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Stark v. Stark

Court of Appeals of Tennessee, Jackson

June 18, 2019


          Assigned on Briefs May 22, 2019

          Appeal from the Circuit Court for Shelby County No. CT-002958-18 Robert Samual Weiss, Judge

         In this accelerated interlocutory appeal, Wife appeals the trial court's denial of her motion to recuse the trial judge in her divorce case. Specifically, Wife argues that the trial court's rulings demonstrate a bias against her because the trial court purportedly ruled in favor of Husband in excess of the relief requested. We affirm the trial court's denial of Wife's motion to recuse.

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

          Pamela Diane Stark, Memphis, Tennessee, Pro se.

          Melissa C. Berry, Cordova, Tennessee, for the appellee, Joe Edward Stark.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Charles D. Susano, Jr., and Andy D. Bennett, JJ., joined.




         Plaintiff/Appellant Pamela Diane Stark ("Wife") filed a complaint for divorce against Defendant/Appellee Joe Edward Stark ("Husband") on June 29, 2018. Wife is a licensed attorney working for the District Attorney General of the Thirtieth Judicial District. Husband works as a police officer for the Memphis Police Department. On November 28, 2018, Wife, after obtaining leave of court, filed an amended complaint to assert that Husband had committed battery and intentional infliction of emotional distress against her. According to Wife, the battery allegations result from an incident of domestic violence that occurred on June 17, 2018. Although Wife's employer recused from the matter and a special prosecutor was appointed, Wife asserts that the Memphis Police Department continues to investigate the matter.

         In support of the divorce and tort actions, Wife caused six subpoenas to be issued for the depositions of Husband and other witnesses, including a lieutenant from the Memphis Police Department. The notices indicated that five of the depositions, including Husband's, would be taken at the marital residence. The final deposition was to take place in Missouri where the witness resided. On January 9, 2019, Husband filed a motion for a protective order seeking that all in-person depositions be taken at the Shelby County courthouse, that a bailiff be present for Husband's deposition, and that the out-of-state deposition take place remotely.

         A hearing on Husband's motion was held on January 25, 2019. No transcript or statement of the evidence from this hearing is included in the record.[1] On February 13, 2019, the trial court ruled that Husband's motion was "reasonable under the circumstances." As such, the trial court ordered that the depositions of Husband, as well as well as Sgt. Mote, Anthony Mullins, Daniel Cordero, and James Erwin would take place at the Shelby County Courthouse and that a bailiff would be present for Husband's deposition.[2] The trial court denied, however, Husband's request that the deposition of the out-of-state witness be taken remotely, ruling that the deposition would take place in Missouri unless the witness agreed to be deposed in Shelby County.

         In the meantime, on January 15, 2019, Husband filed a petition for a restraining order under rule 65.03 of the Tennessee Rules of Civil Procedure. Therein, Husband alleged that Wife was posting on her personal Facebook page allegations against Husband with regard to domestic violence. Additionally, Husband alleged that Wife "disparaged the Memphis Police Department's internal handling and investigation of said case." Husband argued that such dissemination of these allegations could cause immediate irreparable harm to Husband's reputation and employment. As such, Husband requested that the trial court enter an immediate temporary restraining order requiring Wife to remove the posts and to refrain from making similar posts or comments in the future. Wife responded in opposition to Husband's petition on May 21, 2019. Therein, Wife admitted to making the posts, but asserted that her comments concerned a matter of public concern protected by the United States and Tennessee Constitutions. Finally, Wife asserted that Husband's motion was an attempt to harass Wife and "bias [the trial judge] into a belief that 'contentiousness' exists between the parties."

         A hearing on Husband's petition was held on February 7, 2019. Husband testified that Wife had engaged in various alleged harassing behavior, including notifying his lieutenant of the allegations and posting about the domestic violence allegations on her personal Facebook page. According to Husband, these posts were visible to his co-workers and clearly suggested that he was a domestic abuser. Likewise Husband testified that after filing his petition, Wife informed his counsel that she had also sent a letter to Memphis Mayor Jim Strickland concerning alleged corruption in the Memphis Police Department; the letter specifically referenced Husband and the allegations against him. Husband explained that an investigation into the allegations was ongoing, but that the allegations alone could be injurious to his reputation with his employer. Finally, Husband indicated that Wife's actions were harassing and done in an effort to intimidate him. Wife chose not to testify; rather she provided only legal argument that her statements were protected by the First Amendment. In contrast, Husband's counsel argued that the mandatory injunction in place at the time the divorce complaint was filed prohibited the parties from harassing or making disparaging comments about each other, including to employers, and that the injunction should be extended to force Wife to remove the offending posts.

         Following the argument of the parties, the trial court ruled that Wife's argument regarding the First Amendment was not well-taken because her allegations did not refer to corruption generally as a matter of public concern, but with regard to the allegations against Husband specifically, which action was prohibited by the mandatory divorce injunction. As such, the trial court ruled that Wife was to remove the offending posts the same day and that "a mandatory injunction will go into effect that there will be no communication with employers." The trial court also ruled that "making any further allegations in social media is completely inappropriate and is being enjoined." Thereafter the following exchange occurred:

[Wife]: Well, Your Honor, I will just with all candor to the Court say you might as well take me into custody right now. I have contacted the FBI as well as having contacted the mayor of Memphis to try and get this addressed. I am saying that I am a victim of corruption from the Memphis Police Department, and I am going to pursue every course of action I have and -
THE COURT: Ms. Stark, are you going to remove that post, yes or no?
[Wife]: I am not.
THE COURT: Officer Houston, take her into custody.
We'll stand in recess.
(Short break.)
THE COURT: Ms. Stark, please stand. Are you going to comply with this Court's orders?
[Wife]: No, I'm not.
THE COURT: All right. I'm making a finding that you are in direct contempt of court by willfully refusing to comply with this Court's orders. You . . . will be held in custody until such time that you decide that you want to change your position and you ...

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