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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 ...


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