Pamela Diane Stark v. Joe Edward Stark

06/18/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 22, 2019
PAMELA DIANE STARK v. JOE EDWARD STARK
Appeal from the Circuit Court for Shelby County
No. CT-002958-18 Robert Samual Weiss, Judge
___________________________________
No. W2019-00901-COA-T10B-CV
___________________________________
In this accelerated interlocutory appeal, Wife appeals the trial court’s denial of her
motion to recuse the trial judge in her divorce case. Specifically, Wife argues that the trial
court’s rulings demonstrate a bias against her because the trial court purportedly ruled in
favor of Husband in excess of the relief requested. We affirm the trial court’s denial of
Wife’s motion to recuse.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Circuit
Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and ANDY D. BENNETT, JJ., joined.
Pamela Diane Stark, Memphis, Tennessee, Pro se.
Melissa C. Berry, Cordova, Tennessee, for the appellee, Joe Edward Stark.
OPINION
BACKGROUND
Plaintiff/Appellant Pamela Diane Stark (“Wife”) filed a complaint for divorce
against Defendant/Appellee Joe Edward Stark (“Husband”) on June 29, 2018. Wife is a
licensed attorney working for the District Attorney General of the Thirtieth Judicial
District. Husband works as a police officer for the Memphis Police Department. On
November 28, 2018, Wife, after obtaining leave of court, filed an amended complaint to
assert that Husband had committed battery and intentional infliction of emotional distress
against her. According to Wife, the battery allegations result from an incident of
domestic violence that occurred on June 17, 2018. Although Wife’s employer recused
from the matter and a special prosecutor was appointed, Wife asserts that the Memphis
Police Department continues to investigate the matter.
In support of the divorce and tort actions, Wife caused six subpoenas to be issued
for the depositions of Husband and other witnesses, including a lieutenant from the
Memphis Police Department. The notices indicated that five of the depositions, including
Husband’s, would be taken at the marital residence. The final deposition was to take
place in Missouri where the witness resided. On January 9, 2019, Husband filed a motion
for a protective order seeking that all in-person depositions be taken at the Shelby County
courthouse, that a bailiff be present for Husband’s deposition, and that the out-of-state
deposition take place remotely.
A hearing on Husband’s motion was held on January 25, 2019. No transcript or
statement of the evidence from this hearing is included in the record.1 On February 13,
2019, the trial court ruled that Husband’s motion was “reasonable under the
circumstances.” As such, the trial court ordered that the depositions of Husband, as well
as well as Sgt. Mote, Anthony Mullins, Daniel Cordero, and James Erwin would take
place at the Shelby County Courthouse and that a bailiff would be present for Husband’s
deposition.2 The trial court denied, however, Husband’s request that the deposition of the
out-of-state witness be taken remotely, ruling that the deposition would take place in
Missouri unless the witness agreed to be deposed in Shelby County.
In the meantime, on January 15, 2019, Husband filed a petition for a restraining
order under rule 65.03 of the Tennessee Rules of Civil Procedure. Therein, Husband
alleged that Wife was posting on her personal Facebook page allegations against
Husband with regard to domestic violence. Additionally, Husband alleged that Wife
“disparaged the Memphis Police Department’s internal handling and investigation of said
case.” Husband argued that such dissemination of these allegations could cause
immediate irreparable harm to Husband’s reputation and employment. As such, Husband
requested that the trial court enter an immediate temporary restraining order requiring
Wife to remove the posts and to refrain from making similar posts or comments in the
future. Wife responded in opposition to Husband’s petition on May 21, 2019. Therein,
1
Wife asserts that access to the transcript was blocked by Husband. Husband counters that he is
not required to provide Wife with a copy of the transcript as she did not share in its cost, citing Beef N’
Bird of Am., Inc. for Use & Benefit of Galbreath v. Cont’l Cas. Co., 803 S.W.2d 234, 240 (Tenn. Ct.
App. 1990) (“A party who does not join in the engagement and payment of a stenographer has no contract
right to require the stenographer to transcribe the record which is therefore unavailable to him unless and
until made available to him on terms satisfactory to the stenographer and the party or parties who engaged
the stenographer.”). This dispute is not within the scope of this limited accelerated appeal, nor has it been
raised as an issue by Wife.
2
The trial court noted that Husband requested in the alternative to a bailiff, that his deposition be
taken “audiovisually.” The trial court ruled that this request was considered in its order that the
depositions be taken at the Shelby County Courthouse but did not specifically allow this deposition to be
taken “audiovisually.”
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Wife admitted to making the posts, but asserted that her comments concerned a matter of
public concern protected by the United States and Tennessee Constitutions. Finally, Wife
asserted that Husband’s motion was an attempt to harass Wife and “bias [the trial judge]
into a belief that ‘contentiousness’ exists between the parties.”
A hearing on Husband’s petition was held on February 7, 2019. Husband testified
that Wife had engaged in various alleged harassing behavior, including notifying his
lieutenant of the allegations and posting about the domestic violence allegations on her
personal Facebook page. According to Husband, these posts were visible to his co-
workers and clearly suggested that he was a domestic abuser. Likewise Husband testified
that after filing his petition, Wife informed his counsel that she had also sent a letter to
Memphis Mayor Jim Strickland concerning alleged corruption in the Memphis Police
Department; the letter specifically referenced Husband and the allegations against him.
Husband explained that an investigation into the allegations was ongoing, but that the
allegations alone could be injurious to his reputation with his employer. Finally, Husband
indicated that Wife’s actions were harassing and done in an effort to intimidate him. Wife
chose not to testify; rather she provided only legal argument that her statements were
protected by the First Amendment. In contrast, Husband’s counsel argued that the
mandatory injunction in place at the time the divorce complaint was filed prohibited the
parties from harassing or making disparaging comments about each other, including to
employers, and that the injunction should be extended to force Wife to remove the
offending posts.
Following the argument of the parties, the trial court ruled that Wife’s argument
regarding the First Amendment was not well-taken because her allegations did not refer
to corruption generally as a matter of public concern, but with regard to the allegations
against Husband specifically, which action was prohibited by the mandatory divorce
injunction. As such, the trial court ruled that Wife was to remove the offending posts the
same day and that “a mandatory injunction will go into effect that there will be no
communication with employers.” The trial court also ruled that “making any further
allegations in social media is completely inappropriate and is being enjoined.” Thereafter
the following exchange occurred:
[Wife]: Well, Your Honor, I will just with all candor to the Court say
you might as well take me into custody right now. I have contacted the FBI
as well as having contacted the mayor of Memphis to try and get this
addressed. I am saying that I am a victim of corruption from the Memphis
Police Department, and I am going to pursue every course of action I have
and –
THE COURT: Ms. Stark, are you going to remove that post, yes or
no?
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[Wife]: I am not.
THE COURT: Officer Houston, take her into custody.
We’ll stand in recess.
(Short break.)
THE COURT: Ms. Stark, please stand. Are you going to comply
with this Court’s orders?
[Wife]: No, I’m not.
THE COURT: All right. I’m making a finding that you are in direct
contempt of court by willfully refusing to comply with this Court’s orders.
You . . . will be held in custody until such time that you decide that you
want to change your position and you apologize to this Court. We’ll stand
in recess until that time.
On February 13, 2019, the trial court entered its written order granting Husband’s
petition for a restraining order. Therein, the trial court noted the existence of the
mandatory injunction restraining each party “from harassing, threatening, assaulting or
abusing the other and from making disparaging remarks about the other in the presence or
to either party’s employer.” The trial court found that in spite of this injunction, Wife
sent correspondence to Husband’s supervisors and posted on social media regarding the
domestic violence allegations. The trial court further found that Wife was aware of the
potential ramifications of her actions and “the sole purpose of making the post and
contacting his employer was to harass the Petitioner directly in contravention of the
mandatory injunction.” As such, the trial court ruled that Husband’s petition was granted,
Wife was to remove the offending Facebook post, and Wife was enjoined “from making
any other public allegations against [Husband] on social media (on any platform) or to his
employer which may affect Petitioner’s reputation or employment.”
On March 29, 2019, the trial court entered its order finding Wife in “direct civil
contempt.” The order noted that Wife was taken into custody “until such time as she
agreed to remove the [] post in question.” The order stated that Wife agreed to comply
with the trial court’s restraining order approximately four hours after being taken into
custody and had therefore purged her contempt.
Also on March 29, 2019, the parties appeared before the trial court on several
unrelated matters. After the trial court ruled on various motions by Husband, Wife
informed the trial court that she had a motion to recuse that had yet to be filed. The trial
judge directed Wife to file her motion, set it for hearing, and that he would rule on it in
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due course. Wife filed her motion on the same day. Wife’s recusal motion alleged that the
trial court’s actions in granting Husband’s motion for protective order and petition for
restraining order, as well as finding Wife in contempt showed an appearance of bias that
warranted recusal. Additionally, Wife alleged that the trial judge had shown “disdain” for
pro se litigants. The motion was accompanied by Wife’s affidavit stating that the facts
contained in the motion were “true to the best of my knowledge.”
On April 5, 2019, Husband filed a motion to have argument on the motion to
recuse, alleging that Wife had refused to set a hearing on her own motion. According to
Husband, despite refusing to set her motion, Wife objected to the entry of orders on
matters decided by the trial court prior to the filing of the recusal motion. As such,
Husband alleged that he “cannot reasonably proceed with trial preparation until and
unless the Motion to Recuse is disposed of, as Wife is using said pending motion as both
a shield and a sword.” Husband therefore requested that the trial court set a hearing on
the motion to recuse or issue a written order on the motion.
Despite Wife’s objection, the trial court entered an order on April 9, 2019,
adjudicating the motions that had been heard on March 29, 2019, prior to the filing of the
recusal motion. In response, Wife filed a motion to set aside the April 9 order on April
16, 2019. Wife argued that the trial court’s entry of this order violated Rule 10B of the
Tennessee Supreme Court Rules. See Tenn. Supt. Ct. R. 10B, § 1.02 (“While the motion
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.”). On the next day, Wife filed a supplemental motion to recuse noting the
trial court’s violation of Rule 10B. Again, the supplemental motion was accompanied by
an affidavit stating that the facts were “true to the best of my knowledge.”
No oral argument was ever had on the motion to recuse. Instead, the trial judge
entered a lengthy written order denying the motion on May 3, 2019. Therein, the trial
judge ruled that Wife’s motion was procedurally deficient in that it was not accompanied
by an affidavit stating that the facts contained therein were based on personal knowledge
and the motion was untimely. Nevertheless, the trial judge went on to consider the merits
of Wife’s motion, finding that there was no basis for recusal either subjectively or
objectively. In support, the trial judge noted that its rulings “have been confined to the
matters specifically before the [c]ourt and the [c]ourt has not prejudged any of the
allegations raised by [Wife].” In particular, the trial court noted that its decision to grant
the protective order relating to the location of the deposition was based on the allegations
of domestic abuse contained in Wife’s pleadings; the taking of depositions in a public
place rather than Wife’s home was therefore “in everyone’s best interest.” The trial court
denied that its decision was based on any finding crediting Husband’s allegation that
Wife had engaged in “unpredictable and inappropriate behavior.”
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Wife thereafter filed a timely accelerated petition for recusal appeal to this Court
pursuant to Rule 10B of the Tennessee Supreme Court Rules. On May 24, 2019, we
directed Husband to file a response to Wife’s petition. Husband complied on June 10,
2019. We now exercise our discretion to 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.”).
ISSUE PRESENTED
This appeal involves a single issue: whether the trial judge erred in denying Wife’s
motion to recuse.3 Recusal should be granted “whenever the judge has any doubts about
his or her ability to preside impartially” or “when a person of ordinary prudence in the
judge’s position, knowing all of the facts known to the judge, would find a reasonable
basis for questioning the judge’s impartiality.” Alley v. State, 882 S.W.2d 810, 820
(Tenn. Crim. App. 1994) (footnote omitted). The trial judge in this case expressly ruled
that it had “no actual bias, prejudice, or favor for or against any party or attorney in this
matter.” As such, the dispositive issue is whether a reasonable person would question the
judge’s impartiality under the circumstances of this case. We review the trial judge’s
denial of a motion to recuse “under a de novo standard of review.” Tenn. Sup. Ct. R.
10B, § 2.01.
ANALYSIS
I. Procedure
The parties first dispute whether the appropriate procedure was followed in this
case. Recusal issues are governed by Rule 10B of the Tennessee Supreme Court Rules.
Pursuant to Rule 10B of the Rules of the Tennessee Supreme Court, a litigant is entitled
to seek disqualification of a trial judge by filing a motion that: (1) is supported by an
affidavit under oath or a declaration under penalty of perjury by personal knowledge or
by other appropriate materials; (2) states, with specificity, all factual and legal grounds
supporting disqualification of the judge; and (3) affirmatively states 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. Tenn. Sup. Ct. R. 10B, § 1.01.
Upon filing of such motion, “the judge whose recusal is sought shall either grant
or deny the motion in writing.” Watson v. City of Jackson, 448 S.W.3d 919, 927 (Tenn.
Ct. App. 2014). If the motion is denied, the judge shall state in writing the grounds for the
denial. Tenn. Sup. Ct. R. 10B, § 1.03. Additionally, if the motion is denied, the movant
3
In the trial court, Wife also took issue with the trial court’s action in entering two orders while
the motion to recuse was pending. Wife does not raise this argument on appeal and we therefore do not
address it.
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may file an accelerated interlocutory appeal of the denial. According to Section 2.02 of
Rule 10B of the Rules of the Tennessee Supreme Court:
To effect an accelerated interlocutory appeal as of right from the denial of a
motion for disqualification or recusal of the trial court judge, 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. In civil cases, a bond
for costs as required by Tenn. R. App. P. 6 shall be filed with the petition.
A copy of the petition shall be promptly served on all other parties, and a
copy also shall be promptly filed with the trial court clerk. For purposes of
this section, “appropriate appellate court” means the appellate court to
which an appeal would lie from the trial court’s final judgment in the case.
Tenn. Sup. Ct. R. 10B, § 2.02. The movant is also required to include copies of “all
supporting documents filed in the trial court, a copy of the trial court’s order or opinion
ruling on the motion, and a copy of any other parts of the trial court record necessary for
determination of the appeal.” Tenn. Sup. Ct. R. 10B, § 2.03.
Here, the trial court ruled that Wife’s motion was procedurally defective in two
aspects. First, the trial court found that the affidavit accompanying Wife’s motion did not
state that it was based on personal knowledge. Additionally, the trial court ruled that
Wife’s motion was untimely. We will address each alleged defect in turn.
A.
As previously discussed, Rule 10B states that a motion to recuse must be
accompanied by “an affidavit under oath or a declaration under penalty of perjury on
personal knowledge and by other appropriate materials.” Tenn. Sup. Ct. R. 10B, § 1.01.
Here, Wife’s accompanying affidavit stated only that the information contained therein
was “true to the best of my knowledge.” The trial court ruled that this statement did not
meet the high standard required of Rule 10B. Husband agrees with the trial court’s
assessment of Wife’s affidavit, arguing that the affidavit in this case closely resembles
the affidavit that was held insufficient in Berg v. Berg, No. M2018-01163-COA-T10B-
CV, 2018 WL 3612845 (Tenn. Ct. App. July 27, 2018). As the panel in Berg explained:
[The affidavit] clearly does not meet the standard set forth in Rule 10B.
Instead of being made under oath on “personal knowledge” as is required,
the affidavit filed in this case includes an oath attesting that the statements
included are “true to the best of [Mother’s] knowledge, information and
belief.” Averring that something is true to the best of one’s knowledge,
information, and belief does not signify that it is based on personal
knowledge. See Bridgewater v. Adamczyk, No. M2009-01582-COA-R3-
CV, 2010 WL 1293801, at * 4 (Tenn. Ct. App. Apr. 1, 2010) (noting that
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personal knowledge is knowledge gained through firsthand experience or
observation); Seals v. Tri-State Defender, Inc., No. 02A01-9806-CH-
00172, 1999 WL 628074, at *2 (Tenn. Ct. App. Aug. 16, 1999) (noting that
an affidavit stating a fact “to my best knowledge and ability” was not made
on personal knowledge); see also Edward J. Levin, “Best” Is Not Always
Best When it Comes To Knowledge, 30 Prob. & Prop. 44, 45 (Jan./Feb.
2016) (noting that the term “best knowledge” embodies a level of
uncertainty and that a statement made to the “best knowledge” of a person
does not mean that the statement is based on that individual’s personal
knowledge).
Berg, 2018 WL 3612845, at *3. As such, the Berg opinion holds that in light of the
deficiencies in the affidavit, the trial court was not required to address the substantive
merits of the recusal motion.
Another panel of this Court came to the opposite conclusion in Beaman v.
Beaman, No. M2018-01651-COA-T10B-CV, 2018 WL 5099778 (Tenn. Ct. App. Oct.
19, 2018). Therein, the panel concluded that use of “magic words” was not necessary
where “[a] fair interpretation of Wife’s counsel’s declaration in this case demonstrates
that it was based on personal knowledge even though it did not expressly state that it was
based “on personal knowledge.’” Id. at 13. The court distinguished the affidavit at issue
with the affidavit in Berg, noting that “[u]nlike the affidavit at issue in Berg, the
declaration in this case did not include qualifying language necessarily negating the
conclusion that it was based on personal knowledge.” As such, the Beaman panel went
on to address the merits of the recusal motion. Id. at *14–*15.
The statement in Wife’s affidavit is substantially similar to that utilized in Berg,
however, the affidavit itself and the recusal motion at issue both readily reveal that
Wife’s allegations are based on hearings where she was present and orders to which she
was a party. In a similar situation, this Court has considered whether “it [was] apparent
from the substance of the disputed affidavits [] that they [were] based on the personal
knowledge of the affiants.” Ueber v. Ueber, No. M2018-02053-COA-T10B-CV, 2019
WL 410703, at *3 (Tenn. Ct. App. Jan. 31, 2019) (involving an affidavit “the same” as
that filed in Berg). Likewise, even a limited and surface-level inspection of Wife’s
motion reveals that it is indeed based on personal knowledge. Moreover, Wife’s affidavit
in support of her petition for recusal appeal specifically states that the facts contained in
both her motion and appeal are based on personal knowledge. Finally, despite the trial
court’s finding that Wife’s motion was defective, it did expressly and thoroughly
consider the merits of Wife’s motion and both parties have briefed the merits of the
motion to this Court. As such, we conclude that the best practice in this case is to proceed
to consider the remaining issues in this case notwithstanding Wife’s failure to strictly
comply with Rule 10B. We caution litigants, however, that we may not be so forgiving in
the future.
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B.
The trial court also found that Wife’s motion was untimely. “Courts frown upon
the manipulation of the 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.’” Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998) (quoting
Holmes v. Eason, 76 Tenn. 754 (Tenn. 1882)). Consequently, “recusal motions must be
filed promptly after the facts forming the basis for the motion become known, and the
failure to seek recusal in a timely manner results in a waiver of a party’s right to question
a judge’s impartiality.” Davis v. Tennessee Dep’t of Employment Sec., 23 S.W.3d 304,
313 (Tenn. Ct. App. 1999) (citations omitted).
Here, the basis of Wife’s recusal motion results from two requests filed by Husband.
The first request, a motion for a protective order regarding the taking of depositions, was
filed on January 9, 2019, with a hearing that took place on January 25, 2019. The second
request, a petition for a restraining order related to social media posts, was filed on
January 15, 2019, and heard on February 7, 2019. The trial court entered orders on both
motions on February 13, 2019. Wife filed her recusal motion on March 29, 2019.
Although Wife waited until the trial court had ruled on some of Husband’s motions
before bringing the recusal motion to the trial court’s attention, it appears that Wife
generally agreed to Husband’s requests during the March 29 hearing. As such, the record
does not demonstrate that Wife’s decision to hold the recusal motion was
“experiment[al]” or strategic. Kinard, 986 S.W.2d at 228.
Although we agree that Wife’s decision to wait until the conclusion of the March 29,
2019 hearing is perplexing and serves to undermine her argument that she believes that
the trial judge has an impermissible bias against her, we are reluctant to conclude that a
delay of six weeks between the entry of the written order at issue and the recusal motion
results in a waiver of her arguments. Rule 10B does not place a brightline rule on the
timeliness of recusal motions, nor has this Court ever adopted such a rule. In another
case, this Court proceeded to consider the merits of the appellant’s recusal motion despite
the fact that the motion was filed seven months after the divorce decree and over two
months after an order on attorney’s fees, both of which served as the basis for the recusal
motion. See Ueber v. Ueber, No. M2018-02053-COA-T10B-CV, 2019 WL 410703, at *3
(Tenn. Ct. App. Jan. 31, 2019). Although we acknowledged that the appellant’s motion
was “arguably somewhat untimely[,]” we exercised our discretion to nevertheless
consider the merits of the recusal issue. Id. (“Tennessee law concerning appeals filed
under Rule 10B gives this Court some discretion to waive certain procedural deficiencies
in order to reach the merits of a motion filed under Rule 10B.”). We have held, however,
that a delay of over four months from when an appeal of the trial court’s ruling has been
filed does render a recusal motion untimely. See Kershaw v. Kershaw, No. M2009-
00151-COA-R3-CV, 2009 WL 4039262, at *4 (Tenn. Ct. App. Nov. 20, 2009). We are
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not necessarily persuaded that the six week delay in this case renders Wife’s motion
untimely. In any event, however, we exercise our discretion to consider the merits of this
appeal notwithstanding any allegations of delay.
II. Merits
Tennessee Code of Judicial Conduct Rule 2.11 provides that “[a] judge shall
disqualify himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned[.]” Tenn. R. Sup. Ct. 10, § 2.11. It is well-settled that “‘[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)). Article VI, Section 11 of the Tennessee Constitution, Tennessee
Code Annotated section 17-2-101, and the Code of Judicial Conduct prohibit a judge
from presiding over a matter in which the judge has an interest in the outcome or where
the judge is connected to either party. The purpose of the prohibition is 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 [] reached a prejudged conclusion because of
interest, partiality, or favor.” Austin, 87 S.W.3d at 470 (citation omitted). Additionally,
we have emphasized that “the preservation 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) (citations omitted). Accordingly, even in cases wherein a judge sincerely believes
that she can preside over a matter fairly and impartially, the judge nevertheless should
recuse herself in cases where a reasonable person “‘in the judge’s position, knowing all
the facts known to the judge, would find a reasonable basis for questioning the judge’s
impartiality.’” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564–65 (Tenn. 2001)
(quoting Alley, 882 S.W.2d at 820). It is an objective test designed to avoid actual bias
and the appearance of bias, “since the appearance of bias is as injurious to the integrity of
the judicial system as actual bias.” Davis, 38 S.W.3d at 565 (citation omitted).
Under Rule 2.3 of the Tennessee Code of Judicial Conduct, “[a] judge shall
perform the duties of judicial office, including administrative duties, without bias or
prejudice.” Tenn. R. Sup. Ct. 10, § 2.3(a). As such,
A judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned, including but not
limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a
party’s lawyer, or personal knowledge of facts that are in dispute in the
proceeding. . . .
Tenn. R. Sup. Ct. 10, § 2.11(A)(1).
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Generally, the terms “bias” and “prejudice” refer to a state of mind or attitude that
works to predispose a judge for or against a party. Alley, 882 S.W.2d at 821. “‘However,
not all unfavorable dispositions toward an individual or case can be properly described by
those terms. The words suggest a favorable or unfavorable disposition or opinion that is
somehow wrongful or inappropriate because it is excessive, undeserved, or rests on
knowledge the subject should not possess.’” Cain-Swope v. Swope, 523 S.W.3d 79, 89
(Tenn. Ct. App. 2016), perm. app. denied (Apr. 12, 2017) (quoting Groves v. Ernst-W.
Corp., No. M2016-01529-COA-T10B-CV, 2016 WL 5181687, at *5 (Tenn. Ct. App.
Sept. 16, 2016)). Bias is often divided into two types, each of which implicates a different
standard for determining whether recusal is warranted. Where a bias stems from an
extrajudicial source, rather than from events or observations during litigation of a case, it
is may be sufficient to justify recusal if the judge’s behavior raises “reasonable questions
about the judge’s impartiality.” Groves, 2016 WL 5181687, at *5; see also McKenzie v.
McKenzie, No. M2014-00010-COA-T10B-CV, 2014 WL 575908, at *3 (Tenn. Ct. App.
Feb. 11, 2014) (quoting Alley, 882 S.W.2d at 821) (“To disqualify, prejudice must be of a
personal character, directed at the litigant, ‘must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what the judge learned from
participation in the case.’”) Where, however, “the bias is alleged to stem from events
occuring in the course of the litigation of the case, the party seeking recusal has a greater
burden to show bias that would require recusal, i.e., that the bias is so pervasive that it is
sufficient to deny the litigant a fair trial.” McKenzie, 2014 WL 575908, at *3. Nothing in
Wife’s petition for recusal appeal suggests that the alleged bias of the trial judge results
from any extrajudicial source. As such, Wife must meet the higher standard to show a
bias so pervasive as to deny her the right to a fair trial.4
Here, Wife asserts that the trial judge’s rulings with regard to Husband’s motion
for a protective order and petition for a restraining order show a pervasive bias against
her sufficient to necessitate recusal. As an initial matter, we note whether the trial judge
erred in his rulings on Husband’s motions is not an issue in this limited, interlocutory
appeal. Indeed, Wife does not dispute that our jurisdiction in this appeal extends only to
the question of whether a bias or appearance of impropriety exists that necessitates
recusal of the trial judge. See Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012)
(“In a Tennessee Supreme Court Rule 10B appeal, the only order we may review is the
trial court’s order that denies a motion to recuse. Pursuant to the rule, we may not review
the correctness or merits of the trial court’s other rulings[.]”). But see Krohn v. Krohn,
No. M2015-01280-COA-T10B-CV, 2015 WL 5772549, at *7 (Tenn. Ct. App. Sept. 22,
2015) (no perm. app. filed) (considering the propriety of a discovery order in determining
whether recusal was warranted). Neither does Wife dispute that complaints regarding the
4
In the trial court, Wife “suggest[ed]” in her recusal motion that the trial judge was biased against
all pro se litigants. Wife has apparently abandoned this argument, as she does not address it in any fashion
in her petition for recusal appeal. As such, this argument is not before us.
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“contentiousness of the proceedings nor any of the trial court’s rulings do not constitute
‘a reasonable basis for questioning the judge’s impartiality.’” See In re Conservatorship
of John Daniel Tate, No. 2012-01918-COA-10B-CV, 2012 WL 4086159, at *3 (quoting
State v. Hester, 324 S.W.3d 1, 73 (Tenn. 2010)). We note that it is well-settled that
adverse rulings, “even if erroneous, numerous and continuous,” may not be sufficient to
necessitate recusal. Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994).
Indeed, the Tennessee Supreme Court has noted that adverse rulings are necessary
byproducts of the adversarial process and the trial judge’s role in “assess[ing] the
credibility of those who testify before them.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d
560, 565 (Tenn. 2001).
Rather than take issue with the trial court’s substantive rulings, Wife contends that
the trial court’s “rulings have repeatedly exceeded the relief sought by opposing counsel
and create an appearance of both bias and prejudice which require his recusal.” Wife also
asserts that the trial court’s decisions show that he has prejudged the issues remaining in
the case. As an initial matter, we note that throughout her petition for recusal appeal,
Wife takes issue with several inferences and implications that she asserts are evident
from the trial court’s rulings. We agree that trial court orders may sometimes contain
both express rulings and necessary implications. See Morgan Keegan & Co. v. Smythe,
401 S.W.3d 595, 608 (Tenn. 2013) (holding, in the context of an arbitration action,
“when construing orders and judgments, effect must be given to that which is clearly
implied, as well as to that which is expressly stated”). As this Court has previously
explained, however, “[w]e start our analysis of the grounds for recusal understanding that
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 v. Duke, 398 S.W.3d 665, 671
(Tenn. Ct. App. 2012) (quoting Eldridge v. Eldridge, 137 S.W.3d 1, 7–8 (Tenn. Ct. App.
2002)). As such, we will consider whether the evidence in the record would cause a
reasonable person to question the judge’s impartiality under the circumstances. In order
to analyze this issue, we will consider each of the allegedly offending rulings made by the
trial judge.
Wife first asserts that the ruling on the motion for protective order went beyond
the relief requested by the motion by ordering that all depositions would take place in the
Shelby County Courthouse. Specifically, Wife’s petition for recusal appeal states as
follows: “Per the Order on Motion for Protective Order, Judge Weiss ruled that all
depositions must be held at the Shelby County Courthouse. However, this form of relief
was only sought as it pertained to the deposition of [Husband] within the Motion for
Protective Order.” (Record citations omitted). Such statement is categorically false.
Rather, Husband’s motion contains the following request: “Husband would request that
this Court enter a protective order requiring Wife to take the depositions of Sgt. Mote,
Anthony Mullins, Daniel Cordero, and James Erwin at the Shelby County Courthouse or
some other conference room in a public place.” Thus, the trial court’s decision to require
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these depositions to take place at the courthouse was not outside of the relief requested.5
Accordingly, Wife’s claim that the trial court’s decision to provide Husband with more
relief than requested, thereby illustrating a bias against her, fails with regard to this order.
Wife’s other issues with the trial court’s order on this topic are also unsupported
by the record. Specifically, Wife states that
The Order on Motion to Recuse states that there was not a finding of
“unpredictable and inappropriate” behavior on the part of Ms. Stark, but
based on “it [being] in everyone’s best interest.” However, this is neither
the language included within the order entered, nor the appropriate legal
standard for such a ruling. TN. R. Civ. Pro. 26.03. Instead, said Order, in
relevant part held that “Husband’s Motion was well taken” and “that
Husband’s request that his deposition be taken audiovisually, or in the
presence of a bailiff is reasonable under the circumstances which factors
into the Court’s ruling that said deposition be had only at the Shelby
County Courthouse.” The well-taken motion referenced was supported with
allegations of “unpredictable and inappropriate” behavior and under a
future, cold and inanimate review of the record, should an appellate court
be asked to review a final judgment, said court would likely view the order
as indeed making such a finding. Further, as previously mentioned, counsel
for [Husband] submitted no evidence at the hearing on the Protective Order
but relied solely on legal argument. Said legal argument consisted mainly
of “sometimes she’s a victim and sometimes she’s a prosecutor” and
“personally I do not want to go to [Wife’s] house.”
Thus, it is not the Court’s holding as to where the depositions must be
held that gives rise to this Motion to Recuse, but the implication associated
with the court exceeding the request of the opposing counsel. Additionally,
the court’s order incorporating and approving a motion based on
“unpredictable and inappropriate” behavior as a reason to necessitate the
close proximity of bailiffs, creates an extremely negative picture of Ms.
Stark for future review. This negative inference was never supported, either
by allegation or evidentiary proof, of any potentially dangerous conduct on
Ms. Stark’s part and the complete gratuitousness of the finding create a
reasonable appearance of bias and prejudice.
(Record citations omitted).
5
With regard to the deposition of the out-of-state witness, Husband requested that the deposition
be taken remotely. The trial court denied this relief, ruling that the deposition would be taken in Missouri
as requested by Wife unless the witness agreed to be deposed in Shelby County.
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Respectfully, Wife’s argument on this issue is difficult to discern. As Wife readily
admits, nothing in the order suggests that the trial court found Wife guilty of
“unpredictable and inappropriate” behavior. Rather, the trial court appears to have
exercised its discretion to rule that the depositions should not be taken in Wife’s home
given the nature of the allegations in this case. The fact that the trial court granted
Husband’s motion does not mean that he necessarily credited all of Husband’s
allegations. Simply put, we decline Wife’s invitation to infer some inappropriate motive
from the trial court’s ruling that is not evident from the face of the order or a thorough
review of the record as a whole.
Moreover, again we note that we are not tasked with reviewing the correctness of the
trial court’s rulings, nor does an alleged incorrect ruling, standing alone, provide
evidence of a bias sufficient to warrant recusal. Indeed, reviewing the trial court’s ruling
would be difficult in the absence of a transcript or statement of the evidence to
substantiate Wife’s allegations regarding the evidence presented at this hearing. Cf. In re
M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005) (“When no transcript or statement
of the evidence is included in the record on appeal, we conclusively presume that the
findings of fact made by the trial court are supported by the evidence and are correct.”).
Having determined that the trial court did not rule in excess of the relief requested, we
must conclude that this order provides no evidence of a bias so pervasive as to deny Wife
a fair trial.
The same is true with regard to the ruling on Husband’s petition for a protective order
concerning the social media posts. With regard to this request, Wife takes issue with the
fact that Husband’s petition did not allege that Wife violated the mandatory injunction
put in place upon the filing of the divorce, while the trial court’s order finds that Wife’s
actions were “directly in contravention of the mandatory injunction.” While we agree that
Husband’s motion was not in the nature of a contempt action seeking redress for Wife’s
alleged violation of the mandatory injunction, the existence of the mandatory injunction
was cited in the hearing on Husband’s petition without objection and was subject to
judicial notice by the trial court. See generally Tenn. R. Evid. 201 (governing judicial
notice of facts “not subject to reasonable dispute”). Moreover, the trial court did not
impose any penalty on Wife for the alleged violation of the mandatory injunction other
than to explicitly extend the injunction to cover Wife’s social media and other postings
concerning Husband and the Memphis Police Department. This is exactly the relief that
Husband sought in his motion. The simple fact that the proof at trial, in the trial court’s
view, indeed showed that Wife had violated the injunction already in place is simply not
evidence of a pervasive bias against Wife, nor does it create an appearance of
impropriety.
Likewise, the trial court’s ruling that Wife’s purpose in making the social media posts
was to harass Husband is not evidence of bias or impermissible prejudgment. Here, Wife
chose not to submit any evidence to dispute Husband’s testimony that Wife was
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harassing him through the dissemination of her allegations. Generally, the trial court’s
ruling after hearing evidence is simply not a basis for this Court to conclude that the trial
court impermissibly prejudged the other issues remaining in this case. The trial court may
often be called upon to hear evidence concerning preliminary matters in a case. This may
lead the trial court to make rulings that affect future litigation or to the trial court having
an unfavorable impression of a party. If this alone were evidence of impermissible
prejudgment, any rulings by the trial court on preliminary matters would subject the trial
court to removal efforts. Cf. C.D.B. v. A.B., No. M2018-00532-COA-T10B-CV, 2018
WL 1976119, at *9 (Tenn. Ct. App. Apr. 26, 2018) (“A trial court’s decision to exercise
its authority under Rule 35.01 to move for or order a mental or psychological evaluation
of a party based on knowledge learned during the proceedings is simply insufficient to
show that the trial court had prejudged the disputed issues in the case; were that true, all
trial courts who had ordered Rule 35 examinations would be required to thereafter recuse
from hearing the merits of the dispute.”). Instead, as previously discussed, even where a
trial judge actually develops a bias from in-court interactions, such a bias must be so
pervasive as to deny the litigant the right to a fair trial to warrant recusal. See McKenzie,
2014 WL 575908, at *3. Here, the record simply does not demonstrate any bias on the
part of the trial judge, much less a bias of a pervasive nature.
Finally, Wife takes issue with the trial court’s ruling finding her in contempt. Wife
concedes, however, that the propriety of this ruling is not at issue in this appeal. Rather,
Wife appears to dispute the procedure utilized by the trial court, as Wife was not
permitted a separate hearing before a different judge. Tennessee, however, recognizes
several types of contempt, including direct summary contempt, which may be found
without the benefit of a separate hearing. See Daniels v. Grimac, 342 S.W.3d 511 (Tenn.
Ct. App. 2010) (“A trial judge has the authority to punish direct contempt summarily
when necessary to protect the authority and integrity of the court and to prevent
obstruction of the administration of justice. Direct contempt may be punished summarily
if the judge certifies that he or she saw or heard the conduct constituting contempt.”).
While the correctness of the trial court’s contempt decision may be evaluated by this
Court in another proceeding, the only question in this case is whether the record shows
sufficient evidence of bias or an appearance of impropriety to necessitate recusal.
We conclude that the transcript of this hearing contains no such evidence. Following
the trial court’s oral ruling on the motion for restraining order, Wife essentially invited
the trial court to find her in contempt after stating that she would not follow the trial
court’s order. The trial court gave Wife another opportunity to comply after a break in the
proceedings. Still, however, Wife refused to comply. The trial court thereafter held Wife
in contempt. The transcript at issue reflects no disdain toward Wife or even the hint of a
heated manner exhibited by the trial judge. As such, nothing in the record supports
Wife’s claim that these events create an appearance of impropriety or suggest that the
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trial judge has impermissibly prejudged the remaining issues in this case such that recusal
is warranted.6
In sum, after reviewing Wife’s filing to this Court and the supporting documents, we
conclude that Wife has failed to show a reasonable basis for questioning the trial judge’s
impartiality. In general, a trial court’s unfavorable or even erroneous rulings are
insufficient to show bias. Moreover, even if we were to assume arguendo that a trial
judge’s decision to grant more relief than requested by a party was a basis to question the
judge’s impartiality, the record does not show that this scenario occurred in this case.
Here, the trial court’s decision to require depositions to take place in a public forum was
based on the fact that Wife raised serious allegations of domestic violence in her
complaint. Likewise, the trial court’s decision to grant Husband’s request for a restraining
order resulted from Husband’s testimony that Wife’s decision to disseminate those
allegations in her chosen manner could affect his employment. Finally, the trial court’s
decision to hold Wife in contempt, regardless of whether it proves erroneous, occurred
after Wife essentially invited the trial court to take that action. Wife has not shown that
the any of these decisions were the product of pervasive bias or prejudgment. Simply put,
nothing that occurred in this case would lead a reasonable person to question the judge’s
impartiality. As such, the trial court’s denial of Wife’s motion to recuse is affirmed.
CONCLUSION
The judgment of the Shelby County Circuit Court is affirmed and this cause is
remanded for further proceedings. Costs of this appeal are taxed to Appellant Pamela
Diane Stark, for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
6
For example, Wife asserts because the trial court’s granted Husband a restraining order
concerning Wife’s statements, “it is reasonable to belief [sic] that [the trial judge] has formed an opinion”
as to her tort claims against Husband. Neither the trial court’s written order nor its oral ruling in any way
suggests that the trial court has determined these issues; rather, the trial court specifically notes that an
investigation into the allegation has not concluded.
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