Foley v. Foley ( 1999 )

FILED
October 28, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE,
AT NASHVILLE
___________________________________________________________________
KIMBERLY LYNN (FOLEY) CAUDILL, ) Williamson County Chancery Court
) No. 23856
)
Plaintiff/Appellant, )
)
VS. ) No. 01A01-9903-CH-00187
)
WILLIAM HOWARD FOLEY, )
)
Defendant/Appellee. )
)
____________________________________________________________________________
From the Chancery Court of Williamson County at Franklin
Honorable Russ Heldman, Chancellor
John D. Kitch, Nashville, Tennessee
Attorney for Plaintiff/Appellant.
Edward P. Silva,
HARTZOG, SILVA & DAVIES, Franklin, Tennessee
Attorney for Defendant/Appellee.
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OPINION FILED:
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
FARMER, J.
HIGHERS, J.: (Concurs)
KOCH, J.: (Concurs)
In this dispute between Kimberly Lynn Foley (“Mother”) and William Howard Foley (“
Father”), the trial court denied the Mother’s petition to relocate with the parties’ minor child, removed
the child from the parties’ joint custody, and placed the child in the sole custody of the Father. For the
reasons set forth below, the rulings of the trial court with respect to relocation and child custody are
reversed and the cause is remanded for the setting of the Father’s new visitation schedule.
Factual and Procedural History
At the time of the parties’ divorce in 1996, their daughter Heather was five years old.
Pursuant to the parties’ marital dissolution agreement, the divorce court placed Heather in the parties’
joint custody, designating that the Mother would be the primary custodial parent and that the Father
would have liberal and reasonable visitation. 1 The parties initially were very cooperative and worked
well together regarding the raising of their daughter. The parties’ relationship became strained, however,
after the Father became engaged in October of 1996 and later married Dr. Nina Foley. Further friction
developed between the parties when, in August of 1998, the Mother sent a letter to the Father informing
him that she intended to relocate with Heather to Freeport, Florida and offering to work out a new
visitation schedule. Thereafter in September of 1998, the Mother married Craig Caudill, who owns a
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millwork company in Freeport, Florida.
The Mother subsequently filed a petition seeking permission to relocate with Heather.
The Father then filed a response asking that the petition be denied or, in the alternative, that he be
awarded primary physical custody of Heather with visitation to the Mother. After a hearing on the
matter, the trial judge ruled from the bench that section 36-6-108 of the Tennessee Code Annotated
was unconstitutional, denied the Mother’s petition to relocate, and placed Heather in the sole custody of
the Father. The Mother subsequently filed a motion for new trial, arguing that the Attorney General and
Reporter had not been given notice that the constitutionality of section 36-6-108 had been called into
question and that the pleadings did not include a request by the Father for a change of custody. The
Mother later filed an amended motion for new trial and a motion to recuse, noting that the trial judge had
previously participated as an attorney in a case with similar issues. The trial court subsequently entered
an order giving notice to the Attorney General and Reporter that it had declared section 36-6-108 to be
unconstitutional and offering the Attorney General and Reporter and opportunity to be heard on the
matter. The trial court then entered an order granting a new trial with respect to the constitutionality of
section 36-6-108 and denying the Mother’s motion to recuse. Finally, after considering a motion to
amend and supporting memorandum filed by the Attorney General and Reporter, the trial court issued a
memorandum opinion and final order declaring subsections (c), (d), and (e) of section 36-6-108 to be
unconstitutional as applied to the facts of the case and reinstating its prior order placing Heather in the
sole custody of the Father with visitation to the Mother. This appeal followed.
Issues and Standard of Review
The issues on appeal, as we perceive them, are as follows:
1. Did the trial judge err in declaring section 36-6-108 of the Tennessee
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Code Annotated unconstitutional?
2. Did the trial judge err in denying the Mother’s petition to relocate
with the parties’ minor child?
3. Did the trial judge err in removing the child from the parties’ joint
custody and placing her in the sole custody of the Father?
4. Did the trial judge err in refusing to recuse himself?
To the extent that these issues involve questions of fact, our review of the trial court’s ruling is de novo
with a presumption of correctness. See T.R.A.P. 13(d). Accordingly, we may not reverse these
findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v.
Randolph, 937 S.W.2d 815, 819 (Tenn. 1996); T.R.A.P. 13(d). With respect to the trial court’s legal
conclusions, however, our review is de novo with no presumption of correctness. See, e.g., Bell ex
rel. Snyder v. Icard, Merrill, Cullis, Furen and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn.
1999); T.R.A.P. 13(d).
Mother’s Relocation
Parental relocation in child custody cases is governed by section 36-6-108 of the
Tennessee Code Annotated. See Tenn. Code Ann. § 36-6-108 (Supp. 1998). The trial court, on its
own motion, called into question the constitutionality of section 36-6-108, ultimately ruling that this
provision is unconstitutional as applied to the facts of the case at bar. Specifically, the trial court found
(1) that the retroactive application of this provision would violate Article I, Section 20 of the Tennessee
Constitution, (2) that subsections (c), (d), and (e) 2 of this provision violate the separation of powers
doctrine contained in Article II, Sections 1 and 2 and Article VI, Section 1 of the Tennessee
Constitution, and (3) that subsections (c) and (d) of this provision violate the equal protection clause
contained in Article XI, Section 8 of the Tennessee Constitution.
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We first address whether Article I, Section 20 of the Tennessee Constitution prohibits
the retrospective application of section 36-6-108. Article I, Section 20 provides “[t]hat no
retrospective law, or law impairing the obligations of contracts, shall be made.” Tenn. Const. art. I, §
20. The term “retrospective laws” has been defined as “those which take away or impair vested rights
acquired under existing laws or create a new obligation, impose a new duty, or attach a new disability in
respect of transactions or considerations already passed.” Morris v. Gross, 572 S.W.2d 902, 907
(Tenn. 1978). Article I, Section 20 thus prohibits the retrospective application of laws that impair the
obligation of contracts or divest or impair vested rights. See Dark Tobacco Growers’ Co-op. Ass’n
v. Dunn, 266 S.W. 308, 311 (Tenn. 1924). This provision generally does not, however, prohibit the
retrospective application of laws that are remedial in nature. See Doe v. Sundquist, 943 F. Supp. 886,
893 (M.D. Tenn. 1996), aff’d, 106 F.3d 702 (6 th Cir. 1997); and cert. denied, 522 U.S. 810 (1997);
Kee v. Shelter Ins. Co., 852 S.W.2d 226, 228 (Tenn. 1993); Saylors v. Riggsbee, 544 S.W.2d
609, 610 (Tenn. 1976); State Dep’t of Human Servs. v. DeFriece, 937 S.W.2d 954, 957-58
(Tenn. App. 1996); Morford v. Yong Kyun Cho, 732 S.W.2d 617, 620 (Tenn. App. 1987).
In the instant case, the parties’ marital dissolution agreement states that “Wife shall not
remove child’s residence from jurisdiction of Court without court approval.” The trial court found that,
upon entering into an agreement containing this language, the parties were vested with the right to have
the existing law of Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996), apply to any subsequent
proceeding involving a request by the Mother to relocate with the parties’ minor child. The trial court
then concluded that, pursuant to Article I, Section 20, this “vested right” may not be divested or
impaired by the retrospective application of section 36-6-108. We disagree with the trial court’s
conclusion. This Court has previously held that section 36-6-108 is remedial in nature and does not
impair any vested right. See Adams v. Adams, No. 01A01-9711-CV-00626, 1998 WL 721091, at
*3 (Tenn. App. Oct. 16, 1998). Thus, its retrospective application is not prohibited by Article I,
Section 20. Assuming, however, that Article I, Section 20 is in some way triggered in the case at bar,
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we would still find that the retrospective application of section 36-6-108 would not divest or impair the
parties’ vested rights. Nowhere in the parties’ marital dissolution agreement did they agree that the law
of Aaby would govern any future disputes regarding relocation. Rather, the parties merely agreed that
the Mother would not remove Heather from the state of Tennessee without first obtaining approval from
the trial court. This requirement is consistent with and is in no way undermined by section 36-6-108,
which sets forth a procedure for seeking court approval in cases involving relocation. Thus, because
36-6-108 does not operate to divest or impair the parties’ rights under their marital dissolution
agreement, we conclude that Article I, Section 20 does not prohibit the retrospective application of this
provision to the case at bar.
We next address whether subsections (c), (d), and (e) of section 36-6-108 are
unconstitutional under the separation of powers doctrine contained in Article II, Sections 1 and 2 and
Article VI, Section 1 of the Tennessee Constitution. Article II, Section 1 provides that “[t]he powers of
the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial”
while Article II, Section 2 states that “[n]o person or persons belonging to one of these departments
shall exercise any of the powers properly belonging to either of the others, except in the cases herein
directed or permitted.” Tenn. Const. art. II, §§ 1, 2. Article VI, Section 1 vests power in the judicial
department as follows:
The judicial power of this State shall be vested in one Supreme Court
and in such Circuit, Chancery and other inferior Courts as the
Legislature shall from time to time, ordain and establish; in the Judges
thereof, and in Justices of the Peace. The Legislature may also vest such
jurisdiction in Corporation Courts as may be deemed necessary. Courts
to be holden by Justices of the Peace may also be established.
Tenn. Const. art. VI, § 1.
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Under the doctrine of separation of powers, the three departments of government are “
coordinate, independent, coequal and potentially coextensive.” Anderson County Quarterly Court v.
Judges of 28th Judicial Circuit, 579 S.W.2d 875, 877 (Tenn. App. 1978)(citation omitted). Each
department is expressly prohibited from encroaching on the powers and functions of the other
departments. See Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995);
Richardson v. Young, 125 S.W. 664, 668 (Tenn. 1910); State v. Brackett, 869 S.W.2d 936, 939
(Tenn. Crim. App. 1993). Under the Tennessee Constitution, the legislative department is empowered
to make, order, and repeal the laws while the judicial department is empowered to interpret and apply
the laws. See Richardson, 913 S.W.2d at 453; Richardson, 125 S.W. at 668; Brackett, 869
S.W.2d at 939. It is therefore improper for the General Assembly to attempt to exercise judicial power
by enacting a statute that effectively removes from the judiciary its authority to interpret and apply the
laws. The courts of this state have held on numerous occasions that such statutes are unconstitutional
and void. See Northern v. Barnes, 70 Tenn. 603, 612-13 (1879)(act directing the supreme court to
remand cases in which land is decreed for sale and to order the sale of the land by the clerk of the
inferior court); Perkins v. Scales, 2 Shannon’s Cases 235, 240 (1877)(act directing the manner of
determining judgments or decrees rendered by the supreme court when the judges are equally divided);
Arrington v. Cotton, 60 Tenn. 316, 319 (1872)(declaratory act construing statute regarding the
payment of school teachers); Sells v. King, 58 Tenn. (11 Heisk.) 397, 399 (1872)(act directing the
court to order a change of venue under certain circumstances); Mabry v. Baxter, 58 Tenn. (11 Heisk.)
682, 691-93 (1872)(act giving defendants a right to sever and a right to a change of venue); Brown v.
Haywood, 51 Tenn. (4 Heisk.) 357, 363 (1871)(act providing that, upon the filing of affidavits of three “
unconditional Union men,” the court shall transfer the lawsuit back to the county from which the action
was originally removed); State v. Fleming, 26 Tenn. (7 Hum.) 152, 153-54 (1846)(resolution
providing that all cases pending against defendants charged with tippling shall be dismissed); Governor
v. Porter, 24 Tenn. (5 Hum.) 165, 167-68 (1844)(act directing that a previous statute shall be
construed to require that bonds be issued every year); Jones’ Heirs v. Perry, 18 Tenn. (10 Yer.) 59,
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69-71 (1836)(act authorizing guardian to sell land descended from the parent to pay the debts of the
parent).
Subsection (c) of section 36-6-108 provides that, when the parents are spending
substantially equal amounts of time with the child and one parent seeks to relocate with the child, the trial
court “shall determine whether or not to permit relocation of the child based upon the best interests of
the child.” Tenn. Code Ann. § 36-6-108(c) (Supp. 1998). Additionally, subsection (d) of section
36-6-108 states that, if the parents are not spending substantially equal amounts of time with the child
and the parent spending the greater amount of time with the child seeks to relocate with the child, the
trial court shall allow the relocation unless (1) the parent does not have a reasonable purpose for
relocating, (2) the relocation would pose a threat of specific and serious harm to the child greater than
the threat of harm to the child that would be posed by a change of custody, or (3) the parent’s motive is
vindictive in that his or her reason for relocating is to defeat or deter the visitation rights of the other
parent. See Tenn. Code Ann. § 36-6-108(d) (Supp. 1998). Finally, subsection (e) of section
36-6-108 provides that, if any of these three grounds exists, the trial court “shall determine whether or
not to permit relocation of the child based on the best interest of the child.” Tenn. Code Ann. §
36-6-108(e) (Supp. 1998). This provision further states that, if the trial court finds that relocation is not
in the best interests of the child and the parent spending the majority of the time with the child still elects
to relocate, the court “shall make a custody determination and shall consider all relevant factors.” Tenn.
Code Ann. § 36-6-108(e) (Supp. 1998).
In ruling that subsections (c), (d), and (e) violate the separation of powers doctrine, the
trial court stated as follows:
For the Legislature to tell how the courts should now decide
post-decree custody cases or control decrees within a relocation
context unconstitutionally crosses the line to be maintained between the
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legislative and judicial branches of government and collides with the
Tennesse [sic] Supreme Court’s “interpretation” and “application” of the
existing law of controlling custody decrees when relocation is requested
or opposed.
Contrary to the implication of the trial court, we do not think that the General Assembly invaded the
province of the judiciary when it enacted subsections (c), (d), and (e). These provisions do not mandate
any particular result in parental relocation cases. Rather, as noted above, section 36-6-108 is remedial
in nature. See Adams, 1998 WL 721091, at *3. It is within the province of the General Assembly, not
the judiciary, to establish and control the remedies that are available to persons seeking judicial relief.
See Pacific E. Corp. v. Harpeth Village Dev. Co., 902 S.W.2d 946, 955 (Tenn. App. 1995).
Although section 36-6-108 sets forth the law of parental relocation, subsections (c), (d), and (e) leave
the ultimate decision within the discretion of the trial court. For example, under subsection (c), the trial
court must determine whether relocation is in the best interests of the child. Additionally, under
subsection (d), the trial court must determine whether the parent’s purpose for relocating is reasonable,
whether relocation would pose a serious threat to the child greater than the threat posed by a change of
custody, and whether the parent’s motive for relocating is vindictive. Finally, under subsection (e), the
trial court must make rulings regarding relocation and custody according to the best interests of the child.
Thus, we do not think that these provisions remove from the trial court its authority to interpret and apply
the law of parental relocation. We therefore conclude that subsections (c), (d), and (e) do not violate
the separation of powers doctrine contained in Article II, Sections 1 and 2 and Article VI, Section 1 of
the Tennessee Constitution.
Finally, we address whether subsections (c) and (d) of section 36-6-108 are
unconstitutional under the equal protection clause contained in Article XI, Section 8 of the Tennessee
Constitution. Article XI, Section 8 provides that “[t]he Legislature shall have no power . . . to pass any
law granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions
other than such as may be, by the same law extended to any member of the community, who may be
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able to bring himself within the provisions of such law.” Tenn. Const. art. XI, § 8. This provision
guarantees that persons who are similarly situated will be treated alike. See Evans v. Steelman, 970
S.W.2d 431, 435 (Tenn. 1998)(citing Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139,
153 (Tenn. 1993)). When interpreting Article XI, Section 8, the courts of this state utilize the same
framework developed by the United States Supreme Court for analyzing equal protection claims brought
under the Fourteen Amendment to the federal constitution. See id. (citing Newton v. Cox, 878
S.W.2d 105, 109 (Tenn. 1994); Tennessee Small Sch. Sys., 851 S.W.2d at 152-54). Under this
framework, a legislative classification is subject to strict scrutiny when it interferes with a fundamental
right or operates to the disadvantages of a suspect class of persons. See id. (citing Newton, 878
S.W.2d at 109). If, however, a legislative classification does not interfere with a fundamental right or
adversely affect a suspect class of persons, then the classification is subject to rationale basis scrutiny.
See id. (citing Newton, 878 S.W.2d at 110). Under rational basis scrutiny, a legislative classification
will be upheld if a reasonable basis can be found for the classification or if any set of facts may
reasonably be conceived to justify it. See Tennessee Small Sch. Sys., 851 S.W.2d at 153 (citing
Harrison v. Schrader, 569 S.W.2d 822, 825-26 (Tenn. 1978)).
Subsections (c) and (d) classify parents according to the amount of time spent with their
child, providing a preference in relocation cases to the parent spending a greater amount of time with the
child. See Tenn. Code Ann. § 36-6-108(c), (d) (Supp. 1998). This classification does not disturb a
fundamental right or adversely affect a suspect class of persons. Thus, we must uphold the classification
so long as there is a reasonable basis for it. In Evans v. Steelman, 970 S.W.2d 431 (Tenn. 1998), the
Tennessee Supreme Court found that “the State’s interest in preserving the integrity of the family” was a
reasonable basis for a statute that effectively prohibited a biological father from legitimating his child if the
child’s mother was married to another man at the time of the child’s birth. Id. at 435. In Cline v. Drew
, 735 S.W.2d 232 (Tenn. App. 1987), this Court upheld a similar legitimization statute, noting that the
state has an interest in “preserving and protecting the integrity of the family unit” and in “protecting the
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best interests of the child.” Id. at 239. Likewise, we think that the state’s interest in protecting the best
interests of the child3 is a reasonable basis for the legislative classification contained in subsections (c)
and (d) and the preference that these provisions give to the parent spending the greater amount of time
with the child. We therefore conclude that subsections (c) and (d) do not violate the equal protection
clause contained in Article XI, Section 8.
Having concluded that section 36-6-108 is constitutional as applied to the case at bar,
we must now determined whether, applying the law of section 36-6-108, the trial court erred in denying
the Mother’s petition to relocate. There is no dispute that, although the parties shared joint custody of
Heather, the Mother is the parent spending a greater amount of time with the child. Section
36-6-108(d), which applies to situations in which the parents do not actually spend substantially equal
intervals of time with the child, provides in pertinent part as follows:
The parent spending the greater amount of time with the child shall be
permitted to relocate with the child unless the court finds:
(1) The relocation does not have a reasonable purpose;
(2) The relocation would pose a threat of specific and serious harm to
the child which outweighs the threat of harm to the child of a change of
custody; or
(3) The parent’s motive for relocating with the child is vindictive in that it
is intended to defeat or deter visitation rights of the non-custodial parent
or the parent spending less time with the child.
Tenn. Code Ann. § 36-6-108(d) (Supp. 1998).
The Mother stated three reasons for relocating, including (1) that her new husband Mr.
Caudill resides and owns a successful business in Freeport, Florida, (2) that she has an excellent chance
for re-employment with her former employer in Freeport, and (3) that Heather has many friends and
relatives that live in the areas surrounding Freeport. Each of these purported reasons constitutes a
reasonable purpose for relocation. Additionally, there is no allegation that the Mother’s relocation with
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Heather would pose a threat of specific and serious harm to the child. With respect to the question of
vindictiveness, however, the trial court stated as follows:
And from considering all of the evidence, I have to point out that I was
-- I have to admit that I was impressed with the new Mrs. Foley, that
she was not -- she didn’t come across as the kind of person that Mrs.
Caudill claimed. Mrs. Caudill, you seem to want to attack her for
several reasons and that you testified concerning your concerns about
her alcoholism, about her speeding and about her being an abusive
mother. And you have a right to say those things. But as I considered
all of the proof, I have concluded that she’s not that kind of person.
And that the fact that you exercise your right to claim those things and
failed raises in the Court’s mind the issues of vindictiveness in this matter.
Plus, you were very candid with the court in cross-examination
concerning your feelings toward Dr. Foley and you have a right to say
those things. And I listened and I watched you. And I watched how
you acted from the witness stand. And I can do nothing but conclude
that your motives are vindictive and that your motives are intended to
defeat or deter the visitation rights of Mr. Foley. I have come to that
conclusion based upon what you said and based upon watching you.
Now that being the case, I looked at other things such as the suggestion
that if you did move that his visitation days would have to be cut back.
That was very troubling when that evidence came into the record. That
supports the Court’s finding of vindictiveness. There were other things
that came into the record and I considered Dr. Foley’s testimony and
concerning what she’s done to try to rehabilitate herself and I just don’t
see how the Court can fault her at this point as being a member of a
household that is inappropriate for this child.
Therefore, the Court is going to deny the petition to remove the child by
Mrs. Caudill.
The trial court’s finding of vindictiveness appears to have been based solely on its conclusion that the
Mother dislikes the Father’s new wife. Under section 36-6-108(d), however, the parent’s motive for
relocating is vindictive if it is intended to defeat or deter the visitation rights of the other parent. See
Tenn. Code Ann. § 36-6-108(d) (Supp. 1998). There is no evidence in the record suggesting the
Mother has any desire to defeat or deter the Father’s visitation with Heather. On the contrary, in a letter
informing the Father of her intention to relocate, the Mother included a revised visitation schedule
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allowing the Father to spend substantially the same number of days per year with Heather and offered to
meet the Father at a location which is approximately half way between their residences to facilitate the
Father’s visitation. The Mother also testified that, if the Father was visiting his parents in Pensacola,
Florida, she would drive Heather to Pensacola for visitation. The Mother further stated that, although
she has some reservations regarding the Father’s new wife, she would “bend over backwards” and “do
anything it takes” to ensure that Heather maintains a good relationship with the Father and his new wife.
Based on this testimony and a lack of testimony to the contrary, we conclude that the trial court’s finding
of vindictiveness is contrary to the preponderance of the evidence. Accordingly, we reverse the trial
court’s denial of the Mother’s petition to relocate with Heather to Freeport, Florida.
Change of Custody
In addition to denying the Mother’s petition to relocate, the trial court also removed
Heather from the parties’ joint custody and placed her in the sole custody of the Father. When
considering a non-custodial parent’s request for a change of custody, the court must first determine
whether there has been a material change in circumstances arising subsequent to the initial decree
awarding custody such that the welfare of the child demands a redetermination of custody. See, e.g.,
Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995)(citing Dailey v. Dailey, 635
S.W.2d 391, 393 (Tenn. App. 1981)). If there has been a material change in circumstances, the court
must then determine whether a change of custody is in the best interests of the child. See, e.g., Varley
v. Varley, 934 S.W.2d 659, 665-66 (Tenn. App. 1996)(quoting Koch v. Koch, 874 S.W.2d 571,
575 (Tenn. App. 1993)); Tenn. Code Ann. § 36-6-106 (Supp. 1998). If, however, there has not been
a material change in circumstances, the court is not required to make a best interests determination and
must deny the request for a change of custody.
In the instant case, the trial court cited the failure of the parties’ existing custody
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arrangement as a material change in circumstances. In requesting a change of custody, however, the
Father did not allege that the parties’ joint custody arrangement had become unworkable. Rather, the
Father’s request for a change of custody appears to have been triggered solely by the Mother’s intention
to relocate with the child to Freeport, Florida. 4 At trial, the Father testified that his ex-wife was a good
mother, that the Mother had always been agreeable regarding his visitation with Heather, and that his
desire was that Heather remain in Tennessee and live with the Mother. The Tennessee Supreme Court
has expressly held that the removal of a child from the jurisdiction, in and of itself, may not serve as a
material change in circumstances sufficient to justify a change of custody. See Taylor, 849 S.W.2d at
332. We thus conclude that the trial court’s finding of a material change in circumstances is contrary to
the preponderance of the evidence. Consequently, we reverse the portion of the trial court’s ruling
granting a change of custody to the Father.
Recusal of Trial Judge
As stated above, the Mother filed a post-judgment motion asking the trial judge to
recuse himself based on his participation as an attorney in Smith v. Kelley, No.
01A01-9711-CH-00657, 1998 WL 743731 (Tenn. App. Oct. 27, 1998), a relocation case issued just
days before the trial in the case at bar. In denying the motion, the trial judge stated as follows:
The fact that before becoming a Judge the undersigned, as a private
practitioner, represented a parent opposing a child’s relocation in a
domestic action in an appeal made several months before the
undersigned was sworn in as Circuit Court Judge of the 21 st Judicial
District does not create the appearance of impropriety or partiality to
require recusal in the instant case. . . . The Opinion in Smith v. Kelley
and its release on October 27, 1998, did not prevent the undersigned
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from making a fair and impartial decision in this case, which the
undersign [sic] did make. Furthermore, by hearing this case the
undersigned Chancellor cannot reasonably be construed to evidence the
appearance of partiality or impropriety justifying recusal in response to a
post-trial motion by Plaintiff under objective, reasonable person recusal
standards. The parties have had the benefit of the “cold neutrality” of a
fair and impartial Chancellor.
All litigants are entitled to the “cold neutrality of an impartial court” and have a right to
have their cases heard by fair and impartial judges. Kinard v. Kinard, 986 S.W.2d 220, 227 (Tenn.
App. 1998)(quoting Leighton v. Henderson, 414 S.W.2d 419, 421 (Tenn. 1967); Chumbley v.
People’s Bank & Trust Co., 57 S.W.2d 787, 788 (Tenn. 1933)). In general, a judge should recuse
himself or herself if there is any doubt regarding the judge’s ability to preside impartially or if the judge’s
impartiality can reasonably be questioned. See State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995).
Under Canon 3 of the Code of Judicial Conduct, a judge is required to recuse himself or herself when “
the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal
knowledge of disputed evidentiary facts concerning the proceeding.” Tenn. R. Sup. Ct. 10, Canon
3(E)(1)(a).
In the case at bar, the Mother does not complain that the trial judge had a personal bias
or prejudice toward her or her attorney. Rather, she contends that the trial judge’s vigorous
representation of a father opposing parental relocation in a prior lawsuit gives the appearance of bias or
partiality with respect to the subject matter of relocation. As explained below, however, this type of bias
or prejudice does not trigger a judge’s duty to recuse:
Bias and prejudice are only improper when they are personal. A feeling
of ill will or, conversely, favoritism toward one of the parties to a suit are
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what constitute disqualifying bias or prejudice. For example, where a
judge stated that he “could not stand” a certain law enforcement officer
and would not accept cases initiated by him, it was found that his
personal feelings and intense dislike of the officer were improper.
However, neither bias nor prejudice refer to the attitude that a judge
may hold about the subject matter of a lawsuit. That a judge has a
general opinion about a legal or social matter that relates to the case
before him or her does not disqualify the judge from presiding over the
case. Despite earlier fictions to the contrary, it is now understood that
judges are not without opinions when they hear and decide cases.
Judges do have values, which cannot be magically shed when they take
the bench. The fact that a judge may have publicly expressed views
about a particular matter prior to its arising in court should not
automatically amount to the sort of bias or prejudice that requires
recusal.
Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.04, at 101-02 (2d ed. 1995)(footnotes
omitted). It must also be remembered that an attorney may not necessarily agree with an opinion
expressed or a position advocated on behalf of his or her client. Thus, the fact that the trial judge once
represented a client opposing relocation does not in any way reveal the trial judge’s personal beliefs
regarding the subject of relocation. Nor can we find in the record any comments made by the trial judge
that indicate his personal beliefs regarding relocation. We are also mindful that, as a practical matter, the
rule suggested by the Mother would be unworkable. If, in fact, participation as an attorney in a prior
lawsuit concerning the same subject matter triggers the need for recusal, then nearly every judge would
be required to recuse himself or herself in nearly every case. We are unwilling to recognize a rule that
would lead to such a result.
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Requests for recusal are left primarily to the sound discretion of the court. See Hines,
919 S.W.2d at 578; Kinard, 986 S.W.2d at 228; Young v. Young, 971 S.W.2d 386, 390 (Tenn.
App. 1997); Ellison v. Alley, 902 S.W.2d 415, 418 (Tenn. App. 1995). We will not interfere with a
court’s decision regarding recusal unless it is clear that the court has abused its discretion. See Hines,
919 S.W.2d at 578; Young, 971 S.W.2d at 390. Under the circumstances of the instant case, we do
not think that the refusal of the trial judge to recuse himself was an abuse of discretion. Thus, with
respect to the issue of recusal, the ruling of the trial judge is affirmed.
Conclusion
Based on the foregoing, we affirm in part, reverse in part, and remand the cause with
instructions that the trial court enter an order revising the Father’s visitation schedule to take into account
the Mother’s expected relocation to Freeport, Florida. The costs of this appeal are taxed to the Father,
for which execution may issue if necessary.
____________________________________
FARMER, J.
______________________________
HIGHERS, J.
______________________________
KOCH, J.
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