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Smith v. Daniel

Court of Appeals of Tennessee, Nashville

December 13, 2019

BETTY CAITLIN NICOLE SMITH
v.
ZACHARY TAYLOR DANIEL

          Assigned on Briefs November 26, 2019

          Appeal from the Chancery Court for Maury County No. 19-515 Christopher V. Sockwell, Chancellor

         This is an appeal from the denial of a motion for recusal. After carefully reviewing the record provided by the pro se appellant, we affirm the decision of the trial court denying the motion for recusal.

         Tenn. S.Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

          Betty Caitlin Nicole Smith, Hopkinsville, Kentucky, Pro Se.

          Carma Dennis McGee, J., delivered the opinion of the court, in which Richard H. Dinkins and John W. McClarty, JJ., joined.

          OPINION

          CARMA DENNIS MCGEE, JUDGE

         I. Facts & Procedural History

         Betty Caitlin Nicole Smith ("Mother") and Zachary Taylor Daniel ("Father") were divorced in Florida in 2017. Since then, they have been involved in post-divorce child custody litigation in Florida, Kentucky, and Tennessee. On September 20, 2019, Mother filed a petition for dependency and neglect and for an emergency custody order in the juvenile court of Maury County, Tennessee. The juvenile court held a hearing on September 23, 2019, and after the close of Mother's proof, the juvenile court dismissed Mother's petition. The juvenile court's order states that the court limited Mother's evidence to events occurring since July 18, 2019, the date of the Florida court's order, "as all previous matters [were] already adjudicated in [Florida]." The juvenile court of Maury County found no "new actions or issues" indicating immediate or irreparable harm and dismissed the petition for dependency and neglect and emergency custody, ruling that the child would remain in the custody of Father.

         Days later, Mother filed a petition for an order of protection for the child and a petition for custody in the chancery court of Maury County (although the actual petition does not appear in the record before us).[1] The chancery court held a hearing on the petition for an order of protection on October 11, 2019. We do not have a transcript of the hearing in the record before us, or an order regarding the petition for an order of protection, but after the hearing, Mother filed a "Motion to Set Aside Time," asking the court to reserve four to five hours for the next hearing, which would address the matter of custody. Within the "Motion to Set Aside Time," Mother asserted that she had many "concerns" after the first hearing in chancery court. For example, she said that "[a]t the beginning of the hearing it was stated that the petitioner was to begin as the petitioner, but instead the Respondent's attorney who began the hearing [sic]." Mother claimed that she was "not fairly allowed to present her case." She alleged that the trial court denied her a hearing in violation of her due process rights. According to Mother's motion, "This Honorable court stated it would not rule on the bruising from September 20th 2019, because the Honorable Juvenile Court had already ruled on it, when in reality no it had not." Mother asserted that the trial judge did not "fully" read the juvenile court's order and was not familiar with her filings. She alleged that she "felt a large sum of bias" from the court and could not help but to feel that it was because she was proceeding pro se. Mother also claimed that the trial court failed to resolve or even mention her previous request to proceed as indigent. As such, Mother asked the trial court to become familiar with the file before the next hearing, "[r]emove any bias this Honorable Court may have," and treat her as it would an attorney.

         A second hearing was held on October 28, 2019. Again, we do not have a transcript of the hearing in the record. However, after the hearing, Mother filed a motion for recusal of the trial judge. She repeated her complaints about the first hearing, regarding Husband's attorney beginning the hearing, the trial judge's ruling that he would not address the allegations already resolved by the juvenile court, her claim that she was not permitted to fairly present her case, and her belief that the trial judge was biased against her for proceeding pro se. Mother also added complaints about the second hearing. She claimed that Father's attorney was again "the one to begin court" and that she was "treated differently" than attorneys. Next, Mother contended that an order had been entered on October 25, between the dates of the two hearings, without her knowledge. She also alleged that the trial judge refused to answer her questions about Thanksgiving visitation with the child. Mother maintained that the trial judge was biased against her for proceeding pro se and asked the trial judge to recuse himself.

         On November 22, 2019, the chancery court entered an order denying Mother's motion to recuse. The order states that the trial judge had no contact with or knowledge of Mother prior to the filing of her petition, and the trial judge's only contact with Mother occurred at the two hearings on October 11 and October 28. The order notes Mother's claim that she "felt" bias in open court but could not articulate a specific violation of any legal ground. The trial judge specifically addressed Mother's complaints of bias regarding the first hearing. It noted Mother's allegation that her petition for an order of protection was not heard and that her due process rights were violated. The order states that the trial judge specifically asked Mother if there were any issues in her current petition for an order of protection that had not been dealt with in the Florida court and the juvenile court of Maury County. The order states that the trial judge informed Mother that she would not be allowed to relitigate the same issues that had been brought before those courts. The order states that the chancery court then denied the request for an order of protection on the basis that the matters in her petition had been previously litigated in juvenile court and in Florida.

         Next, the order addressed Mother's complaints regarding the second hearing, held on October 28, on custody matters. The order acknowledges that Mother "wanted to be heard" on her petition for change of custody. However, the trial judge noted that Mother had not requested an emergency custody hearing but only a change in custody. According to the order, the trial judge informed Mother that the full hearing on the petition to change custody would not be held that day, as Father still had time remaining to file an answer and response under the Tennessee Rules of Civil Procedure. Additionally, the clerk and master was still in the process of organizing the files and records sent from the Florida court. The order states that the trial judge informed Mother that her petition would be heard at the appropriate time.

         Finally, the trial judge acknowledged Mother's claim that she sensed bias by the way the trial judge looked at her. The trial judge dismissed this as nothing more than a feeling and found that recusal was not warranted. Mother timely filed a notice of appeal to this Court. Based on our review of the petition and supporting documents, we have determined that neither an answer, additional briefing, nor oral argument ...


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