Assigned on Briefs October 4, 2017
from the Circuit Court for Sumner County No.
83CC1-2014-CV-393 Joe Thompson, Judge.
appeal arises from a divorce action following a four-year
marriage. The issues pertain to the trial court's
classification of the wife's business as her separate
property, the valuation and division of the marital property,
and its rulings on the husband's numerous pretrial
motions for civil contempt, pendente lite support, and
recusal of the trial judge. The trial court denied all of the
husband's motions and ordered the husband to pay the
attorney's fees that the wife incurred in defending
certain repetitious motions. After a two-day trial, the court
declared the parties divorced, classified their property as
separate or marital, and valued and divided the marital
property. One of the marital assets was a patent application
that had been denied, which the court valued at $0.00 and
awarded to the wife. The husband raises eleven issues on
appeal. We reverse the award to the wife of the
attorney's fees she incurred in defending the
husband's numerous pretrial motions. We affirm the trial
court in all other respects.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part and Reversed in Part
Anthony Gentry, Goodlettsville, Tennessee, Pro Se.
A. Taylor and Brenton H. Lankford, Nashville, Tennessee, for
the appellee, Katherine Wise Gentry.
G. Clement Jr., P.J., M.S. delivered the opinion of the
Court, in which Andy D. Bennett and W. Neal McBrayer, JJ.,
G. CLEMENT JR., P.J., M.S.
Wise Gentry ("Wife") and John Anthony Gentry
("Husband") married on September 5, 2009, and had
no children together. Prior to the marriage, Wife owned and
operated a cake-baking business called SweetWise, Inc.
("SweetWise") and Husband worked as an accountant
for Century Pool Company. When Husband lost his job shortly
before the marriage, Wife hired Husband to work for
SweetWise. Two years after the parties married, Wife
submitted a patent application for a food-safe vinyl fondant
mat, and then, Wife amended the application to include
Husband as a co-inventor. During the course of the
litigation, the parties received a final rejection of the
patent application from the United States Patent Office.
end of 2013, the parties' marriage began to deteriorate,
and Wife filed for divorce on April 9, 2014. Husband then
filed an answer and a counter-complaint for divorce. Wife
subsequently filed an amended complaint to which Husband did
one month later, the parties discussed a possible
reconciliation. To show her good faith, and at the insistence
of Husband, Wife executed a stock certificate purporting to
transfer forty-five percent of SweetWise to Husband. She
claims that she signed the front of the certificate but never
gave it to Husband, and instead, stored it in a box located
in a storage unit that was inaccessible to him. The
couple's attempt at reconciliation failed, and Wife
destroyed the stock certificate. All the while, Husband
continued to work for Wife at SweetWise despite the growing
tension between them.
October 22, 2014, Husband filed a contempt petition against
Wife, alleging that Wife violated the statutory injunction,
Tenn. Code Ann. § 36-4-106(d), by, inter alia,
cancelling his business debit card, removing him from all
bank accounts, and withdrawing more money than necessary from
the business account to pay Wife's salary. Approximately
one week later, Husband filed an amended petition, asking for
pendente lite support in the alternative. In December 2014,
Wife terminated Husband's employment.
civil contempt hearing on March 10, 2015, Wife denied that
she violated the injunction, claiming that she was the sole
owner of SweetWise and that Husband was no longer an employee
of the business. At the close of Husband's proof, Wife
moved for a "directed verdict." The court granted
Wife's motion in its oral ruling, stating it "could
not find [Wife's] conduct willful when there was no
bright-line distinction as far as how the parties operated
with respect to their personal finances and their business
court entered an order on March 19, 2015, dismissing
Husband's motion for civil contempt and ordering the
parties to submit expense statements so the court could rule
on Husband's request for pendente lite support. The
parties submitted their expense statements and their
responses to those statements. The court then held a hearing
on Husband's request for pendente lite support on July 1,
2015, and in an order entered on July 13, the court denied
following, Husband filed a Motion to Request the Honorable
Judge Thompson to Recuse Himself and to Declare a Mistrial of
Petition for Contempt Hearing or in the Alternative to
Reconvene Hearing for Petition for Contempt. Husband alleged
that during the contempt hearing, while cross-examining
Husband, Wife's counsel suggested that Wife possessed an
email that would prove Husband was lying when he testified
about the patent application. Wife's counsel never
produced the email, and Husband claimed the suggestion by
counsel that such an email existed, biased the judge against
Husband and warranted the judge's recusal or a mistrial.
Husband argued that the judge's resulting bias against
Husband was evidenced by the judge's numerous adverse
rulings. The same day Husband filed the recusal motion,
Husband also filed a Motion to Compel Wife to Return
Husband's Stock Certificate & Set Equal Distribution
of Business Income or in the Alternative Set Trial Date to
Substantiate Husband's Claim of Stock Ownership.
a hearing, the court entered an order denying Husband's
motions and ordering Husband to pay Wife's attorney's
fees and expenses rendered in connection with Wife's
opposition to Husband's motions. Husband then filed a
Second Motion to Reconvene Hearing for Petition for Contempt.
The court held a hearing on September 15, 2015, where it
denied Husband's motion and, again, ordered Husband to
pay Wife's attorney's fees and expenses incurred in
opposing that motion.
court held a final hearing on May 2 and 3, 2016. The primary
issues were who should be awarded the divorce and whether the
business, SweetWise, and a patent application were Wife's
separate property. Following a trial, the court declared the
parties divorced pursuant to Tenn. Code Ann. §
regard to property, the court ruled that SweetWise was
Wife's separate property because she started the business
prior to the marriage, she was listed as the sole owner at
all times during the marriage, and there was no evidence of
an implied partnership between the parties. As for
Husband's contention that Wife gifted forty-five percent
of the shares of stock in the business to him by signing a
stock transfer certificate, the court found that Wife never
completed the gift because she did not deliver the executed
stock certificate to Husband. With regard to Husband's
alternative claim that he made substantial contributions to
the business that caused it to increase in value, the court
found that Husband failed to carry his burden of proof. The
court classified the patent application, which had been
denied by the United States Patent Office, as marital
property, valued it at $0.00, and awarded to Wife in the
court also denied Wife's request for attorney's fees
in the form of alimony in solido based on the finding that
she had the ability to pay her fees. This appeal followed.
raises eleven issues on appeal. Having assessed the issues as
framed by Husband in the context of Husband's arguments,
we find it necessary to rephrase some of the issues as
follows to enable a more focused analysis:
I. Whether the trial judge failed to properly recuse himself.
II. Whether the trial court erred by awarding attorneys'
fees to Wife in opposing Husband's pretrial motions.
III. Whether the trial court erred in classifying SweetWise
as Wife's separate property.
IV. Whether the trial court erred by valuing the patent
application at $0.00 and awarding it to Wife in the property
analyzing the above issues at length, we will summarily rule
on the remaining seven issues.
FAILURE TO RECUSE
courts review a trial court's decision on a recusal
motion de novo, with no presumption of correctness accorded
to the trial court. Tenn. Sup. Ct. R. 10B, § 2.01.
of the core tenets of our jurisprudence is that litigants
have a right to have their cases heard by fair and impartial
judges." Davis v. Liberty Mut. Ins. Co., 38
S.W.3d 560, 564 (Tenn. 2001). Accordingly, at all times
judges must conduct themselves "in a manner that
promotes public confidence in the independence, integrity,
and impartiality of the judiciary…." Tenn. R.
Sup. Ct. 10, RJC 1.2. Judges are required to recuse
themselves from any proceeding "in which [their]
impartiality might reasonably be questioned…."
Tenn. R. Sup. Ct. 10; RJC 2.11(A). This is so even when no
party has filed a motion for recusal. Tenn. R. Sup. Ct. 10,
RJC 2.11, cmt. 2.
Supreme Court Rule 10B requires a party seeking recusal or
disqualification of a judge to "do so by a timely filed
written motion…supported by an
affidavit." Tenn. Sup Ct. R. 10B, § 1.01
(emphasis added). "The motion shall state, with
specificity, all factual and legal grounds supporting
disqualification of the judge and shall affirmatively state
that it is not being presented for any improper
purpose." Id. Once the litigant has filed a
motion in accordance with § 1.01, the judge shall
promptly grant or deny the motion through a written order.
Tenn. Sup. Ct. R. 10B, § 1.03.
Husband's motion seeking Judge Thompson's recusal is
deficient because it lacks the required affidavit. As such,
the record is "insufficient to support a finding of
error on the part of the trial court." Childress v.
United Parcel Service, Inc., No.
W2016-00688-COA-T10B-CV, 2016 WL 3226316, at *3 (Tenn. Ct.
App. June 3, 2016). Accordingly, the trial court's
decision to deny the motion for recusal can be affirmed on
this ground alone. See id.
this fatal deficiency, we have reviewed the record to
determine whether the adverse rulings of which Husband
vociferously complains require recusal. "A trial
judge's adverse rulings are not usually sufficient to
establish bias." State v. Cannon, 254 S.W.3d
287, 308 (Tenn. 2008). Even rulings that are "erroneous,
numerous and continuous, do not, without more, justify
disqualification." Id. (quoting Alley v.
State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994)).
There is good reason for this proposition: "If the rule
were otherwise, recusal would be required as a matter of
course since trial courts necessarily rule against parties
and witnesses in every case, and litigants could manipulate
the impartiality issue for strategic advantage, which the
courts frown upon." Davis, 38 S.W.3d at 565.
the contention that the trial judge should have granted the
motion for recusal because his rulings would prompt an
objective observer to have a reasonable basis for questioning
his impartiality, without more, fails as a matter of law.
See Cannon, 254 S.W.3d at 308; Davis, 38
S.W.3d at 565; Alley, 882 S.W.2d at 821.
Nevertheless, Husband asserts that the factual and legal
errors in the rulings are so egregious that a reasonable
person would question the judge's impartiality.
situations, the cumulative effect of the "'repeated
misapplication of fundamental, rudimentary legal principles
that favor [one party] substantively and procedurally'
can be the basis for recusal." Krohn v. Krohn,
No. M2015-01280-COA-R10B-CV, 2015 WL 5772549, at *7 (Tenn.
Ct. App. Sept. 22, 2015) (quoting Hoalcraft v.
Smithson, No. M2000-01347-COA-R10-CV, 2001 WL 775602, at
*16-17 (Tenn. Ct. App. July 10, 2001)). Therefore, we may
examine the challenged rulings to determine whether they
contain a "misapplication of fundamental, rudimentary
legal principles." Id. However, we may not rule
on the merits of any order other than the order denying the
motion to recuse. See Duke v. Duke, 398 S.W.3d 665,
668 (Tenn. Ct. App. 2012).
reviewed the rulings at issue to determine whether they are
so egregious that they create the appearance of bias, we have
determined that they do not contain errors that rise to the
level of "repeated misapplication[s] of fundamental,
rudimentary legal principles...." Krohn, 2015
WL 5772549, at *7 (quoting Hoalcraft, 2001 WL
775602, at *16). We have also determined that these rulings
do not create the appearance of bias against Husband.
we affirm the trial court's decision to deny the motion
ATTORNEY'S FEES AS SANCTIONS
argues the trial court erred by awarding Wife the
attorney's fees she incurred in connection with the
following three motions filed by Husband: (1) Motion to
Request the Honorable Judge Thompson to Recuse Himself and to
Declare a Mistrial of Petition for Contempt Hearing or in the
Alternative to Reconvene Hearing for Petition for Contempt;
(2) Motion to Compel Wife to Return Husband's Stock
Certificate & Set Equal Distribution of Business Income
or in the Alternative Set Trial Date to Substantiate
Husband's Claim of Stock Ownership; and (3) Second Motion
to Reconvene Hearing for Petition for Contempt.
trial court did not state a legal basis for assessing
attorney's fees as a sanction against Husband in either
of its written orders. However, at the hearing on
Husband's Second Motion to Reconvene Hearing for Petition
for Contempt, the trial court stated to Husband, "You
were assessed attorney's fees as a sanction for the
motions that you filed."
R. Civ. P. 11 governs the imposition of sanctions for
pleadings and motions. Generally stated, Rule 11.02
authorizes the trial court to impose sanctions if the
required notice is given to the offending attorney and/or
party and that attorney and/or party fails to remedy any
pending violation of Rule 11. The rule provides two means for
initiating sanctions for violating Tenn. R. Civ. P. 11. One
of those means is upon motion of a party; the other is on the
court's initiative. Tenn. R. Civ. P. 11.03. Here, the
court initiated the sanctions imposed on Husband. The means
for imposing sanctions on the court's initiative is as
If, after notice and a reasonable opportunity to respond, the
court determines that subdivision 11.02 has been violated,
the court may, subject to the conditions stated below, impose
an appropriate sanction upon the attorneys, law firms, or
parties that have violated subdivision 11.02 or are
responsible for the violation.
(1) How Initiated.
(b) On Court's Initiative. On its own initiative, the
court may enter an order describing the specific conduct that
appears to violate subdivision 11.02 and directing an
attorney, law firm, or party to show cause why it has not
violated subdivision 11.02 with respect thereto.
(2) Nature of Sanctions; Limitations. A sanction imposed for
violation of this rule shall be limited to what is sufficient
to deter repetition of such conduct or comparable conduct by
others similarly situated. Subject to the limitations in
subparagraphs (a) and (b), the sanction may consist of, or
include, directives of a nonmonetary nature, an order to pay
a penalty into court, or, if imposed on motion and warranted
for effective deterrence, an order directing payment to the