In Re Adison P.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned March 6, 2015

IN RE ADISON P.

Appeal from the Juvenile Court for Henderson County

No. 6203 Steve Beal, Judge

No. W2015-00393-COA-T10B-CV – Filed April 21, 2015

This accelerated interlocutory appeal results from the trial court‟s denial of Appellant

William R. F.‟s (“Father”)1 motion for recusal. Having reviewed the trial court‟s ruling

on the motion for recusal pursuant to the de novo standard of review required under

Tennessee Supreme Court Rule 10B, we reverse the judgment of the trial court.

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

Court is Reversed

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which KENNY

ARMSTRONG, J., joined. BRANDON O. GIBSON, J., filed a dissenting opinion.

Brian Schuette, Bowling Green, Kentucky, for the appellant, William R. F.

Joey M. P., Pro se.

OPINION

Background

This is an accelerated interlocutory appeal from the Henderson County Juvenile

Court‟s denial of a recusal motion. The parties in this case are parents to a minor child

who was born in October of 2002. We consider the case only on the submissions of the

parties and the attachments thereto.2

1

In order to protect the anonymity of minor children, the Court, in its discretion, may elect to use initials

for the children, their parents, and others. K.B.J. v. T.J., 359 S.W.3d 608 n.1 (Tenn. Ct. App. 2011).

The litigation underpinning this appeal concerns a custody dispute between the

minor child‟s parents. Father and the minor child‟s mother, Appellee Joey M. P.

(“Mother”), were not married when the minor child was born. Approximately a year

after the minor child‟s birth, the trial court held a hearing with regard to custody and

paternity. An order on the hearing was subsequently entered on December 8, 2003. In

addition to declaring Father as the minor child‟s natural father, the trial court‟s December

8, 2003, order provided Father with specified visitation rights.

According to Father, Mother, over time, consistently failed to follow the trial

court‟s order with respect to visitation. As a result, on July 11, 2011, Father filed a

petition for contempt and asked that the trial court enter an order granting him temporary

exclusive custody of the minor child. In addition to alleging that Mother had refused to

allow Father to exercise certain visitation rights, Father alleged that Mother had removed

the minor child to Texas. The parties later reached an agreement concerning the

parenting issues, and on August 25, 2011, an agreed order was entered prohibiting

Mother from removing the minor child out of Tennessee absent court approval.

Despite the agreed order entered in August of 2011, the friction between the

parties continued. Visitation disputes remained a problem and led to further litigation.

Once again, however, the parties were able to reach some resolution. Following a

successful mediation, the trial court entered an agreed order on June 4, 2013. This agreed

order permitted Mother to relocate to Texas with the minor child and outlined certain

dates on which Father would have visitation. In relevant part, the June 4, 2013, order

provided that Father was entitled to visitation with the minor child “during the summer

months with the exception of one week.”

According to Father, although his summer visitation with the minor child was

scheduled to begin on June 5, 2013, he claims he was unable to exercise that visitation as

a result of his inability to locate or communicate with Mother. He further claims that

although the trial court held a telephonic conference with the parties‟ counsel on June 26,

2013, the trial court did not enter an order following the conference and refused to order

Mother to comply with the parties‟ agreed visitation order. Eventually, on July 26, 2013,

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2

Father‟s petition for an accelerated interlocutory appeal was accompanied by several documents that

were filed in the trial court, including his motion for recusal, the trial court‟s order denying his recusal

motion, and transcripts of proceedings that occurred before the trial court. Although the minor child‟s

mother filed an answer to Father‟s petition for an accelerated appeal requesting that his petition be

dismissed, she did not take issue with Father‟s recitation of the basic facts surrounding the case.

2

Father, acting pro se, filed a “Petition for Contempt and Emergency Change of Custody.”

Despite his efforts to schedule this petition for a hearing before Judge Steve Beal, Father

alleges that the trial court refused to hear his petition. Father later retained the assistance

of counsel and filed a motion for the entry of a show cause order. Therein, Father

requested that Mother appear and show cause why she should not be held in contempt for

failing to abide by the agreed order entered on June 4, 2013. Father also gave notice to

Mother‟s counsel that the matter was set for hearing on April 23, 2014.

Father alleges that when his counsel appeared before the trial court to present his

motion, Judge Beal refused to hear it. Apparently, Judge Beal indicated he would not

hear the motion unless Mother‟s counsel consented to the hearing or Mother was

personally served with process. Father believed that such a requirement was unnecessary

in light of the fact that he had properly noticed the motion and served it on Mother‟s

counsel of record. Accordingly, on June 9, 2014, Father filed a complaint for mandamus

relief in the Circuit Court of Henderson County. Father also filed a complaint against

Judge Beal with the Tennessee Board of Judicial Conduct on June 13, 2014. Therein,

Father alleged that Judge Beal‟s failure to hear his motion constituted judicial

misconduct.

On July 28, 2014, the Circuit Court conducted a hearing on Father‟s complaint for

mandamus relief. Approximately a month later, on August 27, 2014, the Circuit Court

entered a writ of mandamus granting Father relief in relation to his motion for the entry

of a show cause order. Specifically, the Circuit Court directed Judge Beal to set Father‟s

motion for the entry of a show cause order for hearing.3 Following the Circuit Court‟s

grant of mandamus relief, Father filed a petition in the trial court requesting that Judge

Beal recuse himself from overseeing the visitation dispute between the parties. Judge

Beal denied the motion, and although Father subsequently filed a petition for recusal

appeal under Tennessee Supreme Court Rule 10B, we dismissed the appeal as untimely.4

On December 4, 2014, Father filed a second motion for recusal. This motion was

predicated on grounds different from those that had been specifically raised in the first

motion for recusal. Namely, the second motion alleged that there was a reasonable

question regarding Judge Beal‟s objectivity in Father‟s case due to the fact that Judge

Beal directed Father‟s counsel to draft an order that partially enforced Father‟s visitation

3

As noted by Father, Judge Beal has appealed the order of the Circuit Court that granted mandamus

relief. That appeal, In re Adison P., No. W2014-01901-COA-R3-CV, is still pending in this Court.

4

We dismissed the first recusal appeal, In re Adison P., No. W2014-02000-COA-T10B-CV, by order

entered on October 31, 2014.

3

rights, only to redraft the order to exclude those provisions. As Father recited in the

motion:

At the conclusion of the September 3, 2014, hearing, Judge

Beal directed [Father‟s] counsel to draft an order setting forth

his rulings. Counsel complied with the court‟s directive . . . .

Without explanation, however, Judge Beal redrafted the

order, apparently for the sole purpose of excluding those

portions that enforced on a temporary basis [Father‟s] right to

visit with his daughter in Houston, Texas one weekend per

month and to have telephone contact with her each Friday

evening at 6:00 PM. A copy of the order actually entered by

the Court is attached hereto as Exhibit 2. Judge Beal took this

action in spite of the fact that all parties to the proceeding had

agreed to the order as to form and that it was properly

submitted. By entering an order that excluded provisions

protecting [Father‟s] right to resume contact with his

daughter, Judge Beal has demonstrated a level of bias that

constitutes grounds for his disqualification.

On January 7, 2015, the trial court held a hearing on Father‟s second motion for recusal,

and on February 17, 2015, Judge Beal entered an order denying the motion. Judge Beal

dismissed Father‟s second motion for recusal by reasoning that the matters complained of

had been disposed of in the order denying Father‟s first motion for recusal. As such,

Judge Beal considered the matters to be res judicata. Following Judge Beal‟s denial of

the second motion for recusal, Father timely pursued this accelerated appeal pursuant to

Tennessee Supreme Court Rule 10B. In response to an order of this Court, Mother filed

an answer to Father‟s petition for recusal appeal on March 23, 2015. Having reviewed

Father‟s petition for recusal appeal, along with its supporting documents, and Mother‟s

answer in response to Father‟s petition, we conclude that additional briefing and oral

argument are unnecessary. As such, we now proceed to review Father‟s petition in

accordance with Tennessee Supreme Court Rule 10B sections 2.05 and 2.06.5

5

We observe that Father‟s second motion for recusal and second petition for recusal appeal are

technically deficient in two respects. First, Father‟s second motion for recusal contains no affirmative

statement that “it is not being presented for any improper purpose, such as to harass or to cause

unnecessary delay or needless increase in the cost of litigation.” Tenn. Sup. Ct. R. 10B, § 1.01. Second,

although Father‟s second motion for recusal references that it was supported by an affidavit (as is required

under Tennessee Supreme Court Rule 10B, Section 1.01), this affidavit was not included with the

supporting documents to Father‟s second petition for recusal appeal. Tennessee Supreme Court Rule

10B, Section 2.03 states that “[t]he petition [for recusal appeal] shall be accompanied by a copy of the

motion and all supporting documents filed in the trial court[.]” Tenn. Sup. Ct. R. 10B, § 2.03.

Notwithstanding these deficiencies, we will proceed to consider the substantive issue raised on appeal.

“However, we caution litigants that „while in this case we chose to proceed with our review despite the

fact that the parties chose not to abide by the rules of th[e Tennessee Supreme] Court, we cannot say we

4

I. Issue on Appeal

When reviewing a Tennessee Supreme Court Rule 10B appeal, the only order we

may review is the trial court‟s order that denies a motion to recuse. Duke v. Duke, 398

S.W.3d 665, 668 (Tenn. Ct. App. 2012). In this appeal, we must determine whether the

trial court erred in denying Father‟s second motion for recusal.

II. Standard of Review

We review the trial court‟s ruling on the motion for recusal under a de novo

standard of review. Tenn. Sup. Ct. R. 10B, § 2.01.

III. Discussion

Pursuant to Tennessee Supreme Court Rule 10, Code of Judicial Conduct Rule

2.11, “[a] judge shall disqualify himself or herself in any proceeding in which the judge‟s

impartiality might reasonably be questioned[.]” “„The right to a fair trial before an

impartial tribunal is a fundamental constitutional right[,]‟” Bean v. Bailey, 280 S.W.3d

798, 803 (Tenn. 2009) (quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)), and it

remains “important to preserve the public‟s confidence in a neutral and impartial

judiciary.” Id. As we have emphasized in the past, “the 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.” Kinard v. Kinard, 986 S.W.2d 220, 228

(Tenn. Ct. App. 1998) (citations omitted). Even when a judge sincerely believes that he

can preside over a matter in a fair and impartial manner, recusal is nonetheless required

where a reasonable person “„in the judge‟s position, knowing all of the facts known to the

judge, would find a reasonable basis for questioning the judge‟s impartiality.‟” Davis v.

Liberty Mut. Ins. Co., 38 S.W.3d 560, 564˗65 (Tenn. 2001) (quoting Alley v. State, 882

S.W.2d 810, 820 (Tenn. Crim. App. 1994)). “It is an objective test designed to avoid

actual bias and the appearance of bias, „since the appearance of bias is as injurious to the

integrity of the judicial system as actual bias.‟” Shelby County Gov’t v. City of Memphis,

No. W2014-02197-COA-T10B-CV, 2015 WL 127895, at *4 (Tenn. Ct. App. Jan. 8,

2015) (citation omitted).

The genesis for Father‟s second motion for recusal may be found in the transcript

of proceedings from a September 3, 2014, hearing before the trial court. The hearing

conducted on that date concerned several matters, including a motion to withdraw by

Mother‟s counsel and Father‟s initial motion for recusal. In addition to ruling that he was

_________________________

will be so accommodating and choose to do the same in the future.‟” Watson v. City of Jackson, 448

S.W.3d 919, 928 (Tenn. Ct. App. 2014) (citing Wells v. Wells, No. W2009-01600-COA-R3-CV, 2010

WL 891885, at *4 (Tenn. Ct. App. Mar. 15, 2010)).

5

denying Father‟s motion for recusal, Judge Beal made several rulings concerning

temporary custody of the child. In part, Judge Beal ruled as follows:

I‟m going to instruct there be a weekend visitation, and I‟m

going to have that, if [Father] would like, from a Friday from

6:00 p.m., which would be after school, until Sunday

afternoon, let‟s say six -- well, 5:00 p.m. That gets the child

back more in time for school and gets everybody more

settled. And I’m going to order that to be done within the

next 30 days, in that timeframe. (emphasis added)

In addition to this visitation, Judge Beal ruled that Father was entitled to recurring

visitation once a month until a final hearing on Father‟s motion to show cause occurred.

Judge Beal instructed that the scheduling of such additional visitation could be handled

by the entry of separate monthly orders as was necessary. Judge Beal further ruled that

Father was entitled to speak with his daughter by telephone once per week.

Following the September 3, 2014, hearing, Father‟s counsel prepared a draft order

responsive to the trial court‟s rulings. Significantly, the draft order memorialized Judge

Beal‟s rulings concerning temporary visitation with the minor child. Although this

proposed order was agreed as to form by all parties, Judge Beal refused to sign it.

Instead, Judge Beal drafted his own order that did not include any reference to Father‟s

rights to temporary visitation; this order, which was entered on September 22, 2014,

addressed only the first motion for recusal, Mother‟s counsel‟s motion to withdraw, and a

child support issue. It was Judge Beal‟s refusal to enter the prepared draft order that

caused Father to file his second motion for recusal.

Although Judge Beal denied the second motion for recusal on the basis that all the

matters complained of by Father were dealt with in connection with Father‟s first motion

for recusal, this interpretation is simply incorrect. Father admittedly raised the same legal

arguments concerning Judge Beal‟s obligation to recuse himself from the case, but

Father‟s second motion for recusal did not simply regurgitate the factual grounds

presented to the trial court in the first motion for recusal. Rather, the second motion for

recusal was filed in response to Judge Beal‟s refusal to enter the draft order that

recognized Father‟s temporary visitation rights. Despite Judge Beal‟s comments at the

second recusal hearing that he perceived the recusal issue to be moot and his ultimate

determination that it was res judicata, we agree with Father that the second recusal

request was appropriately before the trial court. Father could not have raised Judge

Beal‟s refusal to enter the prepared draft order in connection with his first motion for

recusal because it was factually impossible to do so. Judge Beal‟s entry of the order

6

excluding mention of his temporary visitation rulings did not occur until several weeks

after the hearing on Father‟s first motion for recusal.6

With respect to the substantive merits of the second motion for recusal, we agree

with Father that the trial court‟s actions in entering the September 22, 2014, order give

rise to a reasonable basis for questioning Judge Beal‟s impartiality. Father‟s draft order

following the September 3, 2014, hearing accurately reflected the rulings that Judge Beal

made, and all parties agreed to the entry of the order as to form. Despite this, Judge Beal

personally redrafted and entered an order that excluded the rulings favorable to Father‟s

visitation rights. When discussing the matter at the second recusal hearing, Judge Beal

offered no real explanation for his actions other than that which is evidenced by the

following exchange:

[Father‟s counsel]: Well, now, you . . . did not memorialize

that order as I think --

[Judge Beal]: It‟s in the past.

[Father‟s counsel]: --the trial court is supposed to do. The trial

court speaks through its written orders.

[Judge Beal]: An order, what I rule is what‟s placed in the

final order, counsel.

[Father‟s counsel]: I did place it in the final order.

[Judge Beal]: That was not -- no, counsel, counsel--

[Father‟s counsel]: I drafted it.

[Judge Beal]: Be quiet a moment. The order was not what I

wished my final ruling to be, and I placed into the order my

6

Although the trial court‟s September 22, 2014, order denying Father‟s first motion for recusal is the

same order to which Father attributes judicial bias on account of its exclusion of Judge Beal‟s temporary

visitation rulings, Father was in no position to raise the new grounds for recusal in connection with his

first accelerated recusal appeal. Again, the new grounds were not litigated or ruled upon in the first

recusal hearing, as they had not yet occurred. We further note that Father was under no obligation to

appeal his substantive grievances concerning the September 22, 2014, order‟s omission of favorable

visitation rulings in connection with his first Rule 10B appeal. Although Judge Beal suggested as much

during the second recusal hearing, it is important to recognize that the September 22, 2014, order was

interlocutory in nature. Father‟s first accelerated recusal appeal entitled him to challenge only the trial

court‟s ruling on the motion to recuse. See Duke, 398 S.W.3d at 668 (“Pursuant to [Tennessee Supreme

Court Rule 10B], we may not review the correctness or merits of the trial court‟s other rulings[.]”).

Likewise, in this appeal, we review only the trial court‟s denial of Father‟s second motion for recusal.

7

final ruling. And the last time I checked counsel does not get

to tell me what the rulings of the Court [are]. The rulings of

the Court [are] what I place into the order.

[Father‟s counsel]: I think the transcript of the hearing will

reflect what the rulings of the Court were.

[Judge Beal]: Before the final order is down the Court can

amend in any way the Court chooses and place the order.

Now, the order as written is the order that I intended and the

order I intend. Now, go ahead, counsel.

[Father‟s counsel]: The order that you entered is inconsistent

with the Court‟s rulings. And the only thing taken out of the

order that the Court entered as compared to the order that I

drafted in accordance with the Court‟s instructions is

anything that recognizes [Father‟s] rights of visitation[.]

Judge Beal‟s explanation offers no real insight into what appears to be an intentional

decision to not memorialize rulings favorable to Father. Father initiated the recent

litigation in this case in an effort to enforce visitation with his minor child, and despite

Judge Beal‟s oral rulings giving Father temporary visitation pending a full hearing, Judge

Beal refused to enter a prepared draft order that affirmed this. As already indicated, the

draft order was approved as to form by all parties in this case. When this fact is

considered in light of the previous history of this case, which included unsuccessful

attempts to set Father‟s motion for the entry of a show cause order, father‟s filing of a

complaint against Judge Beal with the Tennessee Board of Judicial Conduct, and Father‟s

filing for mandamus relief in Circuit Court, Judge Beal‟s decision to not enter an order

memorializing his visitation rulings favorable to Father gives cause for concern as to his

ability to fairly preside over this case. Under the circumstances presented, we hold that

“„a person of ordinary prudence in the judge‟s position, knowing all of the facts known to

the judge, would find a reasonable basis for questioning the judge‟s impartiality.‟” City

of Memphis, 2015 WL 127895, at *7 (citation omitted).

Although the dissent suggests that circumstances of this case only evidence the

fact that Father disagrees with the legal positions taken by Judge Beal, we respectfully

disagree. The facts of this case certainly reflect legal disagreement, but they also raise

reasonable questions about the judge‟s neutrality. Although Judge Beal‟s refusal to

memorialize his oral visitation rulings does not sufficiently evidence the appearance of

bias when considered alone, a reasonable question of impartiality does emerge when this

fact is considered against the background of the case.

8

Again, following the September 3, 2014, hearing, Father‟s counsel drafted an

order responsive to Judge Beal‟s previous rulings and tendered it to the trial court.

Notwithstanding its accuracy in memorializing Judge Beal‟s oral rulings, this draft order

was not ultimately entered. As Judge Beal commented during the course of the second

recusal hearing, “The order was not what I wished my final ruling to be, and I placed into

the order my final ruling.” Although we recognize that a trial court speaks through its

orders, Judge Beal offered no explanation in the instant case as to why the visitation

rulings in Father‟s favor were not included in his September 22, 2014, order. The picture

we are left with, then, is one framed by a deliberate decision by Judge Beal to exclude

visitation rulings he previously made in Father‟s favor. A review of his comments at the

second recusal hearing does not suggest that he necessarily changed his mind as to the

merits of the rulings he previously made; rather, his comments reflect an unwillingness,

for reasons unknown, to memorialize his rulings favorable to Father. As we have already

indicated, this is a cause for great concern when the history of this case is considered.

We must emphasize that the primary disputes in this case concern Father‟s attempts at

exercising visitation with the minor child. When Father previously filed a motion

attempting to address the matter, Judge Beal initially refused to set Father‟s motion for

hearing. In fact, Judge Beal refused to set the matter until a writ of mandamus issued

directing him to do so. It is within this context that we have considered Judge Beal‟s

refusal to memorialize his oral visitation rulings favorable to Father. Although we

certainly cannot say with any certainty that Judge Beal actually acted with any bias with

respect to any of the foregoing decisions, we simply hold that these circumstances

provide a reasonable basis for questioning his impartiality. 7 Accordingly, we conclude

that Judge Beal erred in his decision to continue to preside over this case. In order to

promote confidence in the courts, we must guard against the appearance of impartiality.

The trial court‟s order denying Father‟s second motion for recusal is hereby reversed.

7

We agree with the dissent that recusal is not required merely because a litigant files a disciplinary

complaint against a judge, and we certainly do not intend to suggest that filing a complaint with the

Tennessee Board of Judicial Conduct should dictate such an outcome. The question of whether recusal is

required must be analyzed in terms of the standard already discussed. That is, would a person of ordinary

prudence in the judge‟s position, knowing all of the facts known to the judge, find a reasonable basis for

questioning the judge‟s impartiality? Here, we have made reference to Father‟s misconduct complaint

because it was a fact known to Judge Beal at the time he reviewed Father‟s second motion for recusal.

The dissent notes that Father‟s misconduct complaint does not indicate when or whether it was received

by the Board of Judicial Conduct, but we are satisfied from our review of the materials transmitted to us

that Judge Beal was aware of it. In fact, a review of the transcript of proceedings from the first recusal

hearing on September 3, 2014, indicates that Judge Beal was aware of it as of that date. In addition to our

knowledge of the mandamus complaint, awareness of the judicial misconduct complaint helps inform the

perception of Judge Beal‟s decision to not memorialize his prior rulings favorable to Father. Again, we

find that when Judge Beal‟s lack of a satisfactory explanation for this decision is considered in light of

this greater context, a reasonable basis exists for questioning his impartiality.

9

IV. Conclusion

The order of the trial court denying Father‟s second motion for recusal is reversed.

This cause is remanded to the trial court for transfer to a different judge for all further

proceedings as are necessary and consistent with this Opinion. Costs on this appeal are

assessed against the Appellee, Joey M. P.

___________________________

ARNOLD B. GOLDIN, JUDGE

10