Tracy Darrell Adkins v. Rhonda Forlaw Adkins

07/09/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 15, 2021
TRACY DARRELL ADKINS v. RHONDA FORLAW ADKINS
Appeal from the Chancery Court for Williamson County
No. 44288 Michael Binkley, Judge
___________________________________
No. M2021-00384-COA-T10B-CV
___________________________________
This accelerated interlocutory appeal is taken from the trial court’s order denying
Appellant’s motion for recusal. Because there is no evidence of bias that would require
recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial
court.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal; Judgment of the Chancery Court
Affirmed and Remanded.
KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J. and KRISTI M. DAVIS, J., joined.
Russ Heldman and Joanie L. Abernathy, Franklin, Tennessee, for the appellant, Rhonda
Forlaw Adkins.
Larry Hayes, Jr. and Rachel M. Thomas, Franklin, Tennessee, for the appellee, Tracy
Darrell Adkins.
OPINION
I. Background
This accelerated interlocutory appeal arises from a contentious divorce that has been
pending since 2015. As discussed, infra, this is the third time the parties have appeared
before this Court. The record is voluminous, so in the interest of judicial economy, we will
discuss only those facts and proceedings that are relevant to this appeal.
On June 26, 2015, in the Chancery Court for Williamson County (“trial court”),
Appellee Tracy Darrell Adkins (“Husband”) filed a complaint for divorce against
Appellant Rhonda Forlaw Adkins (“Wife”) citing irreconcilable differences. In the
complaint, Husband asked the trial court to approve and enter the parties’ previously
executed Marital Dissolution Agreement (“MDA”) and Proposed Parenting Plan (“PPP”).1
Wife opposed the entry of the MDA and PPP. On January 7, 2017, the trial court entered
a Memorandum and Order (the “Memorandum”), which the trial court explained would
serve as the Final Decree of Divorce. In the Memorandum, the trial court declared the
parties legally divorced, approved and incorporated both the MDA and the PPP, and
awarded Husband reasonable attorney’s fees under the MDA. On January 26, 2017, the
trial court entered an Amendment to Memorandum and Order Entered January 7, 2017 (the
“Amendment”), in which the trial court set a hearing for February 17, 2017 on Husband’s
attorney’s fees. To that end, the trial court ordered Wife’s attorneys to submit “all Timeslip
or other entries made for professional services rendered in this cause with a total amount
of attorneys’ fees for each attorney, respectively, as well as a total of all costs incurred and
billed to [Wife] in order for the Court to properly balance the reasonableness and necessity
of the attorneys’ fees and costs [Husband] may be requesting [Wife] to pay.”
On February 8, 2017, nine days before the scheduled hearing on Husband’s
attorney’s fees, Wife filed her first Rule 10B Motion for Recusal or Disqualification of
Judge (the “First 10B”), wherein she asked Judge Michael Binkley to recuse himself from
the case. Although she argued several grounds for recusal, as it concerns this appeal, Wife
claimed that Judge Binkley showed bias in Husband’s favor by allegedly considering
Husband’s Proposed Findings of Fact and Conclusions of Law when drafting both the
January 7, 2017 Memorandum and the subsequent January 26, 2017 Amendment. By order
of February 16, 2017, the trial court denied the First 10B.2
On March 9, 2017, Wife filed an accelerated interlocutory appeal of the trial court’s
denial of the First 10B. On May 11, 2017, this Court issued its opinion in Adkins v. Adkins,
No. M2017-00495-COA-T10B-CV, 2017 WL 1960549 (Tenn. Ct. App. May 11, 2017)
(“Adkins I”), wherein we affirmed the trial court’s denial of the First 10B. Id. at *9. On
May 31, 2017, Wife filed an application for appeal of Adkins I to the Tennessee Supreme
Court. By order of June 28, 2017, the Tennessee Supreme Court denied Wife’s application
but designated the Adkins I opinion “Not for Citation” under Supreme Court Rule 4(E)(1).
Wife filed a petition for rehearing in the Supreme Court; the petition was denied on July 7,
2017.
1
In 2014, Wife filed a complaint for divorce against Husband in a separate cause of action. During
the pendency of that case, the parties executed the MDA and PPP. By agreed order, the parties “expunged”
the previous divorce filing with the alleged understanding that the parties would refile for divorce and enter
the previously executed MDA and PPP. No final decree was entered in the 2014 proceeding.
2
It appears from the record that the trial court has consistently denied ever reviewing or using
Husband’s proposed findings and facts and conclusions of law when preparing the Memorandum and the
Amendment.
-2-
Despite the fact that this Court found no evidence of the trial judge’s bias, on
remand, Wife continued to pursue information concerning the underlying factual and legal
basis for the trial court’s January 7, 2017 Memorandum and the subsequent January 26,
2017 Amendment. Specifically, Wife sought the production of documents the trial court
relied upon in deciding and preparing the orders. On August 11, 2017, Wife filed a motion
to compel, seeking testimony and documents from the trial judge’s legal assistant, Deborah
Rubenstein.3 On August 18, 2017, the trial court entered an order in which Judge Binkley
recused himself from hearing Wife’s motion to compel as it concerned Ms. Rubenstein.
However, the day before Judge Binkley entered this order, he held the hearing on
Husband’s attorney’s fees, which hearing had been postponed after Wife’s filing of the
First 10B. After receiving a summary of billings and fees from attorneys for both parties,
the trial court awarded Husband $533,278 in attorney’s fees. In the weeks that followed,
Wife’s motion to compel was reassigned to Judge Russell Parkes.
On November 1, 2017, after the trial court heard arguments regarding Husband’s
attorney’s fees but before the trial court entered an order awarding Husband’s fees, Wife
filed a second Motion for Complete Recusal and Disqualification of Trial Judge (the
“Second 10B”). As it concerns this appeal, Wife argued that Judge Binkley’s August 18,
2017 decision to partially recuse himself should have been a complete recusal. On January
31, 2018, Judge Parkes denied Wife’s motion to compel and referred the case back to Judge
Binkley. By order entered April 11, 2018, Judge Binkley denied the Second 10B.4
Also, on April 11, 2018, the trial court entered a Memorandum and Order on Issue
of Attorney’s Fees (the “Attorney’s Fees Order”), in which it outlined “the extraordinary
lengths Wife undertook to delay the resolution of this case.” In the order, the trial court
found that Wife had “paid her attorneys a combined total of $749,273 just through August
17, 2017 in her unsuccessful attempt to set aside the parties[’] MDA and PPP.” Similarly,
the trial court found that Husband’s attorney had charged him $533,278 “mostly for simply
defending the dozens and dozens of spurious pleadings filed by Wife, almost all of which
were totally unsuccessful.” Accordingly, the trial court granted Husband a judgment
against Wife for $533,278 in attorney’s fees plus interest.
Wife did not file a timely accelerated interlocutory appeal of the denial of the
3
We also note that, on August 15, 2017, Wife filed a separate Open Records Act lawsuit against
Judge Binkley and Ms. Rubenstein for “Access to Public Records.” This suit was dismissed with prejudice
on January 31, 2018.
4
On April 29, 2019, the trial court entered an order clarifying the timeline of the trial court’s ruling
on the Second 10B. According to the order, the trial court signed the order denying the Second 10B on
April 11, 2018, which was the same date the order was filed in the Clerk and Master’s Office. The Clerk
and Master signed the certificate of service on April 16, 2018, but the “Filed for Entry Date” listed the
incorrect year of 2016. The April 29, 2019 order held that the “Filed for Entry” date should have reflected
April 16, 2018 rather than April 16, 2016.
-3-
Second 10B. Rather, she pursued a Tennessee Rule of Appellate Procedure Rule 3 appeal,
discussed infra. On September 10, 2018, the trial court granted Wife’s request that it
“expressly direct entry of final judgment pursuant to [Tennessee Rule of Civil Procedure]
54.02” as to fourteen orders, including the Attorney’s Fees Order and the order denying
Wife’s Second 10B. On October 5, 2018, Wife filed a motion to alter or amend this
judgment, which motion the trial court denied by order of November 13, 2018. On
December 11, 2018, Wife filed an amended notice of appeal in which she gave notice that
she was appealing, inter alia, the Attorney’s Fees Order and the trial court’s denial of the
Second 10B.
On September 18, 2020, after briefing on Wife’s Rule 3 appeal had been completed
but before oral argument, the parties, through their attorneys, approved an agreed order
directing the sale of jointly held real property. The parties also agreed that the sale proceeds
would be held by the Clerk and Master, pending further orders of the trial court.5 Also, on
September 18, 2020, Husband filed a Motion to Disburse Proceeds (the “Motion to
Disburse”) in the trial court. In this motion, Husband asked the trial court to disburse
Wife’s share of the sale proceeds to him in satisfaction of the $533,278 judgment (plus
interest) for attorney’s fees. On November 5, 2020, the trial court heard Husband’s Motion
to Disburse and took the matter under advisement.
On December 22, 2020, this Court issued its opinion in Adkins v. Adkins, No.
M2018-00890-COA-R3-CV, 2020 WL 9602029 (Tenn. Ct. App. Dec. 22, 2020) (“Adkins
II”). In Adkins II, we determined that “the trial court’s order was improvidently certified
as final,” and we dismissed Wife’s Rule 3 appeal for lack of subject matter jurisdiction.
Id. at *5. Thereafter, Wife filed a petition to rehear, which this Court denied on January
14, 2021.
On January 28, 2021, Husband filed a Motion to Rule on Motion to Disburse
Proceeds Heard on November 5, 2020, any Other Outstanding Issues, and to Enter a Final
Order Pursuant to the Court of Appeals’ December 22, 2020 Order (the “Motion to Rule”).
This motion requested, in pertinent part, that the trial court rule on Husband’s Motion to
Disburse that the trial court took under advisement at the November 5, 2020 hearing. On
February 11, 2021, the trial court heard and orally granted Husband’s Motion to Rule solely
as to the Motion to Disburse. Specifically, the trial court granted Husband’s request for
disbursement of $631,490 (i.e., judgment for attorney’s fees plus interest) from Wife’s
portion of sale proceeds and directed Husband’s counsel to draft the order. On Friday,
February 19, 2021, Husband’s counsel delivered a copy of the proposed order to Wife’s
counsel.
Three days later, on February 22, 2021, Wife filed a third Rule 10B Motion for
5
Although the parties appear to have agreed to this order on September 18, 2020, it was not filed
until September 28, 2020.
-4-
Immediate Recusal of Trial Judge (the “Third 10B”). In the Third 10B, Wife alleged the
following grounds for recusal: (1) the trial judge cited Adkins I that had been marked as
“Not for Citation” when he decided the Motion to Disburse; (2) the trial judge held two
hearings and took action in the case when the Appellate Courts had jurisdiction over the
matter; (3) the trial judge’s partial recusal should have been an absolute recusal; (4) the
trial judge disregarded the Tennessee Supreme Court’s opinion in Cook v. State, 606
S.W.3d 247 (Tenn. 2020), which Wife alleged “mak[es] clear that partial recusals are not
allowed and recusals must be complete in any proceeding in the case . . . ;” and (5) the trial
judge made comments at the November 5, 2020 hearing on the Motion to Disburse, which
demonstrated bias against Wife and her attorneys and partiality in favor of Husband.
On February 25, 2021, the trial court entered the order on Husband’s Motion to Rule
and also granted Husband’s Motion to Disburse (the “Order Disbursing Funds”). On
March 4, 2021, Husband filed his response in opposition to the Third 10B. On March 15,
2021, Wife filed her Rule 11 application with the Tennessee Supreme Court for permission
to appeal this Court’s dismissal of her appeal in Adkins II. By order of May 12, 2021, the
Tennessee Supreme Court denied Wife’s appeal of Adkins II.
On March 24, 2021, the trial court entered an order denying the Third 10B. The
trial court specifically addressed each of Wife’s alleged grounds for recusal and also
expressed its “genuine and real concerns about Wife’s continuing lack of credibility” in the
trial court. Although the trial court fully responded to the Third 10B, it attached to its
order, as Exhibit A, Husband’s response to the Third 10B. In so doing, the trial court
requested that this Court review Husband’s response “in tandem” with the trial court’s
order “to perhaps understand another perspective on the recusal issues.”
On April 14, 2021, Wife filed, via an accelerated interlocutory appeal, the Rule 10B
Section 2.03 Petition for Recusal Appeal of Judge Michael W. Binkley (the “Third 10B
Petition”), appealing the trial court’s denial of the Third 10B. By order of April 23, 2021,
this Court requested that Husband file a response to the Third 10B Petition, which response
was filed on May 13, 2021. In his response, Husband argues that Wife’s appeal is frivolous
and asks this Court to award him attorney’s fees. On May 18, 2021, Wife filed a motion
with this Court asking permission to file a reply brief in response to Husband’s allegations
of frivolity and his request for appellate attorney’s fees. By order of May 20, 2021, we
granted Wife permission to respond but limited her response to the sole issue of Husband’s
request for appellate attorney’s fees. On June 2, 2021, Wife filed her reply. In our
discretion, we decide this recusal appeal without oral argument. See Tenn. R. Sup. Ct.
10B, § 2.06 (“The appellate court’s decision, in the court’s discretion, may be made without
oral argument.”).
-5-
II. Issue
The only order this Court may review on an appeal under Tennessee Supreme Court
Rule 10B is the trial court’s order denying the motion to recuse. Duke v. Duke, 398 S.W.3d
665, 668 (Tenn. Ct. App. 2012). Under Tennessee Supreme Court Rule 10B, “we may not
review the correctness or merits of the trial court’s other rulings.” Id. Accordingly, the
sole issue is whether the trial court erred in denying the Third 10B motion for recusal.
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).
III. Standard of Review
Tennessee Supreme Court Rule 10B requires appellate courts to 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.” Williams by & through Rezba,
2015 WL 2258172, at *5 (citing McKenzie v. McKenzie, No. M2014-00010-COA-T10B-
CV, 2014 WL 575908, at *3 (Tenn. Ct. App. Feb. 11, 2014)). We further note that in its
order denying her Third 10B, the trial court made the following finding concerning Wife’s
credibility:
It cannot go without saying this [t]rial [c]ourt does have genuine and real
concerns about Wife’s continuing lack of credibility in this [t]rial [c]ourt.
The [t]rial [c]ourt again, will not reiterate the many reasons listed in its
Memorandum and Order of January 7, 2017 why this [t]rial [c]ourt had to
rule Wife was not credible and gave several examples which are akin to her
false statements in Wife’s [Third] Rule 10B Motion. Wife makes statements
she cannot back up. This [t]rial [c]ourt has the same concerns regarding the
issues and reasons set forth by Wife in her [Third] Rule 10B Motion to
recuse. The issues are simply not supported by the case law and are not even
supported by statements by Wife in her [Third] Rule 10B Motion to recuse.
It is well settled that this Court is “required to defer to the trial court’s credibility findings
. . . .” Williams v. City of Burns, 465 S.W.3d 96, 120 (Tenn. 2015); see also Street v.
Street, No. E2016-00531-COA-R3-CV, 2017 WL 1177034, at *7 (Tenn. Ct. App. Mar. 29,
2017). With the foregoing in mind, we now turn to address Wife’s alleged grounds for
recusal.
IV. Grounds for Recusal
As an initial matter, we note that Wife’s arguments in both the Third 10B and the
Third 10B Petition are scattered, disjointed, incoherent at times, and repetitious. Indeed,
the trial court noted in its order denying the Third 10B that it struggled to interpret and
-6-
address Wife’s alleged grounds for recusal. We, too, have encountered great difficulty in
deciphering Wife’s arguments. Nonetheless, we have made an earnest attempt to fully
address each of Wife’s alleged grounds for recusal. We begin with a review of the
applicable legal principles concerning questions of recusal, which are succinctly stated in
In Re: Samuel P., No. W2016-01592-COA-T10B-CV, 2016 WL 4547543, at *2 (Tenn.
Ct. App. Aug. 31, 2016), to-wit:
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
with some evidence that would prompt a reasonable, disinterested person to
believe that the judge’s impartiality might reasonably be questioned.’”
Duke, 398 S.W.3d at 671 (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)).
The terms “bias” and “prejudice” usually refer to a state of mind or
attitude that works to predispose a judge for or against a party, but not every
bias, partiality, or prejudice merits recusal. Watson v. City of Jackson, 448
S.W.3d 919, 929 (Tenn. Ct. App. 2014) (citing Alley v. State, 882 S.W.2d
810, 821 (Tenn. Crim. App. 1994)). “‘Even though the judge is expected
to have no bias at the beginning of the trial, he must, perforce, develop
a bias at some point in the trial; for the decision at the conclusion of the
trial is based upon the impressions, favorable or unfavorable, developed
during the trial.’” Id. at 933 (quoting Spain v. Connolly, 606 S.W.2d 540,
544 (Tenn. Ct. App. 1980)). To merit disqualification, the prejudice must be
of a personal character, directed at the litigant, and stem from an extrajudicial
source resulting in an opinion on the merits on some basis other than what
the judge learned from participation in the case. Id. at 929. “A trial judge’s
opinions of the parties or witnesses that are based on what he or she has seen
at trial are not improper and ‘generally do[ ] not warrant recusal.’” Id. at 933
(quoting Neuenschwander v. Neuenschwander, No. E2001-00306-COA-
R3-CV, 2001 WL 1613880, at *11 (Tenn. Ct. App. Dec. 18, 2001)).
-7-
In Re: Samuel P., 2016 WL 4547543, at *2 (emphases added). We apply the foregoing
principles and law to Wife’s alleged grounds for recusal.
A. Issues Raised for the First Time on Appeal
Upon review, it appears Wife has raised several arguments in the Third 10B Petition
that were not presented to the trial court. Generally, “[i]ssues not raised in the trial court
cannot be raised for the first time on appeal.” Barnes v. Barnes, 193 S.W.3d 495, 501
(Tenn. 2006) (citing Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153
(Tenn. 1991)); see also Dougherty v. Dougherty, No. W2020-00284-COA-T10B-CV,
2020 WL 1189096, at *3 (Tenn. Ct. App. Mar. 12, 2020). Indeed, the trial court “first must
be allowed under Rule 10B to decide whether to grant or deny a motion to recuse on all the
grounds raised by the movant.” Dougherty, 2020 WL 1189096, at *3. We discuss each
new issue below.
1. Wife’s Fourth Issue on Appeal: Trial Court’s Actions While Motions to
Recuse were Pending
As stated in the Third 10B Petition, Wife’s fourth issue on appeal is
[w]hether the Court of Appeals should Order Judge Binkley recused for
conducting a hearing and Ordering the Disbursement of Proceeds by Order
of February 25, 2021, while [Wife’s] Motion for Immediate Recusal of Trial
Judge was still pending and while Appellate Court jurisdiction has not been
returned to the Trial Court by mandate under T.R.A.P. 42.
(Emphasis in original). Although listed as one issue, Wife asserts two separate grounds for
recusal here, i.e., that Judge Binkley should be recused for conducting a hearing and
entering an order: (1) while the Third 10B was pending; and (2) before a mandate issued
in Adkins II. Turning to the Third 10B Petition, Wife’s arguments concerning these two
grounds appear under separate argument headings in the body of her brief. The first
heading/argument (“Argument 1”) begins on page 61, to-wit:
II. Judge Michael Binkley erred under Rule 10B, Secs. 1.02 and 1.04, in
ordering funds disbursed on February 25, 2021 to pay [Husband’s] judgment
for any attorney’s fees and expenses, from the order of April 11, 2018, as a
matter of law while [Wife’s] February 22, 2021, Rule 10B Motion for
Immediate Recusal was still pending and not decided until subsequent order
of March 25, 2018.
The second heading/argument (“Argument 2”) begins on page 78 of Wife’s brief, to-wit:
IV. The Court of Appeals should order Judge Binkley recused for conducting
-8-
a hearing and ordering the disbursement of proceeds by order of February
25, 2021, while [Wife’s] Motion for Immediate Recusal of Trial Judge was
still pending and while appellate court jurisdiction had not been returned to
the trial court by mandate under T.R.A.P. 42.
We discuss each argument in turn.
a. Argument 1
Although Wife’s fourth issue on appeal mentions only the trial court’s entry of the
February 25, 2021 order (i.e., the Order Disbursing Funds), in the body of Argument 1,
Wife alleges that the trial judge should be recused for entering both the February 25, 2021
order while the Third 10B was pending and the April 11, 2018 Attorney’s Fees Order while
the Second 10B was pending. Accordingly, Wife asks this Court to vacate both orders.
Specifically, Wife argues that
[o]n November 1, 2017, [Wife] filed a Second Rule 10B Motion for
Complete Recusal of Disqualification of Trial Judge. This Motion was
pending until April 16, 2018, when it was denied by Order. The Order
Denying [Wife’s] Motion for Complete Recusal was entered and effective
April 16, 2018, pursuant to T.R.C.P. 58 and an Order entered April 29, 2019.
Judge Binkley took erroneous “further action” prior thereto. Tenn. S. Ct.
Rule 10B, Sec. 1.02 states:
While the motion is pending, the Judge whose disqualification
is sough[t] shall make no further orders an[d] take no further
action on the case, except for good cause stated in the order in
which the action is taken.
The April 11, 2018, Memorandum and Order [o]n Issue of Attorney’s
Fees shows the Trial Judge took or was taking “further action” in violation
of Rule 10B, Sec. 1.02, while [Wife’s] Recusal Rule 10B Motion was
pending. Likewise, the February 25, 2021, Order Disbursing Funds to Pay
Attorney’s Fees shows the Trial Judge took or was taking “further action”
and making a “further Order” without any finding of good cause stated in the
Order in which the action was taken,” while [Wife’s] Rule 10B Immediate
Motion for Recusal, filed February 22, 2021, was pending. The Attorney’s
Fees Order and the Disbursement Order both should be vacated.
(Emphasis and internal citations omitted).6
6
During this argument, Wife also briefly delves into two other alleged grounds for disqualification:
(1) the trial judge should have fully recused himself in August of 2017; and (2) Husband agreed to wait for
-9-
Upon review, we conclude that Wife failed to raise, as an issue in the Third 10B,
the trial court’s entry of the April 11, 2018 Attorney’s Fees Order while the Second 10B
was pending. Because the trial court was not presented with the opportunity to grant or
deny a motion recuse on this ground, we do not review it on appeal. Barnes, 193 S.W.3d
at 501; Dougherty, 2020 WL 1189096, at *3.
Turning to the issue of the trial court’s entry of the February 25, 2021 Order
Disbursing Funds while the Third 10B was pending, as discussed supra, Wife filed the
Third 10B on February 22, 2021, but the trial court did not enter the Order Disbursing
Funds until February 25, 2021, three days later. Accordingly, the facts forming the basis
for this alleged ground for recusal had yet to occur when Wife filed the Third 10B.
Regardless, the trial court addressed this ground in its order denying the Third 10B, and
we will now address it on appeal.7
As discussed, supra, Wife alleges that Judge Binkley’s entry of the Order
Disbursing Funds violated Tennessee Supreme Court Rule 10B, section 1.02. Section 1.02
states that, “[w]hile the motion [for recusal] is pending, the judge whose disqualification is
sought shall make no further orders and take no further action on the case, except for good
cause stated in the order in which such action is taken.” Tenn. Sup. Ct. R. 10B, § 1.02.
Wife alleges the trial court violated section 1.02 and took “further action” when it entered
the Order Disbursing Funds while the Third 10B was pending.
As the trial court explained in its order denying the Third 10B, this Court recently
addressed this very issue in Guo v. Rogers, No. M2020-01321-COA-T10B-CV, 2020 WL
6781244 (Tenn. Ct. App. Nov. 18, 2020). In Guo, the appellant alleged that the trial court
violated section 1.02 when it entered an order on the appellant’s motion to revise while his
motion to recuse was pending. Id. at *4. The record showed that the trial court heard the
appellant’s motion to revise on July 10, 2020 and orally denied it at the hearing. Id. That
day, the appellee drafted a proposed order denying the motion to revise and mailed it to the
appellant. Id. The appellant filed a motion to recuse nine days later, on July 19, 2020. On
August 6, 2020, the trial court entered the order on the motion to revise while the motion
to recuse was pending. Id. In concluding this entry was not error, we explained that “[t]he
the mandate to return from the Appellate Court in Adkins II before having the trial court rule on the Motion
to Disburse. We address those grounds, infra, Sections B and D, respectively.
7
We note that Wife included the following statement on page 1 of the Third 10B: “Section 1.02 of
Rule 10B states that while the motion is pending, the Judge whose disqualifications is sought shall make
no further orders and take no further action on the case.” Furthermore, it appears from the record that, on
the day Wife filed the Third 10B, she also filed an Objection to Entry of Order wherein she objected to the
trial court entering the Order Disbursing Funds, cited to Tennessee Supreme Court Rule 10B, section 1.02,
and alleged that the trial court could “enter no further order and . . . take no further action” while the Third
10B was pending. It is possible this is Wife’s argument that the trial court was responding to in its order
denying the Third 10B.
- 10 -
purpose of section 1.02 is to ensure that a trial court makes no substantive decisions while
the motion to recuse is pending.” Id. (citing In re Estate of Abbott, No. W2017-02086-
COA-T10B-CV, 2017 WL 4864816, at *2 (Tenn. Ct. App. Oct. 27, 2017)) (emphasis
added). When looking at the record in Guo, it was clear that the trial court denied the
motion to revise on July 10, 2020. “In other words, the trial court made its substantive
decision on the motion on July 10, 2020, which was nine days before Mr. Guo filed his
motion to recuse.” Guo, 2020 WL 6781244, at *4. We further concluded that “[t]he trial
court’s electronic signing and filing of the order on August 6, 2020 was purely
administrative” and did not violate section 1.02. Id.Similarly, in this case, the trial court heard Husband’s Motion to Rule on February
11, 2021. The transcript of the hearing, which Husband included as an exhibit to his
response to the Third 10B Petition, shows that the trial court made its substantive ruling on
Husband’s Motion to Rule from the bench that day, i.e., eleven days before Wife filed her
motion to recuse. Although the trial court did not enter its written Order Disbursing Funds
until February 25, 2021, as in Guo¸ entry of the order was purely administrative and did
not violate section 1.02 of Tennessee Supreme Court Rule 10B. Id.8
b. Argument 2
Turning to Argument 2, it appears this argument corresponds with Wife’s fourth
alleged ground for recusal from the Third 10B Petition, which we address, infra, Section
D.
2. Wife’s Sixth Issue on Appeal: Trial Court’s Citation to Husband’s Response to
Third 10B
Although we address it out of sequence, Wife’s final issue on appeal concerns the
trial court’s inclusion of Husband’s response to the Third 10B as an exhibit to the trial
court’s order denying recusal. Specifically, Wife’s issue is
[w]hether the Trial Judge erred in adopting arguments and claims from
[Husband’s] Response in opposition to [Wife’s] Rule 10B Motion
incorporating it into and making it a part of his Order denying recusal as
Exhibit A, showing that his deliberation and decision not to recuse was not
the exercise of the Trial Judge’s own Independent Judgment, in violation of
Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 314-16 (Tenn. 2014).
8
In the Third 10B Petition, Wife alleges that the trial court’s reliance on Guo is misplaced. It
appears that Wife tries to distinguish Guo from this case by citing to her partial recusal argument from the
Second 10B and her jurisdictional argument from the Third 10B. We are not persuaded by Wife’s attempt
to distinguish Guo from the instant case, and we conclude that the trial court’s reliance on Guo was not
error.
- 11 -
Wife specifically argues that, “[o]n page[s] 1 and 30 of Judge Binkley’s ‘Court’s
Response’ or Order entered March 25, 2021, Judge Binkley erroneously ‘annexed’
[Husband’s] Response in Opposition to [Wife’s] Motion for Immediate Recusal of Trial
Judge, filed March 4, 2021, and ‘made [it] a part hereof’ his Order.” Wife cites Smith v.
UHS of Lakeside, Inc., 439 S.W.3d 303, 314-16 (Tenn. 2014), in support of her argument
that the trial court’s incorporation of “[Husband’s] Response wholesale and making it a
part of his Order ‘casts doubt’ on whether Judge Binkley ‘conducted his own independent
review, or that the opinion is the product of his own judgment.’” (Emphasis in original).
As an initial matter, in Smith, the Tennessee Supreme Court addressed a summary
judgment order that the trial court had instructed the prevailing counsel to prepare. Id. at
311. Accordingly, the issue in that case concerned whether the trial court’s order on
summary judgment complied with Tennessee Rule of Civil Procedure Rule 56.04. The
Supreme Court explicitly discussed Rule 56.04 and its requirement that trial courts “shall
state the legal grounds upon which the court denies or grants [a motion for summary
judgment], which shall be included in the order reflecting the court’s ruling.” Tenn. R.
Civ. P. 56.04. See id. at 311-14. In the context of Rule 56.04, the Smith Court explained
that Tennessee courts “adhere to the view that findings of fact, conclusions of law,
opinions, and orders prepared by trial judges themselves are preferable to those prepared
by counsel,” and noted its concern “about the practice of courts adopting verbatim findings
of fact, conclusions of law, opinions, and orders prepared by counsel for the prevailing
party.” Id. at 314. Despite this preference, the Tennessee Supreme Court explained that a
court may use “party-prepared” findings of fact, conclusions of law, or other order, as long
as the following conditions are satisfied: (1) the findings and conclusions or order
accurately reflect the trial court’s decision; and (2) the record creates no doubt that the
decision represents the trial court’s own deliberations and decision. Id. at 315-16 (internal
citations omitted). Because this appeal concerns neither a motion for summary judgment
nor findings of facts and conclusions of law, the Smith case is not dispositive. However,
it is instructive concerning the fact that a trial court’s order must reflect its independent
decision.
Upon our review of Husband’s response to the Third 10B and the trial court’s order
denying recusal, we find no evidence to support Wife’s contention that the trial court
“wholesale adopt[ed]” Husband’s claims and arguments. The trial court’s order is not, as
Wife suggests, a verbatim recitation of Husband’s response. For example, while
Husband’s response was general in nature, the trial court specifically addressed each of
Wife’s alleged grounds for recusal in the order in which they were presented in her Third
10B. Although some of the trial court’s findings overlap with the facts and law outlined in
Husband’s response, such overlap is likely due to the fact that Husband’s response is
legally sound and factually based, not because the trial court adopted it without
consideration of the substantive arguments.
Nonetheless, Wife cites two instances where the trial court’s order mentions
Husband’s response as proof that the trial court adopted Husband’s response verbatim. The
- 12 -
trial court’s first reference to Husband’s response is found on page 1 of the trial court’s
order denying the Third 10B, to-wit:
Additionally, this [t]rial [c]ourt most respectfully requests the pleading
recently electronically filed on March 4, 2021 in this matter titled,
“[Husband’s] Response in Opposition to [Wife’s] Rule 10B Motion for
Immediate Recusal of Trial Judge,” by [Husband’s attorneys] be reviewed
by the Appellate Court to perhaps understand another perspective on the
recusal issues. A copy of [Husband’s] Response in Opposition to [Wife’s]
Rule 10B Motion for Immediate Recusal of Trial Judge is annexed to this
Response as Exhibit “A” hereto and made a part hereof.
Immediately after the foregoing paragraph, on page 2 of the order, the trial court
stated:
The [t]rial [c]ourt, in making this request, respectfully submits that it fully
and completely understands that it is this [t]rial [c]ourt’s sole responsibility
and obligation to fully respond to the [Third] Rule 10B Motion filed by Wife,
but simply requests the Appellate Court to review Husband’s Response in
tandem with this [c]ourt’s full Response as set forth below.
Notably, Wife did not cite to this second statement in the Third 10B Petition.
These references do not support Wife’s contention concerning the trial court’s
reliance on Husband’s response. Contrary to Wife’s position, in the foregoing comments,
the trial court actually acknowledges its responsibility to fully respond to the Third 10B.
The comments also evidence the trial court’s recognition that its order denying the Third
10B is separate and distinct from Husband’s response. As such, the trial court invites this
Court to review the two documents “in tandem.” In short, there is nothing in the trial
court’s order to demonstrate that it actually adopted Husband’s arguments. Rather, the
foregoing statements demonstrate the opposite, i.e., that the trial court understood and
complied with its responsibility to make its own judgment concerning the merits of the
Third 10B.
The inclusion of Husband’s response as an exhibit to the trial court’s order was done
simply to give this Court more context to aid our review. Indeed, the trial court also
included its order denying the Second 10B as an exhibit to its order denying the Third 10B
for this very reason. As the trial court stated:
The [t]rial [c]ourt most respectfully requests[,] given the huge volume of
pleadings in this case, as evidenced by the fact this case has continuously
been litigated for the past seven (7) years, and in order for the Appellate
Court to have a brief summary of the period of time this case was litigated
- 13 -
from March 2014 until April 11, 2018, that the Appellate Court review the
Trial Court’s Response to Second Rule 10B Motion for Complete Recusal
and Disqualification of Trial Judge Filed November 1, 2017 . . ., specifically
pages 1 through 17. . . . The [t]rial [c]ourt believes it will save a tremendous
amount of time for the Appellate Court to review the pages set out above for
a history of the events which occurred between March 2014 through April
11, 2018.
(Emphasis in original). Similarly, on page 30 of its order denying the Third 10B, the trial
court stated:
This [t]rial [c]ourt can say it has done everything it can to be cordial to all
counsel in this case, and has done everything it can to accommodate both
counsel in every way it possibly could throughout the seven (7) years of this
litigation. The [t]rial [c]ourt will not bore the Appellate Court with examples
of this [t]rial [c]ourt’s fair and equal treatment of both parties as evidenced
by statements pulled from the record by Husband’s attorneys in their
Response in Opposition to [Wife’s] Rule 10B Motion for Immediate Recusal
of Trial Judge filed March 4, 2021, but would simply state it was the norm
of this [t]rial [c]ourt to treat everyone with the utmost respect in trying to
resolve issues in this case. See, Exhibit “A,” Husband’s Response in
Opposition to [Wife’s] [Third] Rule 10B Motion for Immediate Recusal of
Trial Judge, pp. 34-41, March 4, 2021.
(Emphasis in original). Again, the trial court’s reference to Husband’s response,
specifically pages 34-41, was to present this Court with the full picture of the underlying
litigation and the trial court’s actions during it.9 The trial court did not adopt Husband’s
arguments or claims, but merely called attention to the seven pages in Husband’s response
where Husband provided examples of the trial court’s patience with and deference to
counsel for both parties. Given that the issue pending before this Court is whether the trial
judge is biased against Wife, Judge Binkley was correct to present this Court with examples
of his equitable treatment of the parties and their respective attorneys. Inclusion of
Husband’s response was merely one way to do this, and there is no indication that the trial
court’s order was not the result of its own deliberations. Id. at 315-16. Accordingly, to
the extent Wife argues that the trial court’s references to Husband’s response demonstrates
any bias or prejudice against her, we conclude that she has failed to satisfy her burden of
proof. Williams by & through Rezba, 2015 WL 2258172, at *5; Cotham, 2015 WL
1517785, at *2. We now turn to address the grounds for recusal that Wife raised in the
trial court.
9
We note that Husband included these same citations to previous hearing transcripts on pages 16-
23 of his Response to the Third 10B Petition.
- 14 -
B. Trial Court’s Partial Recusal
Wife’s first and second alleged grounds for recusal concern whether the trial judge
should have completely recused himself in August of 2017. For reasons discussed, infra,
we conclude that: (1) this Court lacks jurisdiction in the current appeal (of the Third 10B)
to adjudicate this ground as raised in the Second 10B; and (2) Wife waived this issue in the
Third 10B.
The record shows that two of Wife’s recusal motions alleged the trial judge’s partial
recusal as a ground for disqualification. In the Second 10B, filed November 1, 2017, Wife
alleged:
1. Judge Binkley’s recusal, which he decided to do on his own before the
hearing of August 17, 2017 and which he Ordered on August 18, 2017,
should have been a complete recusal from the entire proceeding in Adkins v.
Adkins and it should not have been “partial” as to one (1) Motion only, under
Rule 2.11(A), Tennessee Supreme Court Rules, and all other applicable
authority, thus rendering any participation in this case invalid from the
decision of recusal.
By order of April 11, 2018, the trial court denied the Second 10B. In the Third 10B, which
is the sole subject of this appeal, Wife alleged:
3. The Trial Judge previously partially recused himself from this case by
Order entered August 18, 2017, finding on his own he needed to do so to
avoid the appearance of partiality under Tenn. S. Ct. Rule 10, R.J.C. 2.11(A),
but later, over Ms. Adkins’ objection in her Second Rule 10B Motion for
disqualification or recusal on the ground that partial recusals are not allowed
by the Tennessee Supreme Court or Tennessee state law, the Trial Judge (1)
erroneously selected himself to succeed the successor judge (Judge Russell
Parkes) in violation of Rule 10B Sec. 1.04, (2) awarded Mr. Adkins
attorney’s fees, in violation of Rule 10B, Sec. 1.02, (which are the subject of
the motion to disburse and the motion to rule, as well as an appeal), and
thereafter (3) erroneously denied the complete recusal motion.
4. The Trial Judge has disregarded a recent 2020 Tennessee Supreme Court
Opinion, Cook v. State, 606 S.W.2d 247 (Tenn. 2020), making it clear that
partial recusals are not allowed and recusals must be complete in any
proceeding in the case thereafter to avoid the appearance of impropriety
under Tenn. S. Ct. Rule 10, R.J.C. 211(A).
By order of March 24, 2021, the trial court denied the Third 10B.
- 15 -
A litigant must timely appeal a trial court’s denial of a Rule 10B motion before this
Court may review the alleged grounds for recusal within it. Tennessee Supreme Court
Rule 10B, section 2.01 explains the two ways in which a party may appeal a trial court’s
denial of a motion for recusal: (1) through an accelerated interlocutory appeal as of right;
or (2) raised as an issue in a Tennessee Rule of Appellate Procedure Rule 3 appeal as of
right.10 Tenn. Sup. Ct. R. 10B, § 2.01. “To effect an accelerated interlocutory appeal as
of right, . . . a petition for recusal appeal shall be filed in the appropriate appellate court
within twenty-one days of the trial court’s entry of the order.” Tenn. Sup. Ct. R. 10B, §
2.02. To effectuate an appeal through Tennessee Rule of Appellate Procedure Rule 3, “the
notice of appeal required by Rule 3 shall be filed with the clerk of the appellate court within
30 days after the date of entry of the judgment appealed from.” Tenn. R. App. P. 4(a).
The record shows that Wife did not file a timely accelerated interlocutory appeal of
the trial court’s denial of the Second 10B. Rather, Wife raised it as an issue in an appeal
under Tennessee Rule of Appellate Procedure Rule 3. However, as discussed supra, this
Court never reached the substantive issues in Wife’s Rule 3 appeal because “the trial
court’s order was improvidently certified as final,” and, as such, deprived this Court of
subject matter jurisdiction over the appeal. See Adkins, 2020 WL 9602029 at *5.
Therefore, we cannot address the trial court’s denial of the Second 10B in this interlocutory
appeal of the denial of the Third 10B.
Turning to the trial court’s denial of the Third 10B, we conclude that Wife has
waived her argument concerning whether the trial court’s partial recusal constitutes
reversible error. As discussed, infra, under Tennessee Supreme Court Rule 10B, section
1.01, “a recusal motion must be ‘filed promptly after the facts forming the basis for the
motion become known, and the failure to assert them in a timely manner results in a waiver
of a party’s right to question a judge’s impartiality.’” Cain-Swope v. Swope, 523 S.W.3d
79, 88 (Tenn. Ct. App. 2016), perm. app. denied (Tenn. April 12, 2017) (quoting Duke,
398 S.W.3d at 670); see Tenn. Sup. Ct. R. 10B, § 1.01. “Rule 10B does not place a
brightline rule on the timeliness of recusal motions, nor has this Court ever adopted such a
rule.” Stark v. Stark, No. W2019-00901-COA-T10B-CV, 2019 WL 2515925, at *6 (Tenn.
Ct. App. June 18, 2019).
Here, this ground for recusal, i.e., partial recusal as opposed to full recusal, arises
from the August 18, 2017 order, in which Judge Binkley recused himself from hearing
Wife’s motion concerning his legal assistant. As such, Wife learned of the facts
establishing this ground for recusal at the time the order was filed, i.e., August 18, 2017.
See Tenn. Sup. Ct. R. 10B, § 1.01. Although we acknowledge that Wife raised this issue
in her appeal of the Second 10B, this Court never achieved subject matter jurisdiction over
10
Tennessee Supreme Court Rule 10B, section 2.01 provides that these two methods “shall be the
exclusive methods for seeking appellate review of any issue concerning the trial court’s denial of a
motion filed pursuant to this rule.” Tenn. Sup. Ct. R. 10B, § 2.01 (emphasis added).
- 16 -
that appeal. Now, Wife attempts to relitigate the issue of partial recusal some three-and-a-
half years after the trial court entered the order on partial recusal. This timing is too
protracted to satisfy the prompt filing criterion of Tennessee Supreme Court Rule 10B,
section 1.01, “a recusal motion must be ‘filed promptly after the facts forming the basis for
the motion become known . . . .” While Wife may raise the partial recusal issue in this
Court under Tennessee Rule of Appellate Procedure 3 once a final judgment is entered in
this case, we cannot reach the issue of partial recusal in the instant appeal due to the time
that has elapsed between entry of the partial recusal order and the filing of this accelerated
appeal. See Cain-Swope, 523 S.W.3d at 88 (quoting Duke, 398 S.W.3d at 670).11
C. Trial Court’s Citations to Adkins I
Wife’s third alleged ground for recusal concerns the trial judge’s citations to Adkins
I in its April 11, 2018 Attorney’s Fees Order and during the November 5, 2020 hearing on
the Motion to Disburse. Specifically, Wife’s brief states:
The Trial Judge has cited to an intermediate Tennessee Appellate Court
Opinion in making a decision to disburse funds being held by Agreed Order
while subject matter jurisdiction of this case lies in the Appellate Court and
no T.R.A.P. 42 mandate has been returned.12 The intermediate Appellate
Court Opinion, referred to as Adkins I, should not be cited in the making of
a trial court decision by prior mandate of the Tennessee Supreme Court. The
Trial Judge ruled there will be a disbursement, without jurisdiction, but upon
citing to Adkins I in his decision-making process:
THE COURT: I think it was three years ago that you
had asked for your attorney’s fees. And during that process, I
had asked Mr. Heldman and Ms. Abernathy [(Wife’s counsel)]
to disclose their fees. They refused to do that. The record will
speak for itself. I put down a total of either two or three orders
ordering them to say what their fees were. The record will
speak for itself, but correct me if I’m wrong.
11
Wife further argues that this Court should not only recuse the trial judge but also vacate all of the
trial judge’s orders following the August 18, 2017 order of partial recusal. Wife asserts that, because the
partial recusal should have been a complete recusal, any order following the trial judge’s partial recusal
should be “vacated as void or being entered without subject matter jurisdiction.” Because we do not reach
the merits of the partial recusal issue in this appeal, Wife’s request is denied at this time. Furthermore, in
the Third 10B Petition, Wife also asks this Court to “[o]rder complete recusal of the other three (3) 21st
Judicial District Judges who ‘partially’ recused themselves by Order of August 24, 2017.’” We do not
reach this issue for two reasons: (1) we do not reach the issue concerning partial recusals; and (2) Wife
failed to raise this as an issue in the trial court. See Barnes, 193 S.W.3d at 501 (citing Simpson, 810 S.W.2d
at 153); see also Dougherty, 2020 WL 1189096, at *3.
12
We address Wife’s jurisdictional argument below in Section D.
- 17 -
Finally, that was part of one of the motions to recuse.
Of course, Judge Clement took care of that and said,
obviously, as we all know, the Court can look at the other
side’s fees to determine, as part of the pie, if you would
certain issues regarding reasonableness, necessity, et
cetera.
(Emphasis in original). Wife also asserts that the following comments from the November
5, 2020 hearing, were error and demonstrate the trial judge’s bias against her:
HUSBAND’S ATTORNEY: I think, first and foremost, Your Honor –
especially because [Wife] just doesn’t seem to get that her actions actually
have consequences. You know, as of right now this has all been words on
paper. You know, “You don’t have any credibility.” “You’re filing Rambo-
style litigation.” And she just sees this judgment on paper of –
THE COURT: Yeah. I didn’t say “Rambo-style.” I think Judge Clement
in the Court of Appeals said that.
Wife also takes issue with the trial court’s references to Adkins I on pages 17 and 22-23 of
the Attorney’s Fees Order, to-wit:
It is clear from the above exchange between this Court and Mr. Heldman, he
and Ms. Abernathy simply did not want to produce their total amount of
attorneys’ fees. This Court is at a loss to understand why Wife and her
attorneys did everything within their power to avoid disclosing the amount
of fees, costs, and litigation expenses charged to Wife. The Court of Appeals
noted in its Opinion on May 11, 2017 affirming this Court’s denial of recusal,
“courts routinely order counsel for the parties to submit records reflecting the
fees charged to their clients . . . . This is because the trial court wanted to
compare the fees charged by opposing counsel to assure that Wife would not
be required to pay an exorbitant fee.” (emphasis applied) Adkin[s] v. Adkins,
p.11. No. M2017-00495-COA-T10B-CV (Tenn. Ct. App. May 11, 2017).
***
The total advanced by Mr. Heldman and Ms. Abernathy for their
representation of Wife was $749,273, as of the date of the hearing on August
17, 2017. These fees were generated by Wife’s attorneys solely to set aside
the MDA and the PPP, for which she was unsuccessful. Since August 17,
2017, Wife has continued to file numerous new pleadings, separate lawsuits
against [the trial court] and its Judicial Legal Assistant, and many more
- 18 -
motions and other pleadings with subsequent hearings, almost all of which,
if not all, have been dismissed or denied. Indeed, the Court of Appeals’
Opinion in this case on the first Motion for Recusal, which was decided by
the Court of Appeals on May 11, 2017, states in part as follows:
It is also significant that the trial judge presided over this action
for a year and a half after Wife filed her motion to set aside the
mediated agreement. During this time[,] the parties engaged
in spirited, almost Rambo-style, litigation that involved an
excessive number of motions, hearings, discovery, and a two-
day trial.
Adkin[s] v. Adkins, p. 10, No. M2017-00495-COA-T10B-CV (Tenn. Ct.
App. May 11, 2017).
The Court of Appeals described this case accurately in the words set
out above.
(Emphasis in original).
As an initial matter, Wife’s statement that “the [t]rial [j]udge has cited to an
intermediate Tennessee Appellate Court Opinion in making a decision to disburse funds .
. .” is misleading. The trial court heard Husband’s Motion to Disburse on November 5,
2020 but did not announce its ruling at that time. As indicated by the trial court in its order
denying the Third 10B, it “took the matter under advisement to research the issue of
whether or not [the trial court] had jurisdiction to rule upon the disbursement of attorneys’
fees while the case was pending in the Court of Appeals.” The trial court then announced
its decision to disburse the sale proceeds on February 11, 2021, discussed supra. Notably,
Wife does not allege that the trial court made any reference to Adkins I during the February
11, 2021 hearing or in its February 25, 2021 Order Disbursing Funds, and this Court finds
no evidence of such reference in the record. Similarly, the Attorney’s Fees Order, cited
above, was entered in April of 2018, which was well before Husband filed his Motion to
Disburse. Accordingly, the trial court made no decision to disburse funds at that time.
Nevertheless, for completeness, we address Wife’s arguments concerning the trial court’s
citations to Adkins I during the November 5, 2020 hearing and in the April 11, 2018
Attorney’s Fees Order. However, before turning to Wife’s argument, we briefly address
the timeliness of the filing of the Third 10B.
A litigant’s timing when filing a motion to recuse is always an important factual
detail for this Court to review. All too often litigants employ Tennessee Supreme Court
Rule 10B, not to preserve their right to a fair trial before an impartial tribunal, but to gain
some procedural advantage. Cain-Swope, 523 S.W.3d at 87-88 (internal citations omitted).
We have explained before that “our ‘[c]ourts frown upon the manipulation of the
- 19 -
impartiality issue to gain procedural advantage and will not permit litigants to refrain from
asserting known grounds for disqualification in order ‘to experiment with the court . . . and
raise the objection later when the result of the trial is unfavorable.’’” Cain-Swope, 523
S.W.3d at 88 (quoting Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998)). As
briefly discussed above, to guard against litigants using Rule 10B to gain a procedural
advantage, the Rule states that a recusal motion must be “filed promptly after a party learns
or reasonably should have learned of the facts establishing the basis for recusal.” Tenn.
Sup. Ct. R. 10B, § 1.01 (emphasis added). A litigant’s failure to assert such alleged facts
in a timely manner results in the litigant’s waiver of the right to question the judge’s
impartiality regarding those facts. See Cain-Swope, 523 S.W.3d at 88 (quoting Duke, 398
S.W.3d at 670).
As it concerns the trial court’s citation to Adkins I in the April 11, 2018 Attorney’s
Fees Order, the certificate of service on that order shows that it was served on the parties
on April 13, 2018. At that time, Wife became aware of the trial court’s citation to Adkins
I in that order. If Wife was concerned that the trial judge’s reference to Adkins I
demonstrated bias against her, it was incumbent on Wife to file a motion to recuse at that
time to preserve her right to question his partiality. See Tenn. Sup. Ct. R. 10B, § 1.01.
However, rather than filing for recusal upon learning of the trial court’s reference to Adkins
I, Wife continued to litigate the case in Judge Binkley’s court for almost three more years.
By failing to promptly raise the issue, we conclude that Wife waived the trial court’s
reference to Adkins I in the Attorney’s Fees Order as a ground for recusal. See Cain-
Swope, 523 S.W.3d at 88 (quoting Duke, 398 S.W.3d at 670).
Turning to the trial court’s reference to Adkins I during the November 5, 2020
hearing, the record shows that Wife’s attorneys were present for the hearing. Accordingly,
Wife was aware of the trial judge’s comments and citation to Adkins I on November 5,
2020. Again, if Wife was of the opinion that the trial judge’s comments concerning Adkins
I demonstrated bias against her, it was incumbent on her to promptly file a motion for
recusal. However, according to the record, Wife waited to file the Third 10B until after
the February 11, 2021 hearing (some three months after the November 5, 2020 hearing)
where the trial court announced its decision to disburse the sale proceeds. The record also
shows that, on Friday, February 19, 2021, Husband’s counsel delivered a copy of the
proposed Order Disbursing Funds to Wife’s counsel; the following Monday, February 22,
2021, Wife filed her Third 10B. That same day, Wife also filed an Objection to Entry of
Order, in which she objected to the trial court entering the Order Disbursing Funds and
argued that, under Rule 10B, section 1.02, the trial court could “enter no further order and
. . . take no further action in any proceeding” in the case until the motion to recuse was
resolved.13 It is clear from the record that Wife delayed filing the Third 10B until after the
trial court announced its decision to disburse the sale proceeds to Husband. The timing of
this filing, coupled with Wife’s filing of the Objection to Entry of Order on the same day,
13
See discussion, supra, Section A(1)(a).
- 20 -
compels us to conclude that the Third 10B was a strategic manipulation of the judicial
system in an attempt to prevent (or at least delay) the trial court’s entry of the Order
Disbursing Funds to Husband. See Cain-Swope, 523 S.W.3d at 88 (citing Eldridge, 137
S.W.3d at 8). It is exactly this type of gamesmanship that our courts frown upon. Cain-
Swope, 523 S.W.3d at 88 (quoting Kinard, 986 S.W.2d at 228). Because Wife failed to
seek immediate relief after the November 5, 2020 hearing and instead waited until after
she received an adverse ruling from the trial court to assert this ground for recusal, she has
waived the ground. See Cain-Swope, 523 S.W.3d at 88 (quoting Duke, 398 S.W.3d at
670).
Although Wife technically waived the grounds for recusal concerning the trial
court’s reference to Adkins I, to foster and preserve the public’s confidence in judicial
neutrality, we will briefly address Wife’s contention that the Tennessee Supreme Court’s
designation of Adkins I as “Not for Citation” precludes the trial court’s reference to the
case. See Cain-Swope, 523 S.W.3d at 88. In support of her contention, Wife argues that
“[t]he [t]rial [j]udge’s reliance on and citing to the substance of Adkins I, where the
Tennessee Supreme Court and Rule has Ordered and instructed no judge or litigant to do
so, ‘would cause a reasonable person to question the judge’s ability to be impartial in any
further proceeding involving these parties.’” (Citation omitted).
As noted above, although the Tennessee Supreme Court denied hearing in Adkins
I, it designated this Court’s opinion as “‘Not for Citation’ in accordance with Supreme
Court Rule 4(E)(1).” Tennessee Supreme Court Rule 4(E)(1) provides: “If an application
for permission to appeal is hereafter denied by this Court with a ‘Not for Citation’
designation, the opinion of the intermediate appellate court has no precedential value.”
Tenn. Sup. Ct. R. 4(E)(1). Accordingly, by designating Adkins I “Not for Citation,” the
Tennessee Supreme Court was merely stating that the opinion has “no precedential value.”
In other words, Adkins I may not be cited in support of arguments in other cases. However,
Adkins I is part of the history of the instant case and so may be cited in this case for
referential purposes, i.e., explanation of the case history and previous rulings. This is
exactly the purpose for which Judge Binkley referenced Adkins I. As Judge Binkley
explained in his order denying the Third 10B, during the November 5, 2020 hearing, he
was “trying to recall the very lengthy history of this case while ‘thinking out loud’ and
obtaining what the [t]rial [c]ourt believed to be an accurate history of how the case evolved
on the issue of attorneys’ fees ruled upon on August 17, 2017 . . . .” Adkins I was simply
part of the history of the case.
Furthermore, to the extent Wife alleges the trial judge’s citations to Adkins I
demonstrate his bias against her, she has wholly failed to meet her burden of proof to show
any reasonable basis for the trial judge’s impartiality. “A judge’s comments and actions
must be construed in the context of all surrounding facts and circumstances to determine
whether a reasonable person would construe them as indicating partiality on the merits of
the case.” Cain-Swope, 523 S.W.3d at 89 (citing Groves v. Ernst-W. Corp., No. M2016-
- 21 -
01529-COA-T10B-CV, 2016 WL 5181687, at *5 (Tenn. Ct. App. Sept. 16, 2016) (citing
Alley, 882 S.W.2d at 822)). Here, the trial judge’s citations to Adkins I merely concerned
the case’s procedural history and in no way showed that Judge Binkley was biased against
Wife. Accordingly, even if not waived, Wife’s arguments would not constitute reversible
error.
D. Trial Court’s Actions While Case Was Pending Before Appellate Courts
Wife’s fourth alleged ground for recusal, which is discussed briefly above at Section
A(1), is that
[t]he Trial Judge has held two (2) hearings and taken action when jurisdiction
of this case is clearly in the Appellate Court, such being a fundamental
illegality requiring recusal. [Husband] even stated in a Reply, filed February
10, 2021:
[Husband] is agreeable for this [c]ourt to act out of
an abundance of caution and continue the hearing on the
final order until the Court of Appeals’ mandate has issued.
The Trial Judge, having refused to continue the hearing and ruled otherwise,
shows the appearance of bias against [Wife]. Judge Binkley should recuse
himself, therefore, according to the Cannons of Judicial Conduct, stated
herein.
(Emphasis in original). As an initial matter, Wife fails to specify exactly which “two (2)
hearings” and exactly what “action” the trial court has taken outside of its jurisdiction. We
glean, however, that Wife is likely referring to the November 5, 2020 hearing on Husband’s
Motion to Disburse and the February 11, 2021 hearing on Husband’s Motion to Rule.
Although stated as one issue, we discern that Wife’s argument is two-fold: (1) the
trial court was without jurisdiction to disburse the real property sale proceeds while Adkins
II was pending on appeal; and (2) because Husband agreed that the trial court should wait
to enter an order on the Motions to Disburse and to Rule until after the mandate had issued,
the trial court showed apparent bias against Wife when it entered the Order Disbursing
Funds despite both parties agreeing to wait.
Concerning Wife’s first issue, i.e., that the trial court did not have jurisdiction to
enter an order on the Motions to Disburse and to Rule, the trial court, in its order denying
the Third 10B, noted:
Wife does not state how this particular Ground for recusal, assuming it is
correct, shows any bias or prejudice against her personally which would rise
- 22 -
to the level of some type of appearance of impropriety, bias, or prejudice
whereby recusal of this Trial Judge would be warranted.
We agree. Upon review of the Third 10B and the Third 10B Petition, we conclude that
Wife wholly failed to allege that the trial court’s actions, i.e. holding two hearings and
entering an order prior to the mandate, demonstrated Judge Binkley’s bias against her.
Rather, the majority of Wife’s arguments allege that, because the mandate had not yet
issued in Adkins II, the trial court was “without jurisdiction . . . to enter any order in
response to [the Motions to Disburse and to Rule],” and “[a]ny order entered [at that time]
would be void and a waste.”14 Essentially, Wife argues that the trial court erred when it
entered the order; she does not argue that the trial court’s entry of the order demonstrated
bias or prejudice against her. Such argument goes to the merits of the trial court’s decision
to disburse the proceeds before the mandate issued and not to the trial judge’s alleged bias
against Wife. As discussed, supra, the only order this Court may review on a Rule 10B
accelerated interlocutory appeal is the trial court’s order denying the motion to recuse.
Duke, 398 S.W.3d at 668. Under Rule 10B, we may not “review the correctness or merits
of the trial court’s other rulings . . . .” Id.; see also Stark, 2019 WL 2515925, at *8
(“[W]hether the trial judge erred in his rulings on Husband’s motions is not an issue in this
limited, interlocutory appeal.”). Accordingly, in the instant accelerated appeal, we cannot
reach the question of whether it was error for the trial court to enter an order before the
mandate issued in Adkins II.
We now turn to Wife’s second issue, i.e., that the trial court showed the appearance
of bias against Wife when it entered the Order Disbursing Funds despite Husband’s
agreement to wait until the mandate issued. Specifically, Wife argues that
[f]rom this portion of his own written Reply, [Husband] would have been
content to wait for a mandate to return or to hold the hearing in abeyance.
Judge Binkley was not. He wanted to take funds kept by agreement between
the parties in the Clerk’s Office and transfer them to [Husband] before the
14
For completeness, we note that Wife briefly alleged in this section of the Third 10B that Judge
Binkley’s “facial mannerism[s] to [Wife’s] attorney Joanie Abernathy” and his “mimicking [of] her
argument about the ‘mandate’” during a Zoom hearing demonstrated “that Judge Binkley is biased against
[Wife] and her counsel and that he cannot be impartial in the case.” By this statement, Wife alleged that
the trial judge’s actions, i.e. his alleged facial mannerisms and mimicking of Wife’s attorney’s argument
during a hearing, demonstrated Judge Binkley’s bias against Wife and her attorneys. In its order denying
the Third 10B, the trial court wholly denied acting in the manner described by Wife. Furthermore, Wife
appears to have dropped this fleeting allegation of bias in the Third 10B Petition before this Court. “Courts
have consistently held that issues must be included in the Statement of Issues Presented for Review required
by Tennessee Rules of Appellate Procedure 27(a)(4). An issue not included is not properly before the Court
of Appeals.” Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001). Because she failed to include
the allegations concerning the trial judge’s alleged facial mannerisms and mimicking in her statement of
the issues on appeal, Wife has waived the same.
- 23 -
Tennessee Supreme Court has an opportunity to rule on a [Tennessee Rule
of Appellate Procedure] 11 Application to be filed.
Wife appears to allege that Judge Binkley was so biased against her that he unilaterally and
without request from either party, disbursed the parties’ funds from the sale of the real
property to Husband despite Husband’s agreement to wait until the mandate issued. In
other words, Wife’s argument hinges on whether Husband agreed to wait for a mandate to
return before the trial court: (1) held hearings on the Motions to Disburse and to Rule; and
(2) entered the Order Disbursing Funds.
Wife’s allegation that Husband was “content to wait for a mandate to return or to
hold the hearing in abeyance” misinterprets Husband’s position concerning the timing of
the disbursement of the sale proceeds. In fact, Wife contradicts her own argument on pages
42 and 71 of her Third 10B Petition when she acknowledges that Husband “pushed forward
with his Motion to Disburse Proceeds” after Wife filed her Rule 3 appellate brief. Indeed,
it is clear from the record that Husband continually advanced the issue of the Motion to
Disburse because he was concerned Wife would be unable to satisfy his judgment against
her at the end of the litigation. As discussed, supra, on September 18, 2020, while Wife’s
Rule 3 appeal was pending before this Court, Husband filed the Motion to Disburse. The
trial court heard this motion on November 5, 2020 and took the matter under advisement.
This Court issued its opinion in Adkins II on December 22, 2020. On January 4, 2021,
Wife filed a petition to rehear, which this Court denied by order of January 14, 2021.
Importantly, on January 28, 2021, Husband filed the Motion to Rule and set if for a
hearing on February 11, 2021. In the Motion to Rule, Husband asked the trial court to: (1)
rule on his Motion to Disburse; and (2) enter a final order in the case. On February 5, 2021,
Wife filed her response opposing this motion and arguing that, because a mandate had not
yet issued in Adkins II, the trial court lacked jurisdiction to enter an order on Husband’s
motion. Specifically, Wife argued that “[a]ny order entered at this time . . . would be void
and a waste.” After receiving Wife’s response, the trial court directed Husband to respond
to her argument that the trial court lacked jurisdiction to enter any order before the mandate
issued. Husband filed his reply on February 10, 2021. It is from statements Husband made
in this reply that Wife now argues he agreed to postpone both the hearing on the Motion to
Rule and entry of the Order Disbursing Funds. Our review of Husband’s reply paints a
decidedly different picture of Husband’s position.
Wife’s argument that Husband was content to wait until a mandate issued before the
trial court ruled on the Motion to Disburse rests on portions of Husband’s reply that are
taken out of context. Upon our review of Husband’s entire reply, it is clear that he only
agreed to continue the hearing on the final order until after the mandate issued in Adkins
II. However, Husband was eager at that time for the trial court to rule on his Motion to
Disburse. As the trial court found in the order denying the Third 10B, Husband’s reply
stated that “he believes that his request for the [trial c]ourt to enter an order on his Motion
- 24 -
to Disburse. . . can and should be heard now. . .,” and Husband provided case law to support
his argument. Husband’s reply concluded with the following:
WHEREFORE PREMISES CONSIDERED, [Husband] requests that the
[trial c]ourt bifurcate the two issues before it and rule on the Motion to
Disburse . . . now and address the Motion to Enter a Final Order after the . .
. mandate has issued.
(Emphasis added). Furthermore, in his response to the Third 10B Petition, Husband
declares (in bold and italicized font) that he “never agreed that the trial court should wait
to rule on the funds disbursement issue,” and he quotes the sections of his reply cited,
supra. Husband asserts that “Wife makes it sound like [Husband] wanted to wait on the
funds disbursement issue, but that the trial judge had such a grudge against [Wife] that he
insisted on giving her money away over [Husband’s] objection.” (Emphasis in original).
Conversely, Husband argues that “[t]he trial court only granted [Husband’s] relief on the
funds disbursement issue because he asked for it fervently (twice), briefed case law
supporting it, and argued at two different hearings in favor of disbursing the funds
immediately.”
It is clear from the record that Husband continually advanced the disbursement issue
and asked the trial court to enter an order on the Motion to Disburse despite Wife’s pending
Rule 3 appeal. Therefore, Wife has failed to meet her burden of proof to show that the trial
court’s Order Disbursing Funds was the product of Judge Binkley’s bias against her. In
Re: Samuel P., 2016 WL 4547543, at *2 (citing Duke, 398 S.W.3d at 671 (quoting
Eldridge, 137 S.W.3d at 7-8) (finding that the party claiming judicial bias failed to provide
any evidence “that would prompt a reasonable, disinterested person to believe that the trial
judge’s impartiality might reasonably be questioned.”). Accordingly, we affirm the trial
court’s denial of the Third 10B as to this ground.
E. Trial Court’s Comments at the November 5, 2020 Hearing
Wife’s fifth alleged ground for Judge Binkley’s disqualification concerns comments
he made during the November 5, 2020 hearing. Specifically, Wife alleges:
The Trial Judge has made comments at a hearing on November 5, 2020,
indicating bias against [Wife] and her attorneys and partiality in favor of
[Husband] when the [t]rial [c]ourt had no jurisdiction to rule as the case was
on appeal. (a). In one comment the Trial Judge affirmed a statement from
Larry Hayes, [Husband’s] attorney, that for [Wife] and her attorneys there
had not been a “day of reckoning yet – and I underline the word yet.” (b)
The Trial Judge also emoted he is “concerned that [Husband] won’t get paid
because [Wife] is running out of money, possibly. I don’t know. It’s just
something [t]hat concerns me.” (c) In yet another, the Trial Judge referenced
- 25 -
the fact that [Wife] had previously petitioned (“a lawsuit”) [sic], against the
judge and his judicial legal assistant to obtain public records, on a USB drive
given to the Judge by Mr. Hayes at the Judge’s ex parte request. Clearly
saying these things did not have anything to do with whether it had
jurisdiction to do anything on November 5 2020, thus indicating the
appearance of bias against [Wife], similar to what led to Judge Binkley’s
Recusal in David Chase v. Chris Stewart, 2021 WL [402565] (Tenn. App[.]
Feb. 4, 2021).
(Emphasis in original). Wife includes relevant portions of the transcript of the November
5, 2020 hearing in her pleadings, see discussion infra.
We have previously discussed Wife’s argument concerning jurisdiction (supra at
Section D). We have also addressed Wife’s untimely filing of the Third 10B as it concerns
the trial judge’s comments from the November 5, 2020 hearing (supra at Section C).
Again, we note the untimely filing of Wife’s Third 10B. Although she takes issue with
comments made by Judge Binkley on November 5, 2020, as discussed above, she did not
file her Third 10B until after the trial court ruled against her on Husband’s Motions to
Disburse and to Rule. Based on the timing of her Third 10B, it appears to this Court that
Wife was attempting to “silently preserve [the trial court’s comments from the hearing] as
an ‘ace in the hole’ to be used in the event of an adverse decision.” Gotwald v. Gotwald,
768 S.W.2d 689, 694 (Tenn. Ct. App. 1988); see also Eldridge, 137 S.W.3d at 8. Having
failed to file the Third 10B immediately after learning of the facts that formed the basis for
this alleged ground for recusal, i.e., the trial judge’s comments during the November 5,
2020 hearing, Wife waived her right to question Judge Binkley’s partiality concerning the
same. See Cain-Swope, 523 S.W.3d at 88 (quoting Duke, 398 S.W.3d at 670).
Although Wife waived this issue, to foster and preserve the public’s confidence in
judicial neutrality, we will address whether Judge Binkley’s comments demonstrated bias
against Wife. See Cain-Swope, 523 S.W.3d at 88. As discussed, supra, “[a] judge’s
comments and actions must be construed in the context of all surrounding facts and
circumstances to determine whether a reasonable person would construe them as indicating
partiality on the merits of the case.” Cain-Swope, 523 S.W.3d at 89 (citing Groves, 2016
WL 5181687, at *5 (citing Alley, 882 S.W.2d at 822)). Here, Wife cites three of Judge
Binkley’s comments, all of which appear in the same section of the hearing transcript.
Turning to the transcript, the hearing began with Husband’s attorney explaining the
procedural history of the attorney’s fees issue and Husband’s request to satisfy his
judgment for attorney’s fees out of Wife’s portion of the sale proceeds. After hearing
Husband’s request, Judge Binkley summarized his understanding of the lengthy procedural
history concerning the attorney’s fees issue. During his summary, the trial judge mentioned
Wife’s attorneys’ refusal to provide documentation concerning the amount of her
attorneys’ fees. In continuing to summarize the procedural history, the trial court stated:
- 26 -
TRIAL COURT: Right after that, the litigation continued with a lawsuit
Mr. Heldman and Ms. Abernathy filed against me . . . and Ms. Rubenstein.
And that case was heard over a long period of time, with other pleadings
being filed. That was heard by Judge Parkes, over in Columbia. That was
also dismissed.
There have been many things that have happened since then with work being
performed on the case. Two things I’m concerned about. Number one, if the
fees that Ms. Abernathy and Mr. Heldman have charged [Wife] was
$750,000 some time ago, I would guess that the fees that Mr. Heldman and
Ms. Abernathy has charged would be close to $2 million. I don’t know. But
I’m concerned that [Husband] won’t get paid because [Wife] is running out
of money, possibly. I don’t know. It’s just something that concerns me.
And it’s unfair for [Wife’s] marital estate to be drained to such an extent that
she’s unable to pay judgments down the road. One of the things I was
thinking about when I was reviewing this –
What is – what are your total amount of fees with interest right now? 617,000
as of three years ago?
HUSBAND’S ATTORNEY: That number is $617,047. But that is just the
judgment that was awarded.
TRIAL COURT: Okay.
HUSBAND’S ATTORNEY: I can – it was a judgment—this kind of is
telling of this case. It was a judgment awarded in April 2018 for fees through,
I believe, [August] 2017.
TRIAL COURT: Okay. I see.
HUSBAND’S ATTORNEY: There had not been a day of reckoning yet –
and I underline the word yet – in [August] 2017. I’ve got three years of fees.
I have no idea what that is.
TRIAL COURT: Yeah. I understand. Well, they do too. That’s why I’m
concerned.
HUSBAND’S ATTORNEY: Yeah. Your memory is good. I’m looking at
page 22 of your memorandum entered April 11, 2018, and you say the total
fees of Ms. Abernathy and Mr. Heldman is $749,273, compared to
- 27 -
[$533,278], which you awarded.
TRIAL COURT: Right. Okay. And, again, that was about three years ago.
So I would imagine – with all the litigation that’s gone on since then – I’m
guessing, but I would imagine Mr. Heldman and Ms. Abernathy have
probably charged in the range of a couple million dollars to [Wife]. But I
don’t know. I don’t have a clue.
But I’m concerned. I’m concerned that [Wife] may run out of money and
may not be able to satisfy this judgment, even though she’s received millions
of dollars as a result of payments on the terms of the marital dissolution
agreement, which has been attacked by Mr. Heldman and Ms. Abernathy on
behalf of their client.
After the foregoing exchange, the trial court turned to Wife’s attorney for her argument.
The transcript shows that the trial judge was attentive, responsive, and respectful to Wife’s
attorney during her argument. Nevertheless, Wife asserts that
Judge Binkley’s affirmation concerning no “day of reckoning yet – and I
underline the word yet,” for [Wife] and her lawyers, his reference to the
“lawsuit” for which he “partially” recused himself and his statement that he
is “concerned that [Husband] won’t get paid” shows an appearance of bias in
favor of [Husband] and against [Wife].
In the first instance, Wife’s allegation that Judge Binkley “affirmed a statement from
Larry Hayes, [Husband’s] attorney, that for [Wife] and her attorneys there had not been a
‘day of reckoning yet – and I underline the word yet’” is not supported by the record.
(Emphasis in original). When Judge Binkley’s comment is read in context, it is clear that
his statement, “Yeah. I understand,” was not an affirmation of Mr. Hayes’ comment that
“[t]here had not been a day of reckoning yet.” Rather, the trial judge’s statement affirmed
Mr. Hayes’ subsequent statement that he had three years of attorney’s fees, and that he did
not know the dollar amount of those fees. Judge Binkley’s follow up comments clarify
this reading. After he stated, “Yeah. I understand,” the trial judge continued, “Well, they
do too.”—meaning that Wife’s attorneys also had three years of additional attorney’s fees
that were not the subject of the November 5, 2020 hearing. The trial court confirmed its
meaning in the order denying the Third 10B, to-wit: “[T]he [t]rial [c]ourt was referring to
attorneys’ fees incurred by both sides since the last payment by Wife of $750,000 to her
two (2) attorneys was recorded as part of the transcript of the hearing on August 17, 2017.”
Based on the foregoing, a reasonable and disinterested person could conclude only that the
trial judge’s statement was merely declarative of the state of the parties’ attorneys’ fees
and not indicative of a bias against Wife. In re Samuel P., 2016 WL 4547543, at *2 (citing
Duke, 398 S.W.3d at 671 (quoting Eldridge, 137 S.W.3d at 7-8)).
- 28 -
It is clear from the record that the additional attorneys’ fees incurred in this
protracted litigation troubled the trial court. Based on the judge’s comments concerning
the voluminous billing records, Wife alleges that “[t]he Trial Judge also emoted he is
‘concerned that [Husband] won’t get paid because [Wife] is running out of money,
possibly. I don’t know. It’s just something [t]hat concerns me.” In view of the record in
this case, the trial court’s concern was warranted. Nonetheless, Wife has failed to show
any evidence that the trial judge’s concern that attorneys’ fees would decimate the marital
estate demonstrated clear bias against her. In re Samuel P., 2016 WL 4547543, at *2; see
also Williams by & through Rezba, 2015 WL 2258172, at *5; McKenzie, 2014 WL
575908, at *3. Although Wife couches the trial court’s concern as bias, when reviewing
the trial judge’s comments in the “context of all surrounding facts and circumstances,” it
is clear the trial court was only carrying out its responsibility as a court of law, i.e., trying
to ensure that a party to whom a judgment is owed is able to collect on that judgment.
Cain-Swope, 523 S.W.3d at 89 (citing Groves, 2016 WL 5181687, at *5 (citing Alley, 882
S.W.2d at 822)). Indeed, in its order denying the Third 10B, the trial court explained that
it “was not voicing empathy or concern for Husband . . . [but] was doing what it should do,
and that is to weigh alternatives and determine whether or not it was appropriate to grant
Husband’s Motion at the very hearing on that same Motion.”
Finally, Wife alleges that Judge Binkley’s reference to Wife’s lawsuit against him
and his judicial assistant demonstrated the trial judge’s bias against her. As support for her
argument, Wife cites Chase v. Stewart, No. M2018-01991-COA-R3-CV, 2021 WL
402565 (Tenn. Ct. App. Feb. 4, 2021), reh’g denied (Mar. 16, 2021). The only similarity
between Chase and the current appeal is that Judge Binkley was also the presiding trial
judge in Chase. In that case, this Court concluded that Judge Binkley should have recused
himself based on comments he made concerning an attorney for one of the Chase parties
during a hearing in an unrelated matter. Id. at *5. Specifically, the trial judge “blamed
[one of the attorneys in Chase] for the court’s exposure to negative publicity. . . ,” and was
“crystal clear” and “transparent” about not liking that attorney’s actions. Id. The trial
judge also stated that he did not like “many, many other things” that attorney had done. Id.
Finally, the trial judge also “envisaged that ‘my day will come.’” Id. These comments
provide a stark contrast to Judge Binkley’s comments here, where he merely noted Wife’s
lawsuit against him while reciting the case’s procedural history. Notably, at the November
5, 2020 hearing, the trial judge expressed no animosity toward Wife or her counsel for
Wife’s lawsuit against him. Indeed, there is nothing in the trial judge’s comments to
indicate he harbored any animosity against Wife or her attorneys or that he was seeking
any type of retribution against Wife for filing the lawsuit. Cf id. (“Taken in context, ‘a
reasonable person would construe th[e] remarks as indicating’ that the judge may have
sought retribution against [the attorney] for a perceived wrongdoing . . . .”). Rather, the
record demonstrates the opposite. As discussed, supra, the trial judge was respectful to
Wife’s attorney and was attentive, responsive, and polite during her argument.
Accordingly, even if not waived, Wife has failed to meet her burden on this issue.
- 29 -
V. Husband’s Request for Attorney’s Fees
Husband asks this Court to award him attorney’s fees incurred in this appeal.
Generally, litigants must pay their own attorneys’ fees absent a statute or agreement
providing otherwise. See State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186,
194 (Tenn. 2000). Here, Husband asks this Court to award him his fees based on Tennessee
Code Annotated section 27-1-122 and his allegation that Wife’s appeal is frivolous.
Section 27-1-122 states that
[w]hen it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the appeal.
Tenn. Code Ann. § 27-1-122. “A frivolous appeal is one that is devoid of merit or has no
reasonable chance of success.” Selitsch v. Selitsch, 492 S.W.3d 677, 690 (Tenn. Ct. App.
2015). The statute must be interpreted and applied strictly so as not to discourage
legitimate appeals. Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010).
Furthermore, “[t]he decision to award damages for the filing of a frivolous appeal rests
solely in the discretion of this Court.” Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn.
Ct. App. 2009).
In her reply, Wife alleges that her appeal is not frivolous because: (1) the trial court
did not have jurisdiction to enter the Order Disbursing Funds; (2) the trial judge should
have recused himself entirely in August of 2017; and (3) the trial court included Husband’s
response to the Third 10B in its order denying the same. Essentially, Wife simply restates
some of her alleged grounds for recusal.
Having reviewed the record, and in light of the foregoing discussion, we conclude
that the present appeal is both frivolous and likely taken to further delay these proceedings.
As discussed in detail above, Wife has failed to present any cogent argument to support
her allegation that the trial judge was biased or prejudiced against her. Most of Wife’s
alleged grounds for recusal fall into four categories—the grounds either: (1) relitigate the
same argument from a previous motion for recusal; (2) are untimely; (3) argue the merits
of a different order; or (4) fail to allege any bias. The few grounds Wife asserts that are
both timely and allege bias are wholly unsupported by the record. Indeed, after review, it
is clear to this Court that many of the “facts” Wife alleged in her pleadings to support the
grounds for recusal are inaccurate, misleading, and taken out of context. For example,
Wife omitted from her pleadings the fact that the trial court substantively ruled on
Husband’s Motions to Disburse and to Rule on February 11, 2021, several days before she
filed the Third 10B. She also declined to provide this Court with a transcript from that
hearing that would show the trial court’s substantive ruling. Also, Wife quoted a section
- 30 -
from Husband’s pleading to support her argument, but ignored another section from
Husband’s pleading that was actually relevant to the issue. For these and many other
reasons, we conclude that Wife’s appeal is devoid of merit and, thus, frivolous. However,
not only is Wife’s appeal frivolous, but there is also little doubt that the appeal is an attempt
to manipulate Rule 10B to delay or prevent the payment of Husband’s judgment for
attorney’s fees. Based on the foregoing, we grant Husband’s request for appellate
attorney’s fees, and remand for determination of Husband’s reasonable attorney’s fees
incurred in this appeal and for entry of judgment on same.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s order denying the motion for
recusal. Husband’s request for appellate attorney’s fees is granted, and the case is
remanded to the trial court for determination of Husband’s reasonable attorney’s fees on
appeal, for entry of judgment on same, and for such further proceedings as may be
necessary and are consistent with this Opinion. Costs of the appeal are assessed against
the Appellant, Rhonda Forlaw Adkins, for all of which execution may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
- 31 -