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Dye v. Dye

Court of Appeals of Tennessee, Jackson

December 18, 2019

CATRICE THOMAS DYE
v.
WILLIE B. DYE, JR.

          Assigned on Briefs November 13, 2019

          Appeal from the Chancery Court for Shelby County No. CH-17-1693-3 JoeDae L. Jenkins, Chancellor

         The issue in this Tennessee Supreme Court Rule 10B interlocutory appeal is whether the trial court erred in denying a mother's motion for recusal based upon alleged bias due to the court's prior employment of and actions by the guardian ad litem. We find no error in the trial court's ruling.

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

          Jeffrey Lucas Sanderson, Memphis, Tennessee, for the appellant, Catrice Thomas Dye.

          Theresa H. Patterson, Memphis, Tennessee, for the appellee, Willie B. Dye.

          Andy D. Bennett, J., delivered the opinion of the Court, in which John W. McClarty and Carma Dennis McGee, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         Factual and Procedural Background

         Catrice Thomas Dye ("Mother") and Willie B. Dye, Jr., ("Father") were divorced by final decree entered on June 10, 2019, pursuant to which the parties shared equal parenting time with their 16-year-old daughter, Wynter. On July 1, 2019, Mother filed a petition to alter or amend the judgment based upon new evidence and a motion for testimony of the minor child. In her motion, Mother alleged, in part, that Wynter had stated that the "testimony she gave in chambers was not representative of her feelings regarding visitation with her father," but instead was based upon "fear of what her father may do if she said she did not wish to live with him." Further, Mother asserted that Wynter desired to live "the majority of the time with her mother."

         On September 13, 2019, the trial court entered a consent order appointing a guardian ad litem for the minor child, attorney Faith N. Sanford. In this order, the trial court described the role of the guardian ad litem and specified that the guardian ad litem "is not a Special Master, and should not submit a Report and Recommendations to the Court, but may file a Pre-Trial Brief/Memorandum as any attorney in any other case." The trial court further stated:

The GAL must present the results of her investigation and the conclusions regarding the child's best interests in the same manner as any other lawyer presenting his or her case on behalf of the client by such things as calling, examining and cross examining witnesses, submitting and responding to other evidence in conformance with the Tennessee Rules of Evidence, and making oral and written arguments based on the evidence that has been or is expected to be presented.

         After completing her investigation, the guardian ad litem delivered a report to the trial court on September 27, 2019. In her report, the guardian ad litem presented her argument concerning the best interest of the child. She analyzed the fifteen best interest factors set out at Tenn. Code Ann. § 36-6-106(a) and, in her concluding paragraph, stated that her "investigation found no reason for Wynter not to exercise equal parenting time with both her parents, except for Wynter and Mother's preference." The guardian ad litem ended with the following statement: "Based on these findings, the GAL recommends that Mother and Father continue to have equal visitation and both parents continue to be named as the Primary Residential Parent."

         Mother filed a motion to strike the GAL report on September 30, 2019. She argued that, in accordance with Section 7 of Tennessee Supreme Court Rule 40A, the guardian ad litem was not to function as a special master and was not to prepare a report or a recommendation for the court or the parties. Rather, he or she must present the results of her investigation in the same manner as any attorney, by calling witnesses and presenting evidence before the court. Mother asserted that the GAL's report submitted to the trial court was "in direct conflict" with these requirements and should be stricken from the record.

         On October 11, 2019, Mother filed a motion for the chancellor's recusal citing Article 1, § 17, and Article 6, § 11 of the Tennessee Constitution, Tenn. Code Ann. § 17-2-101, and Tennessee Supreme Court Rule 10B. As grounds for the motion, Mother stated the following:

1. That this Motion is not being presented for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.
2. That the Guardian ad Litem submitted a report in direct conflict with Tennessee Supreme Court Rule 40(a). The report was hand delivered to the Chancellor on September 27, 2019. Said correspondence affirming delivery date to the court is attached and marked "Exhibit 1" to this Motion.
3. That in a status conference on September 30, 2019, Chancellor Jenkins confirmed that he had read and reviewed the report of the Guardian ad Litem.
4. That until very recently, the Guardian ad litem was formerly a paid law clerk in Part III of the Chancery Court of Shelby County, Tennessee, under the direct supervision of Chancellor Jenkins.
5. That since the Chancellor has read and reviewed the report and seen the improper recommendation of the Guardian ad Litem, his former employee, he will be unable to render a fair [and] impartial ruling in this matter. Since this report has been delivered to the Court, the Court must now review this report in its totality to determine if the report is in direct conflict with Tennessee Supreme Court Rule 40(a). Upon said review, the well of the court will undeniably be poisoned, as the Chancellor must review every single provision of the report of the Guardian ad Litem to determine if, in fact, a recommendation forbidden by Tennessee Supreme ...

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