                                                                                         03/12/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                        Assigned on Briefs February 21, 2020

   KIMBERLY JOHNSON DOUGHERTY v. M.E. BUCK DOUGHERTY

                Appeal from the Chancery Court for Fayette County
                  No. 17-531-PP     William C. Cole, Chancellor
                     ___________________________________

                          No. W2020-00284-COA-T10B-CV
                       ___________________________________


This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the
Supreme Court of Tennessee, filed by M.E. Buck Dougherty (“Father”), seeking to
recuse the trial judge in this case involving modification of a parenting plan. Having
reviewed the petition for recusal appeal filed by Father we find that the order of the
Chancery Court for Fayette County (“Trial Court”) did not sufficiently comply with Rule
10B. We, therefore, vacate the Trial Court’s January 30, 2020 order and remand this case
to allow Father to amend his petition and for the Trial Court to either grant the motion or
enter an order that states in writing all the grounds upon which the motion is denied.

               Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right;
             Judgment of the Chancery Court Vacated; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and CARMA DENNIS MCGEE, JJ., joined.

Adam U. Holland and Chanse J. Hayes, Chattanooga, Tennessee, for the appellant, M. E.
Buck Dougherty, III.

Lori Renee Holyfield, Memphis, Tennessee, for the appellee, Kimberly Johnson
Dougherty.


                                       OPINION

       Father and Kimberly Johnson Dougherty (“Mother”) were divorced in June of
2018 by order of the Shelby County Chancery Court (“Shelby Court”). A Permanent
Parenting Plan (“PPP”) for the parties’ three minor children (“the Children”) was entered
along with the divorce decree. The PPP provided for joint decision making as to
educational decisions and further provided that the Children would continue to attend
Westminster Academy until each one graduated from high school. When the divorce
decree was entered, Mother resided in Fayette County, Tennessee, and Father resided in
Hamilton County, Tennessee. After entry of the divorce decree, Mother sought, and was
granted, a transfer of the case to the Trial Court.

        In April of 2019, Mother filed in the Trial Court a petition for civil contempt and
to modify the PPP. Specifically, as pertinent, Mother sought to enroll the Children in
Fayette Academy rather than Westminster Academy. Father filed a response and
counter-petition to modify seeking to enroll the Children in the Signal Mountain,
Tennessee public schools, where Father resided. Mother then filed an emergency motion
to enroll the Children in Fayette Academy. Father responded, and Chancellor Cole of the
Trial Court held a telephone hearing and denied Mother’s emergency motion. Father
continued to pay the tuition and enrollment fees for Westminster Academy to Mother as
provided for in the PPP, including payments for May, June, and July of 2019. Father
later learned that Mother had unilaterally withdrawn the Children from Westminster
Academy and enrolled them in Fayette Academy.

       A hearing was held on September 17, and 18, of 2019 on the petition and counter-
petition. Mother called Father to the witness stand to testify. The central issue in dispute
was where the Children would attend school. After Father testified, the matter was
continued by Chancellor Cole.

        Father filed a motion for recusal on January 21, 2020 seeking to recuse Chancellor
Cole. Father alleged that the Fayette Court Clerk and Master, Amy King Anderson (“the
Clerk”), had been texting a friend regarding Father’s testimony and the custody dispute
while Father was on the witness stand testifying. The Clerk’s friend had some
connection to Father’s extended family. Father also alleged that the Clerk was affiliated
in some capacity with Fayette Academy as either a current or former parent of students
who attended that school. Father also alleged that when Mother learned of the Clerk’s
text, she stated to Father’s counsel that she was relieved to know that the allegations of
improper text messages did not involve her text messages.

       Chancellor Cole denied the motion to recuse by order entered January 30, 2020.
In the January 30, 2020 order, Chancellor Cole found that “neither the text nor the
substance of the text” were made an exhibit or disclosed to the court, that during the
hearing Father’s counsel admitted that she had not seen the text, and that no allegation
was made that the Clerk “rendered editorial comment” about Father’s testimony as the
only allegation was that someone’s name was mentioned in the text. The January 30,
2020 order found that Father had failed to carry his burden that bias or prejudice existed
or that the court was predisposed for or against either party, that Father’s motion was
statutorily deficient because it did not state it was not being presented for an improper

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purpose1, and that Father’s affidavit showed that he knew of the text in September of
2019, but had not filed for recusal until January of 2020 when Mother sought hearing
dates. The January 30, 2020 order stated: “While the Court recognizes that
contemporaneous texting by court personnel is not desirable, by [Father’s] admission the
text only communicated a fact testified to in open court, no different than picking up the
phone after work and telling a friend, ‘Hey, your name was brought up in Court today…..
[sic]were your ears burning?’”

      After Chancellor Cole denied Father’s motion to recuse, Father learned that
Chancellor Cole had presided over a court reenactment during a class at Fayette
Academy and that Chancellor Cole’s wife is a faculty member at Fayette Academy.
Father asserts that Chancellor Cole never disclosed to the parties that his wife is
employed by Fayette Academy as a faculty member.

                                             ANALYSIS

       We have determined in this case after a review of the petition and supporting
documents submitted with the petition that an answer, additional briefing, and oral
argument are unnecessary to our disposition because the record provided by Father
demonstrates error by the Trial Court Chancellor. See Tenn. Sup. Ct. R. 10B, § 2.05 (“If
the appellate court, based upon its review of the petition for recusal appeal and
supporting documents, determines that no answer from the other parties is needed, the
court may act summarily on the appeal. Otherwise, the appellate court shall order that an
answer to the petition be filed by the other parties. The court, in its discretion, also may
order further briefing by the parties within the time period set by the court.”); § 2.06 (“An
accelerated interlocutory appeal shall be decided by the appellate court on an expedited
basis. The appellate court’s decision, in the court’s discretion, may be made without oral
argument.”).

       We 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.’”
Neamtu v. Neamtu, No. M2019-00409-COA-T10B-CV, 2019 WL 2849432, at *2 (Tenn.
Ct. App. July 2, 2019), no appl. perm. appeal filed, (quoting 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), no appl. perm. appeal filed). When
dealing with a Rule 10B appeal, the only order this Court may review is the trial court’s
order denying recusal. Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012).

1
  The Trial Court’s order notes that Father’s motion to recuse did not comply with Rule 10B because it
did not state it was not being presented for an improper purpose. However, as the Trial Court decided the
motion on its merits, we approach this appeal in the same manner.
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Pursuant to Rule10B: “Upon the filing of a motion pursuant to section 1.01, the judge
shall act promptly by written order and either grant or deny the motion. If the motion is
denied, the judge shall state in writing the grounds upon which he or she denies the
motion.” Tenn. Sup. Ct. R. 10B § 1.03.

       In his petition, Father alleges that the Trial Court’s January 30, 2020 order fails to
comply with Rule 10B because it fails to address and make specific findings relative to
Father’s allegations. After reviewing the petition for recusal and the supporting
documents, we agree. The January 30, 2020 order does not make specific findings about
the text allegedly sent by the Trial Court’s Clerk while Father was testifying. Instead, the
Trial Court simply “recognizes that contemporaneous texting by court personnel is not
desirable,” and likens the alleged text to being “no different than picking up the phone
after work and telling a friend, ‘Hey, your name was brought up in Court today….. [sic]
were your ears burning?’” The Trial Court further failed to make any findings
whatsoever about the allegations that the Clerk has an affiliation with Fayette Academy,
which is particularly relevant given that the major dispute in this case involves whether
the minor children will attend Fayette Academy or not.

       As for Father’s allegations on appeal with regard to the fact that Chancellor Cole
presided over a court reenactment during a class at Fayette Academy, that Chancellor
Cole’s wife is a faculty member at Fayette Academy, and that Chancellor Cole never
disclosed to the parties that his wife is employed by Fayette Academy as a faculty
member, we find that these allegations were not presented to the Trial Court. Issues may
not be raised for the first time on appeal. Powell v. Community Health Sys., Inc., 312
S.W.3d 496, 511 (Tenn. 2010). Chancellor Cole 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.

        As we have determined that Chancellor Cole made insufficient findings as to his
reasoning for denying the motion to recuse as required by Rule 10B, § 1.03, we vacate
the Trial Court’s January 30, 2020 order. This case is remanded to the Trial Court to
allow Father to amend his motion to comply with Rule 10B and to allege the facts
discovered after his motion to recuse was denied, in order to allow the Trial Court to
make specific findings and rule upon all of the allegations and either grant the motion or
state in writing all the grounds upon which the motion is denied.




                                                  _________________________________
                                                  D. MICHAEL SWINEY, CHIEF
       JUDGE

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