Timothy Messmaker v. Heather L. Messmaker

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 23, 2015
TIMOTHY MESSMAKER v. HEATHER L. MESSMAKER
Appeal from the Circuit Court for Carter County
No. C13246 J. Eddie Lauderback, Judge
No. E2015-02071-COA-T10B-CV-FILED-DECEMBER 1, 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 for recusal filed by Timothy Messmaker
(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.
Larry C. Vaughan, Knoxville, Tennessee, for the appellant, Timothy Messmaker.
Heather L. Messmaker, Elizabethton, Tennessee, appellee, pro se.
OPINION
According to the petition filed in this Court, Former Husband filed a motion for
recusal of the Trial Court Judge based upon Former Husband=s belief that he could not
Aobtain a fair hearing@ before the Trial Court Judge as a result of Athe prior actions of the
Court.@ Specifically, Former Husband alleged in his affidavit in support of the motion that
the Trial Court Judge had: (a) denied Former Husband the opportunity to present evidence in
support of his position at a prior hearing; (b) denied Former Husband=s request for a
modification of the parties= Permanent Parenting Plan Afor no apparent reason whatsoever@;
(c) repeatedly received ex parte correspondence from Heather L. Messmaker (AFormer
Wife@) despite having advised Former Wife to not send any further correspondence directly
to the Trial Court Judge; and (d) granted Former Wife=s request for an ex parte show cause
order directing Former Husband to appear and show cause why he should not be held in
contempt. Unfortunately, neither the motion nor Former Husband=s affidavit in support of
the motion Aaffirmatively state[d] that it [was] not being presented for any improper purpose,
such as to harass or to cause unnecessary delay or needless increase in the cost of litigation@
as required by section 1.01 of Rule 10B of the Rules of the Supreme Court of Tennessee.
The Trial Court Judge denied the motion both on grounds of insufficiency and on the
merits. The Judge noted that the motion did not contain the affirmation required by section
1.01 of Rule 10B and cited this deficiency as a basis for denial. However, the Judge also
stated in the order that none of the facts alleged by Former Husband in support of his motion
would lead a person of ordinary prudence to question the Judge=s impartiality. Former
Husband 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 effected 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. While not explicitly stated as
such in the rule, it is clear that the only record the appellate court generally will have in
expedited appeals under Rule 10B is the record provided by the appellant with his or her
petition pursuant to the mandatory language of section 2.03 of the rule.
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
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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
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 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.
Moreover, we agree that the Trial Court Judge need not have even reached the merits of the
motion because Former Husband failed to include in either his motion or affidavit in support
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of the motion the assertions of fact required by the rule. See Tenn. Sup. Cr. R. 10B, ' 1.01
(AThe 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.@).
CONCLUSION
Having determined that the record provided by Former Husband does not demonstrate
error, we affirm the Trial Court=s denial of the motion seeking recusal. Former Husband and
his surety are taxed 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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