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Gentry v. Gentry

Court of Appeals of Tennessee, Nashville

December 28, 2017


          Assigned on Briefs October 4, 2017

         Appeal from the Circuit Court for Sumner County No. 83CC1-2014-CV-393 Joe Thompson, Judge.

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part and Reversed in Part

          John Anthony Gentry, Goodlettsville, Tennessee, Pro Se.

          Pamela A. Taylor and Brenton H. Lankford, Nashville, Tennessee, for the appellee, Katherine Wise Gentry.

          Frank G. Clement Jr., P.J., M.S. delivered the opinion of the Court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.


          FRANK G. CLEMENT JR., P.J., M.S.

         Katherine 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.

         At the 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 not respond.

         Approximately 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.

         On 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.

         At the 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 finances."

         The 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 Husband's request.

         Shortly 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.

         Following 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.

         The 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. § 36-4-129(b).

         With 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 property division.

         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.


         Husband raises eleven issues on appeal.[1] 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 division.

         After analyzing the above issues at length, we will summarily rule on the remaining seven issues.


         Appellate 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.

         "[O]ne 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.

         Tennessee 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.

         Here, 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.

         Notwithstanding 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.

         Thus, 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.

         In rare 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).

         Having 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.

         Accordingly, we affirm the trial court's decision to deny the motion for recusal.


         Husband 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.

         The 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."

         Tenn. 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.[2] 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 follows:

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 ...

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