Nicole Marie Neuman v. Paul Phillips

12/21/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 5, 2021

NICOLE MARIE NEUMAN v. PAUL PHILLIPS

Appeal from the Chancery Court for Williamson County

No. 20CV-49481 Deanna B. Johnson, Judge

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No. M2021-01162-COA-T10B-CV

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A mother seeks accelerated review of the denial of her motion for recusal. In her motion,

the mother argued that recusal was warranted because the trial judge’s husband, an elected

official, expressed a public opinion on the subject matter of the case. In this appeal, she

again argues that the opinion of the judge’s husband justified recusal. But she also argues

that the order denying her motion for recusal reflected a bias on the judge’s part. We agree

that the opinion of the judge’s husband on a political matter did not warrant recusal. And,

while the order denying the recusal request did make findings about the motive behind the

request that were unsupported by the record, the erroneous findings alone are insufficient

to raise a reasonable question as to the judge’s impartiality. So we affirm.

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

Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which KENNY W.

ARMSTRONG and KRISTI M. DAVIS, JJ., joined.

Francis King, Nashville, Tennessee, for the appellant, Nicole Marie Neuman.

Amanda Raye Thornton and Corey T. Coleman, Nashville, Tennessee, for the appellee,

Paul Phillips.

OPINION

I.

In September 2020, Nicole Marie Neuman petitioned to modify a parenting

agreement with her former husband, Paul Phillips. Ms. Neuman claimed that a material

change of circumstances had occurred since the parties reached their agreement. Among

other things, she alleged that Mr. Phillips had “established a pattern of being difficult

toward[] [her]” and that he “unnecessar[ily] contradict[ed] [her] on reasonable education

decisions.” She also claimed that Mr. Phillips had “demonstrated that he [wa]s incapable

of making joint education decisions.”

Nearly a year later, Mr. Phillips asked the court to order the parties to mediation or

to set a final hearing. He also moved to hold Ms. Neuman in civil contempt. In his motion

for contempt, Mr. Phillips claimed that he had attempted to consult with Ms. Neuman

regarding whether their child should attend in-person or online classes. But, without

Mr. Phillips’s consent, Ms. Neuman enrolled the child in online classes. Mr. Phillips

contended that her action violated their divorce decree because he was granted “ultimate

decision-making authority” on educational issues.

Ms. Neuman responded by opposing everything but mediation. She also argued that

the case could not be ready for a final hearing because she was seeking leave to amend her

original petition. The proposed amended petition alleged additional material changes in

circumstances, including the parties’ disagreement over in-person versus online schooling.

According to Ms. Neuman, Mr. Phillips’s “continued insistence that the [c]hild attend in-

person school is contrary to the best interest of the [c]hild[] and potentially dangerous to

his health and safety.” And “[a]nyone not living under a rock has to know that the delta

variant of COVID-19 is raging like wildfire in Middle Tennessee, with thousands of school

children contracting the virus.” For the first time, she asked that she “be vested with sole

and exclusive authority to make educational decisions for [the child], including, without

limitation, where he will attend school and whether he will do so in-person or online.”

Shortly thereafter, Ms. Neuman moved to recuse the trial judge. She submitted that

the judge’s husband, the majority leader of the state senate, “ha[d] been a vocal proponent

of the view that children should now be attending school in-person . . . and that students

and teachers should not be required to wear masks.” And “there [wa]s good reason to infer

that [the judge] probably . . . share[d] [her husband’s] view.” Ms. Neuman characterized

the litigation with her former husband as over “in-person versus online school attendance

for the parties’ minor child.” So recusal was warranted because of “the possibility of [the

judge] being influenced, consciously or otherwise, by [her husband’s] views[] and/or her

own . . . views.”

To support her contentions, Ms. Neuman submitted a guest editorial that the judge’s

husband had written for The Tennessean the previous month. In the editorial, the husband

advocated for a return to the classroom and took issue with the local school board’s

decision to require students, staff, and visitors at elementary schools to wear face masks

while indoors and on buses. As for the proposition that the judge’s views might align with

her husband’s, Ms. Neuman cited the husband’s political website, which showed the judge

and her husband pictured together. The website included a statement that the husband and

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the judge had met at a Young Republican function and that they shared the same

conservative values. She also cited a social media post from the husband recalling that he

and his spouse had protested against a state income tax. Finally, Ms. Neuman stated that

the judge “ha[d] (understandably) attended and stood by her husband’s side at political

events and rallies.”

The trial court denied the recusal motion. The order noted that Ms. Neuman offered

no evidence that the judge had expressed any opinion on in-person versus online learning

or mask requirements for school children. The inference that the judge might share the

publicly expressed opinions of her husband was based on speculation and “unfounded

beliefs.” The court reasoned that the opinions of the judge’s husband had nothing to do

with the judge’s ability to be fair and impartial. And it concluded that personal and political

opinions had “no place in the courtroom.” The court also found that the recusal motion

was “without merit and was filed for an improper purpose and in bad faith.”

II.

Rule 10B of the Rules of the Supreme Court of Tennessee governs the procedure

for “determin[ing] whether a judge should preside over a case.” TENN. SUP. CT. R. 10B.

In an accelerated interlocutory appeal, our review is limited to the trial court’s ruling on

the motion for disqualification or recusal. See id. § 2.01; Duke v. Duke, 398 S.W.3d 665,

668 (Tenn. Ct. App. 2012) (“[T]he only order we may review is the trial court’s order that

denies a motion to recuse.”). We apply a de novo standard of review. TENN. SUP. CT. R.

10B § 2.01.

In an accelerated appeal, we may request an answer from the other party and

briefing. Id. § 2.05. We may also set oral argument. See id. § 2.06. And we may grant a

stay of the proceedings below “pending [our] determination of the appeal.” Id. § 2.04.

After a review of the petition for recusal appeal and supporting documents, we determined

that an answer from Mr. Phillips was necessary and issued a stay in order to consider the

answer.

In Tennessee, litigants “have a fundamental right to a ‘fair trial before an impartial

tribunal.’” Holsclaw v. Ivy Hall Nursing Home, Inc., 530 S.W.3d 65, 69 (Tenn. 2017)

(quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)); see Kinard v. Kinard, 986

S.W.2d 220, 227 (Tenn. Ct. App. 1998) (reasoning that litigants “are entitled to the ‘cold

neutrality of an impartial court’” (quoting Leighton v. Henderson, 414 S.W.2d 419, 421

(Tenn. 1967))); see also TENN. CONST. art. VI, § 11. It “goes without saying that a trial

before a biased or prejudiced fact finder is a denial of due process.” Wilson v. Wilson, 987

S.W.2d 555, 562 (Tenn. Ct. App. 1998).

Our courts also recognize that “the appearance of bias is as injurious to the integrity

of the judicial system as actual bias.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565

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(Tenn. 2001); see In re Cameron, 151 S.W. 64, 76 (Tenn. 1912) (“[I]t is of immense

importance, not only that justice shall be administered . . . , but that [the public] shall have

no sound reason for supposing that it is not administered.”). So a judge should recuse when

they have “any doubt as to [their] ability to preside impartially in [a] case.” Davis, 38

S.W.3d at 564. But a judge must also “disqualify himself or herself in any proceeding in

which the judge’s impartiality might reasonably be questioned.” TENN. SUP. CT. R. 10,

Rule 2.11(A). This test is “an objective one.” State v. Cannon, 254 S.W.3d 287, 307

(Tenn. 2008). It requires recusal “when 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.” Davis, 38 S.W.3d at 564-65 (quoting Alley v. State,

882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)).

A.

Here, Ms. Neuman first argues that, “by deciding [her recusal] motion without a

hearing, [the trial judge] improperly deprived her of the rightful opportunity to make a

complete record that could later be made available for appellate review.” But we are aware

of no right to an evidentiary hearing on a motion to recuse. In most cases, conducting such

a hearing would run counter to our supreme court’s directive that, when presented with a

recusal motion, a trial judge must “act promptly by written order and either grant or deny

the motion.” TENN. SUP. CT. R. 10B § 1.03. And Ms. Neuman does not explain how she

was prejudiced by the lack of an evidentiary hearing. She all but acknowledges a lack of

prejudice by arguing that, “even on just the existing record, there is ample reason for this

Court to reverse.”

Under the circumstances, we discern no error in the trial court ruling summarily and

without a hearing on the recusal motion. An evidentiary hearing would not have added

anything to Ms. Neuman’s two core factual assertions. First, the judge’s husband is a

prominent elected official who had publicly endorsed in-person over online school

attendance and criticized the local school board for requiring masks despite the COVID-

19 pandemic. Second, the judge is “well-known to be generally supportive of her

husband’s views[] and to be of the same political and ideological persuasion.”

B.

Based on the factual assertions, Ms. Neuman makes a twofold argument for recusal.

First, she “contend[s] that there is a reasonable basis to believe that the judge may very

well share [her husband’s] opinion, and that this could influence her decisions in this case.”

Second, she “contend[s] that, even if [the trial judge] does not share that opinion, or does

not have a definitive view on the subject of in-person versus online school attendance, [her

husband’s] highly visible public profile and stated views could influence her consideration

of this case.” But a judge “is not disqualified merely because he or she is related to one

who has an interest in some abstract legal question that is involved in the case.” 46 AM.

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JUR. 2D Judges § 118, Westlaw (database updated Nov. 2021). Even if the judge shared

her husband’s opinion—which Ms. Neuman did not prove—personal bias “does not refer

to any views that a judge may have regarding the subject matter at issue.” Alley, 882

S.W.2d at 821; see also 46 AM. JUR. 2D Judges § 136 (“Prejudice growing out of . . .

political . . . relations generally is insufficient to disqualify a judge.”); 48A C.J.S. Judges

§ 273, Westlaw (database updated Nov. 2021) (“A judge will not be disqualified . . . merely

by expressing an opinion on a question of law involved in a case in the court.”).

This is not the first case in which a trial judge’s impartiality has been called into

question by virtue of a spouse. See, e.g., Perry v. Schwarzenegger, 630 F.3d 909, 911 (9th

Cir. 2011) (recusal sought based on “wife’s beliefs, as expressed in her public statements

and actions, both individually and in her capacity as Executive Director of the American

Civil Liberties Union of Southern California”); Hayes v. Oregon, No. 1:20-CV-01332-CL,

2021 WL 374967, at *4 (D. Or. Feb. 3, 2021) (recusal sought on the basis of the judge’s

late husband who served as chair of the Democratic Party of Oregon); Salazar v. United

States, No. 17-CV-3645 (GBD) (OTW), 2018 WL 2276163, at *1 (S.D.N.Y. May 16,

2018) (recusal sought by virtue of the judge’s status as wife of a doctor); Nat’l Abortion

Fed’n v. Ctr. for Med. Progress, 257 F. Supp. 3d 1084, 1089 (N.D. Cal. 2017) (recusal

sought on the basis of social media activity of the judge’s wife); Akins v. Knight, No. 2:15-

CV-4096-NKL, 2016 WL 127594, at *3 (W.D. Mo. Jan. 11, 2016) (recusal sought based

on criticism offered by the judge’s spouse to a petition seeking United States Supreme

Court review of a case); Glair v. City of Los Angeles, No. CV 13-8946 GAF, 2014 WL

12923962, at *1 (C.D. Cal. Apr. 30, 2014) (recusal sought on the speculative notion “that

a judge’s marriage to a prosecutor makes it impossible for the judge to impartially apply

qualified immunity principles to allegations about police officers’ actions”). But the idea

that a judge should recuse based on a spouse’s opinion “is based upon an outmoded

conception of the relationship between spouses.” Perry, 630 F.3d at 912. In marrying,

“spouses do not give up their freedom of thought and expression.” Nat’l Abortion Fed’n,

257 F. Supp. 3d at 1090. So “[n]o thoughtful or well-informed person would simply

assume that one spouse’s views should always be ascribed or attributed to the other in the

absence of an express disclaimer.” Id.

We agree with the trial judge that the views of her spouse were irrelevant to the

proceedings between Ms. Neuman and Mr. Phillips. See Perry, 630 F.3d at 911

(recognizing that the views of a judge’s spouse “public or private, as to any issues that may

come before [a] court, constitutional or otherwise, are of no consequence”); see also TENN.

SUP. CT. R. 10, Rule 2.4(B) (requiring judges to decide cases without regard to “family,

social, political, financial, or other interests or relationships”). The issue before the court

is not the merits of in-person or online schooling or whether masks should be required in

schools. As Mr. Phillips points out, the issues are whether the current parenting plan should

be modified and whether Ms. Neuman should be held in contempt. As part of resolving

the latter issue, the court will determine who had authority over educational decisions for

the child. As part of resolving the former, the court may decide to modify that authority.

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A person of ordinary prudence would not find a reasonable basis for questioning the

judge’s impartiality based on the facts presented. See Akins, 2016 WL 127594, at *3

(determining that “[t]he average person on the street would not reasonably believe the

[judge] would approach a case in a partial manner due to [her spouse’s] independent views

regarding a subject, whether those views are publicly expressed or not”).

C.

As an additional basis for recusal, not found in her recusal motion, Ms. Neuman

argues that the court’s order denying her request for recusal “reflected a bias on [the

judge’s] part in favor of [Mr. Phillips].” Ms. Neuman cites two examples from the court’s

order that she claims “reflects the judge’s obvious animosity and antipathy toward [her]

and portends the likelihood of a bias against her going forward that makes recusal all the

more necessary.”

The first example cited is the order’s discussion of Mr. Phillips’s pending motion

for civil contempt. The order describes Mr. Phillips’s argument for holding Ms. Neuman

in contempt but does not describe Ms. Neuman’s response. By doing so, Ms. Neuman

claims that the judge “appears to have pre-judged the issue by stating that the [prior divorce

decree] gives [Mr. Phillips] final decision-making authority [on educational decisions].”

And by addressing the contempt motion at all, the judge “appears to imply” that

Ms. Neuman’s recusal motion “was somehow nefarious and motivated by a desire to avoid

the contempt issue.”

We disagree with Ms. Neuman’s characterization of the court’s order to the extent

it addresses the contempt motion. The order denying recusal only briefly describes Mr.

Phillips’s argument for contempt sanctions in the introductory paragraph. And the order

attributes the argument from the contempt motion to Mr. Phillips without further

commentary. Referencing the contempt motion provides context on the timing of the

recusal motion, but that reference alone suggests nothing about the motivation behind the

recusal motion, which brings us to Ms. Neuman’s second example.

The second example cited is the order’s finding that the recusal motion was filed for

an improper purpose and in bad faith. A recusal motion filed “to harass or to cause

unnecessary delay or needless increase in the cost of litigation” would be filed with an

improper purpose. TENN. SUP. CT. R. 10B, § 1.01. Nothing in this record suggests that

Ms. Neuman filed her recusal motion to harass, cause delay, or to increase costs. She only

filed the motion after discussing the issue with the judge and opposing counsel on a

conference call.

And the court provided little or no explanation for its improper purpose and bad

faith finding. The court faulted Ms. Neuman for not carrying her burden of proof to

successfully challenge a judge’s impartiality. Specifically, the court ruled that she “failed

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to identify any factual basis to support her suspicions and unfounded beliefs.” But the

failure to meet an evidentiary burden does not establish an improper purpose or bad faith.

Nor does reliance on “an outmoded conception of the relationship between spouses.” See

Perry, 630 F.3d at 912.

Remarks, unsupported by the record, that “suggest that the judge has taken a

position favorable or unfavorable to a party . . . indicate bias.” Alley, 882 S.W.2d at 822.

Likewise, gratuitous comments in a court’s order denying recusal that impute

unprofessional and unfounded motives to a litigant can be grounds for recusal. See

Commonwealth v. McCauley, 199 A.3d 947, 952-53 (Pa. Super. Ct. 2018); cf. Markowitz

& Co. v. Toledo Metro. Hous. Auth., 608 F.2d 699, 708 (6th Cir. 1979) (“We find no

comments . . . which were unwarranted or unsupported by the record, and see no indication

of any bias or prejudice in [the judge’s] findings of fact or conclusions of law.”); Mallett

v. Mallett, 473 S.E.2d 804, 808 (S.C. Ct. App. 1996) (“It is . . . not . . . clear to us that the

trial judge’s remarks . . . meet the bias test for recusal, nor are the trial judge’s findings so

unsupported by the record as to manifest impartiality.”).

Although attributing bad faith or improper motive to Ms. Neuman was unjustified,

we conclude that that the erroneous finding does not support recusal of the judge. Ms.

Neuman does not point to any other instances from the record that might serve as a basis

to question the judge’s impartiality. See Cook v. State, 606 S.W.3d 247, 257 (Tenn. 2020)

(holding that a judge’s inappropriate comments at the conclusion of a hearing permit a

reviewing court to “consider the entire record of the proceeding when evaluating whether

those comments are a basis to conclude that the judge’s impartiality might reasonably be

questioned”). While it was imprudent, the finding alone does not raise a reasonable

question as to the judge’s impartiality.

III.

We affirm the denial of Ms. Neuman’s motion to recuse. And the stay of the

proceedings below is lifted. We remand the case for such further proceedings as may be

necessary.

s/ W. Neal McBrayer

W. NEAL MCBRAYER, JUDGE

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