as expansive as his oral instructions to the party at the September 3, 2014 hearing. However, Father simply has not submitted "any evidence that the trial judge's actions in this case were the result of bias, prejudice, impropriety, or harassment." Watson, 448 S.W.3d at 933.

The party seeking recusal bears the burden of proof, and "any alleged bias must arise from extrajudicial sources and not from events or observations during litigation of a case." … "If the bias is alleged to stem from events occur[r]ing in the course of the litigation of the case, the party seeking recusal has a greater burden to show bias that would require recusal, i.e., that the bias is so pervasive that it is sufficient to deny the litigant a fair trial."

Runyon v. Runyon, No. W2013-02651-COA-T10B-CV, 2014 WL 1285729, at *6 (Tenn. Ct. App. Mar. 31, 2014) (no perm. app. filed) (quoting McKenzie v. McKenzie, No. M2014-00010-COA-T10B-CV, 2014 WL 575908, at *1 (Tenn. Ct. App. Feb. 11, 2014) (no perm. app. filed)). "Adverse rulings by a trial judge … are not usually sufficient to establish bias." Ingram v. Sohr, M2012-00782-COA-R3-CV, 2013 WL 3968155 at *31 (Tenn. Ct. App. July 31, 2013) (citing State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008)). As the Eastern Section noted in Johnston, "[r]ulings of a trial judge, even if erroneous, numerous and continuous, do not, without more, justify disqualification." Johnston at *2 (citing Alley at 821); see also State v. Reid, 313 S.W.3d 792, 816 (Tenn. 2006).

The record before us reveals that the trial judge entered an order that did not address every matter he addressed in his oral instructions to the parties at the September 3 hearing. I recognize that the item the trial judge did not address in his written order is the issue most important to Father – visitation with his daughter. However, trial courts speak through written orders, not through oral statements contained in transcripts. Alexander v. JB Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011).

The three things on which the majority rely – the existence of a mandamus action, a judicial complaint setting forth the same arguments as the mandamus action, and the entry of an order with which Father disagreed – do not provide us with enough evidence to find bias, prejudice, impropriety, or harassment. All arise from events during litigation of the case and therefore require additional evidence to establish a basis for recusal. The transcripts provided in Father's petition for accelerated appeal demonstrate that Father disagrees with the trial court on at least three things: (1) whether Mother had to be served with service of process before Father could present a motion for contempt; (2) whether mandamus was necessary; and (3) whether the court was required to include oral instructions in a written order. All of these are disagreements over legal issues. Even if the trial judge is wrong on each point (and I express no opinion whatsoever in that regard), recusal is not required.

Based on the evidence and information before us, I do not believe that "'a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge's impartiality.'" City of Memphis, No. W2014-02197-COA-T10B-CV, 2015 WL 127895, at *7 (Tenn. Ct. App. Jan. 8, 2015) (no perm. app. filed) (citation omitted). Rather, I believe that a person of ordinary prudence in the judge's position would find that Father disagrees with a number of the trial judge's legal positions. For those, he has a remedy through direct appeal, but they do not require recusal.

For the foregoing reasons, and either of them separately, I would affirm the decision of the trial court.


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