Recent Opinion Shows That Not Every Bias, Partiality or Prejudice Warrants Judicial Recusal in Tennessee Divorces
In the case titled Phillips v. Phillips, No. E2013-01433-COA-10B-CV 2013 WL 3462731 (Tenn. Ct. App. July 8, 2013) Knoxville divorce attorneys learn when it is appropriate for a judge to be recused or disqualified from a matter.
Facts: Husband and Wife divorced in May 2010. In a petition for contempt in July 2009, the court stated on record, "I must say I've rarely heard from a witness who has less credibility than the husband in this case, and there's no doubt in my mind that he's in contempt of Court." Husband was held in contempt on this matter, but it was later overturned upon Husband's filing a motion to amend or alter the contempt order.
In August 2011, Wife filed a new petition for contempt. Husband followed with a motion to recuse the trial court judge. Husband averred he found an email on or about April 10, 2013 (written in September 2010) from his ex-Wife to him stating her father "is friends with every judge in Chattanooga" and that the trial court judge presiding over their divorce "hates you and the judge will gladly throw the book at you." Husband included the email in its entirety with his motion along with an affidavit.
In his affidavit, Husband stated that Wife's father (Mr. Walker) had been an attorney for 46 years in Chattanooga and was very well connected with judges and attorneys. He averred that he felt Mr. Walker's presence at the contempt hearing in 2009 influenced the trial court judge's decision which was later overturned. Husband explained that he did not find the email until he was deleting his email account. He further averred that when he found the email it jogged his memory of a threat Wife made to him toward the close of mediation during the litigation of his divorce. He stated that Wife advised him he "had best take the offer" and if he did not or became a problem "she, along with her father, her attorney, and the judge would come together and have [him] thrown in jail." Based on the email, Husband's recalled conversation with Wife, and prior experience in the courtroom, Husband stated he was "very fearful of a biased and unjust outcome" if the trial court judge remained on the matter for the new petition for contempt.
In response to Husband's motion to recuse, Wife asserted that she did not send the email attached to Husband's motion. Wife attached a printout of all the emails she sent from the email account in question from August 2010 through October 2010 with an affidavit attesting to its accuracy. In the affidavit Wife averred she neither sent the email nor authorized anyone else to send the email, and even if she did send it, the email was inadmissible as hearsay.
At the hearing for the motion to recuse, Wife's attorney stated she never made the comments attributed to her in the email, and the trial judge averred she did not know Wife's father. The judge further stated that she did not even remember the case except for "some pictures on the wall," and there was no reason to recuse herself. The judge entered an order denying the motion on June 3, 2013. Husband appealed the decision.
On appeal Husband argued that given the "totality of circumstances" the trial court judge "harbor[ed] some sort of bias against [Husband] such that she would not be able to rule impartially in this matter." He further stated that even if the judge had no actual bias against him "a person of ordinary prudence in the judge's position could find a reasonable basis for questioning the judge's impartiality."
Analysis: After reviewing the initial petition and supportive documentation, the appellate court determined that no further briefs or oral arguments were necessary for it to determine the matter pursuant to Tenn. Sup. Ct. R. 10B § 2.03. This rule allows the appellate court to act summarily on an appeal without answer from the other parties if it deems the initial filing to be sufficient. It also cited Tenn. Sup. Ct. R. 10B § 2.01 which allows for "an accelerated interlocutory appeal as of right."
To determine if the judge in this matter should be recused, the appellate court looked to the Tennessee Supreme Court Rules, case precedent, the Tennessee Constitution, and Tennessee statutes. The Tennessee Constitution states in relevant part:
No judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested, or where the parties shall be connected with him by affinity or consanguinity, within such degrees as may be prescribed by law, or in which he may have been of counsel, or in which he may have presided in any inferior Court, except by consent of all the parties.
Further, Tenn. Code Ann. §17-2-101 provides the parameters in which a judge should recuse himself or herself from a matter unless there is an agreement by the all the parties. It states if a judge has an interest in the outcome of the case, if a judge is connected via "affinity or consanguinity, within the sixth degree," if the judge has ever been counsel on the matter, if the judge ever presided over the case in a lower court proceeding, or if the judge is presiding over a felony criminal matter and is related to the victim of the crime "by affinity or consanguinity within the sixth degree" then they should be recused from presiding over the matter.
Actual impartiality is not the only consideration in regards to a judge's recusal. Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998) states, "preservation of the public's confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial." Tenn. Sup. Ct. R. 10 § 2.11(A) also requires a judge to recuse himself or herself "in any proceeding in which the judge's impartiality might reasonably be questioned." Smith v. State, 357 S.W.3d 322, 341 (Tenn. 2011) further expounded on this rule by stating, "the judge's impartiality might be reasonably questioned because the appearance of bias is as injurious to the integrity of the judicial system as actual bias."
However, Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994) stated "not every bias, partiality, or prejudice merits recusal." It further defined prejudice as:
[P]rejudice must be of a personal character, directed at the litigant [and] must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from...participation in the case. [However,] if actual bias is based upon actual observance of witnesses and evidence given during the trial, the judge's prejudice does not disqualify the judge.
It is also important to note that an unfavorable ruling by a judge, even if erroneous, does not amount to disqualification or recusal without more evidence to suggest otherwise. Alley, 882 S.W.2d at 821.
The only evidence Husband produced to prove the judge's bias was an email that Husband averred Wife sent, a recalled conversation by Husband, and the contempt charge the trial court judge ordered against him. Wife swore in an affidavit that she did not send the email and submitted proof of her sent emails from the email account in question. Wife's attorney also stated in open court that she did not say the things attributed to her in the email Husband produced. The appellate court averred that the email, even if it were sent by Wife, were simply idle threats in which the judge's name was invoked without her knowledge, and, therefore did not amount to bias either actual or inferred as outlined in Tennessee case precedent, court rules, and statutes.
Conclusion: The appellate court found that Husband's appeal did not demonstrate error and affirmed the trial court's decision to deny the motion to recuse. Husband was taxed for the costs of the appeal.