Arthur A. Allen v. Heather S. Allen
Date Filed2023-12-12
DocketE2023-01660-COA-T10B-CV
Cited0 times
StatusPublished
Syllabus
This is an interlocutory appeal as of right, pursuant to Tenn. Sup. Ct. R. 10B, filed by Arthur A. Allen ("Father"), seeking to recuse the trial judge in this case. Having reviewed the petition for recusal appeal filed by Father, and finding no error, we affirm. Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right Judgment of the Chancery Court Affirmed Case Remanded
Full Opinion (html_with_citations)
12/12/2023
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 1, 2023
ARTHUR A. ALLEN v. HEATHER S. ALLEN
Appeal from the Chancery Court for Washington County
No. 20-DM-0387 Suzanne S. Cook, Judge1
___________________________________
No. E2023-01660-COA-T10B-CV
___________________________________
This is an interlocutory appeal as of right, pursuant to Tenn. Sup. Ct. R. 10B, filed by
Arthur A. Allen (“Father”), seeking to recuse the trial judge in this case. Having reviewed
the petition for recusal appeal filed by Father, and finding no error, we affirm.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the
Chancery Court Affirmed; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CARMA DENNIS
MCGEE and JEFFREY USMAN, JJ., joined.
Crystal Jessee, Greeneville, Tennessee, for the appellant, Arthur A. Allen.
Dustin Jones, Johnson City, Tennessee, for the appellee, Heather S. Allen.
OPINION
Background
The underlying divorce proceedings in the Washington County Chancery Court (the
“Trial Court”) involve custody of minor children and development of a residential
parenting schedule that is in the children’s best interest. This matter was scheduled initially
to be heard by Chancellor John C. Rambo; however, due to a scheduling conflict, Judge
Suzanne Cook presided over the evidentiary hearing that occurred on December 12, 2022.
1
Sitting by Interchange.
The December 12, 2022 transcript reflects that at the beginning of the trial, Judge
Cook informed the parties that she previously had met the mother, Heather S. Allen
(“Mother”), while participating in “theater things” but stated that she had never represented
Mother and had no knowledge of what had transpired in these proceedings. Judge Cook
informed the parties that they had the right to discuss the connection between Mother and
Judge Cook with their respective counsel outside Judge Cook’s presence regarding whether
the parties wished for Judge Cook to recuse herself. According to Judge Cook, she “wanted
to put that on the record so that in case there was any disagreement on that we would know
it now before we started.” Neither parent requested for Judge Cook to recuse herself at
that time.
The December 12, 2022 hearing involved developing the residential parenting
schedule. The parties agreed that the Child would relocate to Georgia and attend public
school in Father’s school district. Mother also stated her intent to move to Georgia to be
with the children. During the hearing, the Trial Court declined to allow the parties’ then
twelve-year-old child to testify. Father also alleged that the Trial Court appeared to be
disregarding the parties’ agreement announced at the beginning of trial. This trial resulted
in the parties coming to an agreement resolving all issues before the Trial Court at that
time. The agreed parenting plan designated the parents as joint primary residential parents
with equal parenting time. The Trial Court entered an order approving the parenting plan
agreed to by the parties as being in the best interest of the children. Neither party appealed
this judgment.
After the December 2022 trial, Father filed a complaint against Judge Cook with the
Tennessee Board of the Judiciary. The complaint was subsequently dismissed. In February
2023, Mother filed a motion seeking criminal contempt due to Father’s alleged interference
with her parenting time under the permanent parenting plan and failure to seek her
agreement with regard to joint decisions. The parties appeared for a hearing with regard
to Mother’s criminal contempt allegations in front of Judge Cook. However, because
Father had only recently been served with the Mother’s motion for criminal contempt, the
hearing was continued.
In May 2023, Father filed a petition to modify the permanent parenting plan to
designate Father the primary residential parent and to decrease Mother’s parenting time
with the children. Father also filed motions for civil contempt and criminal contempt, both
alleging that Mother failed to pay her pro rata share of expenses for the children. A hearing
on the post-trial contempt motions is scheduled for December 12, 2023, which was
originally set to be heard by Chancellor Rambo because Father stated he would not agree
to have Judge Cook preside over the matter. However, the parties received notice that
Chancellor Rambo had assigned the matter to Judge Cook to conduct the hearing.
On October 31, 2023, Father filed his first motion to recuse. In his motion, Father
alleged bias on behalf of Judge Cook due to her “closeness” with Mother. According to
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Father, he was unaware of the extent of the “closeness” between Judge Cook and Mother
until after the December 2022 trial. Father alleged that Mother and Judge Cook had
performed together at the theater and attached social media posts reflecting the connection
between Mother and Judge Cook. Father attached cast lists for “Camelot” and “Harvey,”
each containing both Mother’s and Judge Cook’s names, as well as a photograph from
October 2016 showing Mother and Judge Cook standing next to each other posing for a
photo in a group of five people in what appears to be a theater cast photo. Father also
attached screenshots from a social media platform reflecting that Mother and Judge Cook
follow each other on this platform. Additionally, Father alleged that Mother had spoken
with Judge Cook for a consultation during the divorce litigation. Moreover, Father alleged
that Judge Cook had spoken to at least one of the children while in Mother’s presence
during the time Mother and Judge Cook were performing together.
The Trial Court entered an order denying the recusal motion, finding that Father’s
recusal motion failed to comply with Tenn. Sup. Ct. R. 10B § 1.01 due to several procedural
defects, including that the motion was not signed by Father, that it was not sworn to by
Father, that it did not contain either an affidavit under oath or declaration under penalty of
perjury based on personal knowledge, and that the motion failed to affirmatively state that
the motion was not being presented for any improper purpose.2 The Trial Court held that
these procedural defects were fatal and denied the motion. However, the Trial Judge
proceeded to address the allegations of bias made against her and stated as follows with
regard to those allegations:
The transcript from December 12, 2022 is clear that the undersigned
initiated and identified to counsel and the parties an acquaintance with
Mother from many years ago. The undersigned initiated the opportunity for
counsel and the parties to discuss outside of the Court’s presence the issue of
recusal. Prior to the hearing, the Court asked both counsel to approach the
bench during which the Court disclosed that years ago the Court was
acquainted with Wife/Mother through a community theater, and that
Wife/Mother had contacted the undersigned about representing her (without
consultation), which the undersigned did not. The Court also explained to
2
Tenn. Sup. Ct. R. 10B § 1.01 provides as follows:
Any party seeking disqualification, recusal, or a determination of constitutional or statutory
incompetence of a judge of a court of record, or a judge acting as a court of record, shall
do so by a written motion filed promptly after a party learns or reasonably should have
learned of the facts establishing the basis for recusal. . . . The motion shall be supported by
an affidavit under oath or a declaration under penalty of perjury on personal knowledge
and by other appropriate materials. The motion shall state, with specificity, all factual and
legal grounds supporting disqualification of the judge and shall affirmatively state 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.
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both counsel that it had no knowledge whatsoever of any prior proceedings
between the parties nor the details of the proceeding to be heard on December
12, 2022. Thereafter, the attorneys exited the courtroom with their clients,
had discussions outside of the Court’s presence, and returned to say they and
their clients wished to proceed. The hearing began,
And I need to put on the record that I, before this started, I had
discussed with both counsel that I knew nothing about the facts of this
case. I have never met Mr. Allen. I have met Ms. Allen during some
theater things, but I have never represented her and l have no personal
knowledge of what’s taken place. And I discussed with both lawyers.
to discuss with you, that you have the right to discuss outside my
presence whether you wanted me to recuse myself or not. And both
your counsel has said that you wish to proceed. So, I wanted to put
that on the record so that in case there was any disagreement on that
we would know it now before we started.
No disagreement was expressed. No request to continue was made. The
hearing proceeded over several hours, but before the conclusion of the same,
the attorneys and their clients announced they had reached resolution.
About four weeks after the hearing, Father complained in mid-January
2023 to the Board of Judicial Conduct (“the Board”). The complaint was
dismissed by the Board. Father’s present motion echoes his complaint(s) to
the Board, including the assertion of “closeness” between Mother and the
undersigned based upon seven years ago being in a community theater show
“Camelot” in late September — early October 2016 and a backstage dressing
room photo from the show posted contemporaneously seven years ago by a
third party who “tagged” Mother and the undersigned.
Father now additionally (mis)relies upon an exhibit to his motion
showing a cast announcement for a second . . . community show, “Harvey”.
Father’s exhibit omits the cast announcement was publicized on February 21,
2019 for the show dates of May 10-26, 2019. However, Father and his
counsel appear to be uninformed that the undersigned did not actually
perform in “Harvey”. The theater’s webpage documents the same[.]
The Court calls to Father and his counsel’s attention that about two
weeks after the “Harvey” casting announcement, the undersigned’s then
fifteen year old son was unexpectedly admitted to the hospital on March 9,
2019, then diagnosed with a rare and extremely aggressive form of cancer
resulting in the undersigned and her son being emergently relocated within
mere hours of diagnosis by medical jet from Johnson City, Tennessee to
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Memphis, Tennessee as patient(s) of St. Jude Children’s Research Hospital
for inpatient and on campus treatment for several months, and thereafter an
ensuing almost three years of highly intensive treatment between St. Jude’s
in Memphis and the St. Jude Affiliate Clinic and hospital in Johnson City,
Tennessee.
Next, Father raises as grounds that 1) he does not agree with the
Court’s rulings during the hearing on December 12. 2022, and 2) he filed a
dismissed complaint against the undersigned. Neither of these warrant
recusal.
Father attaches the transcript of the December 12, 2022 hearing. The
transcript reflects cordial exchanges between the Court and both counsel,
sustaining and overruling objections for and against both parties, significant
efforts to understand, clarify, and analyze all of the issues, admonishing
Mother’s counsel three times to let Father finish his answers (protecting
Father’s right to testify without interruption), allowing Father’s counsel to
fully argue the points she wanted to advance, Father’s counsel both agreeing
and disagreeing with various rulings during the hearing, the Court
complimenting the lawyers and the parties, and the Court proceeding to
complete the trial and hear from all witnesses before the parties requested an
opportunity to talk outside the courtroom, and then announced an agreement.
(Internal citations and footnote omitted.) As such, the Trial Judge found that Father’s
disagreement with the Trial Court’s rulings and the Board complaint filed against Judge
Cook by Father were insufficient to warrant recusal. In her order denying the recusal
motion, the Trial Judge concluded that despite the procedural defects, the Trial Court had
addressed Father’s allegations of bias, “including his continued mischaracterization of
‘closeness’ based upon an acquaintanceship from seven years ago which was limited in
time and scope.” The Trial Judge assured that she had presided impartially and without
bias over the December 2022 trial and that there was no reasonable appearance of bias
sufficient to question the Trial Judge’s impartiality.
Subsequently, Father filed his second motion to recuse Judge Cook. The allegations
in the second motion are essentially identical to the allegations of bias in the previous
motion to recuse, except that Father attached two affidavits to the second recusal motion
that were inadvertently omitted from the first motion — one affidavit executed by Father
and the second executed by the parties’ now thirteen-year-old son. The affidavit executed
by the child states that he overheard Mother speaking negatively about Father while in a
group setting at the theater with Judge Cook present.
On November 14, 2023, the Trial Judge entered an order denying the second recusal
motion upon her determination that the second motion failed to allege facts or grounds that
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were substantially different from the first recusal motion and that it also contained
procedural defects. With regard to the procedural defects, the Trial Judge explained that
the second recusal motion did not contain either an affidavit or declaration under penalty
of perjury based on personal knowledge and that the motion failed to state that it was not
presented for any improper purpose as required by Rule 10B. The order on the second
motion incorporated by reference the Trial Judge’s order denying the first recusal motion,
which included the Trial Judge’s ruling on the substantive allegations of bias. Pursuant to
Tenn. Sup. Ct. R. 10B, Father timely filed an interlocutory appeal as of right from Judge
Cook’s order denying recusal.
Discussion
It is unclear which denial of his recusal motions Father seeks to appeal; however,
we will address the Trial Judge’s denial of both recusal motions as the substantive
allegations are the same in both motions. We have determined in this case after a review
of the petition and supporting documents submitted with the petition, that an answer,
additional briefing, and oral argument are unnecessary to our disposition because the record
provided by Father does not demonstrate error by Judge Cook with regard to the denial of
Father’s two motions for recusal. As such, we have elected to act summarily on this appeal
in accordance with sections 2.05 and 2.06 of Rule 10B. See Tenn. Sup. Ct. R. 10B, § 2.05
(“If the appellate court, based upon its review of the Petition for recusal appeal and
supporting documents, determines that no answer from the other parties is needed, the court
may act summarily on the appeal. Otherwise, the appellate court shall order that an answer
to the petition be filed by the other parties. The court, in its discretion, also may order
further briefing by the parties within the time period set by the court.”); § 2.06 (“An
accelerated interlocutory appeal shall be decided by the appellate court on an expedited
basis. The appellate court’s decision, in the court’s discretion, may be made without oral
argument.”).
We review a trial court’s ruling on a motion for recusal under a de novo standard of
review with no presumption of correctness. Tenn. Sup. Ct. R. 10B § 2.01. “The party
seeking recusal bears the burden of proof, and ‘any alleged bias must arise from
extrajudicial sources and not from events or observations during litigation of a case.’”
Neamtu v. Neamtu, No. M2019-00409-COA-T10B-CV, 2019 WL 2849432, at *2 (Tenn. Ct. App. July 2, 2019), no appl. perm appeal filed, (quoting Williams by & through Rezba v. HealthSouth Rehab. Hosp. N., No. W2015-00639-COA-T10B-CV,2015 WL 2258172
,
at *5 (Tenn. Ct. App. May 8, 2015), no appl. perm. appeal filed). As this Court explained
in Neamtu:
The party seeking recusal bears the burden of proof. Williams, 2015 WL
2258172, at *5; Cotham v. Cotham, No. W2015-00521-COA-T10B-CV,
2015 WL 1517785, at *2 (Tenn. Ct. App. Mar. 30, 2015) (no perm. app.
filed). “[A] party challenging the impartiality of a judge ‘must come forward
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with some evidence that would prompt a reasonable, disinterested person to
believe that the judge’s impartiality might reasonably be questioned.’” Duke
[v. Duke], 398 S.W.3d [665,] 671 [(Tenn. Ct. App. 2012)] (quoting Eldridge
v. Eldridge, 137 S.W.3d 1, 7-8 (Tenn. Ct. App. 2002)). When reviewing
requests for recusal alleging bias, “it is important to keep in mind the
fundamental protections that the rules of recusal are intended to provide.” In
re A.J., No. M2014-02287-COA-R3-JV, 2015 WL 6438671, at *6 (Tenn. Ct.
App. Oct. 22, 2015), perm. app. denied (Tenn. Feb. 18, 2016). “The law on
judicial bias is intended ‘to guard against the prejudgment of the rights
of litigants and to avoid situations in which the litigants might have cause
to conclude that the court had reached a prejudged conclusion because
of interest, partiality, or favor.’” Id.(quoting Bean v. Bailey,280 S.W.3d 798, 803
(Tenn. 2009)). Neamtu,2019 WL 2849432
, at *3 (quoting In re Samuel P., No. W2016-01592-COA- T10B-CV,2016 WL 4547543
, at *2 (Tenn. Ct. App. Aug. 31, 2016), no appl. perm. appeal
filed.) (emphasis in original).
The Trial Judge denied the recusal motions based on procedural grounds and on
their merits. We first address the Trial Court’s denial of the recusal motions based on the
merits of the allegations of bias against Judge Cook. In his Rule 10B petition to this Court,
Father argues that Judge Cook has demonstrated bias in favor of Mother and against Father
due to the “closeness” of the relationship between Mother and Judge Cook. Prior to hearing
evidence at trial in December 2022, Judge Cook sufficiently disclosed that she had met
Mother while participating in “theater things.” Judge Cook informed the parties that they
had the right to discuss the connection between Mother and Judge Cook with their
respective counsel outside Judge Cook’s presence regarding whether the parties wished for
Judge Cook to recuse herself. Judge Cook did not acknowledge a conflict of interest but
invited the parties to file recusal motions if they so desired. Neither parent requested for
Judge Cook to recuse herself at that time. In fact, it was only after Father received
unfavorable rulings during the December 2022 trial that he claimed bias by Judge Cook
due to the alleged close relationship between Mother and Judge Cook. As Judge Cook
explained, the theatrical play Mother and Judge Cook both participated in had occurred in
2016, nearly seven years before the motions to recuse filed by Father. According to Judge
Cook, the relationship was limited in time and scope. Although Mother had spoken to
Judge Cook informally regarding representing her in the divorce proceedings, the Trial
Judge stated that she declined such representation without a consultation. Judge Cook
further denied having knowledge regarding the divorce proceedings. The burden of proof
is on Father, and Father has failed to present evidence demonstrating Judge Cook and
Mother had a close relationship or that such relationship had continued following the play
in which they performed together in 2016.
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Furthermore, Father did not have an issue with the connection between Judge Cook
and Mother until Judge Cook ruled against him on certain issues during the December 2022
trial. According to Father, the Trial Judge appeared to deviate from the parties’ pre-trial
agreements and denied Father’s request to allow the parties then twelve-year-old child to
testify. We note that the only order this Court may review as to its correctness or merits in
a Tenn. Sup. Ct. R. 10B recusal appeal is the trial court’s order denying a motion to recuse.
Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012) (“Pursuant to [Tenn. Sup. Ct.
R. 10B], we may not review the correctness or merits of the trial court’s other rulings . . .
.”). Therefore, we do not review these rulings by the Trial Court for their correctness but
only as they relate to whether Judge Cook has demonstrated bias in this proceeding.
“[P]reservation 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); see also Offutt v. United States,348 U.S. 11, 14
(1954) (holding that “justice must satisfy the appearance of justice”). As such, Rule 2.11(A) of the Code of Judicial Conduct as set forth in Tenn. Sup. Ct. R. 10 requires a judge to recuse himself or herself “in any proceeding in which the judge’s impartiality might reasonably be questioned.” See also Smith v. State,357 S.W.3d 322, 341
(Tenn. 2011) (noting that recusal is required, even if a judge subjectively believes he or she can be fair and impartial, whenever “‘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’” (quoting Bean,280 S.W.3d at 805
)).
The terms “bias” and “prejudice” generally “refer to a state of mind or attitude that
works to predispose a judge for or against a party”; however, “[n]ot every bias, partiality,
or prejudice merits recusal.” Alley v. State, 882 S.W.2d 810, 821(Tenn. Crim. App. 1994). To merit disqualification of a trial judge, “prejudice must be of a personal character, directed at the litigant, ‘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.’”Id.
“If the bias is based upon actual observance of witnesses and evidence given during the trial, the judge’s prejudice does not disqualify the judge.”Id.
“However, if the bias is so pervasive that it is sufficient to deny the litigant a fair trial, it need not be extrajudicial.”Id.
That said, “[a] trial judge’s adverse rulings are not usually sufficient to establish bias.” State v. Cannon,254 S.W.3d 287, 308
(Tenn. 2008); see also Alley,882 S.W.2d at 821
. In fact, “[r]ulings of a trial judge, even if erroneous, numerous and continuous, do not, without more, justify disqualification.” Alley,882 S.W.2d at 821
; see also State v. Reid,313 S.W.3d 792, 816
(Tenn. 2006). In other words, “if the bias is alleged to stem from events occurring in the course of the litigation, the party seeking recusal has a greater burden to show bias that would require recusal, i.e., that the bias is so pervasive that it is sufficient to deny the litigant a fair trial.” McKenzie v. McKenzie, No. M2014- 00010-COA-T10B-CV,2014 WL 575908
, *3 (Tenn. Ct. App. Feb. 11, 2014).
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Furthermore, “a judge should not decide to recuse unless a recusal is truly called for
under the circumstances.” Rose v. Cookeville Reg’l Med. Ctr., No. M2007-02368-COA-
R3-CV, 2008 WL 2078056, *2 (Tenn. Ct. App. May 14, 2008), no appl. perm. appeal filed. This is true because “‘[a] judge has as much of a duty not to recuse himself absent a factual basis for doing so as he does to step aside when recusal is warranted.’”Id.
at *2 (quoting Mass v. McClenahan, No. 93 Civ. 3290 (JSM),1995 WL 106106
, *1 (S.D.N.Y. Mar. 9, 1995)). Recusal based upon an asserted appearance of bias or prejudice “is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality.”Id.
at *2 (quoting In re United States,666 F.2d 690, 695
(1st Cir. 1981)).
Adverse rulings and a litigant’s resultant unhappiness with the rulings, even if the
Trial Court’s rulings are erroneous and numerous, are insufficient, without more, to justify
recusal. Additionally, Father has failed to demonstrate that Judge Cook has a close
relationship with Mother such that would create an appearance of bias. Furthermore, the
fact that Father filed a judicial complaint with the Board of the Judiciary against Judge
Cook without any additional evidence of actual bias or partiality is insufficient to
demonstrate an appearance of impropriety or bias against Father. See Denney ex rel.
Doghouse Computers, Inc. v. Rather, No. M2022-01743-COA-T10B-CV, 2023 WL
316012, at *4 (Tenn. Ct. App. Jan. 19, 2023) (“[R]ecusal is not required simply because a party has filed a complaint against a judge.”). As such, Father has failed to produce evidence that would prompt a person of ordinary prudence in Judge Cook’s position, with knowledge of all facts known to Judge Cook, to find a “reasonable basis for questioning the judge’s impartiality.” See Adams v. Dunavant,674 S.W.3d 871
, 878 (Tenn. 2023).
Father failed to satisfy his burden of proof. Therefore, we find no error in Judge Cook’s
denial of Father’s motions for recusal. Based on our holding regarding the merits of the
recusal motions, the Trial Judge’s denial based on various procedural defects is
pretermitted as moot.
Conclusion
For the foregoing reasons, we affirm the Trial Judge’s denial of the motions for
judicial recusal. Arthur A. Allen is taxed with the costs of this appeal, for which execution
may issue. This case is remanded for further proceedings.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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