Assigned on Briefs November 13, 2019
from the Chancery Court for Shelby County No. CH-17-1693-3
JoeDae L. Jenkins, Chancellor
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
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.
D. Bennett, J., delivered the opinion of the Court, in which
John W. McClarty and Carma Dennis McGee, JJ., joined.
D. BENNETT, JUDGE.
and Procedural Background
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
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.
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."
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.
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
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