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Metzger v. Metzger

Court of Appeals of Tennessee, Knoxville

January 23, 2018

BRIAN METZGER
v.
STEPHANIE DIANE METZGER

          Assigned on January 5, 2018

         Appeal from the Circuit Court for Jefferson County No. 24348-II Beth Boniface, Judge

         This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion to recuse the Trial Court Judge filed by Stephanie Diane Metzger ("Mother") during the final hearing in the parties' divorce proceedings below. Having reviewed the Petition for Recusal Appeal filed by Mother, and discerning no reversible error in Trial Court's denial of the motion, we affirm.

         Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Circuit Court Affirmed

          David L. Valone, Knoxville, Tennessee, for the appellant, Stephanie Diane Metzger.

          Jason S. Randolph, Dandridge, Tennessee, for the appellee, Brian Metzger.

          John W. McClarty, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Brandon O. Gibson, J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE

         The parties' divorce proceedings have been pending since June of 2015. Prior to the final hearing, the parties stipulated to the division of marital assets with the exception of a few items. As a result, the majority of the final hearing was devoted to the issues of custody and support for the parties' minor child, including Mother's desire to relocate with the minor child to Indiana. Over the course of four days in August and September of 2017, the Trial Court Judge heard testimony from some witnesses and received into evidence thirty-two (32) exhibits. Prior to the final hearing, Brian Metzger ("Father") had listed thirty-seven (37) potential witnesses, and Mother had listed thirty-four (34) potential witnesses. However, by the end of the fourth day of testimony on September 29, 2017, the Trial Court Judge had heard testimony only from Father, one of Father's witnesses, and the out-of-order direct examination testimony of Mother but not her complete cross-examination testimony. At that point in the proceedings, the Judge made the following observations to counsel:

I'm going to go ahead and tell you what my thoughts are. I'm not going to give all the facts and things like that, that I would do for a written thing, but I'm going to give you guidance on where we're going.
And hopefully this will help you and it also might hone in the last little bit that we need to do as far as questioning of this witness and any rehabilitation of this witness through re-direct. I totally understand that at this time in your life you want to be back closer to family. I get that. I think you feel very lonely and very vulnerable and I understand that.
But I cannot. . Besides extended family there is just not a reason for me to say that dad should not enjoy more time with his son and for you to move up there. And then your child is in 4-H, you know, during the summer. During the school year he's going to have very limited time. During the summer he wouldn't even have the full summer.
And where does the child really want to go a full summer without seeing his mom? So, I am not finding that it's in the child's best interest to . .

         Counsel for Mother interrupted at that point to lodge an objection on grounds that Mother had not even started her ...


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