Sandra Lee Westberry v. Steve Allen Westberry ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 4, 2015 Session
SANDRA LEE WESTBERRY v. STEVE ALLEN WESTBERRY
Appeal from the Circuit Court for Bradley County
No. V-06-045 Lawrence H. Puckett, Judge
No. E2015-02077-COA-T10B-CV-FILED-NOVEMBER 17, 2015
This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme
Court of Tennessee, from the denial of a motion to recuse filed by Steve Allen Westberry
(AFormer Husband@) in the parties= post-dissolution modification proceedings. Having
reviewed the petition for recusal appeal filed by Former Husband, and finding no error in
Trial Court=s ruling, we affirm.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right;
Judgment of the Circuit Court Affirmed
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,
JR., C.J., and THOMAS R. FRIERSON, II, J., joined.
George Taylor Underwood, Knoxville, Tennessee, for the appellant, Steve Allen Westberry.
Barrett T. Painter, Cleveland, Tennessee, for the appellee, Sandra Lee Westberry.
OPINION
According to the petition filed in this Court, Former Husband filed a motion to recuse
the Trial Court Judge based upon what Former Husband characterized in his affidavit in
support of the motion as a Arepeated pattern of denying me my rights coupled with what [he]
believe[d] [was] other bias against [him] by the Court.@ Specifically, Former Husband
asserted in his affidavit in support of the motion that: (a) he never received notice of entry of
an Income Assignment Order; (b) the amount to be deducted from his wages pursuant to said
order was in error; (c) said order provided for the amounts deducted from Former Husband=s
wages to be sent directly to Sandra Lee Westberry (AFormer Wife@), rather than being sent to
her through Athe child support receiving unit in Nashville@; (d) said order includes Former
Husband=s social security number without redaction in violation of his privacy rights; and (e)
Former Husband=s motion for contempt based upon Former Wife=s obstruction of his
visitation remained pending.
The Trial Court Judge denied the motion based on the finding that Former Husband
had stated no grounds in his motion or supporting affidavit warranting disqualification or
recusal. The Judge noted in the order that the adverse rulings asserted as the sole factual
basis supporting the motion were as a matter of law insufficient to support recusal. Former
Husband then timely filed his petition for recusal appeal in this Court pursuant to Rule 10B.
ANALYSIS
Appeals from orders denying motions to recuse or disqualify a trial court judge from
presiding over a case are governed by Rule 10B of the Rules of the Supreme Court of
Tennessee. Pursuant to section 2.01 of Rule 10B, a party is entitled to an Aaccelerated
interlocutory appeal as of right@ from an order denying a motion for disqualification or
recusal of a trial court judge. The appeal is commenced by filing a Apetition for recusal
appeal@ with the appropriate appellate court. Tenn. Sup. Ct. R. 10B, ' 2.02. The petition for
recusal appeal Ashall be accompanied by copies of any order or opinion [of the trial court]
and any other parts of the record necessary for determination of the appeal.@ Tenn. Sup. Ct.
R. 10B, ' 2.03. AIf the appellate court, based upon its review of the petition 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.@ Tenn. Sup. Ct. R. 10B, ' 2.05.
Rule 10B goes on to provide that A[t]he appeal shall be decided by the appellate court on an
expedited basis upon a de novo standard of review. The appellate court=s decision, in the
court=s discretion, may be made without oral argument.@ Tenn. Sup. Ct. R. 10B, ' 2.06.
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 Former Husband does not
demonstrate error by the Trial Court Judge in the denial of the motion to recuse. As such, we
have elected to act summarily on this appeal in accordance with sections 2.05 and 2.06 of
Rule 10B.
Without question, A[t]he 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)); see also Tenn. Const. Art. VI, '
11. This constitutional right Ais 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
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court had reached a prejudged conclusion because of interest, partiality, or favor.=@ Id.
(quoting Austin, 87 S.W.3d at 470). A[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 Ajustice must satisfy the
appearance of justice@). As such, Rule 2.11(A) of the Code of Judicial Conduct as set forth
in Rule 10 of the Rules of the Supreme Court of Tennessee requires a judge to recuse himself
or herself Ain 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 A>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 Abias@ and Aprejudice@ generally Arefer to a state of mind or attitude that
works to predispose a judge for or against a party@; however, A[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, Aprejudice 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.
However, A[i]f 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. In addition, A[a] trial
judge=s adverse rulings are not usually sufficient to establish bias.@ State v. Cannon, 254
S.W.3d 287, 308 (Tenn. 2008). ARulings 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).
As the Trial Court Judge concluded in the order on review, there are no facts alleged
or shown in the record either that demonstrate actual bias on the part of the Judge, or that
would lead a well-informed, disinterested observer to question the impartiality of the Judge
in this case. It cannot be argued that the Judge had a duty to recuse himself simply because
Former Husband is dissatisfied with the rulings against him. As the Judge noted in the order
on review, his Aonly knowledge of@ and Aonly contact with the parties at all times has
occurred while the [J]udge was presiding over the case in performance of the [J]udge=s duty
as the [T]rial [J]udge assigned to preside over the parties= case.@
CONCLUSION
Having determined that the record provided by Former Husband does not demonstrate
error, we affirm the Trial Court=s denial of the motion to recuse. Former Husband is taxed
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with the costs of this appeal, for which execution may issue. This case is remanded for
further proceedings.
______________________________
JOHN W. MCCLARTY, JUDGE
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